This is an “agreement” between [YOUR LEGAL BUSINESS NAME], a [YOUR STATE OF INCORPORATION] company (“vendor,” “you,” or “your”), and Wander & Trade Import Co., Incorporated, a Delaware company (“Wander & Trade,” “marketplace,” “we,” or “our”), located at www.wanderandtrade.com (the “site” or “sites”). As a vendor, Wander & Trade welcomes you to our marketplace for local products from around the world.
This agreement sets forth the terms and conditions of your use of the marketplace to sell and deliver “item(s)” directly to end customers via Wander & Trade as the facilitating merchant of record, the “payment” you will receive for each item sold, the methods, policies and guidelines related to the “transaction,” and any penalties to be accrued for failing to comply with the terms set forth in this agreement. Your acceptance of this agreement signifies that you have read, understood, acknowledged and agreed to be bound by the terms and conditions herein.
2. Policies & Guidelines
To provide a premium shopping experience, Wander & Trade offers the following benefits to our customers:
To ensure the delivery of these benefits to our customers, Wander & Trade requires each vendor to:
To assist vendors in the burden of providing the aforementioned service benefits, Wander & Trade will:
As the merchant of record, Wander & Trade processes all payments for each item sold by each vendor, including associated shipping charges and taxes. In lieu of listing fees, Wander & Trade deducts a commission from total price of each item. Commissions are unique to each product, representing an amount equivalent to 25% percent of the selling prices plus 50% of the shipping cost of each item. The final amount paid to the vendor for each of its items sold on the marketplace is the “payment.” The payment for each item is listed in the “Items & Payment” section of this agreement.
As the merchant of record, state sales taxes are collected from the end customer by, and paid directly to the appropriate governmental parties by Wander & Trade; the vendor is not required to collect or pay state sales taxes on any items sold in the marketplace.
When a customer purchases an item, Wander & Trade holds payment to the vendor of that item for 28 days from the date of purchase; this is to account for 7 calendar days to prepare the item for shipment, 7 calendar days for the item to arrive, and 14 calendar days in the event of a return. If the customer does not notify Wander & Trade of a return and/or the vendor has not received a returned item within 14 calendar days of shipment, or 28 calendar days of purchase, which ever occurs first, the transaction will be processed as fulfilled and the associated funds will be dispersed to the vendor on the 29th day after purchase or, in the event the 29th day falls on a weekend, the first business day thereafter, into the account designated in the “Items & Payment” section of this agreement.
It is the responsibility of the vendor to ship the products it sells via the marketplace directly to the consumer. Upon the purchase of an item listed by the vendor, the vendor will receive an immediate notification via an email sent to [EMAIL ADDRESS] containing details on the item(s) purchased, from whom, and where to ship the items. Shipments should be sent according to the guidelines set forth in the “Policies & Guidelines” section of this agreement. The vendor is responsible for the upfront cost of shipping all items; reimbursement for 50% of the shipping costs of each item is inclusive in the “Payment” for the item designated in the “Items and Payment” section of this agreement, in accordance with the “Policies & Guidelines” section of this agreement; the vendor will seek no other reimbursement for shipping costs for any item sold via the marketplace.
When an order has been shipped, the vendor must deliver notification, including the tracking number, to Wander & Trade via the following email address: email@example.com
5. Items & Payment
For each item you sell, your payment is equal to 75% of the selling price, with either 50% of the average shipping price subtracted if Wander & Trade is paying for the shipping label, or 50% of the shipping price added if you are paying for the shipping label. The average shipping price is calculated by taking the average of the cost to ship the item within the zipcode of origin with the cost to ship the item to the domestic zipcode furthest away from the zipcode of origin, excluding the states of Alaska and Hawaii.
6. Trademark and Content License; Disclaimer
The vendor grants Wander & Trade the rights and licenses worldwide to use, copy, distribute, display, and exploit the vendor’s trademarks, name, nickname, logos, initials, and if applicable, voice, biography, likeness, and images (“mark(s)”) and content provided or made available by the vendor associated with the items, items’ documentation, items graphics, artwork, and other marketing materials, for the purposes of marketing and promoting the items, and identifying the vendor as a Wander & Trade vendor, in any media or formats including, without limitation, the sites, private label sites, and print publications of Wander & Trade and its curator and publisher partners. The vendor will be responsible for obtaining all third party rights required to permit Wander & Trade to have the rights set forth above. Wander & Trade does not guarantee that any content will be made available on the sites and reserves the right to (without obligation or notice requirements), (i) edit or modify any content in its sole discretion at any time, (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if Wander & Trade is concerned that vendor may have violated this Agreement) and (ii) to remove or block any content from any part of the sites and Wander & Trade services (including, without limitation, the general marketplace or specific vendor stores). For the avoidance of a doubt, as between the parties, Wander & Trade retains all right, title and interest in and to all data, text, photographs, videos, audio clips, written posts, materials and other content created by Wander & Trade, its employees, consultants or agents (“Wander & Trade Content”), regardless of whether such Wander & Trade content contains or incorporates the vendor’s marks or items. Nothing in this agreement shall imply to give the vendor a right to use such Wander & Trade content except as expressly authorized by Wander & Trade in writing.
The vendor shall indemnify, defend, and hold harmless Wander & Trade, its subsidiaries and affiliated companies, their successors, assigns, subcontractors, vendors, publishers, curators, employees, customers and users of items provided hereunder, against all damages, expenses, liabilities, claims, suits, demands, costs, attorneys’ fees or losses of every kind, arising out of or alleged to have arisen out of or in connection with (a) accidents, occurrences, injuries or losses to or of any person or property, due to or resulting from the items or vendor’s negligence; (b) the design, preparation, manufacture, construction, assembly, completion, packaging, shipping or delivery or non-delivery within vendor’s control, use, sale or distribution (other than by Wander & Trade), and/or recall of items, (b) the vendor’s performance or lack of performance of its obligations under this agreement; (c) the vendor’s breach of any representation, warranty or obligation hereunder; (d) the vendor’s actual or threatened violation of any law, rule or regulation of any governmental authority or agency (including, but not limited to, any law relating to contamination by, or the actual or threatened release of, any hazardous or toxic substance, waste or pollutant); or (e) infringement, misappropriation or violation of any third party right by the vendor. These indemnification obligations shall apply to any and all claims, actual or asserted, by any person or entity, including without limitation, first party claims asserted by Wander & Trade against the vendor. The provisions of this section shall survive the acceptance of and payment for the items hereunder and any termination or expiration of this agreement. This indemnity will not be limited in any manner whatsoever by insurance coverage maintained by the vendor.
8. Limitation of Liability
EXCEPT AS SET FORTH BELOW IN THIS SECTION, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL THE LIABILITY OF EITHER PARTY TO THE OTHER EXCEED THE AMOUNTS PAID BY Wander & Trade TO THE VENDOR IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY DO NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS REFERENCED IN THIS AGREEMENT, CONFIDENTIALITY OBLIGATIONS HEREIN OR FOR LIABILITY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
If any provision (or portion thereof) of this agreement is found to be invalid or unenforceable, such provision (or portion thereof) will be limited or replaced to the minimum extent necessary so that such provision will be interpreted so as to best reflect the original intent of the parties, and the balance of this agreement shall remain in full force and effect.
In the event of any failure to make timely delivery or any other breach of any provision of this agreement, Wander & Trade may, without liability to Wander & Trade, upon written notice to the vendor, cancel this agreement in its entirety. Upon receipt of notice of termination, the vendor shall immediately discontinue performance and shall comply with Wander & Trade’ instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to the agreement. In the event of such termination other than by reason of the vendor’s breach of this agreement, the vendor shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover the vendor’s reasonable costs of performance incurred prior to termination in connection with the items for which this agreement is terminated; provided, however, such payment shall not exceed the price specified in this agreement for such items. In no event shall the vendor be entitled to recover incidental or consequential damages or lost profits in the event of termination of this agreement pursuant to this section. The vendor shall advise Wander & Trade, in writing, of the vendor’s claim, if any, for termination costs within seven (7) days after receipt of Wander & Trade’ written notice of termination. Notwithstanding anything to the contrary in this agreement, Wander & Trade will retain all rights required for Wander & Trade to support and fulfill customer orders. For avoidance of doubt, termination of this agreement for any reason will not affect the rights of any customer to continue to use items distributed in accordance with this agreement, which shall continue in perpetuity. Sections 6 through 17 and Section 19 of this agreement shall survive any expiration or termination of this agreement.
Except as otherwise set forth below, this Agreement and all transactions relating thereto shall be interpreted under, and governed by, the laws of the State of Delaware in the United States of America without regard to its conflict of law principles. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply thereto. ALL DISPUTES, CONTROVERSIES, CLAIMS OR DIFFERENCES WHICH MAY ARISE BETWEEN THE PARTIES HERETO ARISING OUT OF OR IN RELATION GDSVF&H\1687320.2 TO OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH THEREOF SHALL BE SETTLED BY ARBITRATION CONDUCTED IN ACCORDANCE WITH THE THEN CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE "RULES"). Whenever any dispute, controversy, claim or difference which may be submitted to arbitration under this section arises between the parties, then either party may give to the other party notice pursuant to this agreement hereof of its intention to submit such dispute, controversy, claim or difference to arbitration. Such arbitration shall take place in the state of Delaware, of the United States of America, in English, before a single arbitrator agreed upon by the parties to the arbitration. In the event the parties to the arbitration cannot agree upon an arbitrator within twenty (20) days after either party's notice hereof to arbitrate, such arbitration shall take place in the state of Delaware, of the United States of America, before a single arbitrator appointed by the American Arbitration Association in accordance with the rules.
The parties agree that the prevailing party in arbitration or any other permitted action or proceeding to enforce this agreement shall be entitled to recover its reasonable attorneys’ fees and costs. The determinations of such arbitrator will be final and binding upon the parties to the arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The arbitrator shall set forth the grounds for his decision in the award.
The arbitration provisions hereof shall, with respect to any controversy or dispute arising out of this agreement, survive the termination or expiration of this agreement.
Notwithstanding any provisions to the contrary set forth in this agreement, in connection with any breach or threatened breach of this agreement, either party shall be entitled to seek preliminary injunctive relief from any court having jurisdiction over the other party to halt or prevent any breach or threatened breach of this agreement.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration.
Neither party shall be deemed to have waived any provision hereof, or any breach by the other party of any provision hereof, unless such waiver is specifically set forth in writing and executed by an authorized agent of such party, nor shall any waiver constitute a waiver of such provision on any other occasion or a waiver of any other breach by the other party.
14. Relationship of the Parties
For all purposes of this agreement, each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. The vendor is acting as an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations properly attributable to the vendor, including, but not limited to, appropriate Workers’ Compensation Insurance; and the vendor agrees to defend, indemnify and hold Wander & Trade harmless from any and all claims, damages, liability, attorneys’ fees and expenses on account of an alleged failure by the vendor to satisfy any such obligations.
Vendor’s right to access and use the site, and its rights and obligations under this agreement, may not be assigned or transferred to any person or entity without Wander & Trade’ prior written consent. Wander & Trade may, without consent, assign and transfer this agreement to a successor to all or substantially all of its business or assets to which this agreement relates.
16. Export Compliance
The vendor shall comply with all applicable export laws, rules, and regulations, including without limitation those of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any items in violation of any such restrictions, laws or regulations. The parties shall cooperate to obtain any necessary licenses or exemptions with respect to the export from the U.S. of all items to any location and shall, at Wander & Trade’ request, demonstrate compliance with all applicable laws and regulations prior to any shipment or delivery by the vendor. GDSVF&H\1687320.2
Wander & Trade, in its sole and absolute discretion, may change or modify this agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to the site. You acknowledge and agree that (i) Wander & Trade may notify you of such changes or modifications by posting them to this site and (ii) your use of this site or the services found at this site after such changes or modifications have been made shall constitute your acceptance of this agreement as last revised. In addition, Wander & Trade may occasionally notify you of changes or modifications to this agreement by email; Wander & Trade assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate or out-of-date email address.
18. Entire Agreement.
Any and all transactions are subject to the unqualified acceptance of this agreement by the vendor, to the exclusion of all other terms. Either accessing and using the site, and/or shipping any items,, shall each constitute the vendor’s acceptance and agreement to be bound, without modification, limitation or qualification, by this agreement. The terms and conditions set forth in this agreement are the complete and exclusive agreement between Wander & Trade and the vendor, and supersede all prior or contemporaneous oral or written understandings or negotiations, and all past dealing or industry custom, with respect to the subject matter hereof. If the vendor does not accept any of the terms stated here, the vendor must not use the site or ship any items. If the any communications made by the vendor to Wander & Trade contain provisions that are inconsistent with or in addition to those contained in this agreement, this agreement shall prevail and Wander & Trade hereby notifies the vendor of its rejection of and objection to such inconsistent terms.X