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THIS MARKETPLACE SELLER AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERNS YOUR ACCESS TO THE DYNTEX.COM WEBSITE (“WEBSITE”) TO SELL PRODUCTS PURSUANT TO DYNTEX.COM MARKETPLACE PROGRAM (“MARKETPLACE PROGRAM”) AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND DYNTEX.COM. BY REGISTERING AS A SELLER ON THE SITE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
As used in this Agreement, “Dyntex.com” means Dyntex.com LLP, and “You” or “Seller” means the applicant (if registering for the Marketplace Program as an individual), or the business employing the applicant (if registering for the Marketplace Program as a business). 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»).
For purposes of this Agreement, capitalized terms will have the meaning specified in their contextual paragraph, or where not otherwise defined herein, will have the meanings specified below:
- «Affiliate» will mean, with respect to Dyntex.com , any entity, whether incorporated or not, that directly or indirectly controls, is under common controlled by, or is under common control by such party or its corporate parent, where “control” (or variations of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
- «Account» means Seller’s Marketplace account, which is accessible through the Portal.
- «Agreement» has the meaning given in the preamble.
- «Claims» will mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation.
- «Effective Date» has the meaning given in the preamble.
- «Item File» means a data feed between Seller and the Site that includes Seller Content (as defined below) and other relevant or necessary information enabling Seller Content to be made available on the Marketplace Program.
- «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.
- «Law» shall mean any law, ordinance, statute, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, or any governmental authority of competent jurisdiction.
- «Losses» shall mean any and all damages (including, without limitation, past, future, direct, indirect, economic, noneconomic, consequential, special, exemplary, incidental, and punitive), sanctions, settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs.
- «Portal» means the online interface by which Seller accesses its Marketplace account, communicates with Dyntex.com , uploads its Seller’s listing of Products, manages its User Orders, and other such activities related to this Agreement.
- «Seller Content» means all images, videos, text, Products descriptions, and Products-related data uploaded by Seller to create its Seller’s listing of Products.
- “Website” means, collectively, Dyntex.com website with the primary home page located at https://dyntex.com .
3. Seller Onboarding
3.1. Dyntex.com has sole discretion in evaluating each individual Seller’s suitability to participate in the Website and related listing services. At the time Seller applies to participate, and periodically throughout the term of this Agreement, Dyntex.com will review certain Seller characteristics, including but not limited to, product offerings, product liability and compliance history, business and financial standing, and whether Seller could be construed as a current or potential competitor to Dyntex.com or of a Dyntex.com affiliated company, and Dyntex.com reserves the right, in its sole and complete discretion, to reject any Seller applicant, or to terminate any participating Seller, which Dyntex.com deems not to be suitable to participate in the Website and related listing services.
3.2. In order for Seller to start listing Products on the Site, Dyntex.com will open on Seller’s behalf a Seller Marketplace account on the Seller portal. Within (3) three weeks from the opening of the account, Seller will be required to upload all necessary Seller Content and prepare the Seller storefront to go live on the Site. If Seller fails to take any such actions within the aforementioned period, Dyntex.com may suspend the account. A one-time payment of ninety-nine dollars ($99) will be required to re-open the Marketplace Seller account.
4. Seller’s Content License Grant
4.1. Grant of License by Dyntex.com. Dyntex.com hereby grants to Seller a non-exclusive, revocable, non-transferable license to promote and sell Products on or through the Websites to Users, subject to the terms of this Agreement.
4.2. Grant of License by Seller. Grant of License by Seller. Seller hereby grants to Dyntex.com 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 Product Listings with the right to sublicense such rights through multiple tiers; provided however that Dyntex.com 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 Dyntex.com right to use the Seller Content to the extent such use is allowable without a license from Seller under Applicable Law.
4.3. License for Marks. Seller hereby grants Dyntex.com, its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit, and display Seller’s name, trademarks, service marks and logos (“Seller’s Marks”) during the Term in connection with, or for the promotion of, the Marketplace Program or for internal purposes. All such uses of the Seller’s Marks will be subject to the brand guidelines which Seller provides to Dyntex.com.
5. Product Information and Other Content
5.1. Content. Seller agrees and warrants that any and all Seller Content:
- will be truthful, accurate, and not misleading or otherwise deceptive;
- will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy;
- will not violate any applicable Law;
- will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and
- will not create liability for Dyntex.com .
- Seller agrees that any and all Seller Content may be publicly displayed by comas Dyntex.com sees fit and at no charge to Dyntex.com. Seller will only provide Seller Content for Products that fit into the categories or parameters approved in writing by Dyntex.com. Seller may provide Dyntex.com with Seller Content for Products in additional categories or parameters only upon the prior written consent by Dyntex.com (which may be given by email). If Seller receives Customer ratings or reviews for its Products directly or through third parties, then Dyntex.com and Seller may mutually agree to have Seller provide such ratings and reviews to Dyntex.com as part of the Seller Content.
5.2. Product Pricing. Seller is responsible to establish prices for its Products. Seller will enter pricing via the Portal, unless another method is approved in writing by Dyntex.com.
5.3. Most Favorable, Best Pricing or Equivalent Pricing. Seller will maintain parity between the Product and identical product 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 Product Listing (including any ‘low price’ guarantees, rebates, free or discounted shipping and handling, or other benefits) are equivalent to those associated with identical Product offered by Seller on the Websites.
5.4. Seller Pricing Errors. If Seller uploads or otherwise provides incorrect pricing information to a Product Listing (a «Seller Pricing Error»), Dyntex.com may, at Seller’s expense, take any commercially reasonable action necessary to avoid and/or repair harm to Dyntex.com due to the Seller Pricing Error. Such action may include requiring Seller to honor all Product purchases occurring due to Seller Pricing Errors and compensating Users for any inconvenience caused by such errors. Seller will also reimburse Dyntex.com for all costs Dyntex.com incurs directly as a result of Seller Pricing Errors.
5.5. Excluded Products. You hereby represent and warrant that you will not list, offer or sell Products that:
- are stolen, replicas, counterfeits or unauthorized copies;
- violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy;
- You do not have full right and authority to sell;
- contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- violate any Laws, including those governing export control or consumer protection);
- contain any material that is obscene, pornographic or that contains child pornography;
- represent a potential danger for the health or well-being of the Consumers without having the appropriate regulatory approvals and agreeing with and accepting the Regulatory Compliance Addendum attached hereto as Appendix A, and/or
- create liability for Dyntex.com. At its sole discretion, Dyntex.com may require Seller’s complete Product catalog for review.
6. Product Authenticity
6.1. Authenticity / Authorization. All Products that bear a company’s official brand or logo can be listed on the Site as long as the Products are sold directly by the brand owner or from an authorized reseller. Seller will maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeited, replicas, unauthorize copies, illegal or misbranded. Upon comrequest, Seller will promptly provide Dyntex.com with (i) certificates of authenticity (or similar documentation) for Products and (ii) documentation showing that Seller is permitted to sell specific brands or Products on Site.
6.2. Penalties. If the Seller fails to provide the required documentation, Seller may be removed from the Site, and may be subject to a range of other actions, including but not limited to suspension of their Seller Marketplace account and removal of their Products from the Site.
7. Fees and Commissions
7.1. The monthly fees and commissions (“Fees”) payable by Seller to comin order to list and offer Products on the Site are as set forth hereto in Appendix B. The parties agree that Dyntex.com may revise and adjust the Fees every six (6) months, and such adjusted Fees shall become applicable upon thirty (30) days prior written notice to Seller (which may be given via email).
7.2. Seller hereby appoints comas its agent for accepting and processing payment from Customer’s on Seller’s behalf. Seller authorizes Dyntex.com to receive payments on its behalf and deliver such payments on a weekly basis, net of agreed-upon Fees and/or other amounts owed by Seller to Dyntex.com (such resulting amount, “Seller Payment”), to Seller’s designated bank account in accordance with its instructions. Seller represents and warrants that each payment that it directs Dyntex.com to process through the Service is for the completed and fulfilled sale of goods or services from Seller to a Customer. Merchant agrees and acknowledges that: (a) once Dyntex.com receives payment from a Customer, Seller will treat the Customer as if Seller has itself received the funds, regardless of whether Seller actually receives the payment from Seller, and (b) its sole recourse for nonpayment by Dyntex.com is against Dyntex.com, and it will not seek any return, refund or payment directly or indirectly from Customers in the event of nonpayment by Dyntex.com. Dyntex.com reserves the right to offset any overpayments to Seller against any future Seller Payments. Dyntex.com may modify the schedule of payments from time to time upon prior notice to Sellers.
7.3. Withholding of Payment. Dyntex.com may withhold the payment of funds to You or return funds to Customers, if the Seller is the subject of an investigation, or there is a Claim against You, for any suspected or alleged wrongful conduct or any violation of this Agreement. Dyntex.com will not be liable to You for any such amounts.
8. Purchase/Order Processing, Fulfillment and Shipping
8.1. Orders. Seller will be the merchant of record. Customers purchasing Products through the Site will place orders using the comcheckout system and Dyntex.com will collect all proceeds from such transactions, including shipping costs and applicable taxes based on shipment options and tax designations provided by Seller to Dyntex.com. The Customer is the purchaser of record. Dyntex.com will electronically transmit to Seller the order information (e.g. Customer full name, shipping address, and anonymized email) (“Transaction Information”) that Dyntex.com determines Seller needs to fulfill each order, including without limitation, shipping Product(s) to Customers and providing Customer service. Dyntex.com will send an automated email message to each Customer confirming receipt of an order. Seller will provide Dyntex.com with Seller’s Customer service contact information which Dyntex.com may include in such confirmation email and/or on the Site.
8,2, Risk of Fraud and Loss. Seller’s bears the risk of all fraud except for credit card chargebacks resulting from unauthorized payments. Seller will be responsible for all costs related to fraud under any other circumstance, and all chargebacks related to Products sold and Product fulfillment and delivery. For all credit card chargebacks for which Seller bears the risk, comwill offset such chargeback amounts against amounts otherwise owed to Seller or send Seller an invoice and Seller will pay such invoice within thirty (30) days of receipt.
8.3. Fulfillment of orders. Once Dyntex.com has transmitted an order to Seller, Seller will at its own expense, be solely responsible for, and bear all liability for, the fulfillment of the order, including without limitation, packaging and shipping of Products, securing the services of and payment of any freight forwarder or customs broker service charges (as may be required for any particular shipment), import or export duties or taxes (as applicable), and Customer service. Seller agrees that legal ownership and all risk of loss of the Products remains with Seller until the Customer receives the Product from Seller. If Seller cannot fulfill the entire quantity of a purchase order (PO) line in a single order, then the Seller will cancel that PO line, fulfill all other lines in the order and immediately notify Dyntex.com of such cancellation. If the order consists of one PO line that Seller cannot fulfill the entire quantity for, then Seller will cancel the entire order and immediately notify Dyntex.com.
- Seller will ship only the Product purchased by the Customer and will not include any additional Products, substitute Products, materials or information not purchased by the Customer, other than those materials included in all shipments sold by Seller as long as such materials do not in any way promote other third-party marketplaces.
8,4, Shipping. Seller is responsible for properly specifying shipping options for all Products in its Item File, and for properly handling all returns, including without limitation, those for Products that have unique requirements for shipping and return handling, including without limitation, hazardous materials or perishable Products to the extent such Products are permitted to be sold on the Site.
- 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 Product requested in a User Order («Requested Product») available for pick up by a common carrier to deliver to the applicable User. Seller will not substitute any item(s) for the Requested Product. Title to and risk of loss of and/or damage to the Requested Product will remain with Seller until delivery to the User. Dyntex.com will not have title to, or deemed the legal owner of, any Product at any time under the terms of this Agreement. Seller may not include any marketing, promotional materials, or any other solicitations with the Requested Product shipped to Users.
- Overdue Orders. Dyntex.com may cancel any User Order that fails for any reason to ship within the applicable shipping period indicated in the Seller Specifications, and Dyntex.com 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 Product, except to the extent caused by Dyntex.com failure to properly process a User’s address verification in the course of the purchase of the Product.
9. Responsibilities (cancellations, returns and refunds)
9,1, Responsibilities. Seller is responsible for processing all Customer cancellations, returns, refunds, and/or Customer Service price adjustments. Seller will provide comwith its Customer return, refund and price adjustment policies (“Customer Service Policies”) for display on the Site. Seller’s Customer Service Policies for Products sold through the Site will be no less favorable to Customers than Seller’s most favorable policies offered on Seller’s own site or on other third-party marketplaces where such Products are offered for sale. Notwithstanding the foregoing, Seller initial response time to Customers shall be within twenty-four (24) hours and Seller must maintain a Customer feedback of 4.2 starts or higher (out of 5.0 stars). If Seller does not provide such Customer Service Policies to Dyntex.com prior to the Effective Date, then Seller shall be deemed to have adopted Dyntex.com standard customer service policies as may be adopted and/or revised from time to time. Seller shall notify Dyntex.com of any material changes to Seller’s Customer Service Policies at least fourteen (14) days prior to Seller’s implementation of such changes, provided, however, that any such changes shall not be effective with respect to orders until the revised Seller Customer Service Policy has been posted on the Site.
9,2. Cancellations. Seller will maintain a cancellation rate due to Seller’s error or fault of 3.0% calculated on a rolling thirty (30) day period.
9,3, 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 Products. Dyntex.com will direct Users who contact it with service issues related to Productssold 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 Dyntex.com related to same, Dyntex.com may take any actions necessary to ensure compliance, up to and including suspending Seller’s access to their Account. In the event that Dyntex.com believes in its sole discretion that a transaction represents fraudulent activity, Dyntex.com may, but is not obligated to, prohibit the transaction. Dyntex.com 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.
9,4, Chargebacks. If Dyntex.com notifies Seller of a User chargeback or chargebacks received due to non-delivery, or other dispute related to Seller’s transactions, Seller must present Dyntex.com with all information requested in the chargeback notification within five (5) business days of receiving notice. If Seller fails to comply with Dyntex.com request, Seller will reimburse Dyntex.com 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 Dyntex.com is responsible (except to the extent such theft and/or unauthorized use is attributable to Seller), and (b) non-delivery due to Dyntex.com failure to send the order information to Seller.
9.5. 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 Dyntex.com 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.
9,6, Refunds; Returned Products:
- 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 Products, (ii) outline the process for Users to return the Products directly to Seller, and (iii) be at least as accommodating to User returns as the Dyntex.com 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 Products.
- Dyntex.com will whenever possible provide refunds to Customers via the method of payment used by the Customer (most often the Customer’s credit card) for Products not received or sufficiently different from their Product description. Seller will provide Dyntex.com with the necessary information to process such refunds, such as the reason code and/or any special instructions. Dyntex.com will refund to Seller the amount of the Commission Fee attributable to the amount of the Customer refund (excluding any refunded taxes); provided that Dyntex.com shall have no liability for refunds offered by Seller in excess of the purchase price. Seller will be responsible for all other forms of refund, such as store credit or exchanges, which shall be offered according to the Seller’s own Customer Service Policy. If Seller provides Customer directly with a refund, Dyntex.com shall retain the full amount of the Commission Fee attributable to such Customer refund. If Dyntex.com makes a cash refund to a Customer for a Product returned to Seller, Dyntex.com in its sole discretion, will obtain a refund of the Seller Payment received by Seller for such returned Products either via (i) offset of any amounts payable by Dyntex.com to Seller or (ii) by billing Seller for such amounts
9,7, Recalled Products; Defective Products. Seller will immediately notify Dyntex.com of any recalls affecting the Products it has listed on Dyntex.com Marketplace. Notwithstanding the foregoing Seller is responsible for all defective or recalled Products, including any costs associated with recalls of its Products, all liability related to its Products (regardless of whether such Products is defective), and will bear all costs associated in notifying Users and handling such recalls of its Products.
10. Parity with Seller’s Sales Channels
10.1. Seller will maintain parity between the Products it offers through the Seller’s own site or other third party marketplaces, and ensure that at all times: (a) the purchase price and every other term of the listing (including associated shipping and handling charges and options, any “low price” guarantee, rebate or discount, any free or discounted Products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies) is at least as favorable to Consumers as the most favorable terms offered by Seller through its own site on any other third party marketplace; (b) the Product selection available on the Site will be comparable to the Product selection available on Seller’s own site or other third party marketplaces; (c) Customer service for Products is as responsive and available and offers at least the same level of support as the most favorable Customer service offered by Seller on Seller’s own site or on any other third party marketplace. Regardless of the foregoing, initial response time shall be within twenty four (24) hours; (d) the Seller Content provided by Seller to Dyntex.com for the Site (i) is of at least the same quality as the highest quality information displayed or used on the Seller’s own site or provided by Seller to any other third party marketplace and (ii) provides users of the Site with at least as much Product information, images and other content as the information provided by Seller on Seller own site or any other third party marketplace. If Seller becomes aware of any non-compliance with (a) above, Seller shall promptly notify Dyntex.com and compensate adversely affected Customers in accordance with the procedures set forth in Section 9.3 for providing Customers with refunds.
11. Ownership and Use of Transaction Information
12. Ratings and Reviews
12,1, Dyntex.com may use mechanisms that rate or review, or allows Consumers to rate or review Seller’s Products and Seller’s performance, and Dyntex.com may make these ratings publicly available. Dyntex.com will have no liability to Seller for the content or accuracy of any ratings or reviews. Seller shall have no ownership interest in or license to use any rating or reviews posted on the Site.
13.1. Taxpayer and Merchant of Record. Seller is the taxpayer and merchant of record and must comply with all applicable tax Law. Seller shall be solely liable for any tax liabilities, including without limitation, any associated penalties, fees or interest. All references to “tax” or “taxes” in this Agreement shall mean all taxes and fees, including without limitation, sales, use and surcharge taxes, import or export duties, electronic waste recycling fees, and all other indirect taxes and fees.
13.2. Seller Warranty. Seller is solely responsible for determining the amount of sales, use or other indirect taxes owed as a result of the sale of Products, and is solely responsible for reporting and remitting any such taxes required under applicable Law. Seller hereby represents and warrants that it will (a) identify all states in which it has an obligation to collect and remit taxes during onboarding, (b) keep such information updated at all times, (c) report and remit all such taxes collected on Seller’s behalf by Dyntex.com, and (d) maintain appropriate accounting records and documentation to verify the remittance of such taxes collected on Seller’s behalf by Dyntex.com. Upon the request of Dyntex.com, Seller will immediately provide Dyntex.com with records and documentation in the manner, form and substance as Dyntex.com may reasonable request of Seller’s remittance of all taxes collected by Dyntex.com on Seller’s behalf. If Seller is unable to provide such proof to Dyntex.com satisfaction, Dyntex.com may retain all such tax amounts and/or terminate Seller’s Marketplace account. Seller acknowledges and agrees that Dyntex.com has no responsibility to collect, report or remit taxes in connection with Seller’s sales. Seller shall cooperate with Dyntex.com regarding any requests for information, audit or similar request by any taxing authority concerning taxes collected and remitted resulting from the sale of Products on the Site.
13.3. Nexus. If any governmental authority determines that Seller has established nexus in a state or local jurisdictions; or that sales, use or other indirect taxes are due from Dyntex.com or Seller on sales of Products through the Site; or that Seller is otherwise responsible for the collection and remittance or reporting of taxes (and all related penalties and interest) related to the sale of any Products, whether or not as a result of any action or inaction by Dyntex.com, Seller (i) agrees that Seller shall solely be responsible for payment of such taxes (and all related penalties and interest) and/or reporting of such taxes (if applicable), (ii) agrees that Dyntex.com shall have no liability to Seller or any governmental authority for such taxes or penalties, and (iii) will not seek any reimbursement from Dyntex.com for such taxes and related penalties. Seller shall indemnify and hold harmless Dyntex.com and its Affiliates and their respective officers, directors, employees and agents for any claims, liabilities, losses, fines, costs and expenses (including reasonable attorneys’ fees) arising out of or related to any ruling by any governmental authority that Dyntex.com or Seller has a tax remittance or reporting obligation in any State on account of sales of Products on the Site, whether or not due to any action or inaction by Dyntex.com. Dyntex.com may immediately charge Seller’s credit card on file and/or set-off any and all costs and/or expenses that are incurred in connection with the foregoing against any amounts owing to Seller, including without limitation, any Seller Payments).
14. Information Security
14.1. Seller will use appropriate internal information security practices to prevent the compromise of its information systems, computer networks and data files by unauthorized users, viruses or malicious computer programs which could in turn be transmitted to Dyntex.com or compromise the security of Dyntex.com Confidential Information (as defined on Section 15.2 below), including without limitation, the Transaction Information. Seller shall promptly notify Dyntex.com of any breach and take all necessary actions to remediate the breach. Seller shall be responsible for any costs, damages or legal notification procedures resulting from any breach of this Section.
15. Confidential Information
15.1. Definition. The term “Confidential Information” means all information communicated by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure, including, without limitation (a) the terms of this Agreement, (b) existing or contemplated products, services, designs, processes and technical specifications, and (c) information relating to business plans, sales or marketing methods and information accessed via Dyntex.com APIs. Seller shall also treat all Transaction Information and tax codes as Confidential Information.
15.2. Obligations. The Receiving Party may receive Confidential Information from the Disclosing Party during the Term, and such Confidential Information shall be used only to perform its obligations under this Agreement. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care.
15.3. Exceptions. The obligations of either Party under this Section will not apply to information that the Receiving Party can demonstrate (a) is known by the Receiving Party prior to the date of the disclosure by the Disclosing Party without a restriction on disclosure or use; (b) becomes publicly known though no act or fault of the Receiving Party; provided, however, Transaction Information shall remain subject to confidentiality obligations regardless of its availability to the public; (c) was received from a third party without restriction on disclosure or use; or (d) is independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party.
15.4. Disclosure by Law. In the event the Receiving Party is required by Law, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (a) give the Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.
15.5. Return or destruction. Upon the Disclosing Party’s written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided however, the Receiving Party shall continue to keep confidential (i) any Transaction Information, and (ii) the terms of this Agreement. Seller agrees that Dyntex.com may share Seller’s Confidential Information with its Affiliates for internal use only.
16. Representations and Warranties
16.1. Seller hereby represents and warrants to Dyntex.com the following:
16.2. Authority. Seller is a corporation duly organized, validly existing and in good standing under the laws of the state where Seller is incorporated, and Seller has full power and authority to execute Agreement and to perform its obligations here under without any further ratification or approval. Seller has the right, power and authority to grant the rights and licenses here under free and clear of any claims, liens and encumbrances.
16.3. No Conflicts. Neither the execution of this Agreement, nor the consummation of the transaction contemplated hereby, will violate or conflict with any obligation, contract or license which could reasonably be expected to interfere with the consummation of the transaction contemplated hereby.
16.4. Taxes. The person(s) inputting all tax related information (including without limitation, tax designations, and States in which Seller has a tax remittance obligation) (collectively “Tax Information”) into the Item File or otherwise providing such Tax Information to Dyntex.com has adequate tax knowledge and enough information about Seller to accurately and completely enter such Tax Information. All Tax Information shall be accurate and complete. Seller shall promptly update any Tax Information in the Item File as necessary to collect the correct amount of tax from Customers.
17. Term, Termination and Suspension
17,1, Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect as long as the Seller continues using the Site to list and sell Products.
17,2, Termination for Breach. This Agreement may be terminated at any time by either Party if the other Party breaches any provision of this Agreement, and has failed to cure such breach within thirty (30) days of receipt of written notice of breach from the non-breaching party, stating the nature and character of the breach. Dyntex.com may immediately terminate this Agreement if Seller fails to meet any of its tax obligations, including without limitation the requirement of Seller to provide documentation proving that Seller has remitted collected taxes or fees to the appropriate jurisdiction(s) in accordance with Section 13. Either Party may terminate this Agreement without prior notice or a cure period for breaches that are incapable of cure (including, but not limited to, a Party’s involvement in money laundering or terrorist activity). Upon termination of this Agreement under this Section 17.2, if for breach of Seller, any fees due to Dyntex.com at the time of termination shall immediately come due and; if for breach of Dyntex.com, any prepaid but unused amounts by Seller up to the date of termination shall be refunded to Seller. Termination under this Section does not limit either Party from pursuing any other remedies available to such Party, including but not limited to injunctive relief.
17,3, Termination in the Event of Insolvency or Bankruptcy. Either Party may terminate this Agreement upon written notice to the other Party in the event (a) the other Party files a petition for bankruptcy or is adjudicated bankrupt; (b) a petition in bankruptcy is filed against the other Party and such petition is not dismissed within ninety (90) days of filing; (c) the other Party becomes or is declared insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (d) the other Party ceases to do business in the normal course; or (e) a receiver is appointed for the other Party or its business.
17,4, Dyntex.com Termination. Dyntex.com may terminate this Agreement at any time, for any reason with or without notice.
17,5, Seller Termination. Seller may terminate this Agreement at any time, upon fifteen (15) days prior written notice to Dyntex.com . In the event that Seller terminates this Agreement during a prepaid month, Seller will not be entitled to any refund for the prepaid days.
17,6, Suspension. Dyntex.com may immediately suspend Seller’s listing of Products on the Site or Seller’s Marketplace Account, at any time and in Dyntex.com sole discretion. Upon any termination or suspension of Seller Marketplace account, Dyntex.com may hold all Seller Payments for ninety (90) days to allow for the settlement of all amounts owed to Dyntex.com.
17,7, Post-Termination Obligations. Seller will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to (i) provide Customer service to Customers who purchased Products on the Site, (ii) pay any invoices delivered by Dyntex.com in connection with this Agreement, (iii) notify Dyntex.com and Customers of any recalls of its Products, (iv) remit any taxes collected to the proper jurisdiction(s), (v) fulfill any outstanding orders, and (iv) immediately notify Dyntex.com of any security breach that allows a third party to view or access or otherwise compromise any Transaction Information.
17,8, Survival. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including, without limitation, representations, warranties, indemnification, payment obligations, remedies, Dyntex.com rights to use Seller’s suggestions and feedback, limitations of liability, choice of law, jurisdiction, and venue) shall survive its termination.
18.1. Indemnification Obligations. Seller will defend, indemnify and hold harmless Dyntex.com and Affiliates and their respective employees, directors, agents and representatives (each an “Indemnitee”) from and against any and all Losses arising out of or related to third party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:
- violation of any applicable Laws;
- Seller’s own site or other sales channels, Seller’s Products (including the advertisement, offer, sale or return of any of Seller’s Products) and Seller’s Content;
- any actual or alleged infringement of any intellectual property rights (including rights of publicity or right of privacy) by Seller’s Products or Seller’s Content;
- personal injury, death or property damage arising from Seller’s Products; and
- any and all income, sales, use, and other taxes, surcharges, fees, assessments or charges of any kind whatever, together with any interest, penalties and other additions with respect thereto, imposed by any federal, state, local or foreign government in any way related to the sale of the Products on the Site, excluding, any taxes related to Dyntex.com net income. The term “taxes” includes any class action or qui tam legal claims grounded in an allegation or allegations that Dyntex.com bears some civil or criminal liability for over- or under-collection of any tax or fee on sales of Products offered by Seller.
18.2. Procedure for Indemnification. Upon receipt of notice, from whatever source, of Claims against Dyntex.com for which Seller is obligated to indemnify Dyntex.com, Seller shall immediately take necessary and appropriate action to protect Dyntex.com interests with regard to the Claims. Dyntex.com shall notify Seller of the assertion, filing or service of any Claims of which Dyntex.com has knowledge, as soon as is reasonably practicable.
18.3. Settlement. Seller, in the defense of any Claim, shall not, except with the prior written consent of Dyntex.com , consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the release of Dyntex.com from all liability and blame with respect to the Claim. Dyntex.com shall have the right at all times to accept or reject any offer to settle any Claim against it.
18.4. Insurance Requirements. Seller will maintain at a minimum such product liability insurance coverage limits as defined in the Dyntex.com 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 Dyntex.com. The insurance coverage required herein shall be provided by an insurance company or companies acceptable to Dyntex.com in its reasonable business judgment. Upon request of Dyntex.com, Seller will promptly provide Dyntex.com with certificates of insurance evidencing such coverage and naming Dyntex.com or its designated Affiliate as additional insured.
19. Warranty Disclaimer
19.1. THE SITE AND ANY RELATED SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. DYNTEX.COM EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF DATA, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, OR NON-INFRINGEMENT. DYNTEX.COM DOES NOT WARRANT THAT THE SITE WILL BE ERROR-FREE, FREE OF VIRUSES OR THAT DEFECTS WILL BE CORRECTED.
20. Limitation of Liability
20.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DYNTEX.COM OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, LOSS OF USE OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF DYNTEX.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, DYNTEX.COM LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE ACTUAL VALUE OF ANY FEES ACTUALLY PAID [AND PAYABLE] TO DYNTEX.COM BY SELLER THROUGH THE SITE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.
Any notice or other communication required or permitted to be made or given to either party under this Agreement shall be deemed sufficiently made or given on the date of delivery if delivered in person, by facsimile, or by commercial courier service with tracking capabilities with costs prepaid, or three (3) days after the date of mailing if sent by certified first class mail, return receipt requested and postage prepaid, at the address of the parties set forth below or such other address as may be given from time to time under the terms of this notice provision.
For Seller: The address provided by Seller in the onboarding process.
27 Old Gloucester Street,
London WC1N 3AX, United Kingdom
Attn: Legal Department
22. Controlling Law and Jurisdiction
22.1. This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom, without regard to the conflicts of laws provisions thereof.
23. Waivers and Amendments
23.1. This Agreement may only be modified, or any rights under it waived, by a written document executed by the Parties. The express waiver of any right or default hereunder shall be effective only in the instance given and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as waiver hereof.
24.1. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. If any provision of this Agreement is for any reason held to be excessively broad as to duration, geographical scope, activity, or subject, then such provision shall be construed by limiting and reducing it so as to be enforceable to the extent compatible with the then-applicable Law.
25. Relationship of the Parties
25.1. The Parties hereto expressly understand and agree that the other is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. This Agreement does not make either party the employee, agent or legal representative of the other.
26. No assignment
26.1. Seller shall not assign this Agreement, in whole or in part, without the prior written consent of Dyntex.com .
27. Complete Agreement
REGULATORY COMPLIANCE ADDENDUM
This regulatory compliance addendum (“Regulatory Compliance Addendum”) contains specific provisions that apply to Sellers that participate in the Dyntex.com Marketplace Program. All capitalized terms used but not expressly defined herein shall have the meaning ascribed to them under the Agreement.
- Seller hereby represents and warrants that Seller has full legal authority to offer for sale or cause to be sold Seller’s Products on the Site, including but not limited to having: obtained all necessary licenses and certifications and/or received necessary government approval. Seller further represents and warrants that Seller is in full compliance with applicable Laws and regulations with respect to Seller’s Products and Seller will continue to comply with any changes to applicable Laws and regulations. It is Seller’s responsibility to determine applicable Laws and regulations to Seller’s Products and to stay up to date on any changes, new regulations or laws applicable to Seller’s Products.
- Product Safety. Seller hereby represents and warrants that all Seller’s Products offered for sale on the Site comply with all applicable product safety regulations. Seller shall ensure that the Seller Content contains all necessary labels, warnings, disclaimers, and any other similar notices required by applicable Laws with respect to the Products.
- Product Recalls. Seller hereby represents and warrants that Seller will not offer for sale, sell, or cause to be sold on the Site any Products that do not comply with applicable safety regulations or have been recalled. Seller will promptly remove any Products that are determined to violate applicable safety regulations or are recalled after Seller initially offered such Product for sale.
- Seller will promptly notify Dyntex.com in writing of any changes to applicable Laws or regulations that may impact Seller’s Products being sold on the Site. Seller will also promptly notify Dyntex.com in writing of any government communication, investigation, or action relating to Seller’s Products available on the Site.
- Seller will promptly provide proof of compliance with applicable laws and regulations when requested by Dyntex.com. Seller will retain all relevant proof of compliance, including but not limited to: licenses, certifications, government approvals, and safety inspections for at least five (5) years or the period required by law, whichever is greater.
- If Dyntex.com determines, at is sole discretion, that a Product may represent a risk of injury to a Customer, Dyntex.com may take a range of actions, including but not limited to, request additional information from Seller, place relevant warnings on the Product listing, remove Products from the Site, suspend Seller’s Marketplace account and contact applicable governmental agencies.
This Addendum is hereby incorporated into and made part of the Agreement. To the extent that the terms of this Addendum conflict with the terms of the Agreement, this Addendum shall control, but only with respect to the matters set forth herein. Except as expressly amended by this Addendum, all terms and provisions of the Agreement shall continue and remain in full force and effect and binding upon the Parties.
IN WITNESS WHEREOF, the Parties have caused this Addendum to be executed by their duly authorized representatives as of the Addendum Effective Date.
- Fixed Fee. Seller must pay a monthly fee of $29.00 (Twenty-Nine Dollars) (“Monthly Fees”), in order to list and sell products on the Site. The Monthly Fees will be charged to Seller’s credit card on file with Dyntex.com prior to the start of the relevant month.
- Sale Commission. Seller must pay a sale commission (the “Sale Commission”) for each Seller’s Products sold through the Site. The Sale Commission will be comprised of two (2) parts: (1) a fee equal to ninety-nine cents ($0.99) per Product sold; plus (2) a varying percentage of the Sales Proceeds for each Product depending upon the Product’s approved listing categories as set forth below. “Sales Proceeds” shall mean the gross sales proceeds from the sale of the Products, including all shipping and handling, gift wrap and other charges with respect thereto, but excluding any taxes separately stated and charged.
Consumer Electronics > Projectors
Beauty & Health
Beauty & Health > Hair Extensions & Wigs
Mother & Kids
Sportswear & Activewear
Bags & Wallets
Sunglasses & Eyewear
Jewelry & Accessories
Toys & Games
Toys & Games > RC Drones / RC Helicopters