Advertise on Sears - Cost Per Click Sellers (CPC)
A) Overview. The Cost Per Click Program allows Seller to place product listings on the Website to direct Users to Seller’s own site. Seller is only charged a fee when a User clicks through to Seller site. There are no monthly fees, and Users check out from Seller site and Seller fulfills customer orders.
B) Enrollment; Account Activation. The following information will be required prior to activation of a Seller account: Seller contact information; Seller credit card information; and banking information. Use of the Seller Portal and services under this Agreement is solely intended for individuals and legal entities that can lawfully enter into contracts under applicable law. After agreeing to these Terms and Conditions, Seller will receive a password allowing access to the Portal. Seller account name, or any other User-facing identification and content Seller creates must not include the names “Sears,” “MyGofer” or the name of any other Sears affiliate in whole or in part, and must clearly indicate that Seller is a third-party unaffiliated with Sears.
C) Sears’ Role. Sears provides this Website as a venue for Users and Sellers to negotiate the sale of Seller Merchandise. Sears is not involved in the transaction between User and Seller, and has no authority to act on behalf of either under the terms of this Agreement.
II) Seller Responsibilities.
A) Product Listings. Seller is responsible for creating listings to sell its Merchandise on Sears Marketplace. All listings must comply with any specifications and policies established by Sears, and made available to Seller via the Portal. Seller shall not provide to Sears any listing in connection for Merchandise it does not currently have available in stock. It is Seller’s responsibility to update its listing(s), including updating any other information deemed necessary by Sears to ensure the listings, and inventories are accurate and complete. By listing an item, Seller represents and warrants to Users that the listing is accurate, current, and is not misleading or otherwise deceptive. Seller agrees to conduct the sales of Merchandise in its product listings in accordance with this Agreement, and acknowledges that Seller’s failure to fulfill these obligations may subject Seller to penalties and legal liability. Sears retains the right to take down, or censor any Product Listings that in its sole discretion violate any restrictions defined herein, or any of Seller’s obligations at any time, without prior notice to Seller..
1) Listings must not: (a) violate any proprietary rights of third parties, including but not limited to copyright, patent, trademark, trade secret, confidentiality or other proprietary rights; (b) contain defamatory or discriminatory content; (c) constitute an invasion of a party’s rights of privacy or publicity; (d) harm the public image of Sears, the Websites, Sears’ suppliers, and/or other Sellers utilizing the Website; or (e) display nudity, models wearing see-through clothing, sexually explicit content; contain any obscenities, or content that advocates racial, religious or social intolerance, or hatred.
1) Prohibited Merchandise. Unless otherwise expressly permitted in writing by Sears, Seller shall not promote, offer for sale, or provide Sears Marketplace with listings that contain any of the following items or categories:
• pornography in any form of media;
• alcoholic beverages, cigars, cigarettes or tobacco products;
• live animals or taxidermy;
• tomb artifacts or grave-related items;
• automobiles, motorcycles, or scooters requiring registration;
• charity fundraising activities;
• used cosmetics;
• credit or debit cards;
• gift cards;
• hazardous materials, or Hazmat designated items;
• illegal and/or prescription drugs, illegal drug paraphernalia, or materials describing how to make illegal drugs;
• embargoed goods from prohibited countries currently listed by the U.S. Office of Foreign Assets Control;
• event tickets;
• firearms and weapons (including but not limited to knives, bows, guns, gun parts, gun kits, ammunition, mace, pepper spray, black powder, and explosives);
• government issued uniforms, government documents, government identifications, and government licenses;
• human parts and human remains;
• surveillance equipment (including but not limited to lock picking devices, wiretapping devices, telephone bugging devices);
• lottery tickets;
• mailing lists and personal consumer information;
• manufacturer’s coupons;
• medical devices regulated by any state or federal agency or authority;
• plants (including live plants and seeds);
• firewood or lumber (not including artificial or manufactured firelogs);
• postage meters or stamps;
• real estate;
• stocks and other securities;
• travel; and
• illegal products, illegal services, stolen or recalled products.
2) In addition to the listing restrictions above, Seller shall not use any listings to promote or engage in any deceptive trade practice including, but not limited to: spoofing, slamming, cramming, phishing, attempting to scam or defraud a User into surrendering private and personal information, or any other illegal activity. Any listing stored, distributed and/or published on the Website is solely at Seller’s direction and Seller is solely and exclusively responsible for such listing. In the event that Sears in its sole discretion believes a transaction represents fraudulent activity, Sears may prohibit the sale of Merchandise by Seller to a User through the Website. Sears will not be liable to Seller for any such actions that which result in or prevent a User from completing an order, or causes a User to cancel an order.
B) Merchandise Selection. Seller is responsible for determining its Merchandise assortment for sale on the Website in compliance with all requirements of federal, state, or other jurisdictional laws, regulations, ordinances, and administration orders and rules of the United States, its territories, and all other countries in which the Merchandise is produced, sold, or delivered (hereinafter “Applicable Laws”), and Sears’ prohibited items list contained herein.
C) Permits and Licenses; Taxes. Seller shall at its own expense obtain all permits and licenses required under any Applicable Law; and shall pay and discharge all applicable taxes and assessments which may be due for sales of its Merchandise listed on the Website under this Agreement.
D) Pricing. Seller shall be responsible for establishing prices for its Merchandise. Pricing information shall be entered via the Portal. Seller warrants that all pricing information it provides for its Merchandise listings is accurate, which pricing information Seller agrees is binding against Seller until Seller removes it via the Portal
1) Most Favorable, Best Pricing or Equivalent Pricing Terms. Seller shall maintain parity between the quality and price of the Merchandise items offered by Seller for sale through Seller’s sales distribution channels that include but are not limited to: Seller’s own and other third-party owned, managed and operated websites, retail stores and other viable sales distribution channels, and those items of Merchandise that are offered by Seller for sale on the Website to Users. For avoidance of doubt, the term ‘parity’ as used herein shall mean the sales prices and product quality assurances associated with a Product Listing (each term applicable to the offer in the Product Listing which may include but is not limited to any ‘low price’ guarantee, rebate or discount, any free or discounted product offering or other benefits associated with the purchase of one or more of the Merchandise) is at least as favorable to User as the most favorable terms that Seller list its products, promotions and service offerings in its various distribution channels.
E) Order Fulfillment. Under the Cost Per Click Program, Seller is responsible for all aspects of User Order Fulfillment, including checkout, shipping, delivery,all customer service issues, and Merchandise returns.
F) Risk of Loss. Seller bears all risk of loss or damage to the Merchandise shall remain with the Seller. Sears shall not have title to, or be deemed the legal owner of the Merchandise at any time under the terms of this Agreement.
G) Non-Conformities and Product Recalls. Seller shall be responsible for all defective or non-conforming Merchandise, including but not limited to, any recalls of its Merchandise, and shall bear all costs associated in notifying Users and handling such recalls of its Merchandise.
H) Password Protection. Seller shall be held responsible for securing and not disclosing to any third party (other than Seller’s authorized third parties selected by Seller to use and manage Seller’s account with Sears) all passwords issued by Sears. Additionally, Seller shall be held strictly liable for all uses or actions occurring under its password.
I) Subcontracting. Seller may not subcontract any of its responsibilities or duties under this Agreement without receiving the prior written approval of Sears. Any subcontractors approved by Sears shall be required to adhere to all the terms of this Agreement.
III) Sears’ Responsibilities.
Website hosting and Maintenance. Sears will be responsible for all operating functions with respect to the Website.
IV) Payment Terms.
A) Pay-Per-Click Fee. Seller shall pay to Sears a fee each time a User clicks on the Seller link within a product listing (“Click-Thru”). Sears will calculate the fee amounts owed by Seller to Sears based upon the tracking of each Click-Thru multiplied by the applicable Click-Thru rate posted by Sears in the Seller Portal that is applicable to the Merchandise category for the product listing (“Click-Thru Rate”). Sears will charge the Seller credit card on a daily basis for the fee amounts that Sears determines in its tracking reports that are due and payable by Seller to Sears for such day (“Pay-Per-Click Fee”); provided, however, Seller shall have the ability to set a maximum amount for the amount of Pay-Per-Click Fees that Sears may charge to the Seller Credit Card that may occur on any Seller Link at anytime. All current Fees are available through the rate card posted on the Portal, and are subject to change without notice to Seller.
V) Grants and Licenses.
A) Grant of License by Sears. Seller desires to receive from Sears a non-exclusive right and license to use the Website for the purpose of placing certain product listings thereon. Sears hereby grants to Seller a non-exclusive, revocable, non-transferable right and license, without right to sublicense, to promote or sell Merchandise on or through the Website to Users, as such license grant and usage by Seller are subject to the terms and conditions of this Agreement, any Seller specifications and all Applicable Laws.
B) Grant of License by Seller. Seller hereby grants to Sears a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, display, perform, re-format, create derivative works of or otherwise commercially or non-commercially exploit in any manner the Seller Content; provided however that Sears will not alter any Seller Marks from the forms provided by Seller except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further than nothing in this Agreement will restrict Sears’ right to use the Seller Content to the extent such use is allowable without a license from Seller under Applicable Law. Any alteration, modification or edit of any Seller Content by Sears, or Sears’ display of Seller Content on a Website is not an approval by Sears that such listing complies with Applicable Law.
VI) Term and Termination.
A) Term. The term of this Agreement will commence on the date Seller accepts these terms contained herein (“Effective Date”) and will continue in effect until such time as terminated by either Party in accordance with the notice and termination requirements set forth below (the “Term”).
B) Termination for Convenience. Either Party may terminate this Agreement at anytime upon notice to the other; provided, however, Seller shall provide Sears with no less than two (2) business days notice of its intent to terminate the Agreement, and Seller shall process and fulfill all open Purchase Orders submitted by Sears to Seller until the termination date provided in Seller’s notice of termination to Sears. Upon termination of this Agreement for any reason all rights granted to Seller hereunder shall immediately terminate.
C) Survival. Any termination of this Agreement shall be without prejudice to the rights of either Party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. Any obligations of the Parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or customer services obligation in connection with the sale of Merchandise hereunder, shall survive termination of this Agreement.
VII) Representations and Warranties of Seller.
A) Representations and Warranties. Seller represents and warrants that:
1) All information provided to Sears by Seller is accurate, complete, and current, including, without limitation, any Seller contact information or any other information reasonably requested from time to time by Sears from Seller;
2) The publication, reproduction, display, modification, distribution or transmission of the product listings, does not (a) violate any proprietary rights of third parties, including but not limited to copyright, patent, trademark, trade secret, confidentiality or other proprietary rights (b) contain defamatory or discriminatory content, (c) constitute an invasion of a party’s rights of privacy or publicity; and/or (d) reflect unfavorably on Sears, the Website and/or other Sellers also utilizing the Services or that could otherwise adversely impact or damage the reputation or public image of Sears and/or other third party sellers;
3) During the Term Seller and all product listings provided by Seller to Sears hereunder and Merchandise sold through the Website will at all times fully comply with all Applicable Laws and the Prohibited Merchandise lists; and
4) Seller shall perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards.
5) All information or data uploaded or transmitted to any Sears site or User is free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Site, any other Web site, or any computer or other device or system use the Site to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes to use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the site, collect any information about other Users (including usernames and/or email addresses); or to reformat or frame any portion of the site), or use the Site and/or any other Seller content, intentionally or unintentionally, to violate any applicable local, state, federal or international law.
VIII) Mutual Representations and Warranties. Each Party represents and warrants that: It has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it; and The execution of this Agreement by each Party, and the performance by such Party of its obligations and duties, does not and will not violate any other agreement to which such Party is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, and it is fully compliant with applicable privacy laws.
A) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SEARS MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE WEBSITE, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE WEBSITE IS PROVIDED BY SEARS ON AN "AS IS" AND “AS AVAILABLE” BASIS AND SELLER’S USE OF THE WEBSITE IS SOLELY AT SELLER’S OWN RISK. SEARS DOES NOT WARRANT THAT SELLER’S USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES SEARS MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITE, OR THE SALE OF ANY MERCHANDISE ITEMS BY SELLER TO USERS THEREON, OR ANY SERVICES PROVIDED BY SEARS TO SELLER IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT TO THE LIKE OF ANY PRODUCT LISTING OR ANY RESULTS SELLER MAY OBTAIN UNDER THIS AGREEMENT.
B) ADDITIONAL DISCLAIMERS. SELLER ACKNOWLEDGES THAT ANY PRODUCT LISTING AND/OR CONTENT THEREIN IS PROVIDED SOLELY BY SELLER AND SEARS DOES NOT ENDORSE, APPROVE OR OTHERWISE MAKE ANY REPRESENTATION OR WARRANTY WITH REGARD TO THE ACCURACY, TRUTH, QUALITY, SUITABILITY OR RELIABILITY OF ANY PROMISE, CLAIM OR STATEMENT CONTAINED IN ANY PRODUCT LISTING OR IN ANY PACKAGING OR RELATED MATERIALS THAT THE MERCHANDISE IS PROVIDED AND DELIVERED IN TO USERS. FURTHER, SEARS IS NOT RESPONSIBLE FOR ANY ERRORS, OMISSIONS, OR INACCURACIES CONTAINED IN ANY PRODUCT LISTING INCLUDING BUT NOT LIMITED TO THE CONTENT THEREIN OR ANY DELIVERIES OF NON-CONFORMING MERCHANDISE TO USERS IN CONNECTION WITH THE SERVICES PERFORMED AND PROVIDED BY SEARS HEREUNDER, REGARDLESS OF WHETHER SEARS HAS EXERCISED ITS RIGHTS GRANTED HEREIN. SEARS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY PRODUCT LISTING AND/OR CONTENT CONTAINED THEREIN OR ANY MERCHANDISE SOLD HEREUNDER BY SELLER TO A USER. FURTHER, SEARS SHALL NOT BE OBLIGATED TO PROVIDE SELLER WITH NOTICE IN THE EVENT ANY PRODUCT LISTING IS NOT DISPLAYED PROPERLY ON THE WEBSITE, ANY NON-CONFORMANCE OF ANY MERCHANDISE SOLD AND DELIVERED TO A USER IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCT RECALL RELATED EVENT IN REGARDS TO SUCH MERCHANDISE. SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSIONS OF EXPRESS AND IMPLIED WARRANTIES, THEN SEARS HEREBY GRANTS THE MINIMUM EXPRESS AND IMPLIED WARRANTIES REQUIRED BY SUCH APPLICABLE LAW.
C) THE FUNCTIONALITY PROVIDED BY THE WEBSITE, SEARS’, OR ITS DESIGNEES’ SERVERS IS NOT AN ARCHIVE, AND SEARS SHALL HAVE NO LIABILITY TO SELLER OR ANY OTHER PERSON FOR LOSS, DAMAGE, OR DESTRUCTION TO ANY PRODUCT LISTING PROVIDED TO SEARS BY SELLER. SELLER IS SOLELY RESPONSIBLE FOR PREVENTING ANY LOSS OR DAMAGE TO PRODUCT LISTINGS AND FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ANY PRODUCT LISTINGS PROVIDED BY SELLER TO SEARS.
X) LIMITATION OF LIABILITY. IN NO EVENT SHALL SEARS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SEARS LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) BE GREATER THAN THE LESSER OF (I) $1000 US DOLLARS; OR (II) THE TOTAL FEES PAID BY SELLER TO SEARS IN THE THIRTY (30) DAYS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE.
XI) Defense and Indemnification. Seller will indemnify, defend, and hold harmless Sears and its parents, subsidiaries, affiliates, directors, officers, and employees from and against all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys fees) arising out of or relating to Seller’s actions under this Agreement, and/or arising out of the sale of any Merchandise to a User through the Website.
A) Defense. Seller will indemnify, defend, and hold harmless Sears and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees (each an “Indemnified Party”) from and against all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys fees) arising out of or relating to Seller’s actions under this Agreement, asserted in any claim, action, lawsuit or proceeding between any Indemnified Party and any third party, whether actual or alleged (even though such allegations may be false, fraudulent or groundless) and whether or not Seller’s Indemnity and Contribution Obligations (as defined below) shall apply, arising out of or relating to any of the following (collectively, the “Claims”): (a) infringement, misuse, dilution, misappropriation, or other violation of any intellectual property rights of third parties, including but not limited to copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights; (b) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any latent or patent defect in Merchandise, including improper manufacture, construction, assembly, installation, repair, display, packaging, service or design of Merchandise, failure of Merchandise to comply with any Specification or samples or with any express or implied warranties of Seller, or any claim of strict liability in tort relating to Merchandise; (c) any violation by Seller (or its affiliates, or the Personnel of each of them) in the manufacture, construction, assembly, installation, repair, display, packaging, possession, service, design, use, delivery or sale of Merchandise (“Production or Sale”) of any federal, state or local law, regulation, ordinance or administrative order or rule of the United States, its territories or any other country in which the Production or Sale of Merchandise took place; (d) the publication of product information Seller supplies to Sears to display in product listings on a website; (e) the packaging, tagging, labeling, packing, shipping, delivery and invoicing of Merchandise; (f) failure to warn or to provide adequate warnings or instructions in the use, assembly, service or installation of Merchandise; (g) the packaging, labeling or advertising claims made by Seller; (h) the display, assembly or installation of Merchandise, or (i) the assertion by a third party of a security interest, right of replevin, or other legal interest created by a factoring or other credit arrangement in any amount due Seller under a Vendor Agreement; or (j) a breach by Seller of any of Seller’s Warranties or Representations contained herein. Notwithstanding the provisions of the foregoing sentence, Seller shall have no obligation to defend any Indemnified Party in any action, lawsuit, or other proceeding in which the basis for the claim is confined to the sole negligence of any Indemnified Party in the display, assembly, service, repair or installation of Merchandise. Seller shall retain defense counsel satisfactory to Sears and shall, from time to time, provide reports, consult with Sears’ Personnel in conducting the defense of the Claims and otherwise cooperate fully with the reasonable requests of Sears; provided that only with respect to claims arising under Section XI.A.(a) above, Sears may, at its election and at any time, take control of the defense and investigation of said Claims and employ attorneys and other consultants, investigators and experts of its own choice to manage and defend any such Claims at the cost and expense of Seller.
1) Independent Obligation. The obligations of Seller to defend, indemnify, and hold harmless the Indemnified Parties under this section are independent of each other and any other obligation of the parties herein
2) Indemnity and Contribution. Seller shall hold harmless and indemnify the Indemnified Parties from and against any and all damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees, disbursements and costs of investigation) incurred by any of the Indemnified Parties in any claim, demand, action, lawsuit, or proceeding arising out of or in any way relating to any Claims; provided that Seller shall have no obligation to indemnify any Indemnified Party for damages awarded based on the sole negligence of any Indemnified Party in the display, assembly, service, repair or installation of any Merchandise. In any case in which Seller’s indemnity obligation set forth in the preceding sentence is not enforceable under applicable law and in which any Indemnified Party and Seller are found to be liable to a third party with respect to Merchandise, then Sears and Seller shall each contribute to the payment of any judgment awarded in favor of such third party in proportion to the comparative degree of culpability of the Indemnified Parties and Seller.
3) Insurance Requirements. Seller is required to maintain at a minimum such product liability insurance coverage limits as defined in the Marketplace Vendor Information Guide. As applicable, Sellers providing delivery and installation services or other services for Users are required to maintain general liability, vehicle, and worker’s compensation coverage limits as defined in the Marketplace Vendor Information Guide.
B) Settlement. Seller may settle, without Sears’ consent, Claims if the only obligation under such settlement is the payment of monies by Seller and such settlement provides for a full release of Seller and the Indemnified Parties. All other settlements, including any that would create obligations of (or restrictions upon) the Indemnified Parties or restrictions upon the sale (or disposition) of the Merchandise, will require Sears’ prior written consent.
XII) Confidentiality. Seller agrees to: (a) treat as confidential, and preserve the confidentiality of all Confidential Information; (b) use the Confidential Information solely for the purposes of this Agreement; and (c) not copy such Confidential Information unless authorized by Sears. Seller must promptly return or destroy all Confidential Information at Sears’ request.
XIII) PCI Compliance. Seller acknowledges that to the extent it receives any User credit card data in connection with the Agreement, Seller is responsible for the security of the credit card data it receives will comply with current Payment Card Industry (“PCI”) Data Security Standards (as updated by the PCI from time to time). In the event of a data breach of a User’s credit card information involving Seller or Seller’s IT system environment, Seller will cooperate fully with SEARS and/or industry/government officials in a review and/or forensic investigation of Seller’s system environment and/or processes.
A) Ownership of Content. Sears and Seller each agree and acknowledge that, as between Sears and Seller, that Seller shall own all Product Listings.
B) Intellectual Property Rights. All right, title and interest in and to the Websites, and all data collected or stored in connection with the Services, shall remain the exclusive property of Sears (collectively referenced hereinafter “Sears Network”) and including all rights, title, trademark, patent, or any other intellectual property right (“Sears’ IP Rights”) therein shall at all times remain the property of Sears, and except as expressly provided herein, nothing shall be construed as conferring on Seller any license under Sears’ IP Rights, whether by estoppel, implication or otherwise. If Seller is deemed to have any ownership interest or rights in the Sears Network, or any part thereof, then Seller shall assign, and Seller does hereby assign, all of such ownership interest and rights to Sears, including all Intellectual Property Rights therein. All rights not expressly granted herein are reserved to Sears.
XV) Force Majeure. In no event shall either party be liable to the other for any failure to perform its obligations hereunder to the extent such failure is due to war, riots, embargoes, strikes or other concerted acts of workers, casualties, accidents or other causes to the extent that such failure and the consequences thereof are reasonably beyond the control and without the fault or negligence of the party claiming excuse (“Force Majeure Condition”). In the case of Sears, a Force Majeure Condition also includes acts of god, terrorism, flood, fiber cuts, acts or omissions of other carriers, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Services, in whole or in part, any failure of heat, air conditioning, telecommunications, the Internet, or power supply, or act or failure to act of Seller or any third party using the Services or Website. For the avoidance of doubt, the existence of a Force Majeure Condition shall not relieve Seller of its obligation to pay any Fees accrued or due under this Agreement.
XVI) Miscellaneous. If any part of this Agreement is found invalid, such invalidity will not affect the remaining portions of this Agreement, and the Parties will substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Seller may not assign or transfer any of its rights or obligations under this Agreement, any such attempted assignment or transfer will be void, and Sears may immediately terminate this Agreement and any Product Listings without liability. The waiver by any Party of a breach of any provision of this Agreement by the other Party, will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor will any delay or omission by either Party to exercise or enforce any right or remedy hereunder operate as a waiver of any right or remedy. Sears may modify the terms and conditions of this Agreement at anytime upon email notification to Seller or by posting changes on the Seller Portal, and Seller’s continued access and use of the Website after such communication shall be construed as Seller’s acceptance of such modifications made by Sears. It is Seller’s responsibility to monitor the terms and conditions of this Agreement for changes from time to time. In some cases, Sears may, but is not obligated to, provide Seller with notice of any changes to these Terms and Conditions. All notices provided by Sears through the Seller Portal, or any communications by email, fax, or any other form of electronic communications by and between the Parties will satisfy any legal requirement that such communications be in writing.
A) Sears will provide notices to Seller at the address, email address, or fax number provided by Seller to Sears at the time of enrollment.
B) Seller must send all notices to Sears at: email@example.com, or through the address provided in the Seller Portal, or such other address as provided by Sears from time to time.
XVIII) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of Illinois, without regard to its conflict of law principles. Seller and Sears hereby consent to the personal and subject matter jurisdiction of the state and/or federal courts located in Cook County, Illinois and hereby agree that the proper and exclusive venue for any dispute concerning this Agreement shall be in such courts. All objections to such jurisdiction or venue are hereby waived.
XIX) Total Agreement. This Agreement constitutes the complete and final agreement of the Parties pertaining to the Services. The Parties to this Agreement are independent contractors, and no other relationship will be implied from this Agreement.
BY CLICKING ON THE “AGREE” BUTTON BELOW AND SUBMITTING THIS APPLICATION SELLER AGREES TO BE CONTRACTUALLY BOUND BY, AND TO PERFORM AND OBSERVE, ALL OF THE OBLIGATIONS AND CONDITIONS IN THE FOREGOING AGREEMENT THAT ARE TO BE PERFORMED ANDOBSERVED BY SELLER, AND BY CLICKING ON THE “AGREE” BUTTON YOU CERTIFY THAT YOU (I) HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS CONTAINED IN THE ABOVE AGREEMENT, (II) ARE ACTING ON BEHALF OF SELLER WITH THE INTENTION TO BIND IT TO THE AGREEMENT,AND (III) SELLER HAS DULY AUTHORIZED YOU SO TO ACT. IF SELLER DOES NOT AGREE, OR IF YOU ARE UNWILLING TO CERTIFY, YOU SHOULD NOT CLICK THE “AGREE” BUTTON.