By signing an Order referencing the MTOU, you (“You” or “Seller”) agree to be bound by the terms of the Order and the MTOU, as to Your use of the Tradeshift. You agree to periodically review the then-current MTOU, and any continued use of the Market is Your unconditional agreement with the then-current MTOU. The “MTOU” means the then-current terms posted at http://tradeshift.com/market-terms-of-use/
The Tradeshift Market is a B2B marketplace open to participation by Tradeshift Network buying entities (limited to the US initially) (the “Market”).
I. TERMS AND BILLING DETAILS
- Subscription Term: The subscription is valid from the Effective date until terminated by a Party. The “Effective Date” is the date of last signature of the Order signed by You.
- Termination for Convenience. Either party may terminate this MTOU at any time, with or without cause, immediately upon providing written or email notice to the other party.
- Transaction Process and Responsibility: All transactions with Buyers are between the Seller and the Buyer and the Seller will be the seller of record. Buyers will place orders via the Tradeshift Market, and Buyer will pay Seller.
- Billing Terms: Unless otherwise stated on the Order signed by Seller and Tradeshift, after the introductory period, Sellers must enroll in an automatic billing and payment process to continue selling via Tradeshift Market. Sellers must provide valid ACH or Credit Card details. For the account information Seller provides to Tradeshift, Seller authorizes and consents to Tradeshift automatically charge the account each for all fees incurred by Seller in using the Market. Tradeshift Market will allow for a dispute period of 30 days following payment for selling fees. Disputes can be made by contacting firstname.lastname@example.org
- Claims Adjustments: If Tradeshift concludes using reasonable commercial evaluation that Seller actions or inactions in connection with this MTOU may create customer dispute other claims, then Tradeshift may, in its sole discretion, cancel the Order and/or suspend or deactivate the seller’s Tradeshift Market account.
II. OTHER TERMS
- This MTOU will be interpreted, construed, and enforced in all respects in accordance with the local laws of California. Each party hereby irrevocably consents to personal jurisdiction of the courts within the County of San Francisco, California (the “Selected Venue”), in connection with any action arising out of or in connection with this MTOU. Seller agrees that any claim it asserts against Tradeshift must exclusively be brought in the Selected Venue.
- In the event of a conflict in terms between this MTOU and the Order signed by Seller to join the Market, the terms set forth in the Order shall take precedence and govern.
- These MTOU terms, along with Tradeshift’s operating practices listed at https://tradeshift.com/legal/toc/ (“Operating Practices”) all of which are incorporated into the MTOU, and other policies posted on the Tradeshift Market web sites as directed to Sellers on the Market (“Seller Policies”), as updated from time to time, set out the terms on which Tradeshift offers you access and use of the Market, services, applications and tools (collectively “Services”). Any general terms and conditions proposed or stated by Seller are expressly excluded. The following policies and Schedules are also incorporated and made a part of this MTOU:
Additional terms / Policies:
• Prohibited Content Policy: Seller agrees at all times to ensure compliance with the Tradeshift Market Prohibited Content Policy as updated from time to time. Current version is found at http://tradeshift.com/market-prohibited-products
• Code of Conduct: Seller agrees to abide by a code of conduct at least as rigorous and protective of users as the Tradeshift Code of Conduct noted in the Operating Practices.
• Territory: The Tradeshift Market is available only in certain geographies, as noted on the Market.
The following definitions apply to this MTOU:
- “Affiliate” of a company is an entity that is controlled by, controls, or is under common control of, a Party, where “Control” means processing, directly or indirectly, the power to direct or cause the direction of the management, policies and operations of such entity, whether through ownership of voting securities, by contract or otherwise.
- “Buyers” means businesses who are granted accounts to use the Market to purchase goods.
- “Business Day” means the days on which Seller is open for general business operations.
- “Product(s)” means those products for which Seller provides Tradeshift with Product Information, specifically excluding any “Prohibited Items” as designated in this MTOU or by Tradeshift in the Seller Policies.
- “Product Information” means all specifications, pricing, product images and other information related to the Product.
- “Seller Marks” means Seller’s trademark, trade names, service marks, service names, logos and distinct brand elements associated with Seller’s products.
- “Seller’s Price” means with respect to any Product the price at the time of shipment by the Seller.
- “Seller Marketplace Manager” means the application made available for use with the Tradeshift Market that enables Sellers to list their products and manage their data.
- Seller Qualification
Tradeshift has sole discretion in evaluating each individual Seller’s suitability to participate in the Market and related listing services. At the time Seller applies to participate, and from time to time throughout the term of this MTOU, Tradeshift may review certain Seller characteristics, including but not limited to, product offerings, product liability and compliance history, business and financial standing, and whether Seller could be construed as a current or potential competitor to Tradeshift or of a Tradeshift affiliated company, and Tradeshift reserves the right, in its sole and complete discretion, to reject any Seller applicant, or to terminate any participating Seller, which Tradeshift deems not to be suitable to participate in the Tradeshift Market and related listing services.
- Products and Pricing
- Except as provided below, Seller shall provide Tradeshift with all Product Information to be displayed on the Market, through the Seller Marketplace Manager provided by Tradeshift. On an on-going basis, Seller will update Product Information at least once every thirty (30) days and as facilitated by the Market from time to time, including, but not limited to:
• brief product description (less than 1,500 characters)
• specifications, if any
• images (as specified in the upload template provided by Tradeshift)
• manufacturer part number
• amount of inventory
• selling price
• shipping options
• Returns/RMA procedure
Seller is fully responsible for the accuracy of all information submissions to Tradeshift pertaining to Products to be listed and/or sold. Seller will maintain parity between the products offered through any other online sales channel and the products offered on the Market in terms of pricing, product information, customer service, and quality of goods.
- Seller agrees that any Product Information may be displayed by Tradeshift to certain buyers as Tradeshift sees fit and at no charge to Tradeshift. Seller grants to Tradeshift and its Affiliates an irrevocable, perpetual, sublicensable, transferable, non-exclusive, royalty-free and fully paid-up, worldwide right and license to, use, copy, transmit, perform, display, modify and create derivative works, incorporate and embed into other works, and distribute such Product Information throughout the Market in any medium or form now existing or later created.
- Seller is solely responsible to ensure that all Product Information displayed on the Market is accurate. In order to prevent inaccuracies, Seller shall (i) immediately correct any erroneous pricing, inventory, and shipping information; and, (ii) immediately notify Tradeshift of any erroneous Product description; and (iii) as requested by Tradeshift, or when Product mix, inventory, or prices change. Seller shall immediately notify Tradeshift in writing of any private or public recall of any of its Products.
- Seller acknowledges and agrees that: (a) inaccuracies in information provided to Tradeshift; (b) failure to provide Tradeshift with updated Product and pricing information; (c) illegal or deceptive practices by Seller; (d) complaints from users regarding Seller’s conduct of business; and/or (e) any breach of Section 6.3 or this Section 3.4, constitute sufficient cause for the immediate removal of Seller from the Market and the immediate termination of this MTOU by Tradeshift, in its sole discretion and without any prior notification to Seller or opportunity for Seller to cure any of the foregoing. Tradeshift, in its sole discretion, may refuse or remove any Prohibited Item or other listing which violates this MTOU, at any time. In the event of removal of Seller or its Product(s) from the Market, Tradeshift in its sole discretion is entitled to indicate on the Market that Seller and Products have been removed from the Market.
- Tradeshift shall use commercially reasonable efforts to display Product, product pricing, and Product Information on the Market. However, notwithstanding anything in this MTOU to the contrary, Tradeshift reserves the right to not display any information concerning any Product which Tradeshift, in its sole discretion, has determined is of a quality and nature inconsistent with Tradeshift’s standards, or is otherwise deemed by Tradeshift, in its sole and absolute discretion, to be inappropriate or undesirable for listing on the Market. Seller understands and acknowledges that some or all of the Seller’s information may unintentionally be omitted or incorrectly displayed on the Market. Under no circumstances shall Tradeshift be liable for any damages to Seller arising out of any unintentional errors and/or omissions in the display of Seller’s information on the Market, any user’s use of the Market and/or the activities of any users.
- Transaction Process, Fulfillment and Returns
- Transaction Confirmation and Fulfillment. Once the Buyer and Seller agree on a transaction on the Market (a “Transaction”), Seller will, at Seller’s expense, be solely responsible for, and bear all liability for, the fulfillment of the Transaction, including without limitation, packaging and shipping products and customer service, returns, and refunds. Seller will ship all the items that are in a Transaction to the Buyer or cancel the entire Transaction. All Transactions are expected to be shipped with tracking information and delivery confirmation.
- Shipping. All Transactions through the Market must be shipped to Buyers within two Business Days. Transactions must reach the Buyer within the estimated time frame of up to eight Business Days. Failure to provide shipment notifications within four Business Days may cause your transaction to be cancelled at the discretion of Tradeshift.
- Buyer Support/Returns. All Buyer disputes, returns, claims, refunds, etc., are Seller’s responsibility, subject to the requirements of this section. Seller shall accept returns within, at a minimum, 30 days of shipment except for perishable items. All returns shall be handled by Seller directly with the Buyer pursuant to Seller’s replacement or money-back guarantee, which permits a Buyer who purchases a Product on the Market to return it for a refund. Tradeshift may provide Seller’s e-mail address and/or other contact information to Buyers who purchase Products. Seller’s Return and refund policies for products sold through the Market will be no less favorable to Buyers than Seller’s most favorable policies offered on Seller’s website (“Seller Site”) for such products.
- Risk of Loss. Except as specified below, Seller shall bear all risks associated with, or related to, any Product purchased by a Buyer through the Market, including but not limited to product defects, non-delivery, mis-delivery, theft, mistake or Buyer fraud. Seller will be responsible to ensure that all Products are shipped in compliance with all applicable laws and regulations, including but not limited to hazardous materials laws and regulations.
- Customer Service. Seller will be responsible for all customer service for Transactions on the Market for Seller products, except for issues related to payment if payment is made to Tradeshift or a Tradeshift service provider. In performing such customer service, Seller will always represent itself as a separate entity from Tradeshift.
- Confidentiality & Privacy
- Confidentiality. Tradeshift and Seller acknowledge that, in the course of performing their obligations under this MTOU, each party may acquire information, identified as confidential, about the other party, its business activities and operations, its technical information and trade secrets, of a highly confidential and proprietary nature, including without limitation, merchandising records, Buyer records and mailing lists, systems information, technology, technical information, and general financing and business plans and information (all such information relating to Tradeshift or Seller being “Confidential Information” and the party to whom such Confidential Information relates being the “Disclosing Party”). Each Party, during the Term of this MTOU and for a period three (3) years after termination of this MTOU, shall hold such Confidential Information in confidence, shall not disclose such Confidential Information except to its officers, advisors, consultants or employees who have a reasonable need to know such Confidential Information, and have executed confidentiality agreements at least as restrictive as those contained in this provision. Each party shall use at least as great a standard of care in protecting the other party’s Confidential Information as it uses to protect its own Confidential Information of like character, but in no event less than a reasonable degree of care. Neither party shall disclose Confidential Information to any third party without the prior written approval of the other party, and shall return or destroy all such Confidential Information upon request of the disclosing party. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided hereunder. For purposes of clarity, Buyer information, including but not limited to name, address and other contact information, shall be deemed the sole property and Confidential Information of Seller. This provision is subject to the Operating Practices.
- Remarketing. Seller hereby agrees that it will not use Buyer information provided in transaction on the Market (such as contact information of the Buyer) for the purpose of remarketing to sell Seller’s products or services for a transaction not initiated, consummated, or otherwise formed outside of the Market.
- Intellectual Property
- Seller Content and Seller Trademarks
a) Seller hereby grant Tradeshift and it’s affiliates, and its service providers and marketing partners, a non-exclusive, royalty-free, perpetual, sublicensable, irrevocable right and license (a) to publish, reproduce, display, distribute, transmit and otherwise use Seller’s name, trademarks, service marks, and logos (“Seller Marks”), and (b) to publish and perform, reproduce, distribute, transmit, display, modify, create derivative works of, and otherwise use and commercially exploit all Seller Content, in each case in connection with the Tradeshift.com Marketplace program (including without limitation advertising, marketing, and promoting the Products, other products, or the various marketplace programs through the Tradeshift Market, Tradeshift marketing web sites, third party websites, e-mail, social media or any other medium). Tradeshift.com and its affiliates may permit Customers, other users of the Tradeshift.com Sites, and other third parties to share and post Seller Content on their websites, applications, and social media outlets.
b) Seller will not use Seller Content to redirect end users of the Market to any other sales channels.
- Transaction Data. Seller acknowledges and agree that, as between the parties, all transaction information relating to Transactions or Products, including but not limited to information that is entered into the Market, information that is created as a result of a transaction, and (collectively “Transaction Data”), once entered onto the Market or generated on such Market is owned by Tradeshift (and you hereby assign rights you may acquire in such Transaction Data as resident on the Market to Tradeshift).
- Indemnity. Seller shall indemnify, defend and hold harmless Tradeshift, its affiliates, subsidiaries, related entities, and their officers, directors, employees, agents, successors and assigns from and against any claims demands, liabilities or losses, damages, and expenses (including reasonable attorneys’ fees and costs) including but not limited to the following based upon:
a) any product liability or similar claims arising or resulting from the use of any Product, including claims seeking damages for personal injury or property damage arising from or in relation to Products, and any claim concerning a Product’s recall or otherwise defective or unsafe Product(s) (including design or manufacturing defects);
b) any intentional misconduct or negligence by Seller or its employees or agents in performing its obligations under this MTOU;
c) any third party claim that a Product, or any part thereof, infringes or misappropriates any Intellectual Property Right of a third party;
d) the failure or alleged failure of Products to comply with Product specifications or with any express or implied warranties of Seller;
e) the violation or alleged violation of any law, statute or governmental ordinance due or related to the manufacture, possession, shipment, labeling, packaging, use or sale of any Products;
f) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud resulting from Product Information provided by Seller and disclosed by Tradeshift;
g) any breach or alleged breach of a Seller representation or warranty or any other provision of this MTOU by Seller;
h) any assessment of sales or use tax (including any interest and penalties thereon) made by an applicable tax jurisdiction against Tradeshift in connection with the sale of a Product pursuant to this MTOU.
- Claims Handling. If a credible claim is made or threatened, for which Tradeshift is entitled to indemnification from Seller including without limitation the filing of a lawsuit against Tradeshift, or the receipt of a demand or notice by Tradeshift or Tradeshift elects to defend any claim for which Tradeshift is entitled to indemnification:
a) Tradeshift shall have the right to engage counsel of its choosing that Tradeshift deems, in its sole discretion, to be necessary for a competent defense of the suit;
b) Tradeshift shall pay all legal fees and expenses incurred in defense of the claim or suit as they become due. Seller shall reimburse Tradeshift for such fees and expenses within thirty (30) days from date of invoice or debit memo from Tradeshift. After thirty (30) days, Tradeshift will be entitled to deduct any unpaid invoice or debit memo amount from any amounts owed by Tradeshift to Seller. This shall not apply to any judgment or settlement amount, which amounts Tradeshift shall be entitled to notify, invoice or debit Seller’s account at any time.
c) In the event a claim is made or a suit is filed directly against Tradeshift, and Tradeshift is defending such claim or suit, then Tradeshift, in its sole discretion, may settle the claim or suit. If Seller is defending the claim or suit, Seller may not settle the claim of suit absent the written consent of Tradeshift unless such settlement (a) includes a release of all claims pending against Tradeshift, (b) contains no admission of liability or wrongdoing by Tradeshift, and (c) imposes no obligations upon Tradeshift other than an obligation to stop selling any infringing items. Tradeshift agrees to provide reasonable assistance to Seller, at Seller’s expense, regarding such claim or action.
- Notice. If a credible claim is made or threatened for which Tradeshift is entitled to indemnification from Seller, including without limitation the filing of a lawsuit against Tradeshift, or the receipt of a demand or notice by Tradeshift, or Tradeshift elects to defend any claim for which Tradeshift is entitled to indemnification Tradeshift will use reasonable efforts to notify Seller promptly of any such party claim for which Tradeshift believes Seller should indemnify and defend Tradeshift under this Section. However, Tradeshift’s failure to provide such notice or delay in providing such notice will relieve Seller of its obligation only if and to the extent such delay or failure materially prejudices Seller’s ability to defend such claim.
- Seller. Seller hereby represents and warrants to Tradeshift that:
a) Seller has the power and authority to enter into this MTOU and to fully perform its obligations hereunder;
b) Seller has obtained, and shall maintain in full force during the term of this MTOU, such federal, state and local authorizations as are necessary to operate and to otherwise perform its obligations under the MTOU, and will be in compliance with all applicable laws and regulations governing such performance;
c) All pricing, availability and Product Information (“Seller Content”) is accurate, truthful and not misleading or otherwise deceptive in any respect and will be updated by Seller on a regular basis and in a timely fashion as referenced in 6.1 above.
d) All Products are safe, in compliance with all applicable regulations, and are designed and manufactured without defects, safety, or other issues, and are not prohibited for sale. Seller acknowledges that Tradeshift neither has the opportunity nor duty/obligation to inspect, test, or otherwise monitor or oversee Products in any way.
e) Seller has requisite authority to grant Tradeshift the right to use all Product Information (for example, pictures, drawings, graphics, descriptions, specifications and/or reviews).
f) Seller will exercise its best efforts to ensure that the Seller Site and the content contained therein will not contain any material that is obscene, pornographic, profane, fraudulent, libelous or defamatory.
g) The content and Products do not infringe or misappropriate any third party’s patent, copyright, trademark, trade secret, or any other intellectual property right (collectively, “Intellectual Property Right”);
h) Products (including Seller Products manufactured outside of the United States) shall conform to all domestic and international legal requirements and shall not be in violation or cause Tradeshift to be in violation of any applicable law, rule or regulation (including without limitation, export and hazardous substance laws, regulations, rules and directives) and Seller shall obtain all permits, licenses, inspections and similar permissions required to comply with such laws, rules and regulations;
i) Seller is not currently owned or controlled by a direct competitor of Tradeshift, nor employs any person who is also employed by, or is an officer, director, manager, or material shareholder, of a direct competitor of Tradeshift.
j) Seller acknowledges and will comply with all Seller Policies for the Market, as such policies may be amended from time to time.
- TRADESHIFT. Tradeshift hereby warrants that:
a) Tradeshift has the power and authority to enter into this MTOU and to fully perform its obligations hereunder;
b) Tradeshift has obtained, and shall maintain in full force during the term of this MTOU, such federal, state and local authorizations as are necessary to operate and to otherwise perform its obligations under the MTOU, and will be in compliance with all applicable laws and regulations governing such performance.
- No Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In particular, but without limitation, Tradeshift makes no representation as to whether Seller is required to charge sales tax to Tradeshift or to a Buyer in connection with sales of Products made through the Market, and in the event Seller subsequently is assessed sales tax (including any interest or penalties thereon) by an applicable tax jurisdiction in connection with such sales, Seller waives any right to demand payment or reimbursement of the same from Tradeshift or Buyer.
- Limitation of Liability
EXCEPT FOR WILLFUL OR GROSSLY NEGLIGENT BREACHES OF ANY OBLIGATION UNDER THIS MTOU, BREACHES OF ANY CONFIDENTIALITY OBLIGATIONS, THE FULFILLMENT OF ANY INDEMNITY OBLIGATIONS AND AS OTHERWISE PROVIDED IN THIS MTOU, IN NO EVENT SHALL TRADESHIFT, OR ITS SUBSIDIARIES OR AFFILIATED ENTITIES, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TRADESHIFT’S LIABILITY FOR ANY DAMAGES UNDER THIS MTOU EXCEED THE AMOUNT PAID TO TRADESHIFT UNDER THIS MTOU. TRADESHIFT SHALL HAVE NO LIABILITY TO ANY PARTY FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE, COMPUTER VIRUS OR THIRD PARTY INTERFERENCE THAT MAY INTERRUPT OR DELAY ACCESS TO ANY INTERNET SITE OR CAUSE OTHER PROBLEMS OR LOSSES. NO PARTY SHALL BE LIABLE FOR ANY DELAY OR FAILURE TO FULFILL ITS OBLIGATIONS HEREUNDER THAT RESULTS FROM AN ACT BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF NATURE, WAR, CIVIL DISTURBANCE, TERRORISM, COURT ORDER, OR LEGISLATIVE OR REGULATORY ACTION.
13.4. Headings: Construction. The headings to the sections, sub-sections and parts of this MTOU are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of this MTOU. Any ambiguity in this MTOU shall be interpreted equitably without regard to which party drafted the MTOU or any provision thereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this MTOU.
13.5. Non-Waiver. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the full rights to require such performance at any time thereafter. The waiver by either party of a breach of any provisions hereof shall not be taken, construed, or held to be a waiver of the provision itself or a waiver of any breach thereafter or a waiver of any other provision hereof.
13.6. Notices. Unless otherwise specifically indicated elsewhere in this MTOU, any notice or communication permitted or required hereunder will be in writing in English and will be delivered by email transmission with confirmation of receipt, in person, or by courier, or mailed by certified or registered mail, postage prepaid and addressed as set forth on the signature page of the Order or to such other email number or address as either party may provide from time to time to the other. Email notice to Tradeshift must be sent to email@example.com. In addition, notices to Seller may be delivered by email to Seller at the most current email address provided by Seller to Tradeshift. If notice is given in person, by courier, by email or by facsimile, it will be effective upon receipt; and if notice is given by mail, it will be effective three (3) business days after deposit in the mail.
13.7. Relationship of the Parties. The parties hereto are independent contractors and nothing contained in this MTOU shall be deemed or construed to create the relationship of partnership or joint venture or principal and agent or of any association or relationship between the parties. Seller acknowledges that it does not have, and Seller shall not make any representation to any third party either directly or indirectly indicating that Seller has, in any way, authority to act for or on behalf of Tradeshift or to obligate Tradeshift in any way whatsoever. Each party is responsible for all taxes, duties and other governmental assessments incurred by it as a result of such party’s performance under this MTOU, and Seller shall reimburse Tradeshift for any sales, use, VAT, excise, or other tax, duties or levies (other than taxes on Tradeshift’s income and taxes for which Seller is exempt), including any penalties and interest, which Tradeshift may be required to collect or remit to applicable tax authorities in connection with the sale of Seller’s Products pursuant to this MTOU.
13.8. Severability. A judicial determination that any provision of this MTOU is invalid, in whole or in part, shall not affect the enforceability of those provisions unaffected by the finding of invalidity.
13.9. Survival. Notwithstanding the termination or expiration of the term of this MTOU or any renewal period thereof, it is acknowledged and agreed that those rights and obligations which by their nature are intended to survive such expiration or termination shall survive.
13.10. Translations. The English version of this MTOU is the official version at all times. If this MTOU is translated to other languages for the convenience of the readers or otherwise, all claims, disputes, rights, obligations, or interpretations of the MTOU shall be solely controlled by the English language version of the MTOU.
Tradeshift Market – MTOU for sellers – v1 (20 Aug 2020)