SUPPLIER TERMS OF SERVICE
Last Update: 2/27/23
Welcome to Gourmet Food Marketplace. Thank you for your interest in becoming a supplier on the Gourmet Food Marketplace, accessible through its websites (collectively, the “Site”) and mobile applications (collectively, the “Application”). Throughout this Supplier Terms of Service (The “Agreement”), the terms “Gourmet Food Marketplace,” “GourmetFoodMarketplace.com,” “GFM,” “us,” and/or “we” refer to Yummy Bazaar, Inc. dba Gourmet Food Marketplace and any of its applicable Affiliates. The terms “you” and/or “your” refer to the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND GFM. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. Capitalized terms have the meanings given to them in this Agreement. If there is any conflict between these General Terms and the applicable Service Terms and Program Policies, the General Terms will govern and the applicable Service Terms will prevail over the Program Policies.
2. Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described in the applicable Service Terms and Program Policies. You are responsible for all of your expenses in connection with this Agreement. To use the Service, you must provide us with valid credit card information from a credit card or credit cards acceptable by GFM ("Your Credit Card") as well as valid bank account information for a bank account or bank accounts acceptable by GFM (conditions for acceptance may be modified or discontinued by us at any time without notice) ("Your Bank Account"). You will use only a name you are authorized to use in connection with a Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), 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 (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to GFM or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to GFM or third parties persist. For any amounts that we determine you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account—or any other account you have operated—has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the United States dollar, and all payments contemplated by this Agreement will be made in the United States dollar.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to GFM or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all buyers and suppliers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a buyer to withdraw from a transaction because an GFM Site or Service is unavailable following the commencement of a transaction, or for any other reason.
3. Term and Termination.
The term of this Agreement will start on the date of your completed registration for use of a Service and continue until terminated by us or you as provided below. You may at any time terminate your account or this Agreement immediately on notice to us via email, the Contact Us form, or similar means. We may terminate your account or this Agreement for convenience with 30 days’ advance notice. We may suspend or terminate your account or this Agreement immediately if we determine that (a) 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; (b) your account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity; (c) your use of the Services has harmed, or our controls identify that it might harm, other suppliers, buyers, or GFM’s legitimate interests; or (d) you are not meeting the minimum standards of quality and service based on a variety of metrics, including collecting reviews and ratings from your buyers. We will promptly notify you of any such termination or suspension via email, 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. On termination of this Agreement, all related rights and obligations under this Agreement immediately terminate, except that (d) 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, and (e) Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, and 17 of these General Terms survive.
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 GFM product or service, and to sublicense the foregoing rights to our Affiliates and operators of GFM Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) 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 GFM Site or Service); provided further, however, that 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: (a) 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; (b) 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; (c) any information provided or made available by one party to the other party or its Affiliates is at all times accurate and complete; and (d) it will comply with all applicable Laws in performance of its obligations and exercise of its rights under this Agreement.
6.1 Your indemnification obligations. You will defend, indemnify, and hold harmless GFM, Yummy Bazaar Inc., 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 (a) your non-compliance with applicable Laws; (b) Your Products, including the offer, sale, fulfillment (except to the extent attributable to the GFM 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 GFM), or property damage related thereto; (c) 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 (d) actual or alleged breach of any representations you have made.
6.2 Process. 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.
7. Disclaimer & General Release.
a. THE GFM SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE GFM SITES, THE SERVICES, AND SUPPLIER ACCESS AT YOUR OWN RISK. EXCEPT THOSE SET FORTH IN SECTION 5 ABOVE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE GFM SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
b. IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES GFM (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
8. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF GFM HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR THREE MONTH PERIOD PAID BY YOU TO GFM IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during any month, or otherwise if requested by us, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term 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 GFM and its assignees as additional insureds. At our request, you will provide to us certificates of insurance, the full insurance policy, or other documents we may request for the coverage to the following address: c/o Gourmet Food Marketplace, 70 Sewell Street, Unit D, Glassboro, NJ 08028. Attention: Risk Management.
10. 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 GFM'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.
Generally, you may not use buyer personal data in any way inconsistent with applicable Law. You must keep buyer personal data confidential at all times (the above 5 years’ term limit does not apply to buyer personal data).
11. 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.
12. Relationship of Parties.
13. 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 GFM 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 buyers, 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.
14.1. We will provide at least 15 days’ advance notice in accordance with Section 18 for changes to the Agreement.
14.2 However, we may change or modify the Agreement at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the Services (where this does not materially adversely affect your use of the Services); or (c) to restrict products or activities that we deem unsafe, inappropriate, or offensive. We will notify you about any change or modification in accordance with Section 18.
14.3 Your continued use of the Services after the effective date of any change to this Agreement in accordance with this Section 15 will 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 described in Section 3.
15. Password Security.
Any password we provide to you may be used only during the Term to access Supplier Portal (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.
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 US Departments of State, Treasury or Commerce, or any other applicable government authority.
The Governing Laws will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. GFM and you both consent that any dispute with GFM or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) either party may elect to proceed in a small claims court that is a Governing Court if your claims qualify; (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; and (iii) we may bring any claims related to your sale of counterfeit products on the GFM Site in the Governing Courts and seek any remedy available under law related to those claims. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award 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 notifying us of your intent to pursue arbitration and describing your claim to Gourmet Food Marketplace, 70 Sewell Street, Unit D, Glassboro, NJ 08028. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules. 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. For all cases, the AAA commercial fee schedule governs the payment of all filing, administration and arbitrator fees. The underlying award in the arbitration may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules. GFM 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 GFM 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 GFM, 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: (a) in connection with a merger, consolidation, acquisition or sale of all or substantially all of our assets or similar transaction; or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for GFM 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. GFM 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 GFM is not your agent (except for the limited purpose set out in the Transaction Processing Service Terms), or the buyer’s agent for any purpose, GFM will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.
GFM will provide notice to you under this Agreement by sending you an email notification, or by similar means. You must send all notices and other communications relating to GFM 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 e-mail addresses and certain other information via GFM email, the Contact Us form, or by similar means. 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. 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.
As used in this Agreement, the following terms have the following meanings:
"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.
"GFM Associated Properties" means any website or other online point of presence, mobile application, service or feature, other than an GFM Site, through which any GFM Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised, or described.
"GFM Site" means, as applicable, the GFM Website.
"Confidential Information" means information relating to us, to the Services, or GFM buyers that is not known to the general public including, but not limited to, any information identifying or unique to specific buyers; reports, insights, and other information about the Services; data derived from the Services except for data (other than buyer 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, buyer 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 products that are not in compliance with GFM Program Policies or otherwise determined unsuitable by GFM
"Governing Courts" means Gloucester County, NJ.
"Governing Laws" means State of New Jersey.
"Insurance Limits" means One Million U.S. Dollars ($1,000,000)
"Insurance Threshold" means Ten Thousand U.S. Dollars ($10,000)
"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.
"Order Information" means, with respect to any of Your Products ordered through an GFM Site, 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.
"Sales Proceeds" means the gross proceeds from any of Your Transactions, after discount, rebate and gift cards authorized and issued by you, including (a) all shipping and handling, and other charges; (b) taxes; and (c) in the case of invoiced orders, any amounts that buyers fail to pay to us or our Affiliates on or before the applicable invoice due date.
"Supplier Portal" means the online portal and tools made available by GFM to you, for your use in managing your orders, inventory, and presence on a particular GFM Site.
"Service" means each of the following services: Selling on GFM and Fulfillment by GFM, together in each case with any related services and materials we make available.
"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: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) 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 GFM 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 that you: (a) have offered through the Selling on GFM Service; or (b) have fulfilled or otherwise processed through the Fulfillment by GFM 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.
YOUR TAXES EXCLUDE ANY SALES AND USE TAXES COLLECTIBLE BY GFM 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 GFM, SHIPPING, OR OTHER ACTIONS BY GFM IN RELATION TO YOUR PRODUCTS PURSUANT TO THE FULFILLMENT BY GFM SERVICE TERMS.
"Your Trademarks" means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) 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 a GFM Site.
Selling on GFM Service Terms
The Selling on GFM Service ("Selling on GFM") is a Service that allows you to offer products directly on the GFM Site.
These Selling on GFM Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on GFM. BY REGISTERING FOR OR USING THE SELLING ON GFM SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE SELLING ON GFM SERVICE TERMS.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide accurate and complete Required Product Information for each product that you offer through GFM 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 GFM Site comply with all applicable Laws. You may not provide any information for, or otherwise seek to offer any Excluded Products. If you offer a product for sale on GFM 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 Supplier Portal, (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.
S-1.2 Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on GFM Site in accordance with the Agreement. We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a supplier and GFM may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through GFM 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 GFM Service Terms. We may permit certain buyers to place invoiced orders for Your Products, in which case remittance of Sales Proceeds may be delayed according to each buyer’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.
S-1.3 Credit Card Fraud and Unpaid Invoices. We will bear the risk of (a) 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 (b) late payments or defaults by buyers in connection with invoiced orders for Your Products.
S-2 Sale and Fulfillment; Refunds and Returns.
S-2.1 Cancellations, Returns, and Refunds. The GFM Refund Policies for the applicable GFM Site will apply to Your Products. Subject to Section F-6, for any of Your Products fulfilled using Fulfillment by GFM, we may in our sole discretion accept, calculate, and process cancellations, returns, refunds, and adjustments for the benefit of buyers.
S-3 Problems with Your Products.
S-3.1 Delivery Errors and Nonconformities; Recalls.
For Your Products that are fulfilled using Fulfillment by GFM, if any, the Fulfillment by GFM Service Terms for the applicable GFM 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 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.
You will pay us the applicable fees as outlined in the Fee Schedule stated in the Program Policies.
S-5 Remittance of Sales Proceeds & Refunds.
Except as otherwise stated in this Agreement, we will remit to you your available balance on the 10th of every month. 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 Commission and Fulfillment Fees; (b) any other applicable fees (including any applicable Program Policies); (c) all shipping and handling, and other charges; and (d) any amounts we require you to maintain in your account balance pursuant to this Agreement (including payments withheld pursuant to Section S-1.3, and applicable Program Policies).
We may establish a reserve on your account based on our assessment of risks to GFM 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 one month, or the next Remittance cycle.
S-6 GFM’s Websites and Services.
GFM has the right to determine the design, content, functionality, availability and appropriateness of its websites, selection, and any product or listing in the GFM Stores, and all aspects of each Service, including your use of the same. GFM may assign any of these rights or delegate any of its responsibilities.
S-7 Continuing Guarantees
We require the following continuing guarantees from you.
Products comprising each sale, shipment, or other delivery made previously or hereafter are: (i) not adulterated or misbranded within the meaning of the FFDCA, (ii) compliant with all requirements of FFDCA and its implementing regulations at the time of sale, shipment, or delivery, and (iii) provided by you in the original, unbroken packaging.
Selling on GFM Definitions
"GFM-Fulfilled Products" means any of Your Products that are fulfilled using the Fulfillment by GFM Service.
"GFM Refund Policies" means the return and refund policies published on the applicable GFM Site and applicable to products offered via that GFM Site.
"Expected Ship Date" means five (5) business days, five (5) business days after the date on which the buyer places the relevant order.
"Case Price" means the total amount payable or paid for Your Product
"Required Product Information" means, with respect to each of Your Products in connection with a particular GFM Site, the following (except to the extent expressly not required under the applicable Program Policies): (a) description; (b) SKU and UPC/EAN numbers, and other identifying information as GFM may reasonably request; (c) information regarding shipping limitations or requirements; (d) categorization within each GFM product category and browse structure as prescribed by GFM from time to time; (e) digitized image that accurately depicts only Your Product, complies with all GFM image guidelines, and does not include any additional logos, text or other markings; (f) Case Price; (g) any text, disclaimers, warnings, notices, labels, warranties, or other content required by applicable Law to be displayed, or that are necessary for the safe use of Your Product, in connection with the offer, merchandising, advertising, or sale of Your Product; (h) brand; (i) model; (j) product dimensions; (k) weight; (l) SKU and UPC/EAN numbers (and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; and (m) any other information reasonably requested by us (e.g., invoices and other documentation demonstrating the safety and authenticity of Your Products).
"Shipment Information" means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
"Your Transaction" is defined in the General Terms of this Agreement; however, as used in these Selling on GFM Service Terms, it means any and all such transactions through Selling on GFM only.
"Remittance Calculation Date" is the date that is two (2) business days prior to the date of remittance (the "Remittance Calculation Date").
Fulfillment by GFM Service Terms
Fulfillment by GFM ("Fulfillment Service") provides fulfillment and associated services for Your Products.
These Fulfillment Service Terms are part of the Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in Fulfillment Service. BY REGISTERING FOR OR USING FULFILLMENT SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE FULFILLMENT SERVICE TERMS. You expressly agree that GFM may engage its Affiliate(s) or a third party in order to complete one or more of the fulfillment and associated services outlined below.
F-1 Your Products
Once you are accepted into Fulfillment Service, you must apply to register each product you offer that you wish to include in the Fulfillment Service program. We may refuse registration in Fulfillment Service of any product, including on the basis that it is an Fulfillment Service Excluded Product or that it violates applicable Program Policies, in our sole and absolute discretion. You may at any time withdraw registration of any of Your Products from Fulfillment Service.
F-2 Product Update
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 as outlined in Program Policies.
F-3 Shipping to GFM
F-3.1 Except as otherwise provided in Section F-3.4 and Section F-5, Fulfillment Service is limited to Cases that are shipped to and from fulfillment centers located within the United States, to be delivered to buyers in the United States only. You will ship Cases to us in accordance with applicable Program Policies. You will be responsible for all costs incurred to ship the Cases to the GFM fulfillment center (including costs of freight and transit insurance) and GFM 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 Cases, we may return the Case to you at your expense (pursuant to Section F-7) or re-package or re-label the Case and charge you administrative fee, material fee and other associated fees outlined in Program Policies.
F-3.2 You will not deliver to us any Unsuitable Case; we may reject any shipment of Your Products.
F-3.3 If you ship Cases from outside the United States to fulfillment centers, you will list yourself as the importer/consignee and nominate a customs broker. If GFM is listed on any import documentation, GFM reserves the right to refuse to accept the Cases covered by the import documents and any costs assessed against or incurred by GFM 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 Service Terms once we confirm receipt of delivery. We will keep records that track inventory of Cases by identifying the number of Cases stored in the fulfillment center. We will not be required to physically mark or segregate Cases from other inventory cases (e.g., products with the same GFM identification number) owned by us, our Affiliates or third parties in the fulfillment center. Our confirmed receipt of delivery does not: (a) indicate or imply that any Case has been delivered free of loss or damage, or that any loss or damage to any Case later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that we actually received the number of Cases 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 Section 15 of the General Terms, and you will comply with any of these restrictions or limitations.
As part of our fulfillment services, we will ship Cases from our inventory of Your Products to the shipping addresses included in valid buyer orders. We may ship Cases together with products purchased from other merchants.
F-6 Buyer Returns
F-6.1 We will receive and process returns of any GFM Fulfillment Cases that were shipped to addresses in accordance with the terms of your Supplier Agreement, these Fulfillment Service Terms, and the Program Policies. Any Sellable Cases that are also GFM Fulfillment Cases and that are properly returned will be placed back into the inventory of Your Products in the Fulfillment Service Program. We may fulfill buyer orders for Your Products with any returned GFM Fulfillment Cases. Except as provided in Section F-7, you will retake the title of all Cases that are returned by buyers.
F-6.2 Subject to Section F-7, we will, at your direction, either return or dispose of any Case that is returned to us by a buyer and that we determine is an Unsuitable Case.
F-7 Returns to You and Disposal
F-7.1 You may, at any time, request that Cases be returned to you or that we dispose of Cases. If you elect that Cases be returned to you, you agree to bear all associated shipping and handling costs as outlined in Program Policies.
F-7.2 We may with notice return Cases to you, including upon termination of these Fulfillment Service Terms. Returned Cases 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, or (c) we cannot make arrangements for you to pay for the return shipment, then the Case(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 Case (and you will be deemed to have consented to our action): (d) immediately if we determine that (i) the Case creates a safety, health, or liability risk to GFM, 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 and are exposed to liability towards a third party; (e) if you fail to direct us to return or dispose of any Unsuitable Case within five (5) days after we notify you that the Case has been recalled; or (f) if you fail to direct us to return or dispose of any Unsuitable Case within five (5) business 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 Service is suspended or terminated or your supplier account is suspended, terminated or closed. In addition, you will reimburse us for expenses we incur in connection with any Unsuitable Cases.
We may dispose of any Case we are entitled to dispose of (including any Unsuitable Cases) in the manner we deem appropriate (e.g., by selling, recycling, donating, or destroying it) and retain any proceeds we may receive from the disposal.
F-7.3 You may, at any time, request that we dispose of Cases. In this case, we may dispose of these Cases 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 Case 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 Case, and we may retain any proceeds, we may receive from the disposal.
F-7.4 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). You will also be responsible for all costs and expenses outlined in Program Policies and Recall Policies.
F-8 Buyer Service
F-8.1 We will be responsible for all buyer service issues relating to packaging, handling and shipment, and buyer returns, refunds, and adjustments related to GFM Fulfillment Cases. We will determine whether a buyer will receive a refund, adjustment or replacement for any GFM Fulfillment Case and we will require you to reimburse us where we determine you have responsibility in accordance with the Agreement (including these Fulfillment Service Terms and the Program Policies). We will promptly notify you when you are responsible for a buyer refund. You may appeal if you disagree with our finding within three (3) days after our notification, in addition to your right to request that Cases be returned to you under Section F-7.1. Except as provided in this Section F-8 regarding any GFM Fulfillment Cases, buyer service will be handled in accordance with your Supplier Agreement.
F-8.2 In situations relating to GFM Fulfillment Cases where the wrong item was delivered or the item was damaged or 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: for any GFM Fulfillment Case, (i) ship a replacement Case to the buyer and reimburse you for the replacement Case, or (ii) process a refund to the buyer and reimburse you for the Case. Any buyer refund will be processed in accordance with the Selling on GFM. Notwithstanding the Selling on GFM Service Terms, we will be entitled to retain the applicable fees payable to us under the Selling on GFM Service Terms and these Fulfillment Service Terms, respectively.
F-8.3 If we provide a replacement Case or refund as described in Section F-8.2 to a buyer and that buyer returns the original Case to us, we will be entitled to dispose of the Case pursuant to Section F-7, or, if it is a Sellable Case, we may, at our option, place such Case back into your inventory in accordance with Section F-6. If we do put a Case back into your inventory, you will reimburse us for the applicable Replacement Value (as described in the Guidelines) of the returned Case. Any replacement Case shipped by us under these Fulfillment Service Terms will be deemed to be, and will be treated in the same manner as, an order and sale of such Case from you to the buyer via the applicable GFM Site or Service in accordance with, and subject to, the terms and conditions of this Agreement.
F-9 Compensation for Fulfillment Services
F-9.1 Handling and Storage Fees. You will pay us the applicable fees described in the Program Policies.
F-9.2 Shipping. For any GFM Fulfillment Cases we will determine the amounts charged to the buyer for shipping for the Cases that we fulfill through the Fulfillment Service Program.
F-9.3 Proceeds. We may as appropriate keep part of or all proceeds of any Cases that we are entitled to dispose of pursuant to F-7 above, or to which title transfers, including returned, damaged, or abandoned Cases. 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 Cases.
In addition to your obligations under Section 6 of the General Terms of this Agreement, you also agree to indemnify, defend, and hold harmless us, our Affiliates, and our respective officers, directors, employees, representatives, and agents against any Claim that arises from or relates to: (a) the Cases (whether or not title has transferred to us, and including any Case that we identify as yours pursuant to Section F-4), 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 GFM 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 Service, which the Releasing Parties are giving up by agreeing to these Fulfillment Service Terms. It is your intention in agreeing to these Fulfillment Service Terms that these Fulfillment 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 that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
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 Service Terms.
IN ADDITION TO THE DISCLAIMER IN SECTION 7 OF 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.
F-13 Effect of Termination
Your termination rights are set forth in Section 3 of this Agreement. Following any termination of the Agreement or these Fulfillment Service Terms, we will, as directed by you, return to you or dispose of the Cases as provided in Section F-7. If you fail to direct us to return or dispose of the Cases 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 Cases in whole or in part, as provided in Section F-7, and you agree to such actions. Upon any termination of these Fulfillment Service Terms, all rights and obligations of the parties under these Fulfillment Service Terms will be extinguished, except that the rights and obligations of the parties under Sections F-1, F-2, F-3, F-4, F-5, F-6, F-7, F-8, F-9, F-11, F-12, and F-13 with respect to Cases received or stored by GFM as of the date of termination will survive the termination.
F-14 Tax Matters
You understand and acknowledge that storing Cases at fulfillment centers may create tax nexus for you in any country, state, province, or other localities in which your Cases 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 Service Program or otherwise pursuant to these Fulfillment Service Terms, you will be responsible for such Foreign Shipment Taxes and Your Taxes and you will indemnify and hold GFM harmless from such Foreign Shipment Taxes and Your Taxes as provided in Section F-10 of these Fulfillment Service Terms.
F-15 Additional Representation
In addition to your representations and warranties in Section 5 of the General Terms of this Agreement, you represent and warrant to us that: (a) you have valid legal title to all Cases and all necessary rights to distribute the Cases and to perform under these Fulfillment Service Terms; (b) you will deliver all Cases to us in new condition (or in such condition otherwise described by you in the applicable Your Product listing) and in a merchantable condition; (c) all Cases and their packaging will comply with all applicable marking, labeling, and other requirements required by Law; (d) no Case is or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (e) you and all of your subcontractors, agents, and suppliers involved in producing or delivering Cases will strictly adhere to all applicable Laws of the countries where Cases are produced or delivered.
Fulfillment Service Definitions
"GFM Fulfillment Cases" means Cases fulfilled using GFM Fulfillment Service that are sold through an GFM Site. For avoidance of doubt, if you have successfully registered for or used both the Fulfillment Service and Selling on GFM Services, then the term "GFM Fulfillment Cases" and the defined term "GFM Fulfilled Products" in the Selling on GFM Service Terms both refer to the same items.
"Fulfillment Service Excluded Product" means any Case that is an Excluded Product or is otherwise prohibited by the applicable Program Policies.
"Sellable Case" means a Case that is not an Unsuitable Case.
"Shipping Information" means with respect to any purchased Case(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.
"Case" means a minimum shippable case of Your Product that you deliver to GFM in connection with the Fulfillment Service Program.
"Unsuitable Case" means a Case: (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 GFM before shipment or do not match the product that was registered; (c) that is a Fulfillment Service Excluded Product or does not comply with the Agreement (including applicable Service Terms and Program Policies); (d) that GFM determines is unsellable or unfulfillable; or (e) that GFM determines is otherwise unsuitable.