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Welcome to NUALO™ Brand Partner Solutions, a suite of optional services offered to Independent sellers. This suite of services includes, but is not necessarily limited to: Selling on NUALO™, US based Fulfilment by NUALO, Transaction Processing SERVICES by NUALO™, the Brand Partner API® and NUALO Business Development SERVICES®. The sole intent and purpose of any NUALO SERVICES is the facilitation and support of a Peer-to-Peer Social Selling Community. In no circumstance shall the provision by NUALO of any SERVICE to a Brand Partner be understood as an offering of lead generation, marketing or other sales creation promises or guarantees.
THIS NUALO™ INDEPENDENT BRAND PARTNER SOLUTIONS AGREEMENT (THE "AGREEMENT") DEFINES THE TERMS AND CONDITIONS GOVERNING YOUR ACCESS TO AND USE OF THESE SERVICES (IN EACH CASE, “SERVICE,” “SERVICES” OR “THE SERVICES”, SYNONYMOUSLY). THE AGREEMENT IS BETWEEN YOU AND/OR THE BUSINESS YOU REPRESENT AND NUALO. BY REGISTERING FOR AND/OR USING ANY OF THESE SERVICES, YOU (ON BEHALF OF YOURSELF AND/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 ANY COUNTRY OR OTHER FOREIGN JURISDICTION FOR WHICH YOU REGISTER OR ELECT AND QUALIFY TO USE A SERVICE (IN EACH CASE, THE "ELECTED COUNTRY"). THIS AGREEMENT IS WRITTEN IN ENGLISH; AND THE ENGLISH VERSION SHALL REMAIN, IN ANY AND ALL CIRCUMSTANCES, THE CONTROLLING AND DEFINITIVE LEGAL VERSION OF THIS AGREEMENT. IRRESPECTIVE OF ANY TRANSLATION THAT MIGHT BE PERFORMED AND/OR INCLUDED IN THE AGREEMENT, THE ENGLISH VERSION SHALL IN ALL SITUATIONS AND CIRCUMSTANCES REMAIN THE GOVERNING VERSION.
1.0 THE AGREEMENT
1.1 GENERAL TERMS & DEFINITIONS.
As used in this Agreement, "we," "us," “our” and "NUALO" mean NUALO, its Contracting Party and any of its Affiliates, employees and board members and other entities as applicable to this agreement. In addition, "you”, “You”, “your”, and “Your” mean the applicant (if registering for or using any SERVICE as an individual), or the business employing the applicant (if registering for or using a SERVICE as a business) and any Affiliated parties. Words and terms that are capitalized have meaning as established in this Agreement.In the case of any conflict between these General Terms and the applicable SERVICE Terms and Program Policies, the General Terms will govern, and the applicable SERVICE Terms shall supersede and prevail over any conflicting Program Policy(ies). Furthermore, as used in this agreement, the following terms have specific meanings as follows:
“Brand Partner” means a NUALO user who has been approved to use any NUALO Brand Partner Solution or SERVICE.
“Brand Boutique” means a co-branded ecommerce website platform with customizable front-site portal, and co-branded user-account and checkout.
"SERVICE" means each of the following services: Selling on NUALO, Fulfillment by NUALO, the Selling Partner APIs and the Transaction Processing SERVICES.
"Brand Partner Hub or BP Hub" means the online portal, SERVICES and any other tools as may be made available by NUALO to you, for your use in managing your orders, inventory, and presence on a particular NUALO “Brand Boutique”, together in each case with any related services and materials we make available.
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
"NUALO Associated Properties" means any website or other online point of presence, mobile application, service or feature, other than an NUALO Site, through which any NUALO Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised, or described.
"NUALO Contracting Party", unless otherwise specified in writing by NUALO, shall mean Envex.com, LLC DBA NUALO, hereafter NUALO, a Utah entity in the United States (US) and its assignees. NUALO is a trademark of Envex.com, LLC DBA NUALO, all rights reserved.
"NUALO Site" means, as applicable, any NUALO Site, domain, subdomain or variation thereof (including all Top-Level Domain extensions and derivative domains, including country specific domains), including Brand Partner White Label or Co-branded domains served by NUALO.
"Confidential Information" means information relating to us, to the SERVICES, or NUALO customers which is not known to the general public including, but not limited to, any information identifying or unique to specific customers; reports, insights, and other information about the SERVICES; data derived from the SERVICES except for data (other than customer personal data) arising from the sale of your products comprising of products sold, prices, sales, volumes and time of the transaction; and technical or operational specifications relating to the SERVICES. For the purposes of this Agreement, customer personal data constitutes Confidential Information at all times.
"Content" means copyrightable works under applicable Law and content protected by database rights under applicable Law.
"Excluded Products" means any item or service disallowed for sale by NUALO, the law(s), statute(s) or governmental agencies or authorities of a given country or countries, and any other applicable Program Policy or other information made available to you by NUALO.
"Governing Courts" means the US Federal court in Salt Lake County, Utah.
"Governing Laws" means the laws of the State of Utah and the United States together with the Federal Arbitration Act and other applicable federal law.
“Insurance Threshold” means the total limit, as defined by us, of global and/or single country sales at which you shall be required to maintain an insurance policy or policies which meet NUALO’s Insurance Limits.
"Insurance Limits" means, unless otherwise specified in a duly endorsed agreement between you and NUALO, an insurance policy the equivalent of US$1,000,000, valid in the US or (as may be required by NUALO) any or all countries into which your products are sold via the NUALO platform. A combination of multiple, equivalent policies in 2 or more countries, each individually in the same amount and jointly covering the totality of your your liability in all countries into which your products are sold via NUALO SERVICES, may also be considered, collectively, as commensurate with--and acceptable as--meeting the definition of “Insurance Limits.” This limit may be increased by NUALO, at our discretion, if considered appropriate and necessary by us and/or required by a governmental agency, laws or related circumstances. This definition shall not replace any specific insurance guarantees outlined in this agreement.
“Not-for-Resale”, “Personal-Use”, and “For-Personal-Use-Only” shall be understood to mean the legal sale of products from the United states into a given country as permitted by US law and the laws and regulations of the country into which an item, service, or other product is sold.
"Intellectual Property Right" means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
"Law" means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.
"Local Currency" means US Dollars or, upon election by or policy of NUALO, the currency of the country in which a product, service or other good is sold, delivered or otherwise exchanged via a SERVICE, and/or the currency of the country in we may allow SERVICE payments.
"Optional Coverage Plans" means warranties, extended service plans and related offerings, in each case that you offer.
"Order Information" means, with respect to any of Your Products ordered through any NUALO Site or SERVICE, the order information and shipping information that we provide or make available to you.
"Person" means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
"Program Policies" means all policies and program terms provided on the Program Policies page.
“Tax Policies” means the applicable tax policies of the US, the country from which the product is sold and the delivery destination country.
"Sales Proceeds" means the gross proceeds from any of Your Transactions, including (1) all shipping & handling, processing, literature inclusion, custom handling and other related charges; (2) taxes and customs duties as required by by applicable Tax Policies, regulations, laws or other governmental authority; and (3) in the case of invoiced orders, any amounts that customers fail to pay to us or our Affiliates on or before the applicable invoice due date.
"SERVICE Terms" means the service terms applicable to each SERVICE, which are made part of this Agreement upon the date you elect to register for or use the applicable SERVICE, and any subsequent modifications we make to those terms.
"Technology" means any: (1) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (2) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and 3) software, hardware, code, technology, or other functional item.
"Trademark" means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
"Your Materials" means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to NUALO or its Affiliates.
"Your Personnel" means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
"Your Product" means any product or service (including Optional Coverage Plans) that you: (1) have offered through the Selling on NUALO SERVICE; (2) have made available for advertising through the NUALO Advertising SERVICE; or (3) have fulfilled or otherwise processed through the Fulfillment by NUALO SERVICE.
"Your Sales Channels" means all sales channels and other means through which you or any of your Affiliates offers products or services, other than physical stores.
"Your Taxes" means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the SERVICES; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. This defined term may also means any of the types of taxes, duties, levies, or other fees mentioned above that are imposed on or collectible by NUALO or any of its Affiliates in connection with, or as a result of, fulfillment services, including the storage of inventory or packaging of Your Products and other materials owned by you and stored by NUALO, shipping, gift wrapping, or other action or service performed by NUALO in relation to Your Products pursuant to the Fulfillment by NUALO SERVICE Terms.
"Your Trademarks" means Trademarks of yours that you provide to us: (1) in non-text form for branding purposes; and 2) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
"Your Transaction" means any sale of Your Product(s) through an NUALO Site.
"NUALO-Fulfilled Products" means any of Your Products that are fulfilled using the Fulfillment by NUALO SERVICE.
"NUALO Refund Policies" means the return and refund policies published on the applicable NUALO Site and applicable to products and services offered via that NUALO Site.
"BMVD Product" means any book, magazine or other publication, sound recording, video recording, and/or other media product in any format, including any subscription, in each case excluding any software product, computer game, and/or video game.
"Excluded Offer" means any discount, rebate, promotional offer, or other term of offer and/or sale that you: (a) have attempted to make available through a particular NUALO Site but that we do not honor or support (but only until such time as we honor or support the same on such NUALO Site); or (b) make available solely to third parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers), or (ii) if the Elected Country is Canada, Mexico, or the United States, have affirmatively elected and opted-in to participate in your or one of your Affiliates' membership-based customer loyalty or customer incentive programs.
"Expected Ship Date" means, with respect to any of Your Products, either: (a) the end of the shipping availability period (which begins as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant inventory/product data feed for Your Product; or (b) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that NUALO designates as requiring shipment within two (2) business days, two (2) business days after the date on which the relevant order is placed by the customer.
"Media Product" means any book, magazine or other publication, sound recording, video recording, software product, computer game, videogame, or other media product in any format, including any related subscription, offered through an NUALO Site.
"Purchase Price" means the total amount payable or paid for Your Product (including taxes and shipping and handling charges only to the extent specified in the applicable Brand Partner Tax Policies).
"Remittance Calculation Date" is the day upon which the commission for a sale is calculated by NUALO’s, typically 1) the same day a sale is completed; and 2) not more than two (2) business days prior to the date of remittance (the "Remittance Calculation Date"). “Calculation”, in this context does not convey any rights or guarantees; and any SERVICE payment may be amended as per the terms of this agreement.
"Required Product Information" means, with respect to each of Your Products in connection with a particular NUALO Site or SERVICE, the following (except to the extent expressly not required under the applicable Program Policies): (a) description, including as applicable, location-specific availability and options, scheduling guidelines and service cancellation policies; (b) SKU and UPC/EAN/JAN numbers, and other identifying information as NUALO may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, Shipment Information, the minimum stock levels you agree to maintain, and the dimensions, weights, pallet type and unit count respective to your product pallets (in each case, in accordance with any categorizations prescribed by NUALO from time to time); (d) categorization within each NUALO product category and browse structure as prescribed by NUALO from time to time; (e) digitized image that accurately depicts only Your Product, complies with all NUALO image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) shipping and handling charge (in accordance with our standard functionality); (h) any text, disclaimers, warnings, notices, labels, warranties, or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising, or sale of Your Product; (i) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers (and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products; and invoices and other documentation demonstrating the safety and authenticity of Your Products).
"Seller-Fulfilled Products" means any of Your Products that are not fulfilled using the Fulfillment by NUALO SERVICE.
"Shipment Information" means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
"Street Date" means the date(s), if any, specified by the manufacturer, distributor, and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier, or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com).
"Your Transaction" is defined in the General Terms of this Agreement; however, as used in these Selling on NUALO SERVICE Terms, it means only any and all such transactions selling through or on a NUALO Site, SERVICE or other medium.
"NUALO Fulfillment Units" means Units fulfilled using Fulfillment by NUALO that are sold through an NUALO Site. For avoidance of doubt, if you have successfully registered for or used both the Fulfillment by NUALO and Selling on NUALO SERVICEs, then the term "NUALO Fulfillment Units" and the defined term "NUALO Fulfilled Products" in the Selling on NUALO SERVICE Terms both refer to the same items.
"Fulfillment by NUALO Excluded Product" means any Unit that is an Excluded Product or is otherwise prohibited by the applicable program policies.
"Foreign Address" means any mailing address that is NOT (a) within the fifty contiguous states of the United States or Puerto Rico, or (b) an APO/FPO address.
“Domicile Country” and “Country of Residence”
"Fulfillment Request" means a request that you submit to us (in accordance with the standard methods for submission prescribed by us) to fulfill one or more Multi-Channel Fulfillment Units.
"Multi-Channel Fulfillment Units" has the meaning in Section 3.0
"Sellable Unit" means a Unit that is not an Unsuitable Unit.
"Seller Agreement" means the Selling on NUALO SERVICE Terms, the Merchants@ Program Agreement, the Marketplace Participation Agreement, any successor to any of these agreements, or any other similar agreement (as determined by NUALO) between you and us that permits you to offer products and services via a particular NUALO Site.
"Shipping Information" means with respect to any purchased Unit(s), the following information: the name of the recipient, the shipping address, the quantity of Units to be shipped, and any other shipping-related information we may reasonably request.
"Unit" means a unit of Your Product that you deliver to NUALO in connection with the Fulfillment by NUALO Program.
"Unsuitable Unit" means a Unit: (a) that is defective, damaged, unfit for a particular purpose, or lacking required label(s); (b) the labels for which were not properly registered with NUALO before shipment or do not match the product that was registered; (c) that is an Fulfillment by NUALO Excluded Product or does not comply with the Agreement (including applicable SERVICE Terms and Program Policies); (d) that NUALO determines is unsellable or unfulfillable; or (e) that NUALO determines is otherwise unsuitable.
“SERVICE Onboarding” means your completion of all NUALO requirements established by us for participation in or use of a SERVICE.
1.2 ENROLLMENT FOR AND USE OF SERVICES.
1.3 SERVICE FEE PAYMENTS AND SALE PROCEEDS.
Fee details are described in the applicable SERVICE Terms and Program Policies. You are a US 1099 or W8-BEN Independent Contractor, and never a NUALO employee. As such are responsible for any and all expenses you may incur in connection with this Agreement or the use of SERVICES. To use a SERVICE, you must provide us with valid VISA, Mastercard or AMERICAN Express credit card information, enabled by your bank to function in the US and accept charges in US$, issued in your name or the name of your business ("Your Credit Card") as well as valid US bank account information for a bank account or accounts acceptable NUALO ("Your Bank Account"). The conditions under which we may accept or reject this banking information may be modified or discontinued by us at any time and without notice. . You shall use only a name which you are authorized to use in connection with a SERVICE. Should any part of the information you provide us ever change, you will update us with the applicable details within 5 business days. At all times you will ensure that any and all information which you have provided to us in connection with the SERVICES remains accurate, correct, complete, and valid. You authorize us (and, upon our request, will provide us documentation evidencing your grant of authorization) to verify and validate your information (including any information you may provide as an update), to obtain credit reports about you from time to time. You also grant us authorization to obtain credit authorizations from the issuer of Your Credit Card and to charge Your Credit Card (or debit Your Bank Account) for any sums payable by you to us (as fees, reimbursement or other financial obligations). All payments to you will be remitted to you through a processor, banking network or other means specified by us.
If we determine that you ,performance, representations, inability or other actions or circumstances may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to NUALO (or third parties), then we may, in our sole discretion, withhold any payments due you for as long as we determine a related risk or risks to NUALO (or third parties) persist. For any amounts that we determine you owe us, you authorize us to (1) charge Your Credit Card or any other payment instrument you provide to us; (2) 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; (3) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (4) reverse any credits to Your Bank Account; and/or (5) collect payment or reimbursement from you by any other lawful means. Should 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 shall be expressed and displayed in US dollars or other local currency as allowed by governing US law and the laws of the Country into which a payment is made all payments contemplated by this Agreement will be made in US Dollars.
We may also 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, violation of our terms or policies, or other risks to NUALO or third parties. These amounts may be refundable or nonrefundable in the manner we establish. Any failure to comply with terms of this Agreement, including any applicable Program Policies, may result in the forfeiture of these amounts.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers respecting 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). You accept that we assume no liability to you if: (1) we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (2) we permit a customer to withdraw from a transaction because an NUALO Site or SERVICE is was or became unavailable following the commencement of a transaction.
1.4 AGREEMENT TERM AND TERMINATION.
The term of this Agreement begins the day you complete your registration for use of a SERVICE, and continues according to the provisions of this agreement--particularly, but not necessarily limited to--those outlined in sections 1.4 and 2.6 of this agreement--or until terminated by us or you as provided in this Agreement. You may terminate your use of any SERVICE at any time upon written and legally validated notice to us via post, email or similar means, unless otherwise specifically stipulated by the SERVICE Terms and Program Policies or the Laws of the Utah or the United States of America. We may terminate your use of any SERVICES or terminate this entire Agreement for convenience with 30 calendar days’ advance notice. We may also suspend or terminate your use of any SERVICES immediately if we determine that: (1) you have materially breached the Agreement and failed to cure within 7 days of a cure notice unless your breach exposes us to liability toward a third party, in which case we are entitled to reduce, or waive, the aforementioned cure period at our reasonable discretion; (2) your account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity; or (3) your use of the SERVICES has harmed, or our controls identify that it might harm, other sellers, customers, or NUALO’s legitimate interests. We will promptly notify you of any such termination or suspension via email or similar means, indicating the reason and any options to appeal, except where we have reason to believe that providing this information will hinder the investigation or prevention of deceptive, fraudulent, or illegal activity, or will enable you to circumvent our safeguards. Upon termination of this Agreement, all commensurate rights and obligations under this Agreement immediately terminate, except that (a) you will remain responsible for performing all of your obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination as well as any obligations that may apply, and (b) all of these General Terms shall survive.
1.5 GRANT OF LICENSE.
By using any SERVICE, you grant us a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative intellectual property rights to use any and all of Your Materials for the SERVICES or other NUALO product or service, and to sublicense the foregoing rights to our Affiliates and operators of NUALO. We agree not to alter or modify any of Your Trademarks from the form provided by you to us, except where such alteration may be necessary to re-size trademarks to an extent needed for presentation. In any circumstance where alteration by us is necessary, we will maintain the pre-alteration proportions of your trademarks , insofar as reasonably possible) and will comply with your removal requests as to specific uses of Your Materials (provided you are unable to do so using standard functionality made available to you via the applicable NUALO Site or SERVICE); however,nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
Each party represents and warrants that it is an entity legally authorized to conduct business in the United States and its respective country of residence (if different) and that: (1) if it is a business, it is duly organized, validly existing and in good standing under the Laws of the country in which the business is registered and that you are registering for the SERVICE(S) within such country; (2) it has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights, licenses, and authorizations in this Agreement; (3) any information provided or made available by one party to the other party or its Affiliates is at all times accurate and complete; (4) it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; (5) it will comply with all applicable Laws in performance of its obligations and exercise of its rights under this Agreement; and, where applicable, it will comply with the United States Foreign Corrupt Practises Act.
1.7 OBLIGATIONS AND INDEMNIFICATION.
1.7.1 Your Obligations.
Your indemnification obligations. You agree to defend, indemnify, and hold harmless NUALO, and our officers, directors, employees, and agents, against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to (1) your non-compliance with applicable Laws; 2) Your Products, including the offer, sale, fulfillment (except to the extent attributable to the Fulfillment by NUALO service), refund, cancellation, return, or adjustments thereof, Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death (to the extent the injury or death is not caused by NUALO), or property damage related thereto; (3) Your Taxes and duties or the collection, payment, or failure to collect or pay Your Taxes or duties, or the failure to meet tax registration obligations or duties; or (4) actual or alleged breach of any representations you have made.
1.7.2 NUALO’s OBLIGATIONS.
NUALO will defend, indemnify, and hold harmless you and your officers, directors, employees, and agents against any third-party Claim arising from or related to: (1) NUALO’s non-compliance with applicable Laws; or (2) allegations that the operation of an NUALO Site infringes or misappropriates that third party’s intellectual property rights.
If any indemnified Claim might adversely affect us, we may, to the extent permitted by applicable Law, voluntarily intervene in the proceedings at our expense. No party may consent to the entry of any judgment or enter into any settlement of an indemnified Claim without the prior written consent of the other party, which may not be unreasonably withheld; except that a party may settle any claim that is exclusively directed at and exclusively affects that party.
1.8 DISCLAIMER AND GENERAL RELEASE.
All NUALO sites and SERVICES, including all content, software, functions and intellectual property which may be made available on or provided in connection with any SERVICES, are provided "AS-IS," with no warranty, neither expressed nor implied. As a SERVICE user, you use any NUALO site as governed by US and Utah law; furthermore, we and our affiliates, disclaim: (1) any representations or warranties regarding this agreement, the SERVICES or the transactions contemplated under this agreement, including any warranty of quality, merchantability, infringement, fitness for a purpose, or non-infringement; (2) any warranties, implied or explicit, arising from the course of selling or dealing, the course of performance, or the usage of trade; and (3) any obligation, liability, right, claim, tort remedy, irrespective of whether or not said obligation arises from our negligence. We do not guarantee that the functions of any NUALO site or SERVICE will meet your requirements, be available at all times, meet the regulatory requirements of any country or legal nexus except the US, or be error free. We shall not be liable for any SERVICE interruptions, including, but not necessarily limited to, system failures, internet reliability, and related failures which may affect the availability, receipt, processing, acceptance, completion or settlement of any transaction.
Because NUALO is extraneous from, is not involved in, and does not participate in transactions between you and Customers or Participants or any other nature or kind of dealings between you and Customers or Participants, should a dispute arise between one or more Customers or Participant, each Participant releases NUALO, and its agents and employees, from claims, judgements, demands and damages (be they actual or consequential) of every kind and nature, be they known or unknown, intentional or unintentional, suspected or unsuspected, disclosed or undisclosed, or otherwise arising in any way from or in any way associated with such disputes between you and Participants, Customers, Clients, etc.
1.9 LIMITATION OF LIABILITY.
We shall 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 where NUALO has been advised of the possibility of those costs or damages. Furthermore, in no circumstance shall our aggregate liability arising out of or in connection with this agreement or the transactions contemplated herein will not exceed at any time the total amounts during the prior six month period paid by you to NUALO in connection with the particular service giving rise to the claim.
If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during each month over any period of three (3) consecutive months, or otherwise if requested by us, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term for each applicable Elected Country commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming NUALO and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage to the following address: c/o NUALO, 10808 S. Riverfront Parkway #3061, South Jordan, Utah, 84095, Attention: Risk Management.
1.11 TAX MATTERS.
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that (i) NUALO may automatically calculate, collect, or remit taxes on your behalf in accordance with applicable law; or (ii) NUALO expressly agrees to receive taxes or other transaction-based charges on your behalf in connection with tax calculation services made available by NUALO and used by you. You agree to and will comply with the Tax Policies. All fees and payments payable by you to NUALO under this Agreement or the applicable SERVICE Terms are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes, duties and other related levies), and you will be responsible for paying NUALO any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.
1.12 CONFIDENTIALITY AND PERSONAL DATA.
During the course of your use of the SERVICES, you may receive Confidential Information.
You agree that for the term of the Agreement and 5 years after termination: (a) all Confidential Information will remain NUALO'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 except as required to comply with the Law; (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; and (e) you will retain Confidential Information only for so long as its use is necessary for participation in the SERVICES or to fulfill your statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfillment of statutory obligations. The foregoing sentence does not restrict your right to share Confidential Information with a governmental entity that has jurisdiction over you, provided that you limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. 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. You may only use the "Available at NUALO" or "Powered by NUALO" terms, icons and other forms in which it appears as defined in and according to the Trademark Usage guidelines as available in Brand Partner Central; you may not use our name, trademarks, or logos in any way (including in promotional material) not covered by the Trademark Usage Guidelines without our advance written permission.
1.12.2 PERSONAL DATA.
Generally, you may not use customer personal data in any way inconsistent with applicable Law. You must keep customer personal data confidential at all times (the above 5 years’ term limit does not apply to customer personal data).
1.13 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.
1.14 RELATIONSHIP OF PARTIES.
1.15 SUGGESTIONS AND OTHER INFORMATION.
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any NUALO Site or SERVICE (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. If we make suggestions on using the SERVICES, you are responsible for any actions you take based on our suggestions.
1.16 MODIFICATION OF THIS AGREEMENT.
We reserve the right to amend the terms of this agreement and will provide at least 15 days’ advance notice prior to any modification. Notwithstanding with advance notice period, we may change or modify the Agreement at any time with immediate effect (1) for legal, regulatory, fraud and abuse prevention, or security reasons; (2) to change existing features or add additional features to the SERVICES (where this does not materially adversely affect your use of the SERVICES); or (3) to restrict products or activities that we deem unsafe, inappropriate, or offensive. We will notify you about any such immediate change or modification. Your continued use of the SERVICES after the effective date of any change to this Agreement shall constitute your acceptance of that change. If any change is unacceptable to you, you agree not to use the SERVICES and to end the Agreement as agreed and described in this agreement.
1.17 PASSWORD SECURITY
Any password we provide to you may be used only during the Term to access the Brand Partner Hub (or other tools we provide, as applicable) 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.
1.18 EXPORT AND FREIGHT FORWARDING.
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
1.19 ORDER FULFILLMENT.
You may elect to fulfill orders placed through a SERVICE through your own fulfillment service or the Fulfillment by NUALO SERVICE. Irrespective of which method you choose, you agree that (1) you will make every reasonable and customary effort to ensure that adequate inventory exists to fulfill all SERVICE orders, (2) you will ensure, insofar as is reasonably possible, that an out of stock condition never occurs, and that such a circumstance may be cause for us, at our discretion, to withhold any payments due you and take any other action as we determine is reasonable and necessary to protect both NUALO and SERVICE customers from loss; (3) if a your product or service is not available for shipment or other delivery the next day, it is considered to be in an “out of stock condition” as referenced in item #2 immediately above; and (4) if you do not use the Fulfillment by NUALO SERVICE, you will employ a shipping software system that accepts data import, export and column match files for API data exchange with NUALO.
Onboarding Requirements. Prior to to your use of a SERVICE, you agree to provide us with data, descriptions, certifications, certificates and other items and information as us we request in writing, including, but not limited to (1) manufacturing or other invoices for the production or provision of a product or service; (2) photos, descriptions and other data necessary to make use of a SERVICE; (3) photos of and signed, written certification of your on-hand product quantities, if a product and you are not using the Fulfillment by NUALO SERVICE, (3) signed, written certification, description and other evidence as may be required by us as to your ability to provide a service.
1.21 SERVICE FEES.
All SERVICE fees shall be established, by mutual written agreement between you and us, in a separate service fee agreement before any SERVICE Onboarding may occur.
1.22 BRAND BOUTIQUE BRAND PARTNER SPLITS & FEES.
Selling On NUALO Fee Schedule: NUALO collects the lower of (1) 75% of the Retail Purchase Price (hereinafter referred to as “Base”) where You do not use a Fulfillment by NUALO SERVICE; or (2) the Base plus any Fulfillment by NUALO SERVICE fees; or (3) where You have discontinued manufacture, production, and/or distribution (as described in SECTION 2.6), the prevailing retail purchase price less 1% to 3% (as disclosed to you by us); and/or (4) the applicable fees as otherwise stipulated in this agreement and/or mutually agreed to in writing between you and us. This does not apply to certain sellers, such as service providers, who will continue to pay selling fees in accordance with the rates provided in their program agreements. For all products, NUALO deducts the applicable referral fee percentage calculated on the total sales price, excluding any taxes calculated through NUALO tax calculation services.
The Governing Laws shall govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. You consent that any dispute with NUALO or its Affiliates, or claim relating in any way to this Agreement or your use of the SERVICES, shall be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or we may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Before you may begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our Legal Department at 10808 S. Riverfront Parkway #3061, South Jordan, Utah 84095. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. The expedited procedures of the AAA’s rules will apply only in cases seeking exclusively monetary relief under $50,000, and in such cases the hearing will be scheduled to take place within 90 days of the arbitrator’s appointment. Likewise, NUALO will not seek attorneys' fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location. NUALO and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration NUALO and you each waive any right to a jury trial.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt to assign or otherwise transfer in violation of this section is void; provided, however, that upon notice to NUALO, you may assign or transfer this Agreement, in whole or in part, to any of your Affiliates as long as you remain liable for your obligations that arose prior to the effective date of the assignment or transfer under this Agreement. You agree that we may assign or transfer our rights and obligations under this Agreement: (1) in connection with a merger, consolidation, acquisition or sale of all or substantially all of our assets or similar transaction; or (2) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for NUALO as the party to this Agreement. 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. NUALO retains the right to immediately halt any of Your Transactions, prevent or restrict access to the SERVICES or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by applicable Program Policies. Because NUALO is not your agent (except for the limited purpose set out in the Transaction Processing SERVICE Terms (if the Elected Country for a SERVICE is the United States)), or the customer’s agent for any purpose, NUALO will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.
NUALO will provide notice to you under this Agreement by posting changes to the Brand Partner Hub or to the applicable NUALO SERVICES site to which the changes relate (such as the Developer Site accessible through your account), by sending you an email notification, or by similar means. You must send all notices and other communications relating to NUALO to our Brand Partner Support team via the Brand Partner Hub, email, the Contact Us form, or similar means. We may also communicate with you electronically and in other media, and you consent to such communications. You may change your email addresses and certain other information in the Brand Partner Hub, as applicable. You will ensure that all of your information is up to date and accurate at all times.
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. If the Elected Country is Canada, then it is the express wish of the parties that this Agreement and the applicable SERVICES Terms and Program Policies have been drafted in English. (The following is a French translation of the preceding sentence: Si le pays de service est le Canada, les parties conviennent que la présente autorisation et tous les termes et conditions applicables s'y rattachant soient rédigés en anglais.) We may make available translations to this Agreement and the applicable SERVICE Terms and Program Policies, but the English version will control. This Agreement represents the entire agreement between the parties with respect to the SERVICES and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
2.0 “SELLING ON NUALO” SERVICE TERMS.
The Selling on NUALO SERVICE ("Selling on NUALO") is a SERVICE that allows you to offer certain products and services directly on the NUALO Sites.These Selling on NUALO SERVICE Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on NUALO. By registering for or using the selling on NUALO service, you (on behalf of yourself or the business you represent) agree to be bound by this Agreement and those policies referenced as presented in NUALO’s Brand Partner Central. Notwithstanding the previous sentence, if you have entered into a separate agreement that permits you to offer your products through a particular site, then to the extent that you continue to list and sell your products on that NUALO site pursuant to such separate agreement, transactions of your products on that NUALO site and any tax services we make available under that agreement are governed by the terms of that agreement and not by these selling on NUALO service terms.
2.1 YOUR PRODUCT LISTINGS AND ORDERS.
2.1.1 PRODUCTS AND PRODUCT INFORMATION.
You will provide accurate and complete Required Product Information for each product or service that you offer through any NUALO Site and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on any NUALO Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on any NUALO Sites; or provide any URL Marks for use, or request that any URL Marks be used, on any NUALO Site. If you offer a product for sale on a NUALO Site that requires a warning under California Health & Safety Code Section 25249.6 (a “Proposition 65 Warning”) you (a) will provide us with such warning in the manner specified in our Program Policies, (b) agree that our display of a Proposition 65 Warning on a product detail page is confirmation of our receipt of that warning, and (c) will only revise or remove a Proposition 65 Warning for a product when the prior warning is no longer legally required.
2.1.2 PRODUCT LISTING; MERCHANDISING; ORDER PROCESSING.
We will enable you to list Your Products on a particular NUALO Site, and conduct merchandising and promote Your Products in accordance with the Agreement (including via the NUALO Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable NUALO Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and NUALO may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the applicable NUALO Site. We will also receive all Sales Proceeds on your behalf for each of these transactions and will have exclusive rights to do so, and will remit them to you in accordance with these Selling on NUALO SERVICE Terms. We may permit certain customers to place invoiced orders for Your Products, in which case remittance of Sales Proceeds may be delayed according to each customer’s invoicing terms. You will accept and fulfill invoiced orders in the same manner as you accept and fulfill non-invoiced orders, except as otherwise provided in this Agreement.
2.1.3 SHIPPING AND HANDLING CHARGES.
For Your Products ordered by customers on or through an NUALO Site that are not fulfilled using Fulfillment by NUALO, you will determine the shipping and handling charges subject to our Program Policies and our standard functionality requirements (including any category-based shipping and handling charges we determine, such as for products offered by sellers on the Individual selling plan and BMVD Products generally). When we determine the shipping and handling charges, you will accept them as payment in full for your shipping and handling. Please refer to the Fulfillment by NUALO SERVICE Terms for Your Products that are fulfilled using Fulfillment by NUALO.
2.1.4 CREDIT CARD FRAUD AND UNPAID INVOICES.
We will bear the risk of (1) credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions; and (2) late payments or defaults by customers in connection with invoiced orders for Your Products, except, in each case, in connection with Seller-Fulfilled Products that are not fulfilled strictly in accordance with the Order Information and Shipment Information; however, we reserve the right to adjust, limit, postpone or cancel any Sales Proceeds accordingly. You will bear all other risk of fraud or loss.
2.1.5 SALE, FULFILLMENT, REFUNDS AND RETURNS.
126.96.36.199 SALE AND FULFILLMENT.
Other than as described in the Fulfillment by NUALO SERVICE Terms for each NUALO Site for which you decide to register or use the Selling on NUALO SERVICE, you will: (a) source, offer, sell and fulfill your Seller-Fulfilled Products, and source and, offer and sell your NUALO-Fulfilled Products, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on the applicable NUALO Site at the time of the order and be solely responsible for and bear all risk for those activities; (b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and ship each of Your Products on or before its Expected Ship Date; (c) retrieve Order Information at least once each business day; (d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on the applicable NUALO Site at the time of the applicable order or as may be required under this Agreement; (e) fulfill Your Products throughout the Elected Country (except to the extent prohibited by Law or this Agreement); (f) provide to NUALO information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions; (h) ensure that you are the seller of each of Your Products; (i) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (j) identify yourself as the seller of each of Your Products on all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product; and (k) not send customers emails confirming orders or fulfillment of Your Products. If any of Your Products are fulfilled using Fulfillment by NUALO, the Fulfillment by NUALO SERVICE Terms for the applicable NUALO Site will apply to the storage, fulfillment, and delivery of such NUALO-Fulfilled Products.
188.8.131.52 CANCELLATIONS, RETURNS, AND REFUNDS.
The NUALO Refund Policies for the applicable NUALO Site will apply to Your Products. Subject to Section 3.4.1, for any of Your Products fulfilled using Fulfillment by NUALO, you will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with this Agreement and the NUALO Refund Policies for the applicable NUALO Site, using functionality we enable for your account. Without limiting your obligations, we may in our sole discretion accept, calculate, and process cancellations, returns, refunds, and adjustments for the benefit of customers. You will route any payments to customers in connection with Your Transactions through NUALO. We will make any payments to customers in the manner we determine, and you will reimburse us for all amounts we pay.
2.2 PROBLEMS WITH YOUR PRODUCTS.
2.2.1 DELIVERY ERRORS AND NONCONFORMITIES; RECALLS.
You are responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by: (a) credit card fraud for which we are responsible under this agreement; or (b) our failure to make available to you Order Information as it was received by us or resulting from address verification. Notwithstanding the previous sentence, for those of Your Products that are fulfilled using Fulfillment by NUALO, if any, the Fulfillment by NUALO SERVICE Terms for the applicable NUALO Site will apply to non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of those of Your Products. You are also responsible for any non-conformity or defect in, any public or private recall of, or safety alert of any of Your Products or other products provided in connection with Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls, or safety alerts of Your Products or other products provided in connection with Your Products.
2.2.2 THE NUALO NUALO SHIPPING AND RETURN POLICY AND CHARGEBACKS.
If we inform you that we have received or initiated a claim under the "NUALO Shipping and RETURN Policy" offered on a particular NUALO Site or other dispute relating to the offer, sale or fulfillment of Your Products (other than a chargeback), concerning one of Your Transactions, you will have 30 days to appeal our decision as to that claim. If we find that a claim, chargeback, or dispute is your responsibility, you (a) will not take recourse against the customer, and (b) are responsible for reimbursing us in accordance with the SERVICE Fee Payments due under this Agreement for the amount paid by the customer (including taxes and shipping and handling charges, but excluding any Referral Fees that we retained as defined in Section 2.3), and all other fees and expenses associated with the original transaction (such as credit card, bank, payment processing, re-presentment, or penalty fees) and any related chargebacks or refunds, to the extent payable by us.
You will pay us: (1) the applicable Referral Fees; (2) any applicable Variable Closing Fee; (3) the non-refundable Selling on NUALO Subscription Fee in advance each month; and (d) any other applicable fees described in this Agreement (including any applicable Program Policies). "Selling on NUALO Subscription Fee" means the fee specified as such on the Selling on NUALO Compensation Fee Schedule for the applicable NUALO Site at the time such fee is payable. With respect to each of Your Transactions: (i) "Sales Proceeds'' has the meaning set out in this Agreement; (ii) "Variable Closing Fee" means the applicable fee, if any, as specified on the Fee Schedule for the applicable NUALO Site; and (iii) "Referral Fee" means the applicable fee based on the Sales Proceeds from Your Transaction through the applicable NUALO Site specified on the Selling on NUALO Fee Schedule for that NUALO Site at the time of Your Transaction, based on the categorization by NUALO of the type of product that is the subject of Your Transaction; provided, however, that Sales Proceeds will not include any shipping charges set by us in the case of Your Transactions that consist solely of products fulfilled using Fulfillment by NUALO.
2.4 REMITTANCE OF SALES PROCEEDS & REFUNDS.
Except as otherwise stated in this Agreement, we will remit to you your available balance on a bi-weekly (14 day) (or at our option, more frequent) basis, which may vary for each order fulfillment destination. For each remittance, your available balance is equal to any Sales Proceeds not previously remitted to you as of the applicable Remittance Calculation Date (which you will accept as payment in full for Your Transactions), less: (a) the Referral Fees; (b) the applicable Variable Closing Fee; (c) any Selling on NUALO Subscription Fees; (d) any other applicable fees described in this Agreement (including any applicable Program Policies); (e) any amounts we require you to maintain in your account balance pursuant to this Agreement (including payments withheld pursuant to the terms of this agreement and applicable Program Policies); (f) any taxes that NUALO automatically calculates, collects and remits to a tax authority according to applicable law, as specified in the Tax Policies; and (g) any minimum balance we may require to accommodate actual or anticipated returns.
We may establish a reserve on your account based on our assessment of risks to NUALO or third parties posed by your actions or performance, and we may modify the amount of the reserve from time to time at our sole discretion.
When you either initially provide or later change Your Bank Account information, the Remittance Calculation Date may be deferred by up to 14 days. If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us (or our Affiliate), on the next available Remittance Calculation Date we will refund to you the amount of the Referral Fee paid by you to us attributable to the amount of the customer refund (including refunded taxes and customs duties only to the extent specified in the applicable Tax Policies), less the Refund Administration Fee for each of Your Products refunded that is not a BMVD Product, which amount we may retain as an administrative fee; provided, however, that in the case of a complete refund of Sales Proceeds for a Media Product, we will refund to you the full amount of any Variable Closing Fee paid by you to us (and in the case of a partial refund of Sales Proceeds for a Media Product, we will not refund to you any portion of any Variable Closing Fee paid by you to us). We will remit any amounts to be refunded by us pursuant to this subsection from time to time together with the next remittance to be made by us to you. “Refund Administration Fee” means the applicable fee(s) described in the Brand Partner Cancellation, Return and Refund Policy and Guidelines for the applicable NUALO Site.
Net Sales Proceeds from non-invoiced orders will be credited to your available balance when they are received by us or our Affiliates. Sales Proceeds from invoiced orders will be credited to your available balance: (a) if you have elected in advance to pay a fee to accelerate remittance of Sales Proceeds from invoiced orders, on the day all of Your Products included in an invoiced orders are shipped; or (b) otherwise, no later than the seventh day following the date that an invoiced order becomes due.
2.5 NUALO’s WEBSITES AND SERVICES.
NUALO has the right to determine, the design, content, functionality, availability and appropriateness of its websites, selection, and any product or listing in the NUALO Stores, and all aspects of each SERVICE, including your use of the same. NUALO may assign any of these rights or delegate any of its responsibilities.
This agreement in non-exclusive in that it does not prevent or exclude the sale of your product or service through other means; however, you agree (1) not to sell any product or service offered for sale through a SERVICE for less than the price at which it is sold through that SERVICE; (2) during the first 90 days in which your product or service participates in a SERVICE, you agree that NUALO may, at its discretion, offer instant sales incentives (such as instant rebates, coupons or similar buyer incentives) of up to 20% of the Purchase Price; (3) prior to your use of a SERVICE to sell or promote the sale of any product or service, you will establish a 90 day SERVICE sales forecast, agreed to by both you and us, after which, if said forecast is met or exceeded, you grant us ongoing rights to the formulation, manufacture and provision of that product or service should you, for any reason, discontinue the offering, manufacture, or sale of the same; (4) unless otherwise mutually agreed to in writing, the price of a product or service offered through the SERVICES may not increase more than once per 12 month period, beginning the first day it is offered for sale through a SERVICE; and (5) you will not voluntarily remove your products from the NUALO platform except as (a) as mutually agreed to in writing between You and NUALO, (b) to discontinue all sales of a product or products, including their derivatives or successors, or (c) for breach of this agreement as defined by this agreement.
2.7 CONTINUING GUARANTEES.
We require continuing guarantees from you as requested and noted here.
If any of Your Products is a “pesticide” being offered or sold in the United States or other product regulated under the US Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) or its implementing regulations, then you provide to us the following continuing guaranty that: (a) you are a resident of the United States; and (b) with respect to each such product, the pesticides and other FIFRA regulated products comprising each sale, shipment, or other delivery made previously or hereafter are: (i) lawfully registered with the US Environmental Protection Agency at the time of sale, shipment, or delivery, or fully qualified for a specific exemption from the FIFRA registration requirements at the time of sale, shipment, or delivery, (ii) compliant with all requirements of FIFRA and its implementing regulations at the time of sale, shipment, or delivery, and (iii) provided by you in the original, unbroken packaging.
2.7.2 FOREIGN DELIVERY DESTINATIONS.
You guarantee that, prior to your offering of any product or service through any NUALO SERVICE, that said offering is legal under the laws, regulations, customs statutes, and other requirements of a given delivery destination.
2.7.3 INSURANCE GUARANTEES.
In accordance with Section 1.10, you will, at your sole cost and expense, procure and maintain such policies and/or bonds of professional liability, fidelity, and other insurance as acceptable to NUALO, naming us as additional insured, and as shall be reasonably necessary to insure against any claim or claims for damages arising out of the provision of a SERVICE. Such insurance shall be procured from an insurer(s) acceptable to NUALO. Irrespective of the Insurance Threshold, you will, at all times in which you participate in a SERVICE, provide for limits therein of not less than one million dollars (US$1,000,000) per occurrence and three million dollars (US$3,000,000) in the aggregate. You will provide us with certificates of insurance demonstrating the insurance coverage required under this Agreement. Further, you will provide us with not less than thirty (30) days written notice of any cancellation, reduction, or other material change in the amount or scope of any coverage required under this Agreement.
2.7.4 NON-SERVICE SALE OF PRODUCTS.
You guarantee that you will not sell any product that is available for sale through any SERVICE at a cost to the purchaser that is less than it is being sold through that SERVICE. NUALO.
2.7.5 OTHER GUARANTEES.
You agree and accept that, from time to time, other reasonable, written guarantees may, at our discretion, be required of you by us prior to or in the course of the sale of your product through any SERVICE as we determine necessary to ensure the safety, performance, saleability, fitness for a purpose, legal registration, legal classification, import, export, transit, storage, warranty, exchange, extended return period (as may be necessary for sale into some countries) or other purposes relevant to you and your product.
2.8 NOT-FOR-RESALE AND PERSONAL-USE IMPORTATION.
You accept and acknowledge that, except where agreed to in writing by you and us (and irrespective of any delivery destination for your product) that for any and all product or products offered for sale by you through any SERVICE; (1) the nexus of all sales shall be the US; (2) distribution is for Personal-Use-Only; (3) resale or redistribution, except as specifically required by law, is prohibited; (4) you will clearly and legibly label the same (in at least 12 point font) as “NOT-FOR-RESALE” and “Intended for Personal Use and/or Importation only”.
3.0 “FULFILLMENT BY NUALO” SERVICE TERMS.
Fulfillment by NUALO ("FBN") provides fulfillment and associated services for Your Products as governed by our FBN SERVICE Terms. These Fulfillment by NUALO SERVICE Terms are part of the Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in Fulfillment by NUALO. By registering for or using the FBN SERVICE, you (on behalf of yourself or the business you represent) agree to be bound by this entire agreement, including these Fulfillment by NUALO SERVICE terms. You expressly agree that NUALO may engage its Affiliate(s) or a third party in order to complete one or more of the fulfillment and associated services outlined below.
3.1 FULFILLMENT SERVICES
3.1.1 YOUR PRODUCTS.
Once you are accepted into Fulfillment by NUALO, you must apply to register each product you offer that you wish to include in the Fulfillment by NUALO program. We may refuse registration in Fulfillment by NUALO of any product, including on the basis that it is an Fulfillment by NUALO Excluded Product or that it violates applicable Program Policies. You may at any time withdraw registration of any of Your Products from Fulfillment by NUALO.
3.1.2 PRODUCT AND SHIPPING INFORMATION.
You will, in accordance with applicable Program Policies, provide accurate and complete information about Your Products registered in Fulfillment by NUALO, and will provide Fulfillment Requests for any Units fulfilled using Fulfillment by NUALO that are not sold through an NUALO Site ("Multi-Channel Fulfillment Units"). You will promptly update any information about Your Products in accordance with our requirements and as necessary so that the information is at all times accurate and complete.
3.1.3 Shipping to NUALO
Except as may otherwise be provided in this agreement, Fulfillment by NUALO is limited to Units that are shipped to and from fulfillment centers located within the applicable Elected Country, to be delivered to customers in the same Elected Country only. You will ship Units to us in accordance with applicable Program Policies. You will be responsible for all costs incurred to ship the Units to the shipping destination (including costs of freight and transit insurance) and NUALO will not pay any shipping costs. You are responsible for payment of all customs, duties, taxes, and other charges. In the case of any improperly packaged or labeled Unit, we may return the Unit to you at your expense (pursuant to Section 3.0) or re-package or re-label the Unit and charge you an administrative fee.
You will not deliver to us any Unsuitable Unit; we may reject any shipment of Your Products.
We may, at our option, allow you to ship Units at your expense (as described in this Section) to fulfillment centers using discounted shipping rates that we may make available to you for certain carriers. In such an event, you will use the processes and supply the information that we require for you to obtain such discounted rates. You also must comply with standard operating procedures, weight and size restrictions, and other shipping requirements of the applicable carriers. If we provide you with the estimated shipping costs prior to shipment, you acknowledge and agree that actual shipping costs may vary from such estimates. In addition, if the weight of the Unit, as determined by the applicable carrier, differs from that submitted by you to us for purposes of determining the estimated shipping costs, then: (a) you may be charged more than the estimated shipping costs if the carrier determines that such Unit weighs more than as submitted by you; or (b) you may be charged the full amount of the estimated shipping costs even if the carrier determines the weight to be less than that submitted by you. You will not use carrier account information (e.g., carrier account number, amount of shipping rates, etc.) for any purpose, nor disclose such information to any third party, and you will protect such information as NUALO's confidential information in accordance with the General Terms of this Agreement. As between you, us, and the applicable carrier, you will be the shipper of record, and we will make payment to the carrier with respect to the shipment of all Units using such discounted rates. Title and risk of loss for any Unit shipped using discounted rates provided by us under this Section will remain with you, and our provision of such shipping rates will not create any liability or responsibility for us with respect to any delay, damage, or loss incurred during shipment. You authorize the applicable carrier to provide us with all shipment tracking information.
If you ship Units from outside the applicable Elected Country to fulfillment centers, you will list yourself as the importer/consignee and nominate a customs broker. If NUALO is listed on any import documentation, NUALO reserves the right to refuse to accept the Units covered by the import documents and any costs assessed against or incurred by NUALO will be collected from Your Bank Account, deducted from amounts payable to you, or by other method at our election.
We will provide storage services as described in these Fulfillment by NUALO SERVICE Terms once we confirm receipt of delivery. We will keep electronic records that track inventory of Units by identifying the number of Units stored in any fulfillment center. We will not be required to physically mark or segregate Units from other inventory units (e.g., products with the same NUALO standard identification number) owned by us, our Affiliates or third parties in the applicable fulfillment center(s). If we elect to commingle Units with such other inventory units, both parties agree that our records will be sufficient to identify which products are Units. We may move Units among facilities. If there is a loss of or damage to any Units while they are being stored, we will compensate you in accordance with the Section 2.0, and you will, at our request, provide us a valid tax invoice for the compensation paid to you. If we compensate you for a Unit, we will be entitled to dispose of the Unit pursuant to Section 3.2. At all other times, you will be solely responsible for any loss of, or damage to, any Units. Our confirmed receipt of delivery does not: (a) indicate or imply that any Unit has been delivered free of loss or damage, or that any loss or damage to any Unit later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that we actually received the number of Units of Your Product(s) specified by you for such shipment; or (c) waive, limit, or reduce any of our rights under this Agreement. We reserve the right to change scheduling restrictions and volume limitations on the delivery and storage of your inventory in fulfillment centers in accordance with the General Terms, and you will comply with any of these restrictions or limitations.
As part of our fulfillment services, we may, at our discretion, ship Units from our inventory of Your Products to the shipping addresses in any Elected Country included in valid customer orders, or submitted by you as part of a Fulfillment Request. We may ship Units together with products purchased from other merchants, including any of our Affiliates. We also may ship Units separately that are included in a single Fulfillment Request. If you participate in our export fulfillment services, we will also ship Your Products that we determine to be eligible (each, a "Foreign-Eligible Product") to Foreign Addresses within countries we determine to be eligible for foreign shipments, subject to additional terms on foreign shipments as may be provided by us.
3.2 CUSTOMER RETURNS.
You will be responsible for and will accept and process returns of, and provide refunds and adjustments for, any Multi-Channel Fulfillment Units in accordance with the Agreement (including the applicable Program Policies). We will receive and process returns of any NUALO Fulfillment Units that were shipped to addresses within the Elected Country in accordance with the terms of your Seller Agreement, these Fulfillment by NUALO SERVICE Terms, and the Program Policies. Any Sellable Units that are also NUALO Fulfillment Units and that are properly returned will be placed back into the inventory of Your Products in the Fulfillment by NUALO Program. We may fulfill customer orders for Your Products with any returned NUALO Fulfillment Units. Except as may be provided in this Agreement,, you will retake title of all Units that are returned by customers. Subject to the terms of this section 3.2, we will, at your direction, either return or dispose of any Unit that is returned to us by a customer and that we determine is an Unsuitable Unit.If NUALO receives a customer return of a Multi-Channel Fulfillment Unit, you will direct us to return or dispose of the Unit at your own cost failing which we may dispose of the Unit as provided here:
3.2.1 RETURNS TO YOU AND DISPOSAL.
You may, at any time, request that Units be returned to you or that we dispose of Units.
We may with notice return Units to you, including upon termination of these Fulfillment by NUALO SERVICE Terms. Returned Units will be sent to your designated shipping address. However, if (a) the designated shipping address we have for you is outdated or incorrect, (b) you have not provided or, upon our request, confirmed a designated shipping address in the Elected Country, or (c) we cannot make arrangements for you to pay for the return shipment, then the Unit(s) will be deemed abandoned and we may elect to dispose of them as appropriate based on the inventory (e.g., by selling, recycling, donating, or destroying it) and retain any proceeds we may receive from the disposal.
We may dispose of any Unsuitable Unit (and you will be deemed to have consented to our action): (d) immediately if we determine that (i) the Unit creates a safety, health, or liability risk to NUALO, our personnel, or any third party; (ii) you have engaged in fraudulent or illegal activity; or (iii) we have cause to terminate your use of SERVICES with immediate effect pursuant to Section 3.0 and are exposed to liability towards a third party; (e) if you fail to direct us to return or dispose of any Unsuitable Unit within thirty (30) days after we notify you that the Unit has been recalled; or (f) if you fail to direct us to return or dispose of any Unsuitable Unit within thirty (30) days (or as otherwise specified in the applicable Program Policies) after we notify you that its removal is required, for instance because your use of Fulfillment by NUALO is suspended or terminated or your seller account is suspended, terminated or closed. In addition, you will reimburse us for expenses we incur in connection with any Unsuitable Units.
You may, at any time, request that we dispose of Units. In this case, we may dispose of these Units as appropriate based on the inventory (e.g., by selling, recycling, donating, or destroying it) and retain any proceeds we may receive from the disposal. Title to each disposed Unit will transfer to us (or a third party we select such as a charity) at no cost, free and clear of any liens, claims, security interests or other encumbrances to the extent required to dispose of the Unit, and we may retain any proceeds, we may receive from the disposal.
3.3 RECALLS AND ALERTS.
You will promptly notify us of any recalls or potential recalls, or safety alerts of any of Your Products and cooperate and assist us in connection with any recalls or safety alerts, including by initiating the procedures for returning items to you under our standard processes. You will be responsible for all costs and expenses you, we or any of our or your Affiliates incur in connection with any recall or potential recall or safety alerts of any of Your Products (including the costs to return, store, repair, liquidate, or deliver to you or any vendor any of these products).
3.4 CUSTOMER SERVICE
We will be responsible for all customer service issues relating to packaging, handling and shipment, and customer returns, refunds, and adjustments related to NUALO Fulfillment Units. We will determine whether a customer will receive a refund, adjustment or replacement for any NUALO Fulfillment Unit and we will require you to reimburse us where we determine you have responsibility in accordance with the Agreement (including these Fulfillment by NUALO SERVICE Terms and the Program Policies). We will promptly notify you when you are responsible for a customer refund. You may appeal if you disagree with our finding within thirty (30) days after our notification, in addition to your right to request that Units be returned to you under Section 3.2. Except as provided in this Section regarding any NUALO Fulfillment Units, customer service will be handled in accordance with your Seller Agreement.
In situations relating to NUALO Fulfillment Units where the wrong item was delivered or the item was damaged, lost or is missing, unless we determine that the basis for such request is caused by you or any of your employees, agents, or contractors, we will, at our option: (1) for any NUALO Fulfillment Unit, (a) ship a replacement Unit to the customer and reimburse you in accordance with the Fulfillment by NUALO Guidelines for the replacement Unit, or (b) process a refund to the customer and reimburse you in accordance with the Fulfillment by NUALO Guidelines for the Unit; or (2) for any Multi-Channel Fulfillment Unit, reimburse you in accordance with the Fulfillment by NUALO Guidelines for the Unit (and you will, at our request, provide us a valid tax invoice for the compensation paid to you).
Any customer refund will be processed in accordance with the Selling on NUALO and the Transaction Processing SERVICE Terms. Notwithstanding the Selling on NUALO SERVICE Terms, we will be entitled to retain the applicable fees payable to us under the Selling on NUALO SERVICE Terms and these Fulfillment by NUALO SERVICE Terms, respectively. Except as expressly provided in this Section 3.4, you will be responsible for all costs associated with any replacement or return.
If we provide a replacement Unit or refund, as described in Section 3.2, to a customer and that customer returns the original Unit to us, we will be entitled to dispose of the Unit pursuant to Section 3.2, or, if it is a Sellable Unit, we may, at our option, place such Unit back into your inventory in accordance with Section 3.4. If we do place a Unit back into your inventory, you will reimburse us for the applicable Replacement Value (as described in the Fulfillment by NUALO Guidelines) of the returned Unit. Any replacement Unit shipped by us under these Fulfillment by NUALO SERVICE Terms will be deemed to be, and will be treated in the same manner as, an order and sale of such Unit from you to the customer via the applicable NUALO Site or SERVICE in accordance with, and subject to, the terms and conditions of this Agreement and your Seller Agreement.
For Multi-Channel Fulfillment Units we will have no customer service obligations other than to pass any inquiries to your attention at the contact you provide, and to make available a reasonable amount of information regarding the status of the fulfillment of Your Products if you request it and if and to the extent we possess the requested information. You will ensure that all of your policies and messaging to your customers regarding shipping of Your Products and other fulfillment-related matters, reflect our policies and requirements, including with regard to shipping methods, returns, and customer service; and, you will conspicuously display on your website(s), in emails or in other media or communications any specific disclosures, messaging, notices, and policies we require.
3.5 COMPENSATION FOR FULFILLMENT SERVICES
3.5.1 Handling and Storage Fees.
Upon your election to use our Fulfillment SERVICES, you will pay us the applicable fees described in the applicable Fulfillment by NUALO Fee Schedule. You will be charged the Storage Fees beginning on the day (up to midnight) that the Unit arrives at a fulfillment center and is available for fulfillment by NUALO (or in the case of any Unsuitable Unit, the arrival day (up to midnight)), until the earlier of: (a) the day (up to midnight) we receive a valid customer order for such product or a request from you to return or dispose of the Unit; or (b) the day (up to midnight) we actually ship the Unit to your designated return location or dispose of the Unit.
3.5.2 SHIPPING AND GIFT WRAP.
For any NUALO Fulfillment Units we will determine the amounts charged to the customer for shipping and gift wrap services for the Units that we fulfill through the Fulfillment by NUALO Program. As between you and us, these charges will be your charges to the customer, and we will report them to you. We will charge you (and you will pay us) a fee equal to the amount of such charges to the customer. In the case of shipments of Units sold through the NUALO Site that qualify for the "Free Shipping" promotion, the amounts charged to the customer for shipping the Selling on NUALO Units that NUALO fulfills will first be charged to the customer and will next be deducted from the total charges to the customer as your promotion and NUALO will not charge you the fee described above. If you ship Units to us using the shipping rates that we may make available pursuant to Section 3.0, you will reimburse us for the actual amounts charged to us by the applicable carrier for such shipments.
3.5.3 REPACKAGING AND REASSEMBLY.
Universally, no product may be repackaged or disassembled for resell or distribution of any kind by the consumer. Products are sold for Personal-Use-Only. Where permissible by law and allowed by NUALO, some items may be purchased as sales aids for sampling. Samples will not be commissioned. Manufacturers must allow samples to be sold slightly above cost to cover your and our respective costs.
We may as appropriate keep part of or all proceeds of any Units that we are entitled to dispose of pursuant to Section 3.0, or to which title transfers, including returned, damaged, or abandoned Units. You will have no security interest, lien, or other claim to the proceeds that we receive in connection with the sale, fulfillment, and/or shipment of these Units.
In addition to your other obligations under this agreement,of the General Terms of this Agreement, you also agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any Claim that arises from or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to the articles of Section 3.0), including any personal injury, death, or property damage; (b) any of Your Taxes or the collection, payment, or failure to collect or pay Your Taxes; and, if applicable (c) any sales, use, value added, personal property, gross receipts, excise, franchise, business, or other taxes or fees, or any customs, duties, or similar assessments (including penalties, fines, or interest on any of the foregoing) imposed by any government or other taxing authority in connection with the shipment of Foreign-Eligible Products to Foreign Addresses (collectively, "Foreign Shipment Taxes").
You, on behalf of yourself and any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the "Releasing Parties"), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge NUALO and each of our Affiliates, and any and all of our and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all Persons acting by, through, under, or in concert with any of them (collectively, the "Released Parties"), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, "Losses") which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or any of them, arising out of, resulting from, or in any way related to the shipment, export, or delivery of Your Products to Foreign Addresses, including any tax registration or collection obligations. You, on behalf of yourself and all other Releasing Parties, recognize that you, and each of them, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after the date you register for or use Fulfillment by NUALO, which the Releasing Parties are giving up by agreeing to these Fulfillment by NUALO SERVICE Terms. It is your intention in agreeing to these Fulfillment by NUALO SERVICE Terms that these Fulfillment by NUALO SERVICE Terms will deprive the Releasing Parties of each and all such Losses and prevent the Releasing Party from asserting any such Losses against the Released Parties, or any of them. In addition to the foregoing, you acknowledge, on behalf of yourself and all other Releasing Parties that you are familiar with Section 1542 of the Civil Code of the State of California, as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
3.8.2 WAIVER AND RELINQUISHMENT OF RIGHTS.
You, on behalf of yourself and all other Releasing Parties, expressly waive and relinquish any rights that you had or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the law of any other jurisdiction, to the full extent that you may lawfully waive all such rights pertaining to the subject matter of these Fulfillment by NUALO SERVICE Terms.
In addition to the the general terms of this agreement, we disclaim any duties of a bailee or warehouseman, and you waive all rights and remedies of a bailor (whether arising under common law or statute or otherwise), related to or arising out of any possession, storage, or shipment of your products by us or our affiliates or any of our or their contractors or agents.
3.9 EFFECT OF TERMINATION.
Your termination rights are set forth in this Section 3 of this Agreement. Following any termination of the Agreement or these Fulfillment by NUALO SERVICE Terms in connection with a particular Elected Country, we will, as directed by you, return to you or dispose of the Units held in that Elected Country as provided in Section 3.2. If you fail to direct us to return or dispose of the Units within thirty (30) days (or as otherwise specified in the applicable Program Policies) after termination, then we may elect to return and/or dispose of the Units in whole or in part, as provided in Section 3.2, and you agree to such actions. Upon any termination of these Fulfillment by NUALO SERVICE Terms in connection with a particular Elected Country, all rights and obligations of the parties under these Fulfillment by NUALO SERVICE Terms in connection with such Elected Country will be extinguished, except that the rights and obligations of the parties under Section 3.0 with respect to Units received or stored by NUALO as of the date of termination will survive the termination.
3.10 TAX MATTERS.
You understand and acknowledge that storing Units at fulfillment centers may create tax nexus for you in any country, state, province, or other localities in which your Units are stored, and you will be solely responsible for any taxes owed as a result of such storage. If any Foreign Shipment Taxes or Your Taxes are assessed against us as a result of performing services for you in connection with the Fulfillment by NUALO Program or otherwise pursuant to these Fulfillment by NUALO SERVICE Terms, you will be responsible for such Foreign Shipment Taxes and Your Taxes and you will indemnify and hold NUALO harmless from such Foreign Shipment Taxes and Your Taxes as provided in Section 3.0 of these Fulfillment by NUALO SERVICE Terms.
3.11 ADDITIONAL REPRESENTATION.
In addition to your other representations and warranties inthis Agreement, you represent and warrant to us that: (1) you have valid legal title to all Units and all necessary rights to distribute the Units and to perform under these Fulfillment by NUALO SERVICE Terms; (2) you will deliver all Units to us in new condition (or in such condition otherwise described by you in the applicable Your Product listing) and in a merchantable condition; (3) all Units and their packaging will comply with all applicable marking, labeling, and other requirements required by Law; (4) no Unit is or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (5) you and all of your subcontractors, agents, and suppliers involved in producing or delivering Units will strictly adhere to all applicable Laws of the Elected Country, its territories, and all other countries where Units are produced or delivered, regarding the operation of their facilities and their business and labor practices, including working conditions, wages, hours, and minimum ages of workers; and (6) that all Foreign-Eligible Products (a) can be lawfully exported from Canada, Mexico, or the United States, as applicable, without any license or other authorization; and (b) can be lawfully imported into, and comply with all applicable Laws of, any eligible country.
4.0 TRANSACTION PROCESSING SERVICE TERMS.
By registering, requesting or otherwise applying for or using any Transaction Processing SERVICE, you (on behalf of yourself or the business you represent) agree to be bound by these transaction processing SERVICE terms for that SERVICE. Notwithstanding the foregoing, if a separate agreement governs the offer, sale or fulfillment of your products into a country other than the 50 US contiguous states and Puerto Rico, the terms of that agreement will continue to govern the processing of your transactions to the extent described in that agreement.
5.0 PAYMENTS PROCESSING AGENCY APPOINTMENT.
For all sales via NUALO SERVICES, you authorize NUALO, Inc. and its assignees to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying NUALO and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with NUALO Affiliates. For invoiced orders, you authorize: (a) NUALO and/or its Assignee to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, and receiving and holding Sales Proceeds on your behalf; and (b) NUALO and/or its Assignee to act as your agent for purposes of remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying NUALO and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with NUALO and its affiliates and Agents”. The applicable NUALO Payments Agents provide the services described in these Transaction Processing SERVICE Terms and the related services described in the respective Sections of this Agreement (collectively, the "Transaction Processing SERVICES").
When a buyer instructs us to pay you, you agree that the buyer authorizes and orders us to commit the buyer's payment (less any applicable fees or other amounts we may collect under this Agreement) to you. You agree that buyers satisfy their obligations to you for Your Transactions when we receive the Sales Proceeds. We will remit funds to you in accordance with this Agreement.
Subject to Section 2 of the General Terms of this Agreement, the applicable NUALO Payments Agents will remit funds to you in accordance with this Agreement and these Transaction Processing SERVICE Terms. Each applicable NUALO Payments Agent's obligation to remit funds collected or received by it or otherwise credited to your available balance in connection with Your Transactions is limited to funds in your available balance that have become available in accordance with this Agreement less amounts owed to NUALO and any taxes that NUALO automatically calculates, collects and remits to a tax authority according to applicable law, as specified in the Tax Policies, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. Without limiting NUALO's rights to collect any amounts you owe, the applicable NUALO Payments Agent's receipt of Sales Proceeds or crediting of Sales Proceeds to your available balance discharges your obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds received or credited equal or exceed the fees and other amounts you owe and the Sales Proceeds are applied to the payment of those fees and amounts.
6.2 YOUR FUNDS
Your Sales Proceeds will be held in an account with the applicable NUALO Payments Agent (a "Seller Account") and will represent an unsecured claim against that NUALO Payments Agent. Your Sales Proceeds are not insured by the Federal Deposit Insurance Corporation, nor do you have any right or entitlement to collect Sales Proceeds directly from any customer. Prior to disbursing funds to you, a NUALO Payments Agent may combine Sales Proceeds held with the funds of other users of the SERVICES, invest them, or use them for other purposes permitted by applicable Laws. You will not receive interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, a NUALO Payments Agent will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds.
We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or in the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change. The NUALO Privacy Notice applies to transactions processed by NUALO Payments, Inc.
6.4 DORMANT ACCOUNTS.
If there is no activity (as determined by us) in connection with your Seller Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Seller Account open and maintaining the Sales Proceeds in your Seller Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds in your Seller Account to your state of residency, as determined by us based on the information in your Seller Account. If we are unable to determine your state of residency or your Seller Account is associated with a foreign country, your funds may be sent to the State of Utah.
7.0 BRAND PARTNER API TERMS.
7.1 API-1 DESCRIPTION OF THE SELLING PARTNER APIS.
The "Selling Partner APIs" enable your systems to interface with certain features or functionality we make available to you. These Selling Partner API Terms concern and apply only to your use of the Selling Partner APIs unless specifically provided otherwise. Under the Selling Partner API Terms, you may authorize parties who (a) develop Applications to support you using the Selling Partner APIs or the API Materials, (b) have registered with us as Developers, and (c) who have agreed to the Marketplace Developer Agreement ("Developers") to access Confidential Information and Your Materials via the Selling Partner APIs provided, in each case, that where Confidential Information is disclosed to Developers, you shall remain liable for the acts or omissions of such Developers as if such acts or omissions were your own. If you wish to use the Selling Partner APIs directly or develop software or a website that interfaces with the Selling Partner APIs or the API Materials (an "Application"), you must register as a Developer.
We may make available Selling Partner APIs (including the Marketplace Web SERVICES APIs) and software, data, text, audio, video, images, or other content we make available in connection with the Selling Partner APIs, including related documentation, software libraries, and other supporting materials, regardless of format (collectively the "API Materials") that permit your systems to interface with certain features or functionality available to you. You may authorize Developers to access Confidential Information and Your Materials via the Selling Partner APIs solely for the purpose of supporting your business on NUALO and provided, in each case, that where Confidential Information is disclosed to Developers, you shall remain liable for the acts or omissions of such Developers as if such act or omissions were your own (see NUALO's NUALO’s Data Protection and Acceptable Use Policy). All terms and conditions applicable to the Selling Partner APIs and the API Materials in this Agreement are solely between you and us. API Materials that are public or open source software ("Public Software") may be provided to you under a separate license, in which case, notwithstanding any other provision of this Agreement, that license will govern your use of those API Materials. For the avoidance of doubt, except to the extent expressly prohibited by the license governing any API Materials that are Public Software, all of the non-license provisions of this Agreement will apply.
7.2 LICENSE AND RELATED REQUIREMENTS.
We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license during the term of the Agreement to allow Developers to access and use Confidential Information and Your Materials through the Selling Partner APIs and the API Materials solely in support of your use of the SERVICES covered by this Agreement. As between you and us, we or our licensors own all right, title, and interest in and to the Confidential Information, the Selling Partner APIs, the API Materials, any technical and operational specifications, security protocols and other documentation or policies provided or made available by us with respect to the Selling Partner APIs or the API Materials (the "Selling Partner API Specifications"), and our internal data center facilities, servers, networking equipment, and host software systems that are within our or their reasonable control and are used to provide the Selling Partner APIs or the API Materials (the "NUALO Network").
7.2.3 LICENSE RESTRICTIONS.
You may authorize Developers to access Confidential Information and Your Materials through the Selling Partner APIs and the API Materials only through APIs documented and communicated by us in accordance with any applicable Selling Partner API Specifications. You may not authorize any other party to do any of the following with the Confidential Information, the Selling Partner APIs and the API Materials: (a) reverse engineer, decompile, or disassemble them; (b) modify or create derivative works based upon them in whole or in part; (c) distribute copies of them; (d) remove any proprietary notices or labels on them; (e) use any Public Software in any manner that requires, pursuant to the license applicable to such Public Software, that the Confidential Information, the Selling Partner APIs and the API Materials be disclosed, licensed, distributed, or otherwise made available to anyone; (f) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to them; (g) access or use them in a way intended to avoid incurring any applicable fees or exceeding usage limits or quotas; (h) access or use them for any purpose unrelated to your use of SERVICES; or (i) access or use them for fraudulent or illegal activities or activities that violate our policies or are otherwise harmful to us or any third parties. The limitations regarding Data Use in this agreement apply to any information you disclose or receive by the direct or indirect use of the Selling Partner APIs.
7.2.4 THERE EXISTS NO LICENSE FOR DIRECT ACCESS.
For the avoidance of doubt, these Selling Partner API Terms do not provide you a license to directly access or use the Selling Partner APIs, or install, copy, use, or distribute API Materials. Direct use of the Selling Partner APIs may only be licensed to Developers.
7.3 ACCOUNT IDENTIFIERS AND CREDENTIALS.
You must use the account IDs and any unique public key/private key pair issued by us to provide access to your data via the Selling Partner APIs ("Account Identifiers and Credentials") in accordance with these Selling Partner API Terms to authorize Developers to access the Selling Partner APIs on your behalf. You may only authorize access to Confidential Information and Your Materials via the Selling Partner APIs in the way that we prescribe. Your Account Identifiers and Credentials are for your personal use only and you must maintain their secrecy and security. You are solely responsible for all activities that occur using your Account Identifiers and Credentials, regardless of whether the activities are undertaken by you or a third party (including your employees, contractors, or agents). You will provide us with notice immediately if you believe an unauthorized third party may be using your Account Identifiers and Credentials or if your Account Identifiers and Credentials are lost or stolen. We are not responsible for unauthorized use of your Account Identifiers and Credentials.
7.4 SECURITY OF YOUR MATERIALS AND CONFIDENTIAL INFORMATION.
You are solely responsible for authorizing others to access the Selling Partner APIs on your behalf and taking your own steps to maintain appropriate security, protection, and backup of the Confidential Information and Your Materials processed pursuant to your access to the Selling Partner APIs and the API Materials, including any Confidential Information you have disclosed to Developers in accordance with this Agreement. We are not responsible for any unauthorized access to, alteration of, or deletion, destruction, damage, loss, or failure to store any of the Confidential Information or Your Materials in connection with the Selling Partner APIs (including as a result of your or any third party’s errors, acts, or omissions). If you believe (acting reasonably) that a personal data breach has occurred in relation to any customer personal data in your possession or otherwise under your control (including in the possession of a Developer), you shall immediately notify NUALO of such personal data breach (in sufficient detail) for information purposes, and promptly take any actions (or require a Developer take such actions, if relevant) as applicable to you under data privacy Laws.
7.5 TERMINATION OF YOUR ACCESS TO THE SELLING PARTNER APIS AND THE API MATERIALS.
Without limiting the parties’ rights and obligations under this Agreement, the NUALO Marketplace Developer Agreement, or the NUALO Marketplace API License Agreement, we may limit, suspend, or terminate your access to the Selling Partner APIs and the API Materials for convenience with 30 days’ notice. We may terminate immediately if (a) we determine that you have materially breached this Agreement and failed to cure within 7 days of a cure notice; (b) you or your account have been engaged in deceptive, fraudulent, or illegal activity; or (c) your use of the Selling Partner APIs and the API Materials may harm our customers.
Upon any suspension or termination of your access to the Selling Partner APIs and the API Materials, you will immediately cease authorizing others to use the Selling Partner APIs and the API Materials. Upon any termination of your access to the Selling Partner APIs and the API Materials, you will also immediately destroy all API Materials. Upon any suspension or termination of your access to the Selling Partner APIs and the API Materials, we may cause your Account Identifiers and Credentials to cease to be recognized by the NUALO Network for the purposes of the Selling Partner APIs and the API Materials.
7.6 MODIFICATIONS TO THE SELLING PARTNER APIS AND THE API MATERIALS.
We may change or discontinue the Selling Partner APIs or the API Materials (including by changing or removing features or functionality of the Selling Partner APIs or the API Materials) from time to time. For any material changes that will negatively affect your business, we will provide notice.
The selling partner apis and the api materials are provided "as is". We and our affiliate companies and licensors make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the selling partner apis or the api materials, including any warranty that the selling partner apis or the api materials will be uninterrupted, error free, or free of harmful components, or that any materials or data you access, use, store, retrieve, or transmit in connection with the selling partner apis, including your materials, will be secure or not otherwise lost or damaged. Except to the extent prohibited by law, we and our affiliate companies and licensors disclaim all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade. further, neither we nor any of our affiliate companies or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with: (a) the inability to use the selling partner apis or the api materials for any reason; (b) the cost of procurement of substitute goods or services; or (c) any investments, expenditures, or commitments by you in connection with this agreement or your use of or access to the selling partner apis or the api materials.
8.0 PRODUCT REGISTRATIONS, LICENSES AND APPROVALS.
You are responsible for obtaining and maintaining any and all registration, licensing, government or agency approvals and related concerns that are legally required for anything you make available for sale through NUALO’s SERVICES; in addition, you agree not to seek, apply for or otherwise initiate any changes (or new registrations, licenses, approvals or related concerns) to the same without notifying us, in writing, at least 30 days prior you beginning those efforts. Upon receipt of said notice, or our reasonable belief of your failure to notify us, we reserve the right to modify, restrict or cancel the sale of the commensurate product or products via any SERVICE.
9.0 BRAND PARTNER DROPSHIP REQUIREMENTS
Without limiting the parties’ rights and obligations under this Agreement, and except where a separate Fulfillment by NUALO agreement exists between You and NUALO, You are responsible for fulfilling all orders of Your products and/or services generated through the NUALO platform.
9.1 Inventory Allocation, Reporting and Ownership
As a Brand Partner, You are responsible for maintaining sufficient inventory at your fulfillment facility(ies) so as to be able fulfill all orders for Your products and/or services as generated through the NUALO platform. During the Product Set-Up Process, and for each product you offer for sale through NUALO, you will agree to (1) maintain regular (no less often than monthly) reporting to NUALO as to Your actual and true Inventory on Hand (IOH); (2) maintain a minimum IOH quantity as agreed upon by both Parties; and (3) establish with NUALO a minimum IOH quantity at which point, if IOH for a given product arrives at that level, NUALO will no longer offer the product for sale on its platform until such time as inventory levels return to the agreed upon minimum IOH noted in #2, above. You accept that NUALO does not allow Backorders; and that you retain ownership of, and responsibility for, all of Your product inventory until it has shipped to the Customer.
9.2 Dropship Ordering Procedures
NUALO will provide to you, no less often than daily, a list of orders you are required to fulfill. These orders, as provided you by NUALO, shall be processed no later than the next business day. This order information provided you by NUALO shall include (at a minimum): Customer’s full name, Customer’s complete and accurate shipping address, NUALO order number, Item Name(s), and the quantity (number) of each item(s) ordered.
9.3 Order Confirmation
When You receive the information noted in 9.2 (above), you will reply to NUALO (via email or API) that the information has been received and processed. You will send subsequent notification (via email or API) when your order has been shipped containing the tracking number and confirmation.
NUALO requires that all returns be sent back to You. In case of a return, NUALO will provide You and the Customer with a return authorization Number (RMA). You will notify NUALO when the return has arrived at your fulfilment center.
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