Marketplace Terms and Conditions
By registering to sell on the Sears Marketplace and any
websites and applications owned or operated by or on behalf of Sears
(collectively, the «Websites»), you as an
individual, or the company on behalf of which you are registering,
(referred to herein as «Seller») agree to
be bound by these Sears Marketplace Terms and Conditions (collectively,
with any Attachments or Exhibits, the «Agreement»),
which are by and between Transform SR Holdings Management LLC
(together with its affiliates, «Sears»)
and Seller (each, a «Party» and
collectively, the «Parties»).
This Agreement is effective as of latest of (i) the date Seller
registers for the Websites via the Portal or otherwise accepts the
Agreement and (ii) the Agreement is posted to the Seller Portal (the «Effective
Date»). Capitalized terms not defined in this Agreement
will have the meanings given to them in Appendix A.
I) SEARS' RESPONSIBILITIES.
- Websites Hosting and Maintenance.Sears
provide Seller with access to the Websites as a platform for Seller to
post Merchandise Listings and facilitate the sale, lease or other financing of Seller's
Merchandise to Users. Sears will be responsible for all operating
functions of the Websites. Sears may, in its sole discretion, (i) ask
Users to rate and/or provide comments regarding Merchandise and/or
Seller's performance, using any metrics determined by Sears in its sole
discretion, and (ii) post any resulting ratings and/or comments on the
Websites for public display.
Sears may, in its sole discretion, offer financing, leasing, rent to own,
or other mechanisms for Users to acquire Merchandise, by itself or
in association with third-parties, and Seller may not opt-out of or
decline any such transaction.
- User Orders and Payment.Sears
User Orders (as defined in Section II.C.1) and collect all amounts due
from Users for Merchandise ordered from Seller through the Websites.
Within fifteen (15) days thereafter, Sears will remit such amounts,
less any amounts owed to Sears by Seller, by electronic funds transfer
to the bank account identified by Seller in the Portal. Seller hereby
appoints Sears as an agent of Seller for the sole and express purpose
of receiving payments from Users for Seller's Merchandise sold on the
Websites. Seller acknowledges that, as between Seller and a User who
purchases Merchandise from Seller, Sears' receipt of funds from the
User is deemed the receipt of funds by Seller.
II) SELLER'S RESPONSIBILITIES.
- Enrollment; Account Activation.
provide the information requested on the Portal during Account
activation, and agrees to update such information promptly. Seller will
not use or incorporate any Sears Mark, in whole or in part, in Seller's
account name or any other User-facing identification. Seller agrees to
secure the password used to access its Account and not to disclose it
to any third party (other than any authorized third-party service
providers to Seller). Seller acknowledges and agrees to be strictly
liable for all uses or actions occurring through the Seller's Account.
- Merchandise Listings.
Seller will create
Merchandise Listings via the Portal for all Merchandise it intends to
sell on the Websites. All Merchandise Listings will comply with the
specifications and policies posted in the Portal, and such Merchandise
Listings will not use or incorporate any Sears Marks. Seller is
responsible for promptly updating its Merchandise Listing(s) to ensure
the Merchandise Listing and inventories are at all times accurate.
Seller will not list any Merchandise it does not currently have in
stock. Seller agrees to list any text, images, disclaimers, warnings,
notices, labels, warranties, or other content required by applicable
federal, state or local law, including but not limited to California
Proposition 65, to be displayed in connection with the offer,
merchandising, advertising or sale of Merchandise. Seller acknowledges
that failure to abide by the terms of this Agreement may subject Seller
to penalties and legal liability, and that Sears may reject, remove or
censor any Merchandise Listing for any reason, in Sears' sole
- Merchandise Pricing. Seller is
responsible to establish
prices for its Merchandise. Seller will enter pricing via the Portal,
unless another method is approved in writing by Sears.
- Most Favorable, Best Pricing or
will maintain parity between the Merchandise and identical merchandise
offered through Seller's other sales distribution channels, including
Seller's own website(s) or any third-party website(s). For avoidance of
doubt, the term 'parity' as used herein means that sales prices,
product quality (including quality assurances), and shipping and
handling charges associated with a Merchandise Listing (including any
'low price' guarantees, rebates, free or discounted shipping and
handling, or other benefits) are equivalent to those associated with
identical Merchandise offered by Seller on the Websites.
- Seller Pricing Errors. If
Seller uploads or otherwise provides incorrect pricing information to a
Merchandise Listing (a «Seller Pricing Error»),
Sears may, at Seller's expense, take any commercially reasonable action
necessary to avoid and/or repair harm to Sears due to the Seller
Pricing Error. Such action may include requiring Seller to honor all
Merchandise purchases occurring due to Seller Pricing Errors and
compensating Users for any inconvenience caused by such errors. Seller
will also reimburse Sears for all costs Sears incurs directly as a
result of Seller Pricing Errors.
- Prohibited Merchandise. Unless
otherwise expressly permitted
in writing by Sears, Seller will not promote, offer for sale, or
provide Sears with Merchandise Listings that (a) contain any Prohibited
Merchandise, (b) promote or engage in any deceptive trade practice
(including spoofing, slamming, cramming, phishing, attempting to scam
or defraud a User into surrendering private and/or personal
information); or (c) promote or engage in any other illegal activity.
- Permits and Licenses; Taxes. Seller
will, at its own
expense, obtain all permits and licenses required to operate its
business in accordance with Applicable Law, and will pay and discharge
all applicable taxes and assessments which may be due for selling or
offering of its Merchandise for sale on or through the Websites. It is
Seller's responsibility to determine the states in which it has an
obligation to collect and remit state and local sales and use taxes («Taxes»).
Seller will promptly notify Sears of the states for which Sears should
collect Taxes by affirmatively selecting the applicable states in the
Seller's business account profile in the Portal. Sears will pay over
the Taxes collected from the online purchaser directly to the Seller
and Seller will be solely responsible for remitting the tax to the
applicable taxing jurisdiction, except in states where Sears, as the
marketplace platform provider, is either required by law or elects to
remit taxes directly to the state on behalf of seller. If a taxing
authority requires Sears to pay any of Seller's taxes, Seller will
promptly reimburse Sears for the amounts paid. Seller acknowledges and
agrees that tax-related data is provided through Sears' third-party
service provider(s) («Providers»). While
will use reasonable efforts to ensure that the tax data is current and
accurate, Seller acknowledges and agrees that Sears and its Providers
do not provide tax advice, and that Seller is solely responsible for
determining the applicability and accuracy of any tax data. As a
condition of receiving the tax data, Seller agrees to fully and forever
waive any Liabilities against the Sears Parties and the Provider
Parties arising from Seller's use of and reliance on such tax data and
further agrees to defend, indemnify and hold the Sears Parties and the
Provider Parties harmless from Liabilities arising from such use or
Seller is responsible for all
aspects of shipping, including providing adequate packaging, tagging,
labeling and packing of the Merchandise in compliance with the Seller
Specifications and Applicable Law.
- Process. When Seller receives notice
of an order from a User (a «UserOrder»)
at the e-mail address specified by Seller in the Portal, Seller will
process and fulfill the User Order in compliance with the Seller
Shipping and Delivery Policy, and will make the Merchandise requested
in a User Order («Requested Merchandise»)
for pick up by a common carrier to deliver to the applicable User.
Seller will not substitute any item(s) for the Requested Merchandise.
Title to and risk of loss of and/or damage to the Requested Merchandise
will remain with Seller until delivery to the User. Sears will not have
title to, or deemed the legal owner of, any Merchandise at any time
under the terms of this Agreement. Seller may not include any
marketing, promotional materials, or any other solicitations with the
Requested Merchandise shipped to Users.
- Overdue Orders. Sears may cancel any
User Order that fails
for any reason to ship within the applicable shipping period indicated
in the Seller Specifications, and Sears will have no duty to compensate
Seller for any such cancelled orders. It is Seller's responsibility to
monitor all orders and ensure all shipments are made within the
timeframes indicated in the Seller Specifications.
- Delivery Errors, Non-conformities.
Seller is responsible for
any non-delivery, delivery error, mistake, theft or act in connection
with the fulfillment and delivery of its Merchandise, except to the
extent caused by Sears' failure to properly process a User's address
verification in the course of the purchase of the Merchandise.
- Additional Delivery Services; «White Glove»
the written consent of Sears, Seller may provide more extensive
shipping services, such as delivery within the home or User premises,
and/or installation services for Merchandise sold pursuant to this
Agreement. In such case, Seller (a) will maintain general liability
insurance, vehicle insurance, and worker's compensation insurance in
such amounts set forth in the Marketplace Vendor Guide and (b) will not
permit any of its Personnel or subcontractors to enter the premises or
residences of Users until they have passed the drug testing and
background check requirements specified in the Marketplace Vendor Guide.
- User Service Issues.
Seller will resolve
all User service issues arising from, or in connection with Seller's
promotion, sale, order fulfillment and/or delivery of Merchandise.
Sears will direct Users who contact it with service issues related to
Merchandise sold pursuant to this Agreement to contact Seller via the
contact information Seller has provided in the Portal. If Seller fails
to respond to User service issues, or requests from Sears related to
same, Sears may take any actions necessary to ensure compliance, up to
and including suspending Seller's access to their Account. In the event
that Sears believes in its sole discretion that a transaction
represents fraudulent activity, Sears may, but is not obligated to,
prohibit the transaction. Sears will not be liable to Seller for any
such action results in or prevents a User from completing an order or
causes a User to cancel an order.
If Sears notifies Seller of a
User chargeback or chargebacks received due to non-delivery, or other
dispute related to Seller's transactions, Seller must present Sears
with all information requested in the chargeback notification within
five (5) business days of receiving notice. If Seller fails to comply
with Sears' request, Seller will reimburse Sears for the User
chargeback(s) in accordance with the settlement and payment terms
herein. Notwithstanding the other provisions of this paragraph, Seller
will not be responsible for chargebacks due to (a) theft and/or
unauthorized use of a third party's credit card information for which
Sears is responsible (except to the extent such theft and/or
unauthorized use is attributable to Seller), and (b) non-delivery due
to Sears' failure to send the order information to Seller.
- Seller Marketing; Restrictions;
Prohibition on use of User Information.
Seller (or any of its affiliates or related parties) may not directly
or indirectly disclose or use any User information or other transaction
information, except as necessary to fulfill its fulfillment and
customer service obligations under this Agreement. Seller may not use
any User information for any of its own marketing or promotional
activities. To the extent Seller obtains User information outside of
its relationship with Sears or the Websites, the terms of this section
will not prevent Sellers from using such User information, provided
that Seller may not explicitly target Users on the basis of their
purchases or presence on the Websites.
- Refunds; Returned Merchandise.
Seller will submit a return policy (the «Seller Return
using the form provided on the Portal. The Seller Return Policy must
(i) apply to all Merchandise, (ii) outline the process for Users to
return the Merchandise directly to Seller, and (iii) be at least as
accommodating to User returns as the Sears Return Policy. Seller agrees
to honor all User returns in accordance with the Seller Return Policy
published at the time of the User's purchase of Merchandise.
- Recalled Merchandise; Defective
Seller will immediately notify Sears of any recalls affecting the
Merchandise it has listed on Sears Marketplace. Notwithstanding the
foregoing Seller is responsible for all defective or recalled
Merchandise, including any costs associated with recalls of its
Merchandise, all liability related to its Merchandise (regardless of
whether such Merchandise is defective), and will bear all costs
associated in notifying Users and handling such recalls of its
III) FEES AND COMMISSIONS.
- Monthly Subscription Fee.
Sears will charge
Seller's credit card or via Electronic Funds Transfer on the first
business day of each calendar month in the amount of the current
Monthly Subscription Fee, as specified in the Portal and subject to
change. Any revised Monthly Subscription Fee will be effective as of
the date posted. Seller agrees that failure to pay its Monthly
Subscription Fee may result in a breach of this Agreement, removal of
Merchandise Listings and/or suspension of access to the Portal.
Seller will pay commissions to
Sears according to the «Commission Rate Schedule» available in the
Portal, which is subject to change. Any revised Commission rates are
effective as of the date posted.
- Right of Recoupment and Set-off.
Seller acknowledge and agree that Sears has the right to recoup or
set-off any payments owed to Seller by the amount of any Monthly
Subscription Fees, commission payments, Seller obligations owed
according to the defense and indemnity terms herein, and any other
monetary obligations owing by Seller to Sears. Any remaining
outstanding funds due to Sears after recoupment or set-off will be paid
by Seller promptly upon demand by Sears.Sears may obtain reimbursement
of any amounts owed by Seller to Sears by deducting from future
payments owed to Seller, reversing any credits to Seller's account,
charging Seller's credit card, or seeking such reimbursement from
Seller by any other lawful means. Seller hereby authorizes Sears to use
any or all of the foregoing methods to seek reimbursement, including
the debiting of Seller credit card or bank account. Sears and Seller
acknowledge and agree that Sears may hold any payments owed to Seller,
or funds in the possession or control of Sears, upon the termination of
the Seller’s account for a period of 90 days from the date of
termination, or a longer period if Sears in its sole discretion
determines that a longer period is needed to determine the extent of
Seller’s monetary obligations to Sears, and Sears shall not be liable
for any damages, including but not limited to interest, related to such
holding of Seller funds.
IV) INTELLECTUAL PROPERTY.
- Grant of License by Sears.
grants to Seller a non-exclusive, revocable, non-transferable license
to promote and sell Merchandise on or through the Websites to Users,
subject to the terms of this Agreement.
- Grant of License by Seller.
grants to Sears a royalty-free, non-exclusive, irrevocable, perpetual,
worldwide, royalty-free, right to use and to reproduce, modify,
display, distribute, perform, re-format, create derivative works of or
otherwise commercially or non-commercially exploit in any manner the
Seller Content and Merchandise Listings with the right to sublicense
such rights through multiple tiers; 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
- Intellectual Property Rights.
title and interest in and to the Websites, and all data collected or
stored in connection with the Websites and any other Sears or Kmart
websites, any of their affiliates' websites, including mygofer, Local
Marketplace, and any other service or website associated with the
foregoing, including mobile sites or microsites, and all IP Rights
associated with any of the foregoing, will at all times remain the
exclusive property of Sears, and except as expressly provided herein,
nothing will be construed as conferring on Seller any license to Sears'
IP Rights, whether by estoppel, implication or otherwise. If Seller is
deemed to have any ownership interest or rights in any of the
foregoing, or any part thereof, then Seller will assign, and Seller
does hereby assign, all of such ownership interest and rights to Sears,
including all Seller IP Rights therein. All rights not expressly
granted herein are reserved to Sears.
- Ownership of Content.
Sears and Seller each
agree and acknowledge that, as between Sears and Seller, Seller owns
all Seller Content and Seller Marks, subject to the License granted
V) TERM AND TERMINATION.
- Term. The
term of this Agreement will
commence on the Effective Date, and will continue in effect until such
time as revised by Sears, or terminated by either Party in accordance
with the notice and termination requirements set forth below (the «Term»).
Seller may terminate this
Agreement at any time upon two (2) business days' notice to Sears, in
which case Seller will process and fulfill all open orders until the
termination is effective. Sears may terminate this Agreement (i) at any
time upon notice to Seller; or (ii) if Sears determines in its
discretion that Seller has breached any term of this Agreement,
immediately, including the right to cancel all open User orders for the
Merchandise, and to remove all of Seller's Merchandise Listings from
Any termination of this Agreement
will 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 User services
obligation in connection with the sale of Merchandise hereunder, will
survive termination of this Agreement.
VI) REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants
that: it has the 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.
Seller further represents and warrants that:
- The Merchandise Listings and all information and Seller
provided to Sears is accurate, complete, current, and is not misleading
or deceptive in any manner;
- The publication, reproduction, display, modification,
or transmission of Seller Content or a Merchandise Listing does and
will not (a) infringe, misuse, dilute, misappropriate, or otherwise
violate any intellectual property rights of third parties, including
copyright, patent, trademark, trade secret, domain name, right of
publicity, or 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 Websites and/or other Sellers on the Websites;
- Seller will at all times fully comply with Applicable
including but not limited to applicable privacy laws and any laws that
restrict product sales.
- Seller will include in Merchandise Listings all
images, disclaimers, warnings, notices, labels, warranties, or other
content associated with the Merchandise as required by Applicable Law;
- All Merchandise sold pursuant to this Agreement is not
subject to any health, safety or product quality recall;
- Seller will perform all of its obligations hereunder in
professional and commercially reasonable manner, in accordance with
generally accepted industry standards;
- Seller will maintain at a minimum such product
coverage limits, general liability, vehicle, and worker's compensation
coverage limits as required by Applicable Law to operate its business;
- All information or data uploaded or transmitted by or
on behalf of
Seller to the Portal, Websites, or any other Sears website,
application, or system, or to a 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 Portal, Websites, any
other Sears website, application, or system. Seller will not use the
Websites 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 Websites, collect
any information about other Users (including usernames and/or email
addresses); or to reformat or frame any portion of the Websites), or
use the Websites and/or any other Seller Content, intentionally or
unintentionally, to violate any Applicable Law.
- All Merchandise Listings shall comply with California’s
65, as amended, which requires notice to California consumers of
products that contain chemicals on California’s list of chemicals known
to the state to cause cancer or reproductive toxicity. Merchandise
Listings for Merchandise containing chemicals subject to California
Proposition 65 must provide all text, images, disclaimers, warnings,
notices, labels, warranties, or other content as required by Applicable
VII) DISCLAIMER OF WARRANTIES.
EXPRESSLY SET FORTH IN THIS AGREEMENT, SEARS MAKES NO WARRANTIES AND
HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED
WITH REGARD TO THE WEBSITES, ANY SERVICES, AND/OR INFORMATION, PRODUCTS
OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING 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. THE WEBSITES ARE 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 WEBSITES 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 WEBSITES, 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 ANY
MERCHANDISE LISTING OR ANY RESULTS SELLER MAY OBTAIN UNDER THIS
AGREEMENT. THE FUNCTIONALITY PROVIDED BY THE WEBSITES OR SEARS, OR ITS
DESIGNEES' SERVERS IS NOT AN ARCHIVE; SELLER IS SOLELY RESPONSIBLE FOR
MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION,
INCLUDING SELLER CONTENT PROVIDED TO SEARS.
VIII) LIMITATION OF LIABILITY.
IN NO EVENT
WILL 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 WILL 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.
IX) DEFENSE AND INDEMNIFICATION.
Seller will defend, and
indemnify and hold harmless the Sears Parties from and against all
third-party Liabilities, whether actual or alleged (even though such
allegations may be false, fraudulent or groundless), arising out of or
relating to any of the following (collectively, the «Claims»):
(i) infringement, misuse, dilution, misappropriation, or other
violation of any intellectual property rights of third parties,
including copyright, patent, trademark, trade secret, domain name,
right of publicity, or confidentiality or other proprietary rights;
(ii) 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; (iii) any
violation by Seller (or its affiliates, or their respective Personnel
of each of them) in the manufacture, construction, assembly,
installation, repair, display, packaging, possession, service, design,
use, delivery, offer or sale of Merchandise («Production
of any Applicable Law of the United States, its territories or any
other country in which the Production or Sale of Merchandise took
place; (iv) the publication of Seller Content and product information
Seller supplies to Sears to display in Merchandise Listings; (v) the
packaging, tagging, labeling, packing, shipping, delivery and invoicing
of Merchandise; (vi) failure to warn or to provide adequate warnings or
instructions in the use, assembly, service or installation of
Merchandise; (vii) the packaging, labeling or advertising claims made
by Seller; (viii) the display, assembly or installation of Merchandise,
(ix) 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;
(x) a breach of any of the Seller's representations and warranties
contained herein; or (x) Taxes or the collection, payment or failure to
collect or pay Taxes. Notwithstanding the provisions of this Paragraph,
Seller will not be liable for damage to third parties to the extent
such damage was solely and proximately caused by the negligence or
willful misconduct of any Indemnified Party.
- Process. In
performing its obligations
under Section IX.A, Seller will retain defense counsel satisfactory to
Sears and will, 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 IX.A.(i) 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. In any case
in which Seller's indemnity obligation set forth in Section IX.A 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 will 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
- Independent Obligation.
The obligations of
Seller to defend, indemnify, and hold harmless the Indemnified Parties
under this Agreement are independent of each other and any other
obligation of the Parties herein.
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.
- Insurance Requirements.
maintain at a minimum such product liability insurance coverage limits
as defined in the Sears Marketplace Vendor Information Guide, available
through the Portal. Such policy must provide that the coverage
thereunder will not be terminated without at least thirty (30) days
prior written notice to Sears.
- Definition and Obligations.
means any and all technical or business data or information furnished,
in whatever form or medium, by Sears regardless of whether marked or
identified as «Confidential,» including Confidential Personal
Information (as defined below), the terms of this Agreement, and the
operations and technology to be utilized in connection with the Portal
and Websites. Seller agrees to: (i) treat as confidential, and preserve
the confidentiality of all Confidential Information and not disclose it
to any third party; (ii) use the Confidential Information solely for
the purposes of this Agreement; and (iii) not copy such Confidential
Information unless authorized by Sears.
- Treatment of Confidential Information.
obligations with respect to Confidential Information will not apply to
any information that: (i) is already in Seller's possession, as shown
by documentation and without obligation of confidentiality; (ii)
without action or fault on Seller's part, is or becomes publicly
available; or (iii) Seller has obtained from a third person without
breach by such third person of an obligation of confidence. Seller must
promptly return or destroy all Confidential Information at Sears'
- Confidential Personal Information.In
addition to the obligations related to Confidential Information,
additional obligations apply to Confidential Personal Information. All
information related to Users, including names, addresses, telephone
numbers, account numbers, and demographic, financial and transaction
information is «Confidential Personal Information.»
Seller will not duplicate or incorporate the Confidential Personal
Information into its own records or databases. Seller
restrict disclosure of Confidential Personal Information to its
employees who have a need to know such information to perform under
this Agreement. Seller is liable for any unauthorized disclosure or use
of Confidential Personal Information by any of its employees. Except as
necessary to fulfill its Customer Service obligations herein, Seller
not disclose the Confidential Personal Information to any third party,
including any affiliate or subsidiary of Seller, permitted
subcontractor, or other representative without the prior written
consent of Sears. Unless otherwise prohibited by law, Seller will: (i)
immediately notify Sears of any legal process served on Seller for the
purpose of obtaining Confidential Personal Information; and (ii) permit
Sears adequate time to exercise its legal options to prohibit or limit
such disclosure. Seller will notify Sears promptly upon the discovery
of the loss, unauthorized disclosure or unauthorized use of the
Confidential Personal Information and agrees to indemnify and hold
Sears harmless for such loss, unauthorized disclosure or unauthorized
use of Confidential Personal Information, including attorneys' fees.
- No Publicity.Without
foregoing, Seller will not disclose the existence or terms of this
Agreement or any other information regarding Seller's sale of
Merchandise on the Websites, in any advertising, promotional or sales
activity, publicity release, or other public communication without
Sears' prior written consent and approval in each instance. Sears has
the right to review and approve any press release, marketing materials
or related content that mentions Sears.
- PCI Compliance.Seller
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 and will comply with current Payment Card
Industry («PCI») Data Security Standards
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 immediately notify Sears and cooperate fully
with Sears and/or industry/government officials in a review and/or
forensic investigation of Seller's system environment and/or processes.
- Use of Subcontractors.
Seller may use
subcontractors in its performance under this Agreement, provided that
(i) Seller's subcontractors will be required to adhere to the terms of
the Agreement and (ii) Seller will be fully responsible for the acts
and omissions of its subcontractors. Sears may require Seller to cease
use of any subcontractor for any reason, and may immediately suspend
Seller's account, or terminate this Agreement in the event Seller
refuses to comply with any such request from Sears.
- Force Majeure.
Neither Party will be liable
to the other for any failure to perform its obligations under this
Agreement 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.
- Invalidity; Waiver.
No finding that any
part of this Agreement is invalid will affect the remaining portions of
this Agreement. Seller may not assign or transfer any of its rights or
obligations under this Agreement without written consent from Sears.
Any such attempted assignment or transfer will be void, and Sears may
immediately terminate this Agreement, and Seller's access to the Portal
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.
- Unless otherwise noted in the Agreement, Sears will
to Seller at the address, email address, or fax number provided by
Seller to Sears at the time of enrollment.
- Seller must send all notices to Sears through the
This Agreement, the policies
and procedures communicated through the Portal, and the Marketplace
Vendor Guide, govern Seller's use of the Websites to sell Merchandise
to Users. In the event of a conflict between any terms herein, or any
program specific policies and procedures communicated to Seller via the
Portal or the Marketplace Vendor Guide, the program specific policies
and procedures will control. In the event the Seller is registered for
several Marketplace Programs (for example both the Fulfilled by Sears
and Fulfilled by Merchant programs), the applicable terms will govern
Merchandise sold according to that Program only. Sears may modify the
terms and conditions of this Agreement, the Marketplace Vendor Guide,
or its policies and/or procedures at any timeby posting changes on the
Portal. Seller's continued access and use of the Websites after such
posting will 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 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.
In this Agreement, «include,» «includes,» and «including» are inclusive
and mean, respectively, «include without limitation,» «includes without
limitation,» and «including without limitation.
- Governing Law.
This Agreement will 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 agree that the state and/or federal courts located in
Cook County, Illinois are the proper and exclusive venue for any
dispute concerning this Agreement, and hereby consent to such court's
personal and subject matter jurisdiction thereof.
- Relationship of Parties.
The Parties to
this Agreement are independent contractors, and no other relationship
will be implied from this Agreement. Nothing contained in or done
pursuant to this Agreement will be construed as creating a partnership,
agency, or joint venture, and neither Party will become bound by any
representation, statement, or act of the other Party. Seller is
responsible for all expenses necessary to fulfill its obligations under
- «Account» means Seller's Marketplace
account, which is accessible through the Portal.
- «Agreement» has the meaning given in the
- «Applicable Law» means 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
- «Confidential Information» has the
meaning given in Section X.A.
- «Confidential Personal Information» has
the meaning given in Section X.C.
- «Claims» has the meaning given it in
- «Effective Date» has the meaning given
in the preamble.
- «Indemnified Party» has the meaning
given in Section IX.A.
- «IP Rights» means all intellectual
property rights which now
or hereafter exist throughout the universe, whether conferred by
operation of law, contract, or license, including rights of authorship,
including copyrights, moral rights and mask-works, marks, cosmetic
designs, ornamental appearance and trade dress, trade secret rights,
inventions, and technology (whether patentable or not and whether or
not reduced to practice), confidential information (as defined herein),
software and databases, rights of publicity, patents, designs,
algorithms, and other industrial property rights, and «rental» rights
and rights to remuneration;
- «Marketplace Vendor Guide» means the Sears
Marketplace Vendor Information Guide,
which contains additional policies and procedures for doing business
via Sears Marketplace, and has been made available to Seller via the
Portal, and may be amended from time to time by Sears.
- «Liabilities» means all claims, actions,
costs or damages of every nature and kind whatsoever (including
reasonable attorneys' fees) asserted in any claim, action, lawsuit or
- «Merchandise» means the goods, offers
and services Seller markets and lists for sale to Users on the Websites.
- «Merchandise Listings» means the offers
created for display on the Websites related to the sale of the
- «Monthly Subscription Fee» means the
monthly fee charged by Sears for membership in the Sears Marketplace
- «Party» and «Parties»
have the meaning given to them in the preamble.
- «Personnel» means a Party's employees,
agents, officers, directors, or others action on behalf of the Party.
- «Portal» means the online interface by
which Seller accesses
its Marketplace account, communicates with Sears, uploads its Seller
Content and Merchandise Listings, manages its User Orders, and other
such activities related to this Agreement.
- «Prohibited Merchandise» means the items
and categories listed on https://www.searscommerceservices.com/question/prohibited-merchandise
as updated by Sears from time to time.
- «Provider Parties» means Providers and
all of their past,
present and future parents, subsidiaries, affiliates, directors,
officers, and employees.
- «Sears» has the meaning given in the
- «Sears Marks» means all Sears' domestic
trademarks, service marks, trade names, registrations and applications
to register the foregoing, logos, and domain names.
- «Sears Parties» means Sears and all of
its past, present and future parents, subsidiaries, affiliates,
directors, officers, and employees.
- «Sears Return Policy» means the return
policy located at sears.com,
as updated by Sears from time to time.
- «Seller» has the meaning given in the
- «Seller Content» means all images,
videos, text, Merchandise
descriptions, and Merchandise-related data uploaded by Seller to create
its Merchandise Listings.
- «Seller Marks» means all of Seller's
domestic and foreign
trademarks, service marks, trade names, registrations and applications
to register the foregoing, logos, and domain names.
- «Seller Shipping and Delivery Policy»
means the policy loaded by Seller into the Seller Portal, in compliance
with the Terms of this Agreement.
- «Seller Specifications» means all
information related to
order fulfillment, shipping times, and merchandise returns, as may be
designated by Sears, or by Seller, if applicable, via the Portal, and
relating to Seller's Merchandise.
- «Taxes» has the meaning given in Section
- «User» means any user or customer
accessing the Websites, or placing or receiving any order for
Merchandise via the Websites.
- «User Order» has the meaning given in
- «Websites» has the meaning given in the