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 Sears Holdings Management Corporation (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.

A. 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 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.

B. 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.

A. 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 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.

B. 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 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 discretion.

1. 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.

a. 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 Websites.

b. 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.

2. 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.

3. 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. 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 reliance.

C. Shipping. 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.

1. 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.

2. 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.

3. 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.

4. Additional Delivery Services; «White Glove» Delivery. 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 (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.

D. 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.

E. 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.

F. 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.

G. 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.

H. 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.

A. 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.

B. 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.

C. 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.

IV) INTELLECTUAL PROPERTY.

A. 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.

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, 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.

C. 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.

D. 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.

A. 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»).

B. 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.

C. 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 Agreement.

VI) REPRESENTATIONS AND WARRANTIES.

A. 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.

B. Seller. Seller further represents and warrants that:

1. The Seller Listings and all information and Seller Content provided to Sears is accurate, complete, current, and is not misleading or deceptive in any manner;

2. 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;

3. Seller will at all times fully comply with Applicable Law, including applicable privacy laws;

4. Seller will include in Merchandise Listings all disclosures associated with the Merchandise as required by Applicable Law;

5. All Merchandise sold pursuant to this Agreement is not subject to any health, safety or product quality recall;

6. Seller will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards;

7. 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;

8. 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.

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 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.

A. 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 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, 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.

B. 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 Seller.

C. 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.

D. 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.

E. 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.

X) CONFIDENTIALITY.

A. 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.

B. 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 Sears' request.

C. 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.

D. 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.

E. 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.

XI) MISCELLANEOUS.

A. 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.

B. 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.

C. 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.

D. Notice:

1. 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.

2. Seller must send all notices to Sears through the Portal.

E. 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.

F. 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.

G. 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.


1. «Account» means Seller's Marketplace account, which is accessible through the Portal.

2. «Agreement» has the meaning given in the preamble.

3. «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.

4. «Confidential Information» has the meaning given in Section X.A.

5. «Confidential Personal Information» has the meaning given in Section X.C.

6. «Claims» has the meaning given it in Section IX.A.

7. «Effective Date» has the meaning given in the preamble.

8. «Indemnified Party» has the meaning given in Section IX.A.

9. «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;

10. «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.

11. «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.

12. «Merchandise» means the goods, offers and services Seller markets and lists for sale to Users on the Websites.

13. «Merchandise Listings» means the offers created for display on the Websites related to the sale of the Merchandise.

14. «Monthly Subscription Fee» means the monthly fee charged by Sears for membership in the Sears Marketplace program.

15. «Party» and «Parties» have the meaning given to them in the preamble.

16. «Personnel» means a Party's employees, agents, officers, directors, or others action on behalf of the Party.

17. «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.

18. «Prohibited Merchandise» means the items and categories listed on https://www.searscommerceservices.com/question/prohibited-merchandise as updated by Sears from time to time.

19. «Provider Parties» means Providers and all of their past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.

20. «Sears» has the meaning given in the preamble.

21. «Sears Marks» means all Sears' domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.

22. «Sears Parties» means Sears and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.

23. «Sears Return Policy» means the return policy located at sears.com, as updated by Sears from time to time.

24. «Seller» has the meaning given in the preamble.

25. «Seller Content» means all images, videos, text, Merchandise descriptions, and Merchandise-related data uploaded by Seller to create its Merchandise Listings.

26. «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.

27. «Seller Shipping and Delivery Policy» means the policy loaded by Seller into the Seller Portal, in compliance with the Terms of this Agreement.

28. «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.

29. «Taxes» has the meaning given in Section II.B.3.

30. «User» means any user or customer accessing the Websites, or placing or receiving any order for Merchandise via the Websites.

31. «User Order» has the meaning given in Section II.C.1.

32. «Websites» has the meaning given in the preamble.