This Seller Agreement ("Agreement") is made effective upon the Customers’ sign-up of the Elliot Commerce Platform.
- WHEREAS, Customer is in the business of selling consumer and business products ("Products");
- WHEREAS, Elliot provides a platform for third party shop owners, to sell their products on the Elliot checkout platform ("the Site") pursuant to its Seller Program ("Seller Program");
- WHEREAS, Customer desires to offer certain products for sale through the Site;
- WHEREAS, Parties desire to set forth in this Agreement the terms and conditions that will govern Customers’ offer and sale of Products on the Site in connection with the Seller Program.
- NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
For purposes of this Agreement or where not otherwise defined herein, will have the meanings specified below:
- "Claims(s)" will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.
- "Intellectual Property" means any trademark, trade name, service mark, copyright, patent, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for misappropriation, infringement or violation of any of the foregoing.
- "Law" shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, or any governmental authority of competent jurisdiction.
- "Losses" shall mean any and all damages (including, without limitation, past, future, direct, indirect, economic, noneconomic, consequential, special, exemplary, incidental, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys' fees and costs.
- "Customer Content" shall mean all images, product information and content including without limitation, the product data,
- Provided by the Customer to Elliot for use in connection with the Seller Program and
- Otherwise made available by the Customer on the Elliot Site.
Your continued use of the Elliot Site and the Seller Program following Elliot’s posting of any changes will constitute your acceptance of such changes or modifications.
Seller's Content License Grant
License for Content
By entering into this Agreement and listing an item, the Customer grants, as well as represents and warrants that it has the right to grant to Elliot a royalty-free, non-exclusive, worldwide, sublicensable, perpetual, irrevocable right and license to use, display, and distribute the Customers’ Content throughout the Elliot Site.
License for Marks
The Customer hereby grants Elliot a non-exclusive, royalty-free, non-transferable license to publish, use, distribute, transmit, and display Customers’ name, trademarks, service marks and logos ("Customer Marks") during the Term in connection with the Seller Program.
Product Information and Other Content
Customer agrees and warrants that any and all Customer Content:
- Will be truthful, accurate, and not misleading or otherwise deceptive;
- Will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy;
- Will not violate any law, statute, ordinance or regulation;
- Will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and
- Will not create liability for Elliot.
Elliot will not have any responsibility for or liability with respect to Customers’ Content.
You hereby represent and warrant that you will not list, offer or sell products that:
- Are stolen or counterfeit;
- Violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy;
- You do not have full right and authority to sell;
- Violate any law, statute, ordinance or regulation (such as those governing export control or consumer protection);
- Contain any material that is obscene, pornographic or that contains child pornography; and/or
- Create liability for Elliot.
If Customer is restricted from selling certain Products on the Elliot Site due to supplier brand restrictions or if Customer is not an authorized reseller for any Product, the Customer will withhold such Products from the assortment it provides Elliot.
Product Authenticity and Safety
Authenticity & Authorization
All products sold through the Seller Program will be received by the Customer directly from the brand owner or from an authorized supplier of the brand owner, and the Customer must be an authorized reseller of the Products.
The Customer will maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded.
Upon Elliot’s request, the Customer will promptly provide Elliot with:
- Certificates of authenticity (or similar documentation) for Products and,
- Documentation (Ex. email verifications from the brand owner or supplier) showing that the Customer is permitted to sell specific brands or Products through the Elliot Site.
Safety, Testing and Certification
The Customer will comply with, and ensure that all Products comply with all product safety, testing and certification requirements under applicable Law, including without limitation, the Consumer Product Safety Act, as amended, the Consumer Product Safety Improvement Act of 2008, as may be amended from time to time, the Federal Hazardous Substances Act, as may be amended from time to time, and all other Law under the jurisdiction of the Consumer Product Safety Commission ("CPSC"). The Customer will obtain copies of GCCs from its suppliers or manufacturers for all Products for which a GCC is required under applicable Law. The Customer will promptly notify Elliot in writing of all warnings, disclaimers or any other similar notices required by applicable Laws to be posted with respect to Products.
Fees and Commissions
Customer agrees to pay all fees in accordance with the Statement of Work.
Commission fees and other amounts owed to Elliot will be deducted from the amounts received from all purchases of the Customers’ Products through the Elliot Site (such resulting amount, "Customer Payment"). Each day, Elliot shall pay to the Customer the owed Customer Payment associated with amounts received by Elliot from purchases previously made from the Customer through the Seller Program.
Withholding of Payment
Elliot may withhold the payment of funds to the Customer, or return funds to the buyer, if the Customer is the subject of an investigation, or there is a claim against the Customer, for any suspected or alleged wrongful conduct or any violation of this Seller Agreement.
Purchase/Order Processing, Fulfillment and Shipping
Elliot is the seller of record. Shoppers purchasing Products through the Elliot Site (each a "Shopper" and together "Shoppers") will place orders using the Elliot Site and Elliot will collect all proceeds from such transactions, including shipping costs and applicable taxes based on shipment options and tax designations provided by the Customer to Elliot.
The Shopper is the Buyer or Purchaser of Record. Elliot will electronically transmit to the Customer the order information (e.g. Shopper(s) name, shipping address, and email) that Elliot determines the Customers’ needs to fulfill each order, including without limitation, shipping Product(s) to Shoppers and providing customer service.
Risk of Fraud and Loss
Elliot bears the risk of all fraud. Elliot will be responsible for all costs related to fraud.
Fulfillment of Orders
- Once Elliot has transmitted an order to the Customer, the Customer will be solely responsible for, and bear all liability for, the fulfillment of the Order. Customers agrees that legal ownership and all risk of loss of the Products remains with Customer until the Shopper physically receives the Product. If the Customer cannot fulfill the entire quantity of a purchase order (PO) line in an Order, then the Customer will cancel that PO line and notify Elliot of such cancellation.
- Customer will ship only the product(s) purchased by the Shopper and will not include any additional products, materials or information not purchased by the Shopper.
- The Customer will ship items ordered by Shoppers within two (2) business days following notification of the order.
Elliot will process all payments from Shoppers on the Elliot Site and remit to the Customer any amounts owed to the Customer daily.
Cancellations, Returns and Refunds
The Customer is responsible for processing all Shopper cancellations, returns, refunds, and/or Customer service price adjustments Customers’ customer service policies for Products sold through the Elliot Site.
The Customer will be responsible for refunds according to the Customers’ own return policy.
Ownership and Use of Transaction Information
Elliot shall share all Transaction Information
The Customer may use Transaction Information to further a transaction and initiate future transactions from any other sales channel that may or may not originate on the Elliot Site.
Taxpayer and Seller of Record
Elliot is the taxpayer and complies with all applicable tax Law. All references to "tax" or "taxes" in this Agreement shall mean all taxes and fees, including without limitation, sales, use and surcharge taxes, import or export duties, and all related ancillary taxes and fees, including without limitation, electronic waste recycling fees.
Customer will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorized users, viruses or malicious computer programs which could in turn be transmitted to Elliot or compromise the security of Elliot Confidential Information, including without limitation, the Transaction Information. The Customer shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.
Both Parties acknowledge that either Party may receive ("Receiving Party") Confidential Information from the other Party ("Disclosing Party") during the Term, and such Confidential information will be deemed to have been received in confidence and will be used only for purposes of this Agreement.
The Receiving Party shall use the Disclosing Party's Confidential Information only to perform its obligations under this Agreement and disclose the Disclosing Party's Confidential Information only to the Receiving Party's personnel, contractors and affiliates having a need to know the information for the purpose of this Agreement.
The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. Upon the Disclosing Party's written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided however, the Receiving Party shall continue to keep confidential:
- Any personally identifiable information ("PII" as required by this Agreement and any applicable Law,
- Any trade secrets of the Disclosing Party as long as such information is deemed a trade secret and,
- The terms of this Agreement.
The term "Confidential Information" means all information communicated by the disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation:
- The terms of this Agreement,
- All trade secrets,
- Existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto,
- Information relating to business plans, sales or marketing methods and customer or supplier lists or requirements, and
- All information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date. Customer shall also treat all Transaction Information, payment card data, tax codes, and PII as Confidential Information.
The obligations of either Party under this Section will not apply to information that the Receiving Party can demonstrate:
- Was in its possession at the time of disclosure and without restriction as to confidentiality;
- At the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act or failure to act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure;
- Has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by such third party or the Receiving Party; or
- Is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
Disclosure by Law
In the event the Receiving Party is required by Law, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to:
- Give the Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and
- Limit the disclosure to the minimum amount that is legally required to be disclosed.
Representations and Warranties
Customer hereby represents and warrants to Elliot the following:
The Customer is a corporation duly organized, validly existing and in good standing under the laws of the state where the Customer was incorporated and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid, and binding obligations of the Customer. Customer maintains the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances.
Neither the execution and delivery of this Agreement, nor the consummation of the transaction contemplated hereby, will violate or conflict with any obligation, contract or license which could reasonably be expected to interfere with the consummation of the transaction contemplated hereby.
Term, Termination and Suspension
This Agreement shall commence on the Effective Date and shall continue for one month thereafter ("Initial Term") unless earlier terminated in accordance with the terms and conditions set forth in this Agreement. This Agreement will automatically renew for successive one (1) month periods upon expiration of the Initial Term (each a "Renewal Term" and together with the Initial Term, the "Term"), unless either Party gives written notice to the other Party of its intention not to renew at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term.
Termination for Breach
This Agreement may be terminated at any time by either Party.
Elliot may immediately suspend the Customers’ listing of Products on the Elliot Site for the Customers’ failure to comply with any service level agreement set forth in this Agreement.
The Customer will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to:
- Provide customer service to Shoppers who purchased Products on the Elliot Site,
- Pay any invoices delivered by Elliot in connection with the Agreement,
- Notify Elliot and Shoppers of any recalls of its Products,
- Notify Elliot of any security breach with regards to Transaction Information.
The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including, without limitation, representations, warranties, indemnification, payment obligations, remedies, Elliot’s rights to use Customers’ suggestions and feedback, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination.
Customer will defend, indemnify and hold harmless Elliot and its employees, directors, agents and representatives (each an "Indemnitee") from and against any and all Losses arising out of or related to third party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:
- Any actual or alleged breach of Customers’ representations, warranties, or obligations set forth in this Agreement;
- Violation of any law, regulation or third-party right;
- Customers’ own website or other sales channels, Customers’ Products (including the advertisement, offer, sale or return of any of Customers’ Products), Customers’ Content, any actual or alleged infringement of any intellectual property or proprietary rights by Customers’ Products or Content;
- Personal injury, death or property damage arising from Customers’ Products.
Procedure for Indemnification
Upon receipt of notice, from whatever source, of Claims against Elliot for which the Customer is obligated to indemnify Elliot, the Customer shall immediately take necessary and appropriate action to protect Elliot’s interests with regard to the Claims. Elliot shall notify the Customer of the assertion, filing or service of any Claims of which Elliot has knowledge, as soon as is reasonably practicable.
The Customer, in the defense of any Claim, shall not, except with the prior written consent of Elliot, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to Elliot or a release from all liability and blame with respect to the Claim. Elliot shall have the right at all times to accept or reject any offer to settle any Claim against it.
ELLIOT AND ANY RELATED PRODUCTS, SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED "AS IS." ELLIOT EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY ELLIOT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION. SELLER AGREES THAT IT'S USE OF ELLIOT IS ENTIRELY AT SELLER'S OWN RISK.
Limitation of Liability
THE ENTIRE RISK ARISING OUT OF SELLER'S USE OF ELLIOT, THE USE OF ANY SERVICES OFFERED IN CONNECTION WITH THE MARKETPLACE, AND/OR THE USE OF ANY CONTENT REMAINS WITH SELLER. IN NO EVENT SHALL ELLIOT OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS SELLER AGREEMENT, CUSTOMERS’ USE OF ELLIOT OR ITS SERVICES, ANY INFORMATION OBTAINED THROUGH THE MARKETPLACE, ANY DELAY OR INABILITY TO USE ELLIOT OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES TO CUSTOMER IN CONNECTION WITH THE MARKETPLACE, OR OTHERWISE ARISING OUT OF THE USE OF ELLIOT OR THE ELLIOT SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF ELLIOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS SELLER AGREEMENT, THE MAXIMUM LIABILITY THAT ELLIOT SHALL HAVE IS LIMITED TO THE ACTUAL VALUE OF ANY COMMISSIONS ACTUALLY RECEIVED BY ELLIOT IN CONNECTION WITH ANY SALES MADE BY SELLER THROUGH THE MARKETPLACE. SELLER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS SELLER AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Any notice or other communication required or permitted to be made or given to either party under this Agreement shall be deemed sufficiently made or given on the date of delivery if delivered in person, by facsimile, or by overnight commercial courier service with tracking capabilities with costs prepaid, or three (3) days after the date of mailing if sent by certified first class U.S. mail, return receipt requested and postage prepaid, at the address of the parties set forth below or such other address as may be given from time to time under the terms of this notice provision.
For the Customer: The address provided by the Customer in the registration process.
Hello I am Elliot, Inc.
185 Wythe Ave
Brooklyn, NY 11249
Attn: Legal Department
Controlling Law and Jurisdiction
The Parties mutually acknowledge and agree that Agreement shall be governed, controlled, interpreted and defined by and under the laws of the State of New York and the United States, without regard to the conflicts of law provisions thereof.
Waivers and Amendments
Except as otherwise expressly provided herein, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the parties. Any waiver or delay in the exercise by either party of any of its rights under this Agreement shall not be deemed to prejudice such party's right of termination or enforcement for any further, continuing or other breach by the other party. This Agreement shall be controlling over additional or different terms of any order, confirmation, invoice or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such un-enforceability or invalidity shall only apply to such provision and shall not render this Agreement unenforceable or invalid as a whole; and, in such event, such provision shall be modified or interpreted so as to best accomplish the objective of such unenforceable or invalid provision within the limits of applicable law or applicable court decision and the manifest intent of the parties hereto.
Relationship of the Parties
The parties hereto expressly understand and agree that the other is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. This Agreement does not make either party the employee, agent or legal representative of the other.