Furnizz Seller Agreement
This Furnizz Seller Agreement ("Agreement") is made by and between Furnizz, Inc. ("furnizz"), and the seller providing Products for sale through the furnizz Marketplace ("Seller"), with a principal place of business as provided by Seller in connection with the online signup process related to this Agreement.
By accepting this Agreement online and using the Furnizz Marketplace (defined below), Seller agrees to be bound by this Agreement. Seller acknowledges that Seller been provided an opportunity to review the terms and conditions of this Agreement.
1. Definitions. The following definitions apply to this Agreement:
- "Affiliate" means, with respect to a party, an entity that directly or indirectly controls, is controlled by, or is under common control with such party.
- "Customer" means a user of the Furnizz Platform who requests information for the purpose to place order.
- "Furnizz Entities" means Furnizz and its Affiliates.
- "Furnizz Platform" means proprietary furnizz-branded or co-branded home design network and related features and services including as made available through (1) www.furnizz.com and related websites, (2) the Furnizz mobile applications, (3) third party websites, platforms or services of Furnizz partners and platform developers, and (4) any other websites, products, services, or technology owned or operated (in whole or in part) by Furnizz or its Affiliates, now or in the future.
- "Furnizz Marketplace" means the portion of the Furnizz Platform that allows Seller to list Products for sale on the Furnizz Platform.
- "Furnizz Payment System" shall have the meaning set forth in Section 3(a).
- "Furnizz Transaction Information" means any information relating to Orders, and any other data or information acquired by Seller from Furnizz, or otherwise as a result of the Agreement.
- "Order" means an order placed by a Customer through the Furnizz Marketplace for one or more Products.
- "Payments" shall have the meaning set forth in Section 3(a).
- "Product(s)" means all of the products offered, sold or provided by Seller in the Furnizz Marketplace.
- "Product Data" means, with respect to Products, the following: product description, brand or source, shipping origination, model, weight, in-stock or availability status, dimensions and other shipping specifications, images, shipping and handling information, warranties, disclaimers, returns and exchange policies, warnings (including for example and without limitation any California Proposition 65 warnings applicable to California residents), notices, labels, and any other Product-related information reasonably requested by Furnizz.
- "Product Listing" means a product listing page on the Furnizz Marketplace containing the Product Data.
- "Product Listing Materials" means any Product Data, content (e.g., graphics, photos, and text), and other information or materials provided by Seller or made available by Seller.
- "Prohibited Products Policy" means the prohibited products policy located at https://www.furnizz.com/prohibitedProductsPolicy, as it may be updated by Furnizz from time to time.
- "Referral Fee" has the meaning set forth in Section 3(d).
- "Regulatory Fees" any regulatory fees imposed on an Order, including without limitation electronic waste fees, bottle deposit fees, recycling fees, and tire fees.
- "Seller Central" means the online portal(s) or system(s) designated by Furnizz to enable Seller to communicate and process transactions with Customers and that allows Furnizz to communicate with Sellers. Seller Central may include any third party order management systems specified by Furnizz.
- "Seller Guidelines" means any terms, policies, guidelines, or notices that may be published from time to time by Furnizz through the Seller Central or otherwise communicated in writing or email by Furnizz to Seller, including without limitation the guidelines available at https://www.furnizz.com/seller... and any other written guidance made available to Sellers for providing Product Listing Materials, processing Orders, and messaging Customers, all of which shall be considered binding upon Seller. For clarity, while Furnizz may update the Seller Guidelines from time to time, any amendments to the main body of this Agreement will be made solely in accordance with Section 20 (Modifications to Agreement).
Other capitalized terms will have the meanings as set forth in the Agreement.
2. Seller Information; Products Data and Product Listings
- Seller will be the seller of the Products, and will be identified as such in the Furnizz Marketplace. The foregoing notwithstanding, Furnizz in its sole discretion will determine which Products Seller will be allowed to sell on the Furnizz Marketplace. Prior to accepting any Orders, Seller will complete the Seller Information Form (which Seller will ensure is updated and accurate at all times). Seller will then use Seller Central to submit Product Data and Product Listing Materials for all Products it wishes to sell under this Agreement.
- Product Data. Seller will provide accurate and complete Product Data for all Products, and ensure that any such Product Data is promptly updated so that such information remains at all times accurate and complete. Seller accepts full responsibility for any inaccurate Product Data and assumes liability for any complaints, claims, costs or damages arising out of inaccurate Product Data.
- Seller will ensure that the Products and Product Listing Materials comply with all applicable laws and do not contain any fraudulent, misleading, defamatory or obscene materials. Notwithstanding anything to the contrary in this Agreement, the Product Data for each Product Listing shall meet all the requirements of this Agreement, including the minimum warranty period. Seller will clearly indicate the amount of shipping and handling charges for Products in the Product Data. The amount of such charges will follow industry standards and Seller Guidelines.
- Prohibited Products. All Products and Product Listing Materials must comply with the Prohibited Products Policy. Seller agrees that multiple violations of the Prohibited Products Policy will result in the suspension or termination of its account and this Agreement. Without limiting any other provision in this Agreement, Seller agrees to be strictly liable for any Products that violate the intellectual property rights of a third party.
- Product Ads. If Seller chooses to purchase ads on the Furnizz Platform associated with any of Seller's Products ("Product Ads"), all of the terms related to Products in this Agreement, as applicable, shall apply to Seller's Product Ads, including all provisions granting licenses to furnizz, making representations and warranties and indemnifying furnizz and its affiliates. The Product Ads Agreement, available at www.furnizz.com/product-ads-agreement, is hereby incorporated into this Agreement and shall apply to Seller if Seller chooses to bid on or purchase Product Ads.
3. Payments/Transaction Fees/Referral Fees
- Furnizz Payment System. All Customer payments for Orders ("Payments") will be remitted to furnizz through Furnizz's authorized payment gateway ("Furnizz Payment System"). Furnizz will assume all risk of credit card fraud (i.e., fraudulent purchase arising from the theft or unauthorized use of a third party's credit card information) occurring in connection with any Orders, except as excluded below. Seller may not seek additional funds from Customer outside of the Furnizz Payment System unless otherwise authorized by Furnizz.
- Furnizz Agency Appointment. Seller hereby appoints Furnizz as its limited payment collection agent solely for the purpose of accepting Payments from Customers on behalf of Seller. Seller agrees that a Payment made by a Customer to Furnizz shall be considered the same as a Payment made directly to Seller, and Seller will make the purchased Products available to the Customer in the agreed-upon manner as if Seller had received the Payment directly from the Customer. Each Seller agrees that Furnizz may refund the Customer in accordance with this Agreement and the Furnizz Returns Policy (defined below). Seller understands that Furnizz's obligation to pay Seller is subject to and conditional upon successful receipt of the associated Payments from Customers. In accepting appointment as the limited payment collection agent of Seller, Furnizz assumes no liability for any acts or omissions of Seller.
- Payment Information. Seller must provide Furnizz with valid bank account information ("Seller Bank Account") and valid credit card information from a credit card acceptable to Furnizz ("Seller Credit Card") via Seller Central. Seller must ensure the Seller Bank Account and Seller Credit Card are accurate, complete and valid at all times. Furnizz may choose to waive the Seller Credit Card requirement under certain circumstances, however, any such waiver is at Furnizz's sole discretion and may be revoked by Furnizz at any time. Furnizz may suspend any payments by Furnizz to Seller if Seller does not comply with the requirement to provide the Seller Bank Account and Seller Credit Card in accordance with this Section 3(c).
- Referral Fee. Seller shall pay, as a referral fee to Furnizz, an amount equal to the percentage determined by Furnizz and notified to Seller via Seller Central of the total sale amount of each Product transaction processed through the Furnizz Marketplace ("Referral Fee"). For the purposes of calculating the Referral Fee, such total sale amount shall include shipping and handling charges, but shall exclude taxes and duties assessed in connection with such transactions. The Referral Fee will be payable by Seller to Furnizz as set out in Section 3(e).
- Payment Remittance. Each month is divided into two payment periods: one that closes on the 15th of the month and one that closes on the last day of the month. Subject to this Section 3(e) and Section 3(g), Furnizz will remit all Payments to Seller, to the Seller Bank Account or other means as mutually-agreed to by the parties, within 7 days of the close of the applicable payment period during which that Payment cleared through the Furnizz Payment System. If the 7th day falls on a weekend or bank holiday, Payment for that payment period will be remitted on the following business day. Payment may take 1-2 business days to settle in the Seller Bank Account. For any amounts payable by Seller to Furnizz under this Agreement including, without limitation, for any Referral Fee, refunds, Non-Compliance Fees, chargebacks or other amounts for which Seller is responsible under this Agreement (collectively, “Outstanding Balances”), Furnizz may (i) off-set or discount, as applicable, the Outstanding Balances against any Payments, (ii) charge the Seller Credit Card in the amount of any Outstanding Balances, (iii) submit an invoice to Seller for any Outstanding Balances, or (iv) collect payment or reimbursement from you by any other lawful means. Seller authorizes Furnizz to use any of these methods to recover any Outstanding Balances.
- Other deductions. If, based on unusual events or circumstances involving the Seller or its Products (e.g., epidemic defects), Furnizz reasonably anticipates the need to make refunds to customers on Seller's behalf or to offset liability owed to Furnizz hereunder, Furnizz shall have the right to deduct from the remittance of Payments to Seller under Section 3(e) and to hold in reserve amounts reasonably anticipated by Furnizz to cover such refunds and liability.
- Payment Disputes. Seller will be deemed to have accepted the accuracy of any payment made by Furnizz hereunder unless Seller notifies Furnizz of a dispute by email at email@example.com no later than 90 days after the date of the applicable Payment by Furnizz to Seller.
- Taxes and Fees. As between the parties and unless otherwise noted, Seller will be responsible for all sales, goods and services, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid in connection with any Orders and the payment of all such taxes and duties to the relevant taxing authority. Furnizz is not obligated to determine whether any taxes or duties apply, nor is Furnizz responsible for the reporting, collection or remittance of any taxes from Product order transactions, except to the extent Furnizz expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by Furnizz and used by Seller. However, if a taxing authority requires Furnizz to pay any taxes assessed, incurred or required to be collected or paid in connection with any sale of Products by Seller through the furnizz Marketplace for which Seller is responsible under this Agreement, Seller will promptly reimburse Furnizz for the amounts paid. Each party will be responsible for paying all applicable taxes based on any income or revenue received by it as a result of any transactions covered by this Agreement. Seller is solely responsible for the payment of any Regulatory Fees associated with any Order and expressly acknowledges and agrees that Furnizz will not impose any Regulatory Fees on any Customer.
- Tax-Exempt Trade Program and Business Program. Seller agrees to participate in the Furnizz Trade Program and Business Program (the "Programs"). Trade professionals and other organizations with tax-exempt status ("Trade Pros") may enroll in the Programs in order to make tax-exempt purchases on the Furnizz Platform, including from Seller. Enrolled Trade Pros will certify that any such Orders are made on a tax-exempt basis and will provide resale certificates or other documentation to demonstrate valid tax-exempt status, which will be made available to Seller through the Seller Dashboard for applicable Orders. Furnizz and Seller agree not to collect or remit sales or use tax on any such tax-exempt Trade Pro Orders.
- Marketplace Facilitator Tax Collection. Certain states have enacted "marketplace facilitator" tax laws that shift sales tax collection and remittance obligations from Seller to Furnizz, as the operator of the Furnizz Marketplace. For any Orders to be shipped to such states, Furnizz will directly calculate, collect, and remit the applicable taxes.
- Seller acknowledges and agrees that the Furnizz Entities have not provided Seller with any legal advice in general or tax advice in particular in connection with this Agreement. Seller has sought its own tax advice from qualified tax and financial advisors regarding the tax implications of this Agreement and the transactions contemplated hereunder.
- Chargebacks. In the event that a Customer initiates a chargeback in connection with an Order, Seller agrees to provide timely information to assist in any chargeback investigation. Seller understands that the failure to provide information on the requested timeline could adversely impact the outcome of a chargeback investigation, up to complete forfeiture of the chargeback amounts. Seller shall be responsible for any chargeback fees or payments imposed by credit and debit card networks or other payment method providers that arise out of Seller's conduct or Seller's Product. For example, if Seller changes the shipping address of an Order without approval from Furnizz, Seller will be responsible for any related chargeback fees or payments.
4. Order Processing/Fulfillment/Shipping and Fees
Seller agrees to fulfill Orders for Customers expediently, in line with industry best practices and to comply with the following procedures and all Seller Guidelines related to fulfillment.
- Product Inventory. Seller will keep all Product stock quantity information up to date via Seller Central at all times.
- Fulfillment. Seller must accept and fulfill all Orders that are properly placed under this Agreement. Seller will be solely responsible for, and bears all risk and liability for, sourcing, storing, selling, fulfilling and delivering Products to Customers.
- Packing Materials. Seller shall include (i) in each Product shipment (A) the packing slip generated by Seller Central for such shipment and (B) a Furnizz insert in a form approved by Furnizz, and (ii) on the outside of the packaging for each such shipment a "Furnizz" or similar sticker in a form approved by Furnizz. Seller agrees not to include into, on or with any Product shipment or packaging any inserts, flyers, marketing collateral or other materials or information which may redirect any Customers or prospective Customers from the Furnizz Marketplace into any other sales channel, and Seller will not use the Furnizz Marketplace for any purpose other than the offering for sale of Products as contemplated in this Agreement.
- Shipment and Delivery. For all Orders, Seller will:
- Process Orders through Seller Central and ship all ordered Products within the lead-time indicated by Seller in the Product Listing Materials; (furnizz reserves the right to cancel Orders that are backordered for more than thirty (60) days);
- Promptly enter proof of shipment and tracking information in Seller Central;
- Deliver Products to the Customers and will ensure that all such Products are shipped without any undue delay or damage;
- Ensure that Products are packed for safe transit across U.S. and roadworthy for transit using general truckers, including but not limited to ensuring that original manufacturer packaging is in good condition and intact and replacing or repairing any cracked or broken foam pieces; and
- Use an effective method for protecting fragile items, such as double-boxing or over-boxing, for any Products that are deemed fragile and shipped through carriers that use manual and automated distribution systems, such as UPS.
- Non-Compliance Fees. Seller may incur fees for non-compliance with the terms of this Agreement or the Seller Guidelines that results in additional cost, delay or a poor shopping experience (for example, by delivering the wrong Product to a Customer or canceling an Order as out of stock) ("Non-Compliance Fees"). All Non-Compliance Fees are detailed in the Seller Resources section of Seller Central, which you can view at https://www.furnizz.com/sellerResources. Non-Compliance Fees will be payable by Seller in accordance with Section 3(e).
Seller is free to determine the price for each Product, subject to the following: Seller will ensure that, (a) the purchase price for such Product and every other term of offer and/or sale of such Product (including associated shipping and handling charges, any "low price" guarantee, rebate or discount, product warranty, any free or discounted products or other benefit available as a result of purchase one or more other products, and terms of applicable return and refund policies) is at least as favorable to Furnizz users as the most favorable terms upon which the same or substantially similar product is offered and/or sold via Seller's other sales channels; (b) customer service for each such Product is at least as responsive and available and that Seller offers at least the same level of support as the most favorable customer services offered in connection with Seller products offered via any of Seller's other sales channels; and (c) the Product Data that Seller provides to Furnizz is of at least the same level of quality as the highest quality information displayed or used in Seller's other sales channels. If Seller becomes aware of non-compliance with (a) above, Seller will promptly compensate adversely affected customers by making appropriate refunds. To comply with the foregoing, any change in Product pricing should be updated in the Furnizz Marketplace within two (2) business days.
6. Returns of Product and Warranty
- Customers may return Orders purchased from Seller for a refund in accordance with the Furnizz Return Policy located at https://www.furnizz.com/return... (the "Furnizz Return Policy"). Seller agrees to comply with the furnizz Return Policy with respect to Orders and acknowledges that Seller may not enact or publish any separate return policy or impose any fees related to the return or restocking of Products that are not authorized under the Return Policy or this Agreement. Seller can manage customer returns through Seller Central. Seller will be responsible for accepting and processing returns, refunds and adjustments for all Orders in a timely manner. Upon a refund request from a Customer, Seller will provide the Customer with any information necessary to complete the return within 48 hours of the return request, including the applicable warehouse shipping address for the return (which must be located in the United States) and any Return Merchandise Authorization (RMA) number. For returns of Orders shipped by a freight carrier, Seller will assist with arrangements for pickup of Orders. Seller will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by Seller to customers in connection with Orders. All refund (and adjustment) payments will be routed through the Furnizz Payment System. Seller will issue refunds and adjustments within 48 hours of receiving the return if the product was received in good condition. Seller must notify furnizz and the Customer within 48 hours after receiving the product if Seller intends to deny a refund because a returned item arrived damaged. If Seller fails to provide such notice to furnizz and Customer and fails to accept or process a return, refund or adjustment for an eligible Order within the applicable timeframes, Seller authorizes Furnizz to issue the refund to Customer and to recover such amounts from Seller in accordance with Section 3(e).
- Replacement of Damaged and Defective Products. Customers may elect to return Orders that arrive damaged or defective for a refund or a replacement in accordance with the Furnizz Return Policy. Seller agrees to comply with the Furnizz Return Policy with respect to damaged and defective Orders and acknowledges that Seller may not enact or publish any separate policy. Seller can manage customer returns of damaged and defective Orders through Seller Central. Seller will be responsible for refunding or replacing any Product that exhibits any manufacturing defect or is otherwise damaged during transit unless otherwise agreed to with the Customer. Seller is responsible for removing damaged or defective Products from Customer's location if Customer is unable or unwilling to. Seller will also be responsible for any non-conformity or defect in, or, if applicable, any public or private recall of, any Products, including all costs and expenses associated with notices, inspections, replacements and shipping. Seller will notify Furnizz promptly as soon as Seller has knowledge of any applicable public or private recall of any Product. If Seller fails to accept or process a return, refund or replacement for an eligible damaged or defective Order within the applicable timeframes required by the Seller Guidelines, Seller authorizes Furnizz to issue a refund to customer and to recover such amounts from Seller in accordance with Section 3(e). Should an item arrive damaged or defective, the customer is entitled to return all items that are a part of the same Order and intended for use together under the Furnizz Return Policy.
- Product Warranties. Seller is responsible for satisfying all Product warranty obligations and for fees and expenses arising out of or related to Product returns and warranty services, including shipping and handling costs.
7. Product Disputes
Seller will be responsible for resolving, in a timely manner, any non-delivery, mis-delivery or delivery of damaged or defective Products, or other Customer complaints through Seller Central, in accordance with the Seller Guidelines. Seller explicitly acknowledges and agrees that any assistance or support offered by Furnizz in connection with any Customer complaint shall not relieve Seller of this responsibility unless otherwise agreed by Furnizz in writing.
This Agreement will have an initial term of one year, and unless otherwise terminated pursuant to Section 9, will automatically renew for successive one-year terms.
9. Termination and Survival
- Either party may terminate this Agreement at any time on 30 days' written notice.
- Either party may terminate this Agreement immediately on the other party's material breach of any provision hereof, provided that the non-breaching party provides ten (10) days' written notice to the breaching party and the breach is not cured within such ten-day period.
- Furnizz may terminate this Agreement immediately upon delivery of written notice if it believes the Products or continued activities under this Agreement could cause legal or business liability to the Furnizz Entities, their partners or users, or if Furnizz cease offering Seller program generally.
- Termination of this Agreement will not relieve the parties of any obligations accrued through the date of such termination. Without limiting the foregoing, any Orders placed prior to termination must be fulfilled by Seller in accordance with the terms of this Agreement that were in effect as of the date of the termination notice.
- Sections 6, 7, and 11-17 will survive any termination of this Agreement.
Seller, at its sole cost and expense, will maintain in effect at all times during the term of this Agreement, sufficient insurance to cover its obligations and liabilities under this Agreement, which in any event will be no less (in type or coverage limits) as required by law or as is common practice in Seller's business; provided however, that the limitations of coverage in Seller's insurance policies will not limit Seller's indemnification obligations under this Agreement. Such insurance will include, without limitation, commercial general liability, product liability, completed operations, blanket contractual liability, and personal injury and advertising liability. Upon request at any time, Seller will provide Furnizz with certificates of insurance or evidence of coverage.
11. Control of Site and Intellectual Property
- Notwithstanding any provision in this Agreement, Furnizz will have the right in its sole discretion to determine the content, appearance, design, functionality and all other aspects of the Furnizz Platform (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to, the Furnizz Platform and any element, aspect, portion or feature thereof (including any Product listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Seller not to list, any or all Products in Furnizz's sole discretion. Without limiting the generality of the foregoing, in the event of Seller's breach of this Agreement or for any act of fraud, misrepresentation or violation of applicable law, rules or regulations, Furnizz reserves the right, in its sole discretion, to remove any Products listed in the Furnizz Marketplace, cancel pending orders for Products, require Seller to offer its customers refunds for Products or suspend Seller's ability to participate in the Furnizz Marketplace or otherwise use the Furnizz Platform. Furnizz also reserves the right to suspend or remove Seller from the Furnizz Marketplace if Seller does not maintain good standing with Furnizz, for example, by failing to maintain a sufficient Seller Score, as described here, or other metrics. Furnizz may at its discretion conduct merchandising, marketing, and promotion of the Products, including providing a mechanism for Customers to publicly review and rate Products.
- License. Seller grants Furnizz a royalty-free, non-exclusive, worldwide, perpetual right and license to use, reproduce, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, any and all Product Listing Materials and to use trademarks and logos provided by or owned by Seller ("Seller Marks") in connection with (i) the offering or promotion of Seller Products in the furnizz Marketplace (ii) use with the Furnizz Platform, or (iii) promotion of the Furnizz Platform, Furnizz, and (iv) to sublicense the foregoing rights to Furnizz's Affiliates or partners for Furnizz Platform-related matters. Seller also grants Furnizz a royalty-free, non-exclusive, worldwide, perpetual right and license, under all rights Seller may have, now or in the future, (vi) to photograph, produce images of or otherwise record the Products, (vii) to use, reproduce, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, such photographs, images or records in connection with the operation or promotion of Furnizz Platform, and (viii) to sublicense the foregoing rights to Furnizz's Affiliates or partners for Furnizz Platform-related matters.
- Except as expressly provided herein, neither party will acquire any rights or interest in the other party's trademarks, trade names, trade dress or other intellectual property, and any goodwill generated therein will inure solely to the benefit of the owner party. Each party reserves all of its rights in and to its trademarks, trade names and trade dress, all graphic images and text contained on such party's website, and all other intellectual property owned or licensed by such party.
- Seller Central Rights. Seller may use Seller Central solely for managing Orders as described in this Agreement. Seller will ensure that all login credentials for Seller Central are kept confidential and are not shared, and Seller will be strictly liable for any actions taken through its Seller Central login. Seller will not (and will not allow anyone else to): (a) rent, lease, copy, provide access to or sublicense Seller Central to a third party; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to Seller Central or Furnizz Platform; or (c) publicly disseminate benchmarks or similar performance information about Seller Central or Furnizz Platform.
12. Representations & Warranties
Seller represents and warrants to Furnizz that (a) Seller has the requisite power and authority to enter into and carry out the terms of this Agreement, without conflict with any other obligation Seller may have to any other party, and Seller has obtained and will maintain all rights, approvals and consents necessary to perform its obligations and grant all rights and licenses granted to Furnizz under this Agreement; (b) Seller has full title to the Products, free and clear of all liens, charges and other encumbrances; (c) all Products are new and unused (not refurbished or seconds), authentic (not knock-offs, pirated or counterfeit), and comply with the Prohibited Products Policy; (d) all Products are fit for their intended purpose and conform to the Product Data submitted by Seller; (e) all Products have been and will be manufactured, packaged, shipped, stored and labeled in accordance with the terms of this Agreement and all applicable industry standards, laws, rules and regulations ("Laws"), including those related to import, export, health, safety and consumer protection (by way of example, DOT, OSHA, WERC, FTC, USDA and FDA requirements), and Seller will otherwise ensure that Seller, the Products, Product Listing Materials, and Product Data comply with all Laws (including without limitation any California Proposition 65 warnings applicable to California residents and similar laws); and (f) the Product Data and Product Listing Materials will not contain any harmful, fraudulent, misleading, defamatory or obscene content, and none of the Product Data, Product Listing Materials or Seller Marks (or Furnizz's promotion, distribution and sale of the Products as permitted by this Agreement) infringe or misappropriate any intellectual property rights, rights of privacy or publicity or any other proprietary rights of any third party.
THE FURNIZZ PLATFORM (INCLUDING THE FURNIZZ MARKETPLACE AND SELLER CENTRAL) AND ALL RELATED FEATURES, PRODUCTS, AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." AS A USER OF THE FURNIZZ PLATFORM, SELLER IS USING THE FURNIZZ PLATFORM AT ITS OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FURNIZZ AND ITS AFFILIATES AND SUPPLIERS WAIVE AND DISCLAIM: (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING THE FURNIZZ PLATFORM OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. FURNIZZ DOES NOT WARRANT THAT THE FURNIZZ PLATFORM WILL MEET SELLER'S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND FURNIZZ 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.
Seller agrees to indemnify, defend, and hold harmless the Furnizz Entities and their respective directors, officers, employees, contractors, agents and representatives (the "Indemnified Parties"), from and against any and all losses, damages, liabilities, penalties, costs of settlement and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from any third- party claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) (collectively, "Losses") arising out of, resulting from, or relating to (ⅰ) any death, bodily injury or property damage occurring or alleged to have occurred as a result of any Products provided by Seller, (ⅱ) the presence, absence, or content of any warranties, statements, instructions for use or warnings on the label(s), boxes, inserts or other packaging for the Products or directions for use or application provided or approved by Seller, (ⅲ) any act or omission of Seller, or the employees, contractors, agents or representatives of Seller, in the advertising or furnishing of Product or in the performance of services under any Order, including any warranty service, (ⅳ) any actual or alleged infringement by Product Listing Materials, Products or Seller Marks of any intellectual property right or right of privacy or publicity or other personal or proprietary right of any third party, (ⅴ) any violation of applicable law by Seller, or the employees, contractors, agents or representatives of Seller, and (ⅵ) the Product Data and Product Listing Materials. Notwithstanding the foregoing, Seller shall not have any obligation or liability to Furnizz under this Section 14 to the extent any such Losses arise from any breach of contract, gross negligence or willful misconduct by Furnizz.
15. Limitation of Liability
THE FURNIZZ ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS,) COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY SELLER OR LOST OR CANCELLED ORDERS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FURNIZZ'S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY SELLER TO Furnizz UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING A CLAIM FOR DAMAGES.
Furnizz may provide Seller with certain information that is confidential or proprietary ("Confidential Information"). Confidential Information includes without limitation any not previously publicly disclosed information about Furnizz's business, finances, customers, information systems, software or technology. Seller will (ⅰ) use Confidential Information solely as necessary to fulfill its obligations under this Agreement and (ⅱ) not disclose Confidential Information to any third parties, other than Seller's employees, agents and advisors with a need to know and for whom Seller agrees to remain strictly responsible under this Agreement. Seller acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure, Furnizz will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. Upon termination of this Agreement for any reason, or upon earlier request by Furnizz, Seller will promptly destroy or return to Furnizz (as specified by Furnizz) all copies of Confidential Information. Seller agrees that all Confidential Information will remain Furnizz's exclusive property and Seller will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.
17. Seller Conduct
Seller agrees to comply at all times with the TOU and Seller Guidelines, which are hereby incorporated into this Agreement. Seller will not, directly or indirectly:
- Take any action to avoid paying Referral Fee (or "Fee Avoidance"), including, for example, encouraging Customers to purchase an item through another venue;
- Communicate with Customers outside of Seller Central or other Furnizz channels for messaging Customers (Furnizz shall not be liable for any disputes or claims arising from Seller's communications with Customer outside of Furnizz messaging channels);
- Use ".com" or web indicator equivalent in its name, its profile, or anywhere referencing its goods or services on the Furnizz Marketplace;
- Add the email addresses of any Customers obtained in connection with any Order to any of Seller's e-mail lists or otherwise use such e-mail addresses or provide such e-mail addresses to any third parties
- Disparage Furnizz, its Affiliates, or any of their or our respective products or services;
- Disparage or harass any employees or customers of Furnizz or its Affiliates;
- Disclose or convey any Furnizz Transaction Information (except Seller may disclose this information as necessary for Seller to perform its obligations under this Agreement);
- Use any Furnizz Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with Furnizz's or Seller's privacy policies or applicable Law.
Any breach of this Section 17 shall be considered material. All such Seller restrictions on the use of Furnizz Transaction Information shall survive expiration or termination of this Agreement. The terms of this Section 17 does not prevent Seller from using other information that it acquires without reference to Furnizz Transaction Information for any purpose, even if such information is identical to Furnizz Transaction Information.
18. Password Security
Any password Furnizz provides to Seller may be used only during the Term to access Seller Central (or other tools we provide) to use the Furnizz Marketplace, including conducting and reviewing Orders. Seller is solely responsible for maintaining the security of the password. Seller may not disclose its password to any third party (other than third parties authorized by Seller to use the Seller account in accordance with this Agreement), and Seller is solely responsible for any use of or action taken under its password. If Seller's password is compromised, Seller must immediately change its password.
19. Force Majeure
Furnizz will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond Furnizz's reasonable control, including without limitation, hardware failure, interruptions or failure of the Internet or third-party network connections.
20. Modifications to Agreement
Seller can view the Agreement at any time at http://www.furnizz.com/sellerAgreement. Furnizz may modify this Agreement from time to time, with notice given to Seller by email or through Seller Central. Such modifications will become effective within the time period specified by Furnizz or, if not specified, within thirty (30) days after notice has been given to Seller for material changes and within ten (10) days after notice has been given to Seller for other changes. If Seller does not agree to such modifications, Seller's exclusive remedy will be to terminate this Agreement. In any event, Seller may be required to click to agree to the modified Agreement in order to continue using Seller Central, and continued use of Seller Central after the modifications take effect constitutes Seller's acceptance of the modifications. No modification of this Agreement by Seller will be binding on Furnizz unless in a written document signed by Furnizz.
In this Agreement, "including" (and similar terms) will be construed without limitation and headings are for convenience only. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Seller may not assign, transfer or delegate this Agreement (or any part thereof) without Furnizz's prior written consent. Furnizz may freely assign, transfer or delegate its rights and obligations under this Agreement. This Agreement will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties except as specifically set forth in Section 3(b) of this Agreement, and Seller will have no authority to make or accept any offers or representations on Furnizz's behalf. Furnizz may send notices to Seller's then-current email on file or through Seller Central. All notices to Furnizz must be given in writing to Furnizz's address set forth above. All notices are effective upon delivery. This is not an exclusive agreement. Seller acknowledges that Furnizz uses (and reserves the right to continue to use) other Sellers to provide goods (or may itself create, brand or distribute its own goods) that are identical, similar or related to the Products. No delay, failure or waiver of either party's exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. This Agreement (including Seller Guidelines), together with any Orders or other Furnizz documents referencing this Agreement, constitutes the complete agreement between the parties and supersedes all previous agreements or representations, whether written or oral, with respect to the subject matter set forth in this Agreement; however, this Agreement does not modify any separate agreements between the parties that relate to different subject matter (e.g., the TOU).
(Effective as of February 11, 2020)