Rockland Multivendor Marketplace Terms and Conditions

By registering to sell on the Rocklandlocal Marketplace and any related websites and applications owned or operated by or on behalf of Rocklandlocal (collectively, the «Websites»), you as an individual, or the company on behalf of which you are registering, (referred to herein as «Vendor») agree to be bound by these Rocklandlocal Marketplace Terms and Conditions (collectively, with any Attachments or Exhibits, the «Agreement»), which are by and between Make myself Aid for Humanity, Inc. (together with its affiliates, «Vendors») and Vendor (each, a «Party» and collectively, the «Parties»). This Agreement is effective as of latest of (i)the date Vendor registers for the Websites via the Portal or otherwise accepts the Agreement and (ii) the Agreement is posted to the Vendor Portal the «Effective Date»).   

I) ROCKLANDLOCALS‘ RESPONSIBILITIES .

A. Websites Hosting and Maintenance . Rocklandlocal will provide Vendor with access to the Websites as a platform for Vendor to post Merchandise Listings and facilitate the sale of Vendor’s Merchandise to Users. Rocklandlocal will be responsible for all operating functions of the Websites. Rocklandlocal may, in its sole discretion, (i) ask Users to rate and/or provide comments regarding Merchandise and/or Vendor’s performance, using any metrics determined by Rocklandlocal in its sole indiscretion, and (ii) post any resulting ratings and/or comments on the Websites for public display.

B. User Orders and Payment. Rocklandlocal will process User Orders (as defined in Section II.C.1) and collect all amounts due from Users for Merchandise ordered from Vendor through the Websites. Within fifteen (15) days thereafter, Rocklandlocal will remit such amounts, less any amounts owed to Rocklandlocal by Vendor, by electronic funds transfer to the bank account identified by Vendor in the Dashboard. Vendor hereby appoints Rocklandlocal as an agent of Vendor for the sole and express purpose of receiving payments from Users for Vendor’s Merchandise sold on the Websites. Vendor acknowledges that, as between Vendor and a User who purchases Merchandise from Vendor, Rocklandlocal’s receipt of funds from the User is deemed the receipt of funds by Vendor.

II) VENDOR‘S RESPONSIBILITIES.

  1. Enrollment; Account Activation. Vendor will provide the information requested on the Dashboard during Account activation, and agrees to update such information promptly. Vendor will not use or incorporate any Rocklandlocal Mark, in whole or in part, in Vendor’s account name or any other User-facing identification. Vendor 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 Vendor). Vendor acknowledges and agrees to be strictly liable for all uses or actions occurring through the Vendor’s Account.
  2. Merchandise Listings. Vendor will create Merchandise Listings via the Dashboard for all Merchandise it intends to sell on the Websites. All Merchandise Listings will comply with the specifications and policies posted in the Dashboard, and such Merchandise Listings will not use or incorporate any Rocklandlocal Marks. Vendor is responsible for promptly updating its Merchandise Listing(s) to ensure the Merchandise Listing and inventories are at all times accurate. Vendor will not list any Merchandise it does not currently have in stock. Vendor agrees to list any text, images, disclaimers, warnings, notices, labels, warranties, or other content required by applicable federal, state or local law, including but not limited to California Proposition 65, to be displayed in connection with the offer, merchandising, advertising or sale of Merchandise. Vendor acknowledges that failure to abide by the terms of this Agreement may subject Vendor to penalties and legal liability, and that Rocklandlocal may reject, remove or censor any Merchandise Listing for any reason, at any time, in Rocklandlocal’s sole discretion, including any Merchandise Listing that (i) violates law or a Rocklandlocal’s policy, (ii) promotes or glorifies hatred, violence, racism or discrimination, or (iii) is otherwise incompatible with the Rocklandlocal’s brand. Rocklandlocal may take any actions necessary to ensure compliance, including cancellation of related transactions or suspension and/or termination of the Vendor account.
    1. Merchandise Pricing. Vendor is responsible to establish prices for its Merchandise. Vendor will enter pricing via the Dashboard, unless another method is approved in writing by Rocklandlocal.
      1. Most Favorable, Best Pricing or Equivalent Pricing. Vendor will maintain parity between the Merchandise and identical merchandise offered through Vendor’s other sales distribution channels, including Vendor’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 Vendor on the Websites.
      2. Vendor is responsible for setting its own prices on Rocklandlocal Marketplace subject to the guidelines below and compliance with all applicable laws regarding price setting and advertising. As stated in the Rocklandlocal Marketplace Terms and Conditions, Vendor will maintain at least price parity between its Merchandise offered for sale on Rocklandlocal Marketplace and the same Merchandise offered through Vendor’s other sales channel(s), including Vendor’s own website(s) or any third-party marketplace(s). In other words, Vendors will not offer the same Merchandise elsewhere for a lower price than Vendor offers on the Rocklandlocal Marketplace, and the price Vendor offers on the Rocklandlocal Marketplace will meet or beat prices Vendor offers elsewhere. Additionally, Vendor must specify a price for an item on Rocklandlocal Websites (including shipping cost, if any) that is at least as favorable as Vendor offers for sale elsewhere. In other words, Vendor may choose to offer a lower price, but its price must be at least as low as Vendor’s price as Vendor offers elsewhere. Additionally, Vendor must specify a price for an item on Rocklandlocal Websites (including shipping cost, if any) that is at least as favorable as Vendor offers for sale elsewhere. In other words, Vendor may choose to offer a lower price, but its price must be at least as low as Vendors price as Vendor offers elsewhere.
      3. Vendor Pricing Errors. If Vendor uploads or otherwise provides incorrect pricing information to a Merchandise Listing (a «Vendor Pricing Error»), Rocklandlocal may, at Vendor’s expense, take any commercially reasonable action necessary to avoid and/or repair harm to Rocklandlocal due to the Vendor Pricing Error. Such action may include requiring Vendor to honor all Merchandise purchases occurring due to Vendor Pricing Errors and compensating Users for any inconvenience caused by such errors. Vendor will also reimburse Rocklandlocal for all costs Rocklandlocal incurs directly as a result of Vendor Pricing Errors.
    2. Prohibited Merchandise. Unless otherwise expressly permitted in writing by Rocklandlocal, Vendor will not promote, offer for sale, or provide Rocklandlocal 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. Vendor 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 Vendor’s responsibility to determine the states in which it has an obligation to collect and remit state and local sales and use taxes («Taxes»). Vendor will promptly notify Rocklandlocal of the states for which Rocklandlocal should collect Taxes by affirmatively selecting the applicable states in the Vendor’s business account profile in the Dashboard. Rocklandlocal will pay over the Taxes collected from the online purchaser directly to the Vendor and Vendor will be solely responsible for remitting the tax to the applicable taxing jurisdiction, except in states where Rocklandlocal, as the marketplace platform provider, is either required by law or elects to remit taxes directly to the state on behalf of Vendor. If a taxing authority requires Rocklandlocal to pay any of Vendor’s taxes, Vendor will promptly reimburse Rocklandlocal for the amounts paid. Vendor acknowledges and agrees that tax-related data is provided through Rocklandlocal’s third-party service provider(s) («Providers»). While Providers will use reasonable efforts to ensure that the tax data is current and accurate, Vendor acknowledges and agrees that Rocklandlocal and its Providers do not provide tax advice, and that Vendor is solely responsible for determining the applicability and accuracy of any tax data. As a condition of receiving the tax data, Vendor agrees to fully and forever waive any Liabilities against the Rocklandlocal Parties and the Provider Parties arising from Vendor’s use of and reliance on such tax data and further agrees to defend, indemnify and hold the Rocklandlocal Parties and the Provider Parties harmless from Liabilities arising from such use or reliance.
  3. Shipping. Vendor is responsible for all aspects of shipping, including providing adequate packaging, tagging, labeling and packing of the Merchandise and any additional delivery services offered by Vendor including assembly and installation in compliance with the Vendor Specifications and Applicable Law. Vendor shall state on its Merchandise Listing that Rocklandlocal is not responsible for and does not arrange the shipping/delivery/installation of the Merchandise.
    1. Process. When Vendor receives notice of an order from a User (a «User Order») at the e-mail address specified by Vendor in the Dashboard, Vendor will process and fulfill the User Order in compliance with the Vendor 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. Vendor 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 Vendor until delivery to the User. Rocklandlocal will not have title to, or deemed the legal owner of, any Merchandise at any time under the terms of this Agreement. Vendor may not include any marketing, promotional materials, or any other solicitations with the Requested Merchandise shipped to Users.
    2. Overdue Orders. Rocklandlocal may cancel any User Order that fails for any reason to ship within the applicable shipping period indicated in the Vendor Specifications, and Rocklandlocal will have no duty to compensate Vendor for any such cancelled orders. It is Vendor’s responsibility to monitor all orders and ensure all shipments are made within the timeframes indicated in the Vendor Specifications.
    3. Delivery Errors, Non-conformities. Vendor 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 Rocklandlocal’s failure to properly process a User’s address verification in the course of the purchase of the Merchandise.
    4. Additional Delivery Services. With the written consent of Rocklandlocal, Vendor 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, Vendor represents and warrants that it: (a) will maintain general liability insurance, vehicle insurance, and worker’s compensation insurance in such amounts set forth in the Marketplace Vendor Guide; (b) will require and confirm that background check requirements have been performed on any of its Personnel or subcontractors entering the premises or residences of Users as specified in the Marketplace Vendor Guide and any drug testing has been completed on such individuals as required by applicable law; and (c) will maintain any certifications, licenses and authorizations required by applicable law or regulations to perform such delivery and/or installation.
  4. User Service Issues. Vendor will resolve all User service issues arising from, or in connection with Vendor’s promotion, sale, order fulfillment and/or delivery of Merchandise. Rocklandlocal will direct Users who contact it with service issues related to Merchandise sold pursuant to this Agreement to contact Vendor via the contact information Vendor has provided in the Dashboard. If Vendor fails to respond to User service issues, or requests from Rocklandlocal related to same, Rocklandlocal may take any actions necessary to ensure compliance, up to and including suspending Vendor’s access to their Account. In the event that Rocklandlocal believes in its sole discretion that a transaction represents fraudulent activity, Rocklandlocal may, but is not obligated to, prohibit the transaction. Rocklandlocal will not be liable to Vendor for any such action results in or prevents a User from completing an order or causes a User to cancel an order.
  5. Chargebacks. If Rocklandlocal notifies Vendor of a User chargeback or chargebacks received due to non-delivery, or other dispute related to Vendor’s transactions, Vendor must present Rocklandlocal with all information requested in the chargeback notification within five (5) business days of receiving notice. If Vendor fails to comply with Rocklandlocal’s request, Vendor will reimburse Rocklandlocal for the User chargeback(s) in accordance with the settlement and payment terms herein. Notwithstanding the other provisions of this paragraph, Vendor will not be responsible for chargebacks due to (a) theft and/or unauthorized use of a third party’s credit card information for which Rocklandlocal is responsible (except to the extent such theft and/or unauthorized use is attributable to Vendor), and (b) non-delivery due to Rocklandlocal’s failure to send the order information to Vendor.
  6. Seller Marketing; Restrictions; Prohibition on use of User Information . Vendor (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. Vendor may not use any User information for any of its own marketing or promotional activities. To the extent Vendor obtains User information outside of its relationship with Rocklandlocal or the Websites, the terms of this section will not prevent Vendor from using such User information, provided that Vendor may not explicitly target Users on the basis of their purchases or presence on the Websites.
  7. Refunds; Returned Merchandise. Vendor will submit a return policy (the «Vendor Return Policy») using the form provided on the Dashboard. The Vendor Return Policy must (i) apply to all Merchandise, (ii) outline the process for Users to return the Merchandise directly to Vendor, and (iii) be at least as accommodating to User returns as the Rocklandlocal Return Policy. Vendor agrees to honor all User returns in accordance with the Vendor Return Policy published at the time of the User’s purchase of Merchandise.
  8. Recalled Merchandise; Defective Merchandise. Vendor will immediately notify Rocklandlocal of any recalls affecting the Merchandise it has listed on Rocklandlocal Marketplace. Notwithstanding the foregoing Vendor 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.

  1. Monthly Subscription Fee. Rocklandlocal will charge Vendor’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 Dashboard and subject to change. Any revised Monthly Subscription Fee will be effective as of the date posted. Vendor 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 Dashboard.
  2. Commissions. Vendor will pay commissions to Rocklandlocal according to the «Commission Rate Schedule» available in the Dashboard, which is subject to change. Any revised Commission rates are effective as of the date posted.
  3. Right of Recoupment and Set-off. Rocklandlocal and Vendor acknowledge and agree that Rocklandlocal has the right to recoup or set-off any payments owed to Vendor by the amount of any Monthly Subscription Fees, commission payments, Vendor obligations owed according to the defense and indemnity terms herein, and any other monetary obligations owing by Vendor to Rocklandlocal. Any remaining outstanding funds due to Rocklandlocal after recoupment or set-off will be paid by Vendor promptly upon demand by Rocklandlocal. Rocklandlocal may obtain reimbursement of any amounts owed by Vendor to Rocklandlocal by deducting from future payments owed to Vendor, reversing any credits to Vendor’s account, charging Vendor’s credit card, or seeking such reimbursement from Vendor by any other lawful means. Vendor hereby authorizes Rocklandlocal to use any or all of the foregoing methods to seek reimbursement, including the debiting of Vendor credit card or bank account. Rocklandlocal and Vendor acknowledge and agree that Rocklandlocal may hold any payments owed to Vendor, or funds in the possession or control of Rocklandlocal, upon the termination of the Vendor’s account for a period of 90 days from the date of termination, or a longer period if Rocklandlocal in its sole discretion determines that a longer period is needed to determine the extent of Vendor’s monetary obligations to Rocklandlocal, and Rocklandloca shall not be liable for any damages, including but not limited to interest, related to such holding of Vendor funds.

IV) INTELLECTUAL PROPERTY.

  1. Grant of License by Rocklandlocal. Rocklandlocal hereby grants to Vendor 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.
  2. Grant of License by Vendor. Vendor hereby grants to Rocklandlocal 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 Vendor Content and Merchandise Listings with the right to sublicense such rights through multiple tiers; provided however that Rocklandlocal will not alter any Vendor Marks from the forms provided by Vendor 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 Rocklandlocal’s right to use the Vendor Content to the extent such use is allowable without a license from Vendor under Applicable Law.
  3. 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 Rocklandlocal websites, any of their affiliates’ websites, 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 Rocklandlocal, and except as expressly provided herein, nothing will be construed as conferring on Vendor any license to Rocklandlocal’s IP Rights, whether by estoppel, implication or otherwise. If Vendor is deemed to have any ownership interest or rights in any of the foregoing, or any part thereof, then Vendor will assign, and Vendor does hereby assign, all of such ownership interest and rights to Rocklandlocal, including all Vendor IP Rights therein. All rights not expressly granted herein are reserved to Rocklandlocal.
  4. Ownership of Content. Rocklandlocal and Vendor each agree and acknowledge that, as between Rocklandlocal and Vendor, Vendor owns all Vendor Content and Vendor Marks, subject to the License granted herein.

V) TERM AND TERMINATION.

  1. Term. The term of this Agreement will commence on the Effective Date, and will continue in effect until such time as revised by Rocklandlocal, or terminated by either Party in accordance with the notice and termination requirements set forth below (the «Term»).
  2. Termination. Vendor may terminate this Agreement at any time upon two (2) business days’ notice to Rocklandlocal, in which case Vendor will process and fulfill all open orders until the termination is effective. Rocklandlocal may terminate this Agreement (i) at any time upon notice to Vendor; or (ii) if Rocklandlocal determines in its discretion that Vendor 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 Vendor’s Merchandise Listings from the Websites.
  3. 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.

  1. 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.
  2. Vendor. Vendor further represents and warrants that:
    1. The Merchandise Listings and all information and Vendor Content provided to Rocklandlocal is accurate, complete, current, and is not misleading or deceptive in any manner;
    2. The publication, reproduction, display, modification, distribution or transmission of Vendor 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 Rocklandlocal, the Websites and/or other Vendors on the Websites;
    3. Vendor will at all times fully comply with Applicable Law, including but not limited to applicable privacy laws and any laws that restrict product sales.
    4. Vendor will include in Merchandise Listings all disclosures, text, images, disclaimers, warnings, notices, labels, warranties, or other content associated with the Merchandise as required by Applicable Law;
    5. All Merchandise sold pursuant to this Agreement is not subject to any health, safety or product quality recall;
    6. Vendor will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards;
    7. Vendor 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 Vendor to the Dashboard, Websites, or any other Rocklandlocal 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 Dashboard, Websites, any other Rocklandlocal website, application, or system. Vendor 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 Vendor Content, intentionally or unintentionally, to violate any Applicable Law.
    9. All Merchandise Listings shall comply with California’s Proposition 65, as amended, which requires notice to California consumers of products that contain chemicals on California’s list of chemicals known to the state to cause cancer or reproductive toxicity. Merchandise Listings for Merchandise containing chemicals subject to California Proposition 65 must provide all text, images, disclaimers, warnings, notices, labels, warranties, or other content as required by Applicable Law.

 

VII) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ROCKLANDLOCAL 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 ROCKLANDLOCAL ON AN “AS IS” AND «AS AVAILABLE» BASIS AND VENDOR’S USE OF THE WEBSITE IS SOLELY AT VENDOR’S OWN RISK. ROCKLANDLOCAL DOES NOT WARRANT THAT VENDOR’S USE OF THE WEBSITES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES ROCKLANDLOCAL 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 VENDOR TO USERS THEREON, OR ANY SERVICES PROVIDED BY ROCKLANDLOCAL TO VENDOR IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT ANY MERCHANDISE LISTING OR ANY RESULTS VENDOR MAY OBTAIN UNDER THIS AGREEMENT. THE FUNCTIONALITY PROVIDED BY THE WEBSITES OR ROCKLANDLOCAL, OR ITS DESIGNEES’ SERVERS IS NOT AN ARCHIVE; VENDOR IS SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING VENDOR CONTENT PROVIDED TO ROCKLANDLOCAL.

VIII) LIMITATION OF LIABILITY . IN NO EVENT WILL ROCKLANDLOCAL 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 ROCKLANDLOCAL’S 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 VENDOR TO ROCKLANDLOCAL IN THE THIRTY (30) DAYS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE.

IX) DEFENSE AND INDEMNIFICATION.

  1. Obligation. Vendor will defend, and indemnify and hold harmless the Rocklandlocal 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 Vendor, or any claim of strict liability in tort relating to Merchandise; (iii) any violation by Vendor (or its affiliates, or their respective Personnel of each of them) in the manufacture, construction, assembly, installation, repair, display, packaging, possession, service, design, use, delivery, offer or sale of Merchandise («Production or Sale») of any Applicable Law of the United States, its territories or any other country in which the Production or Sale of Merchandise took place; (iv) the publication of Vendor Content and product information Vendor supplies to Rocklandlocal 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 Vendor; (viii) the display, delivery, assembly or installation of Merchandise including but not limited to any acts or inactions of Vendor or Vendor’s subcontractors arising out of or occurring during the delivery, assembly or installation of Merchandise, (ix) the assertion by a third party of a security interest, right of replevin, or other legal interest created by a factoring or other credit arrangement in any amount due Vendor under a vendor agreement; (x) a breach of any of the Vendor’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, Vendor 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.
  2. Process. In performing its obligations under Section IX.A, Vendor will retain defense counsel satisfactory to Rocklandlocal and will, from time to time, provide reports, consult with Rocklandlocal’s Personnel in conducting the defense of the Claims and otherwise cooperate fully with the reasonable requests of Rocklandlocal; provided that only with respect to claims arising under Section IX.A.(i) above, Rocklandlocal 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 Vendor. In any case in which Vendor’s indemnity obligation set forth in Section IX.A is not enforceable under Applicable Law and in which any Indemnified Party and Vendor are found to be liable to a third party with respect to Merchandise, then Rocklandlocal and Vendor 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 Vendor.
  3. Independent Obligation. The obligations of Vendor 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.
  4. Settlement. Vendor may settle, without Rocklandlocal’s consent, Claims if the only obligation under such settlement is the payment of monies by Vendor and such settlement provides for a full release of Vendor 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 Rocklandlocal’s prior written consent.
  5. Insurance Requirements. Vendor will maintain at a minimum such product liability insurance coverage limits as defined in the Rocklandlocal Marketplace Vendor Information Guide, available through the Dashboard. Such policy must provide that the coverage thereunder will not be terminated without at least thirty (30) days prior written notice to Rocklandlocal.

X) CONFIDENTIALITY.

  1. Definition and Obligations. «Confidential Information» means any and all technical or business data or information furnished, in whatever form or medium, by Rocklandlocal 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. Vendor 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 Rocklandlocal.
  2. Treatment of Confidential Information. The obligations with respect to Confidential Information will not apply to any information that: (i) is already in Vendor’s possession, as shown by documentation and without obligation of confidentiality; (ii) without action or fault on Vendor’s part, is or becomes publicly available; or (iii) Vendor has obtained from a third person without breach by such third person of an obligation of confidence. Vendor must promptly return or destroy all Confidential Information at FincluShop request.
  3. 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.» Vendor will not duplicate or incorporate the Confidential Personal Information into its own records or databases. Vendor will restrict disclosure of Confidential Personal Information to its employees who have a need to know such information to perform under this Agreement. Vendor 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, Vendor will not disclose the Confidential Personal Information to any third party, including any affiliate or subsidiary of Vendor, permitted subcontractor, or other representative without the prior written consent of Rocklandlocal. Unless otherwise prohibited by law, Vendor will: (i) immediately notify FincluShop of any legal process served on Vendor for the purpose of obtaining Confidential Personal Information; and (ii) permit Rocklandlocal adequate time to exercise its legal options to prohibit or limit such disclosure. Vendor will notify Rocklandlocal promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Personal Information and agrees to indemnify and hold Rocklandlocal harmless for such loss, unauthorized disclosure or unauthorized use of Confidential Personal Information, including attorneys’ fees.
  4. No Publicity. Without limiting the foregoing, Vendor will not disclose the existence or terms of this Agreement or any other information regarding Vendor’s sale of Merchandise on the Websites, in any advertising, promotional or sales activity, publicity release, or other public communication without Rocklandlocal’s prior written consent and approval in each instance. Rocklandlocal has the right to review and approve any press release, marketing materials or related content that mentions Rocklandlocal.
  5. PCI Compliance. Rocklandlocal acknowledges that to the extent it receives any User credit card data in connection with the Agreement, Vendor 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 Vendor or Vendor’s IT system environment, Vendor will immediately notify Rocklandlocal and cooperate fully with Rocklandlocal and/or industry/government officials in a review and/or forensic investigation of Vendor’s system environment and/or processes.

 

XI) MISCELLANEOUS.

  1. Use of Subcontractors. Vendor may use subcontractors in its performance under this Agreement, provided that (i) Vendor’s subcontractors will be required to adhere to the terms of the Agreement and (ii) Vendor will be fully responsible for the acts and omissions of its subcontractors. Rocklandlocal may require Rocklandlocal to cease use of any subcontractor for any reason, and may immediately suspend Vendor’s account, or terminate this Agreement in the event Vendor refuses to comply with any such request from Rocklandlocal.
  2. 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.
  3. Invalidity; Waiver. No finding that any part of this Agreement is invalid will affect the remaining portions of this Agreement. Vendor may not assign or transfer any of its rights or obligations under this Agreement without written consent from Rocklandlocal. Any such attempted assignment or transfer will be void, and Rocklandlocal may immediately terminate this Agreement, and Vendor’s access to the Dashboard 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.
  4. Notice:
    1. Unless otherwise noted in the Agreement, Rocklandlocal will provide notices to Vendor at the address, email address, or fax number provided by Vendor to Rocklandlocal at the time of enrollment.
    2. Vendor must send all notices to Rocklandlocal through the Dashboard.
  5. Construction. This Agreement, the policies and procedures communicated through the Dashboard, govern Vendor’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 Vendor via the Portal or the program specific policies and procedures will control. In the event the Vendor is registered for several Marketplace Programs (for example both the Fulfilled by FIncluShop and Fulfilled by Merchant programs), the applicable terms will govern Merchandise sold according to that Program only. FIncluShop may modify the terms and conditions of this Agreement, or its policies and/or procedures at any time by posting changes on the Dashboard. Vendor’s continued access and use of the Websites after such posting will be construed as Vendor’s acceptance of such modifications made by Rocklandlocal. It is Vendor’s responsibility to monitor the terms and conditions of this Agreement for changes from time to time. In some cases, Rocklandlocal may, but is not obligated to, provide Vendor with notice of any changes to these Terms and Conditions. All notices provided by Rocklandlocal through the Dashboard, 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.
  6. Governing Law. This Agreement will be construed and enforced in accordance with the internal laws of the State of New York, without regard to its conflict of law principles. Vendor and Rocklandlocal agree that the state and/or federal courts located in Rockland County, New York 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.
  7. 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. Vendor is responsible for all expenses necessary to fulfill its obligations under this Agreement.
  1. «Account» means Vendor’s Marketplace account, which is accessible through the Dashboard.
  2. «Agreement» has the meaning given in the preamble. «Applicable Law » means all requirements of federal, state, or other jurisdictional laws, regulations, ordinances, and administration orders and rules of the United States, its territories, and all other countries in which the Merchandise is produced, sold, or delivered.
  3. «Confidential Information» has the meaning given in Section X.A.
  4. «Confidential Personal Information» has the meaning given in Section X.C.
  5. «Claims» has the meaning given it in Section IX.A.
  6. «Effective Date» has the meaning given in the preamble.
  7. «Indemnified Party» has the meaning given in Section IX.A.
  8. «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 remunerations.
  9. «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.
  10. «Merchandise» means the goods, offers and services Vendor markets and lists for sale to Users on the Websites.
  11. «Merchandise Listings» means the offers created for display on the Websites related to the sale of the Merchandise.
  12. «Monthly Subscription Fee» means the monthly fee charged by Rocklandlocal for membership in the Rocklandlocal Marketplace program.
  13. «Party» and «Parties» have the meaning given to them in the preamble.
  14. «Personnel» means a Party’s employees, agents, officers, directors, or others action on behalf of the Party.
  15. «Dashboard» means the online interface by which Vendor accesses its Marketplace account, communicates with Rocklandlocal, uploads its Vendor Content and Merchandise Listings, manages its User Orders, and other such activities related to this Agreement.
  16. «Prohibited Merchandise» means the items and categories listed on https://www.rocklandlocal.com/prohibited-merchandise as updated by Rocklandlocal from time to time.
  17. «Provider Parties» means Providers and all of their past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.
  18. «Rocklandlocal» has the meaning given in the preamble.
  19. «Rocklandlocal Marks» means all Rocklandlocal’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.
  20. «Rocklandlocal Parties» means Rocklandlocal and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.
  21. «Rocklandlocal Return Policy» means the return policy located at Rocklandlocal.com, as updated by Rocklandlocal from time to time.
  22. «Vendor» has the meaning given in the preamble.
  23. «Vendor Content» means all images, videos, text, Merchandise descriptions, and Merchandise-related data uploaded by Vendor to create its Merchandise Listings.
  24. «Vendor Marks» means all of Vendor’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.
  25. «Vendor Shipping and Delivery Policy» means the policy loaded by Vendor into the Vendor Dashboard, in compliance with the Terms of this Agreement.
  26. «Vendor Specifications» means all information related to order fulfillment, shipping times, and merchandise returns, as may be designated by FincluShop, or by Vendor, if applicable, via the Dashboard, and relating to Vendor’s Merchandise.
  27. «Taxes» has the meaning given in Section II.B.3.
  28. «User» means any user or customer accessing the Websites, or placing or receiving any order for Merchandise via the Websites.
  29. «User Order» has the meaning given in Section II.C.1.
  30. «Websites» has the meaning given in the preamble.