Sears Marketplace Terms and Conditions
By registering to sell on the Sears Marketplace and any related 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 Holding 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 will 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 will process 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. Seller will provide the information requested on the Portal during Account activation, and agrees to update such information promptly. Seller will not use or ncorporate 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, at any time, in Sears' sole discretion, including any Merchandise Listing that (i) violates law or a Sears’ policy, (ii) promotes or glorifies hatred, violence, racism or discrimination, or (iii) is otherwise incompatible with the Sears’ brand. Sears may take any actions necessary to ensure compliance, including cancellation of related transactions or suspension and/or termination of the Seller account.
- 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 Equivalent Pricing. Seller 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
- 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 Providers 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
- Shipping. Seller is responsible for all aspects
of shipping, including providing adequate packaging, tagging, labeling and
packing of the Merchandise and any additional delivery services offered by
Seller including assembly and installation in compliance with the Seller
Specifications and Applicable Law. Seller shall state on its Merchandise
Listing that Sears is not responsible for and does not arrange the
shipping/delivery/installation of the Merchandise.
- Process. When Seller receives notice of an order from a User (a «User Order») 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»)
available 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. With 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
represents and warrants that it: (a) will maintain general liability
insurance, vehicle insurance, and worker's compensation insurance in such
amounts set forth in the Marketplace Vendor Guide; (b) will require and
confirm that background check requirements have been performed on any of
its Personnel or subcontractors entering the premises or residences of
Users as specified in the Marketplace Vendor Guide and any drug testing has
been completed on such individuals as required by applicable law; and (c)
will maintain any certifications, licenses and authorizations required by
applicable law or regulations to perform such delivery and/or installation.
- 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.
- Chargebacks. 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 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 Policy») 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 Merchandise.
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 Merchandise.
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.
- Commissions. 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. Sears and
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. Sears hereby 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. Seller hereby 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 Applicable Law.
- Intellectual Property Rights. All right, 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 herein.
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»).
- Termination. 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 the Websites.
- Survival. 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
VI) REPRESENTATIONS AND WARRANTIES.
- Mutual. 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. Seller further represents and warrants
- The Merchandise Listings and all information and Seller Content provided
to Sears is accurate, complete, current, and is not misleading or deceptive
in any manner;
- The publication, reproduction, display, modification, distribution 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 Law, including but
not limited to applicable privacy laws and any laws that restrict product
- Seller will include in Merchandise Listings all disclosures, text,
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 a professional
and commercially reasonable manner, in accordance with generally accepted
- Seller will maintain at a minimum such product liability insurance
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 Proposition 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 Law.
VII) 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 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
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.
- Obligation. 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 or Sale») 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, delivery, assembly or
installation of Merchandise including but not limited to any acts or
inactions of Seller or Seller’s subcontractors arising out of or occurring
during the delivery, 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.
- 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.
- Insurance Requirements. Seller will 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. «Confidential Information» 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. The 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
- 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 will 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 will
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 limiting the 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 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 and 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
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
- 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 provide notices 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 Portal.
- Construction. 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 time by 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
- 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 this Agreement.
- «Account» means Seller's Marketplace account, which is accessible
through the Portal.
- «Agreement» has the meaning given in the preamble.
«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 delivered.
- «Confidential Information» has the meaning given in Section X.A.
- «Confidential Personal Information» has the meaning given in
- «Claims» has the meaning given it in Section IX.A.
- «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, losses, expenses, costs
or damages of every nature and kind whatsoever (including reasonable
attorneys' fees) asserted in any claim, action, lawsuit or proceeding.
- «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 Merchandise.
- «Monthly Subscription Fee» means the monthly fee charged by
Sears for membership in the Sears Marketplace program.
- «Party» and «Parties» have the meaning given to them in
- «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
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,
- «Sears» has the meaning given in the preamble.
- «Sears Marks» means all Sears' domestic and foreign 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
- «Sears Return Policy» means the return policy located at
, as updated by Sears from time to time.
- «Seller» has the meaning given in the preamble.
- «Seller Content» means all images, videos, text, Merchandise
descriptions, and Merchandise-related data uploaded by Seller to create its
- «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
- «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
- «Taxes» has the meaning given in Section II.B.3.
- «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 Section II.C.1.
- «Websites» has the meaning given in the preamble.