This Seller Agreement (the "Agreement") is entered into between MarketteSix LLC ("Company"), and you ("Seller", and together with Company, the "Parties", and each, a "Party"). This Agreement specifies the terms under which Seller may list the Products described in this Agreement on Seller's Website (the "Website") for sale by Company of behalf of Seller.
Read this Agreement carefully. By clicking "I Agree," or otherwise manifesting assent to this Agreement, Seller agrees to be bound by the terms of this Agreement and the terms and conditions of Company's, which is hereby incorporated in this Agreement by reference and certifies that Seller is at least 18 years old or older. If Seller does not agree to (or cannot comply with) all of the terms of this Agreement, Seller will not list the Products with Company. The person executing this Agreement on behalf of Seller represents that he or she is an authorized representative of Seller capable of binding Seller to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Listing of Goods.
Seller Account: In order to sell goods using the Website, Seller must create an account using the account creation form located at www.markettesix.com/register.
Listing Request. Seller will submit to Company a Listing Request that describes the gemstone, jewelry, or watch that Seller wishes to list for sale on the Website (the "Product"), the condition of the Product, including any defects, and the price at which Seller wishes to list the Product. Company will review the Listing Request and, within 10 business days, notify Seller via electronic mail that it accepts or rejects the Listing Request. If Company rejects the Listing Request, Company will provide Seller with the reasons the Listing Request was rejected. Seller may then submit a new Listing Request for the Product.
Listing Procedure. If Company accepts Seller's Listing Request, Company will, within 1 calendar day of acceptance by Company, list the Product and its description on the Website at Seller's listed price (the "Listing").
Changes to Listing: During the term of the Listing, Seller may reduce the price of the Product in the Listing (the "Purchase Price") at any time. Such price changes are subject to the review and approval of Company. However, Seller may not, and will not have the ability to, change the description of the Product. If Seller wishes to change the description of any Product, Seller must terminate the Listing and submit a new Listing Request to Company.
Selling of Goods.
Purchase by Website User. When the Product is purchased by a user of the Website (the "Purchaser"), Company will collect the Purchase Price from the Purchaser and notify Seller of the sale via email to the email address associated with Seller's account ("Sale Notification").
Delivery by Seller. Within 5 calendar days of Company sending Seller the Sale Notification, Seller will provide and deliver the Product to Company's location at its sole expense, FOB Company.
Inspection by Company.
Company will only accept Products that are authentic, clean, and in excellent condition. Any defects will be brought to Company's attention by Seller before delivery of the Products.
Company will inspect all Products delivered by Seller immediately upon such delivery for quality, authenticity and conformity with the Product description provided by Seller in the Listing Request. Company will have the Product evaluated by a certified expert in the Product's field. If any Product provided to Company under this Agreement is found to be counterfeit, Company reserves the right to confiscate such Product and provide the Product and any other information (including Seller's personal information) requested by the person, government authority, or agency looking to trace the origin of such counterfeit Product.
Rejection by Company. Within 7 business days of Company's receipt of the Product, Company will notify Seller and Purchaser via electronic mail of its acceptance or rejection of the Product. If any Product fails to meet Company's quality and authenticity standards ("Nonconforming Goods"), a determination to be made wholly at Company's discretion, Company will, within 5 calendar days if the Purchaser resides in the United States and within a commercially reasonable time (considering international carrier and customs requirements) if Purchaser resides outside the United States,:
Return the Product to Seller, FOB Company, with shipping and insurance costs at Seller's expense; and
Release or return the Purchase Price collected from Purchaser to Purchaser.
In case of rejection of the Product under this Section 2.4, Seller will be charged a $50 fee to cover the costs of review and storage of the item during review.
Acceptance by Company. If Company determines that the Product meets Company's quality and authenticity standards, Company will, within 7 calendar days if the Purchaser resides in the United States and within a commercially reasonable time (considering international carrier and customs requirements) if Purchaser resides outside the United States, provide and deliver the Product to the Purchaser FOB Company at Company's expense. Purchaser will be deemed to have accepted the Product unless Purchaser notifies the Company within 3 calendar days from delivery of the Product that it rejects the Product. If Purchaser does not reject the Product, Company will transfer payment to Seller pursuant to Section 6 below. If Purchaser rejects the Product, Purchaser will deliver the Product to Company FOB Company at Purchaser's expense. Company will verify that the returned Product is the same Product that was shipped to Purchaser, and Company will then return the Product to Seller FOB Company at Seller's expense within 30 calendar days of receiving the returned Product.
Terms of Agreement Prevail Over Seller's Listing Request. The terms of this Agreement prevail over any terms or conditions of Seller contained in any other documentation and expressly exclude any general terms and conditions contained in any document issued by Seller, including any Listing Request, regardless of whether or when Seller has submitted such documents. Fulfillment of Seller's Listing Request does not constitute acceptance of any of Seller's terms and conditions and does not serve to modify or amend this Agreement.
Right to Sell the Product
Right to Sell. Seller hereby grants to Company the right to list the Product on behalf of Seller pursuant to this Agreement during the Term as defined in Section 7.1. Upon Company's acceptance of the Listing Request, Company will use commercially reasonable efforts to make the Product available for purchase on the Website.
Brand Rights. Seller grants Company the right to use the any of Seller's logos, trademarks, likenesses, product images, and other reasonable intellectual property on the Website and any marketing materials provided by Seller for any purpose consistent with this Agreement.
Title and Risk of Loss.
Title Retained by Seller. Seller will retain title to the Product unless and until it is shipped from Company to Purchaser. When Company ships the Product to Purchaser, title to the Product will pass from Seller to Purchaser. Company will not at any time have title to the Product.
Risk of Loss Passes Upon Delivery.
Seller assumes the risk of loss, theft, or damage to the Product until it is delivered to Company.
Notwithstanding Section 4.1, Company assumes the risk of loss, theft, or damage to the Product while in its possession or control.
Price. Company agrees to accept nothing less than the current Listing Price for any Product sold, with such Listing Price to be set at the sole discretion of Seller.
Payment and Commission.
Company Commission. For the services provided by Company to Seller under this Agreement, Seller will pay Company an amount (the "Company Share") equal to the percentage determined at the at the time the Listing Request is accepted by Company multiplied by the actual purchase price of the sold item ("Actual Purchase Price"), the Actual Purchase Price being the price that the buyer paid for the item minus any additional fees, such as the appraisal fee. The difference between the Actual Sale Price and the Company Share (the "Seller Share") will be paid to Seller.
Payment to Seller. Payment to Seller will occur on the following schedule:
For all Products that clear at least two business days before the fifteenth of the current month, Company will transmit payment to Seller on the fifteenth of the current month. For all Products that clear in the period between the fifteenth day of the current month and one business day before the last day of the current month, Company will transmit payment to Seller on the last day of the current month. For all Products that clear after the last business day of the current month, Company will transmit payment to Seller on the fifteenth day of the next month. For purposes of this Section 6.2, "clear" means the Product has been delivered to the Purchaser and Purchaser has not shipped the Product for return to Company within the time period for returns set forth in Company's return policy located at www.markettesix.com/returns.
Notwithstanding the foregoing, in no event will Company be obligated to make any such payments to Seller unless and until (i) the time period for set forth in Company's return policy located at www.markettesix.com/returns has expired for any such sale, and (ii) Company has received the proceeds from any such sale.
Taxes. All amounts paid to Seller under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Company under this Agreement. Seller is responsible for all charges, costs, and taxes; provided, that, Seller is not responsible for any taxes imposed on, or regarding, Company's income, revenues, gross receipts, personnel, or real or personal property or other assets.
Term. This Agreement will be effective from the time Seller clicks "I Agree" or otherwise affirmatively manifests assent to this Agreement ("Effective Date"), and, unless earlier terminated pursuant to Section 7.2, will continue in full force and effect until Seller removes the Product listing from the Website (the "Term") or Company terminates the Agreement pursuant to Section 7.2.
Termination. Company may terminate this Agreement, at any time, without cause, upon thirty days written notice to Seller.
Effect of Termination. Termination will not affect either party's obligations for undisputed payment accrued prior to the effective date of termination or warranties which have not yet expired.
Relationship of the Parties. Company's relationship with Seller will be that of an independent contractor. Nothing in this Agreement is to be construed to create any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
Definition and Exclusions. Each party hereby acknowledges that it ("Receiving Party") may have access to confidential and proprietary information of the other party ("Disclosing Party") including, without limitation, business information, financial information, and customer information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information does not include (i) information already known outside the scope of this Agreement, (ii) information in the public domain through no wrongful act of the Receiving Party, or (iii) information received outside the scope of this Agreement from a third party not under a confidentiality obligation to the Disclosing Party.
Duties. The Receiving Party will
only use the Disclosing Party's Confidential Information to perform its obligations pursuant to this Agreement,
not disclose the disclosing party's Confidential Information to any person or entity, except to its own employees or agents having a "need to know" (and who themselves are bound by similar nondisclosure restrictions).
Upon termination, or at any time upon request by the Disclosing Party, the Receiving Party will return all Confidential Information in its possession or control or, at the sole discretion of the Disclosing Party may otherwise verify its destruction or deletion to the Disclosing Party.
Representations and Warranties. Seller represents and warrants to Company that during the term of this Agreement (i) Seller has good title to the Products, free of all liens, claims, and encumbrances; (ii) the Products are authentic and not counterfeit or knock offs; (iii) the Products will conform in all material respects, with the Product specifications set forth on the labeling of the Product; and (iv) the Products do not violate, infringe, or misappropriate any intellectual property or proprietary rights of any third party.
Indemnification. Seller will indemnify, hold harmless, and defend Company and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses arising out of or relating to any claim of a third party alleging or relating to:
a breach or non-fulfillment of any representation, warranty, or covenant under/representation or warranty set out in this Agreement by Seller;
any negligent or more culpable act or omission of Seller (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Seller; or
any failure by Seller to comply with any applicable laws.
Limitation of Liability.
No Liability for Consequential or Indirect Damages. IN NO EVENT IS EITHER PARTY OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Maximum Liability for Damages. IN NO EVENT WILL COMPANY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO COMPANY FOR THE PRODUCT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE SELLER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Survival. The following Sections will survive the termination or expiration of this Agreement: 1.3, 3, 4, 7, 8, 9, 10, 11, 12, and 13.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") must be in writing and addressed to Company at firstname.lastname@example.org and to Seller at the email address set forth in the Listing Request. All Notices must be delivered by e-mail with confirmation of transmission.
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized representative of the Party waiving its right.
Equitable Remedies. Each Party acknowledges and agrees that (a) a breach by either Party of any of its obligations under Section 10 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach by such Party of any such obligations, the other Party will be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 13.7.
Assignment. Seller will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No permitted assignment or delegation relieves Company of any of its obligations under this Agreement. Company may assign any of its rights or delegate any of its obligations without the consent of Seller.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
Choice of Law and Forum. This Agreement will be governed by and construed in accordance with the Laws of the State of Oregon without reference to the conflicts of law provisions thereof. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court in the State of Oregon, County of Multnomah, and the parties irrevocably consent to the personal jurisdiction of such courts. Each party hereby waives any objection or defense of personal jurisdiction or forum non-conveniens it may otherwise possess.
Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including the following force majeure events (each a "Force Majeure Event"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) requirements of applicable law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; and (h) shortage of adequate power or transportation facilities.