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THIS SERVICE AGREEMENT (this "AGREEMENT") CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND MONCHERI. BY REGISTERING FOR OR USING THE SERVICES, 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, "we," "us," “Seller”, and "MonCheri" means MonCheri Jewelry, Corp., a California Corporation, and any of its applicable Affiliates, and "you” or “Distributor,” means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. As used in this agreement, Distributor, and together with Seller are the “Parties”, and individually a “Party”, a Capitalized terms have the meanings given to them in this Agreement. The following Terms shall be referred to as the “General Terms” of the Agreement. 

 

To begin the enrollment process, you must complete the registration process for the Services. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law. As part of the application, you must provide us with your (or your business') legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.

  1. Member Programs;

 

You are responsible for all of your expenses in connection with this Agreement. To use this Service, you will use only a name you are authorized to use in connection with a Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, to charge Your Credit Card for any sums payable by you to us (in reimbursement or otherwise), or for identity verification purposes.

To use this service, you may either provide us with a Security Deposit in an amount provided during registration (“Security Deposit”) to participate in the Secured Member Program, or you may operate without a Security Deposit through the Limited Member Program.

  • Limited Member Program:

 

In lieu of providing us a Security Deposit, you may elect to participate in the Limited Member program. Subject to the Agreement, your membership will continue month-to-month and automatically renew until terminated and provide us with valid “Payment Method.” “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party. You must cancel your membership before it renews each month in order to avoid billing of the next month’s membership fees to your Payment Method.

  • Free Trial:

Your membership may start with a free trial. The free trial period of your membership lasts for one month, or as otherwise specified during sign-up and is intended to allow new members to try the service.

Free trial eligibility is determined by us at our sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your account on hold in the event that we determine that you are not eligible. Members with an existing or recent membership are not eligible. We may use information such as email address, billing address, payment method, or any other information to determine abuse.

We will charge your Payment Method for your monthly membership fee at the end of the free trial period and your membership will automatically renew monthly unless you cancel your membership prior to the end of the free trial period. your monthly membership price is the price provided during your registration process.

  • Billing and Cancelation:

 

The membership fee for the Service and any other charges you may incur in connection with your use of the Service, such as taxes and possible transaction fees, will be charged on a monthly basis to your Payment Method on the calendar day corresponding to the commencement of the paying portion of your membership until your membership is canceled. Membership fees are fully earned upon payment. We may authorize your Payment Method in anticipation of membership or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period.

To use the Service you must provide one or more Payment Methods. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s). You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for payment of your subscription fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the Service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.

You can cancel your Limited Member Program at any time, and you will continue to have access to the Service through the end of your monthly billing period. We do not provide refunds or credits for any partial-month membership. If you cancel your membership, your account will automatically close at the end of your current billing period.

We reserve the right to change our subscription plans or adjust pricing for the Service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes or changes to your subscription plan will take effect following notice to you.

Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.

  • Waiver of Monthly Fee:

 

As part of the Limited Member Program, the monthly membership fee for shall be waived for the Billing Period in which you successfully complete a sale for a Good through Your Store in any given Billing Period. For instance, if you are charged the membership fee at the beginning of a particular month for use of the Service in that particular month, and you successfully sale a Good during that period, we will reimburse you the full membership fee for that month. We reserve the right to withhold this waiver of the monthly fee in the event that we determine, at our sole and absolute discretion, that the transaction was unsuccessful. We reserve the right to charge your Payment Method in the amount of any reimbursed membership fee if a transaction which qualified you for such reimbursement under these terms is later returned, refunded, or canceled.

  • Secured Member Program

 

To become a Secured Member, you must provide a Security Deposit in the amount provided in the registration. Subject to the Distribution Service Terms, the Security Deposit is held by MonCheri and shall be debited in satisfaction of Goods purchased by you at the Wholesale Price of the Goods purchased by a customer under the procedures outlined in the Distribution Service Terms. The balance of your Security Deposit can be viewed on your account through the MonCheri Site (“Deposit Account Balance”). The Security Deposit shall act as a transaction limit on purchases of Goods from you at the Wholesale Price of Goods sold. We shall have no obligation under this Agreement should a transaction result in your Deposit Account Balance to fall below $0.00. We will not be liable to you: (i) if we do not proceed with a transaction that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because the Service is unavailable following the commencement of a transaction. Any positive Security Deposit amounts remaining after Termination of the Service will be refunded to you subject to the following paragraph.

If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to MonCheri or third parties, then we may in our sole discretion withhold any Security Deposit to you for as long as we determine any related risks to MonCheri or third parties persist. For any amounts that we determine you owe us, we may (a) charge payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency.

  1. Term and Termination.

 

The term of this Agreement will start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the "Term"). We may terminate or suspend this Agreement or the Service for any reason at any time by notice to you. You may terminate this Agreement or any Service for any reason at any time by the means then specified by MonCheri. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 2, 3, 4, 5, 6, 7, 8, 10, 13, 14, 15, and 16 will survive termination. Any terms that expressly survive according to the applicable Distribution Service Terms will also survive termination.

 

 

You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to MonCheri or its Affiliates is at all times accurate and complete; (d) you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) you and all of your subcontractors, agents, and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.

 

You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of sales activities (including their offer, sale, performance, and fulfillment), any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto; (c) your agents and employees (including any act or omission of your agents or employees or any Claim brought or directed by your agents or employees); or (d) any tax liabilities. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.

  1. Disclaimer & General Release

 

THE MONCHERI SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE MONCHERI SITES, THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MONCHERI SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.

BECAUSE MONCHERI IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES MONCHERI (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

  1. Limitation of Liability.

WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF MONCHERI HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO MONCHERI IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.

 

If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during each month over any period of three (3) consecutive months, or otherwise if requested by us, then within ten (10) days thereafter, you will maintain at your expense throughout the remainder of the Term commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming MonCheri and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage.

  1. Tax Matters.

 

As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that (i) MonCheri automatically calculates, collects, or remits taxes on your behalf according to applicable law; or (ii) MonCheri expressly agrees to receive taxes or other transaction-based charges on your behalf in connection with tax calculation services made available by MonCheri and used by you. All fees and payments payable by you to MonCheri under this Agreement are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and you will be responsible for paying MonCheri any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.

 

Except as otherwise provided in this Agreement, you agree that MonCheri is not obligated to determine whether taxes apply, and MonCheri is not responsible to collect, report, or remit any taxes arising from any transaction. However, if a taxing authority requires us to pay any of your taxes, you will promptly reimburse us for the amounts paid. If the product is shipped from outside the U.S., the recipient of the product may be required to pay, upon delivery, an amount related to assessed sales, goods and services, use, excise, import, value added, or other taxes or duties. Such taxes or duties, if any, are in addition to the sales proceeds collected by MonCheri.

 

During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to transaction information, that is not known to the general public ("Confidential Information"). You agree that: (a) all Confidential Information will remain MonCheri’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other Person; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.

  1. Force Majeure.

We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.

 

  1. Relationship of Parties.

You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of MonCheri, you, and customers. As between you and us, you will be solely responsible for all obligations associated with the use of any third party service or feature that you permit us to use on your behalf, including compliance with any applicable terms of use. You will not make any statement, whether on your site or otherwise, that would contradict anything in this section.

 

  1. Use of MonCheri Transaction Information.

 

You will not, and will cause your Affiliates not to, directly or indirectly: (a) disclose any MonCheri Transaction Information (except that you may disclose that information solely as necessary for you to perform your obligations under this Agreement if you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information); (b) use any MonCheri Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law; (c) contact a Person that has ordered Goods with the intent to collect any amounts in connection therewith or to influence that Person to make an alternative transaction; (d) disparage us, our Affiliates, or any of their or our respective products or services or any customer; or (e) target communications of any kind on the basis of the intended recipient being an MonCheri Site user. In addition, you may only use tools and methods that we designate to communicate with MonCheri users regarding Your Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Your Products. The terms of this Section 13 do not prevent you from using other information that you acquire without reference to MonCheri Transaction Information for any purpose, even if that information is identical to MonCheri Transaction Information, provided that you do not target communications on the basis of the intended recipient being an MonCheri Site user.

 

We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on applicable MonCheri Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the General Terms and the Service Terms will be posted for at least 30 days. Changes to Program Policies may be made without notice to you. You should refer regularly to the MonCheri Site to review the current Agreement (including the Service Terms and Program Policies) and to be sure that the items you offer can be offered via the applicable Service. YOUR CONTINUED USE OF A SERVICE AFTER MONCHERI’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.

  1. Password Security.

 

Any password we provide to you may be used only during the Term to use the Services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.

 

 

The Governing Laws will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. MonCheri and you both consent that any dispute with MonCheri or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or we may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.  The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location. MonCheri and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration MonCheri and you each waive any right to a jury trial.

You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.

We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Services, including by redesigning, modifying, removing, or restricting access to any of them.

Because MonCheri is not your agent, or the customer’s agent for any purpose, MonCheri will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.

We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates in your program application or through the MonCheri Site, as applicable, or by any other means then specified by MonCheri. We may also communicate with you electronically and in other media, and you consent to such communications regardless of any "E-mail Preferences" (or similar preferences or requests) you may have indicated on the applicable MonCheri Site or by any other means. You may change your e-mail addresses and certain other information on the MonCheri Site. You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to MonCheri through e-mail.

This Agreement incorporates and you accept the applicable Service Terms, which MonCheri may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. If the Elected Country is Canada, then it is the express wish of the parties that this Agreement and the applicable Service Terms and Program Policies have been drafted in English. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.

 

Definitions

As used in this Agreement, the following terms have the following meanings:

"Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.

"Content" means copyrightable works under applicable Law and content protected by database rights under applicable Law.

"Goods" means any product that you: (a) have offered through the MonCheri Distribution Service Offering; (b) have made available to the public for purchase by Customers; or (c) have fulfilled or otherwise processed through the MonCheri Warehousing Service. 

"Governing Courts" means the state or Federal court in Los Angeles County, California.

"Insurance Threshold" means the Ten Thousand U.S. Dollars ($100,000)

"Intellectual Property Right" means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.

"Law" means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.

"MonCheri Associated Properties" means any website or other online point of presence, mobile application, service or feature, other than an MonCheri Site, through which any MonCheri Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised, or described.

"MonCheri Site" means the website, the primary home page of which is identified by the url www.moncheri.com, and any successor or replacement of such website.

"MonCheri Affiliated Site" means the website created through the Service provided by MonCheri, including Your Store.

"Order Information" means, with respect to any of Your Products ordered through an a MonCheri Affiliated Site, the order information and shipping information that we provide or make available to you.

"Person" means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.

"Program Policies" means all terms, conditions, policies, guidelines, rules, and other information on the applicable MonCheri Site.

"Sales Proceeds" means the gross proceeds from any of Your Transactions, including (a) all shipping and handling, gift wrap and other charges; (b) taxes and customs duties to the extent specified in this Agreement; and (c) in the case of invoiced orders, any amounts that customers fail to pay to us or our Affiliates on or before the applicable invoice due date.

"Service" means each of the Distribution Service Offering and MonCheri Warehousing Service provided by MonCheri.

"Service Terms" means the service terms applicable to the Distribution Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms.

"Technology" means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.

"Trademark" means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.

"Your Materials" means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to MonCheri or its Affiliates.

"Your Personnel" means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.

"Your Sales Channels" means all sales channels and other means through which you or any of your Affiliates offers products or services, other than physical stores.

"Your Taxes" means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Goods are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Goods  are, directly or indirectly, involved as a form of payment or exchange.

"Your Trademarks" means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.

"Your Transaction" means any sale of Your Product(s) through an the MonCheri Site or MonCheri Affiliated Site.

DISTRIBUTION SERVICE AGREEMENT

The Distribution Service Offering ("Distributing with MonCheri") is a Service that allows you to offer certain products and services directly on a website generated when you register with MonCheri (“Your Store”). The MonCheri Warehousing Service (“MonCheri Warehousing Service,” together the “Distribution Service”).

These following Terms,(the “Distribution Service Terms”) are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in the Distribution Service. BY REGISTERING FOR OR USING THE DISTRIBUTION SERVICE (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE DISTRIBUTION SERVICE TERMS. 

P-1 Goods Listings and Orders.

P-1.1 Your Store and Goods. During the registration process, we will provide you with tools to create “Your Store”. Your Store is a website powered by MonCheri that is open to the public allowing customers to purchase Goods from Your Store. You are required to register a domain address that will be used for purposes of using the Distribution Service Offering. You are required to use our template website formats provided to you during the registration process.  

P-1.2 Product Listing; Merchandising. We will enable you to list Goods on Your Store, and conduct merchandising and promote Goods as permitted by us. The Goods offered on Your Store are limited to the Goods provided by MonCheri through the applicable MonCheri Site. The only permissible Goods advertised on Your Store will be those you select through the applicable MonCheri Site. For each Good listed on the MonCheri Site there is a corresponding wholesale price (“Wholesale Price of Goods”). The Wholesale Price of Goods is the amount you will purchase the Goods from MonCheri for resale to the customer. You will have the option to establish a Retail Price for Goods available for sale to customers. Your Retail Price of Goods (“Retail Price of Goods”) is the price shown on Your Site and is the price of the Goods available to customers. We will provide Order Information to you for each order of Goods through the applicable MonCheri Site. You will receive all Sales Proceeds for each of these transactions.   

P-1.2.1 Early Access to Merchandise. Secured Members are automatically enrolled in the “Early Access” program. The Early Access program provides members the opportunity to list newly available Goods for sale on Your Store. Participants in the Limited Member Program must wait a period of days before access to such Goods will be made available to them.  

P-1.3 Warehousing. We are charged with the duty to maintain inventory of Goods at any of our warehousing facilities. Unless otherwise agreed to, you will carry no inventory for the Goods offered on Your Site. We will keep electronic records that track inventory of Units for each of the Goods offered on the MonCheri Site. The manner in which inventory is maintained shall be at our absolute and sole discretion and you shall have no right to make inspection of our inventory process or maintenance procedures. We shall have no obligation to carry specific Goods and what Goods we may carry, restock, or offer pursuant to this Agreement is at our sole and absolute discretion.

P-1.4 On-Hand Inventory Request. Subject to the Terms of this Agreement, if requested by you, and agreed to by us, you may submit a request to receive Goods for the purpose of a sales opportunity. Goods received by you under an On-Hand Inventory Request (the “OHIR Goods”) must be given back to us within ten (10) days from date of receipt of the OHIR Goods by you, unless otherwise agreed to in writting. Failure to return the OHIR Goods to us by the required timeframe will act as a sale of the OHIR Goods by us to you under the terms provided for in P-1.5. We have no obligation to accept any On-Hand Inventory Request and we may deny such requests for any reason. An On-Hand Inventory Request must be provided to us in writing. We may require, as a condition to the acceptance of your request, that you provide additional Security Deposit for the items or any other condition as determined by us at that time.

P-1.5 Order Processing.

 

P-1.5.1 Order Processing Secured Member Program. When a customer enters into a transaction for Goods through Your Store, you are deemed to have made a valid offer for those Goods with MonCheri at the Wholesale Price of Goods purchased by the customer. MonCheri shall accept the offer by promptly shipping the Goods to you and debiting your Deposit Account Balance in an amount equal to the Wholesale Price of Goods for that particular order in full satisfaction of the your purchasing of Goods from MonCheri. Your Deposit Account Balance will then reflect a reduced balance. We shall have no obligation to process an order under this Agreement should a transaction cause your Deposit Account Balance to fall below $0.00 (“Insufficient Deposit Account Balance”). We will proceed with processing and shipment of an order once you provide us with an additional Deposit (herein, “Deposit Satisfaction”) in an amount equal to i) the Insufficient Deposit Account Balance, calculated as the negative amount remaining after subtracting the Wholesale Price of Goods of that transaction by the Deposit Account Balance prior to the purchase by customer, and ii) the Required Deposit (“Deposit Satisfaction Amount”). We will not be liable to you: (i) if we do not proceed with a transaction that would create an Insufficient Deposit Account Balance, or (ii) for any liability you may sustain with a customer resulting from a delay or cancelation of the order resulting from our refusal to ship goods due to an Insufficient Deposit Account Balance. It is your obligation to make efforts to ensure you have a Deposit Account Balance sufficient to satisfy a customer purchase. MonCheri reserves the right to cancel an order in the event there is a mistake in the Wholesale Price of Goods offered to you.

P-1.5.1 Order Processing Limited Member Program. When a customer enters into a transaction for Goods through Your Store, you are deemed to have made an valid offer for those Goods with MonCheri for the Wholesale Price of the Goods. MonCheri shall accept this offer by prompt shipment of the Goods to you. MonCheri will have no obligation to process an order until and unless you remit the Wholesale Price of Goods sold in that transaction to MonCheri. Once MonCheri is in receipt of the Wholesale Price of Goods sold, MonCheri will proceed to process the order for the Goods under the terms of this Agreement. We will not be liable to you: (i) if we do not proceed with a transaction for failure to remit the required purchase price to us, or (ii) for any liability you may sustain with a customer resulting from a delay or cancelation of the order resulting from our refusal to ship goods due to an Insufficient Deposit Account Balance. MonCheri reserves the right to cancel an order in the event there is a mistake in the Wholesale Price of Goods offered to you.

P-1.6 Transaction Processing. You will provide all necessary information to establish payment methods between you and your customers through the MonCheri Site. You will establish your preferred payment method when registering. MonCheri will not be acting as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, or charging your Credit Card. You will receive all and be holding all Sales Proceeds, remittance of Sales Proceeds to Your Bank Account, and charging customer Credit Cards.

P-2 Shipment. As part of the MonCheri Warehousing Service, we will ship Units from our inventory of Goods to your shipping addresses included in valid orders, or submitted by you as part of an On-Hand Inventory Request. We may ship Units separately that are included in a single On-Hand Inventory Request. All Goods purchased pursuant to P-1.5 shall be shipped to your location. All Goods delivered to you by us is Fee on Board Buyer’s Place of Business, and risk of loss for the Goods shall fall on the buyer upon our delivery to you.

P-2.1 Shipping and Handling Charges. For Goods ordered by customers through Your Store, you will determine the shipping and handling charges subject to our standard functionality (including any category-based shipping and handling charges we determine). When we determine the shipping and handling charges, the costs of shipping and handling are chargeable to the customer and will be added to the purchase price of the Goods purchased by customer.

As between delivery of Goods to you by us, we will bear the shipping and handling costs for Goods purchased by pursuant to P-1.5 and P-1.4 and shipped to you pursuant to P-2 that you have successfully sold to customers. Except as provided below, for Goods that are returned to us by you, you are charged with the payment of the shipping and handling charges for returning those Goods to us and you must reimburse us for the shipping and handling costs for the Goods originally shipping those Goods you.

Secured Members shall not be required to bear the shipping and handling costs for Goods that are returned to us by virtue of a return by a customer or through the On-Hand Inventory Request program. This waiver of the shipping and handling costs is limited only to a certain number of returns made pursuant to this Agreement as specified during the registration process.

P-3 Customer Returns.

P-3.1 You will be responsible for and will accept and process returns of, and provide refunds and adjustments for, any purchase of Goods in accordance with the Agreement.

P-3.2 We will receive and process returns of any Goods shipped to our warehouse addresses in accordance with the terms of this Agreement. Any Sellable Units that are properly returned will be placed back into the inventory of Goods. We will take title to all Units that are returned to our warehouses, once received by us.

P-3.3 Credit Back to Deposit Account Balance. Once we receive the returned Goods and determine that the returned Goods are Sellable Units, for Secured Members, we will credit your Deposit Account Balance in the amount of the Wholesale Price of Goods previously Debited pursuant to this Agreement, and, for Limited Members, we will issue a refund to your applicable bank account. Whether a particular items of Goods are Unsuitable Units shall be made at our discretion and based on reasonable business practices. We will not be liable for any refunds, payments, or offsets resulting from a refund provided to the customer pursuant to a return. This paragraph shall also apply to returns of OHIR Goods.

P-4 Customer Service

 

P-4.1 We will have no customer service obligations other than to pass any inquiries to your attention at the contact you provide, and to make available a reasonable amount of information regarding the status of the fulfillment of Goods if you request it and if and to the extent we possess the requested information. You will ensure that all of your policies and messaging to your customers regarding shipping of Goods and other fulfillment-related matters, reflect our policies and requirements, including with regard to shipping methods, returns, and customer service; and, you will conspicuously display on your website(s), in emails or in other media or communications any specific disclosures, messaging, notices, and policies we require.

P-4.2 In situations where the wrong item was delivered or the item was damaged or lost or is missing, unless we determine that the basis for such request is caused by you or any of your employees, agents, or contractors, we will, as your sole and exclusive remedy and at our option: (a) for shipments made by us, (i) ship a replacement Unit to the customer, or (ii) request that you process a refund to the customer and, for Secured Members, credit your Deposit Account Balance in the amounts debited pursuant to that order, and for Limited Members, we will issue a refund to your applicable bank account. Any customer refund will be processed in accordance with the terms provided in this Agreement. You will be responsible for all costs associated with any replacement or return.

P-5 Control of MonCheri Sites and Your Store.

 

We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the MonCheri Sites and Your Store, including by redesigning, modifying, removing, or restricting access to any of them, and by suspending, prohibiting, or removing any listing.

P-6 Indemnity.

 

In addition to your obligations under Section 5 of the General Terms of this Agreement, you also agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any Claim that arises from or relates to: (a) the Units (whether or not title has transferred to us, and including any, including any personal injury, death, or property damage; (b) the shipment, export, or delivery of Goods to any address including with respect to any classification data and other information provided by you to us in connection therewith, and notwithstanding any rights we have under Section P-2 or any certifications we may make in connection with the shipment, export, or delivery of Goods); (c) any of Your Taxes or the collection, payment, or failure to collect or pay Your Taxes; and, if applicable (d) any sales, use, value added, personal property, gross receipts, excise, franchise, business, or other taxes or fees, or any customs, duties, or similar assessments (including penalties, fines, or interest on any of the foregoing) imposed by any government or other taxing authority in connection with the shipment of such Goods.

P-7 Release.

 

You, on behalf of yourself and any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the "Releasing Parties"), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge MonCheri and each of our Affiliates, and any and all of our and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all Persons acting by, through, under, or in concert with any of them (collectively, the "Released Parties"), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, "Losses") which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or any of them, arising out of, resulting from, or in any way related to the shipment, export, or delivery of Goods. You, on behalf of yourself and all other Releasing Parties, recognize that you, and each of them, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after the date you register for or use of the Distribution Service, which the Releasing Parties are giving up by agreeing to these Distribution Service Terms. It is your intention in agreeing to these Distribution Service Terms that these Distribution Service Terms will deprive the Releasing Parties of each and all such Losses and prevent the Releasing Party from asserting any such Losses against the Released Parties, or any of them. In addition to the foregoing, you acknowledge, on behalf of yourself and all other Releasing Parties that you are familiar with Section 1542 of the Civil Code of the State of California, as follows:

"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

 

You, on behalf of yourself and all other Releasing Parties, expressly waive and relinquish any rights that you had or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the law of any other jurisdiction, to the full extent that you may lawfully waive all such rights pertaining to the subject matter of these Distribution Service Terms.

 

P-8 Disclaimer.

 

IN ADDITION TO THE DISCLAIMER IN SECTION 6 OF THE GENERAL TERMS OF THIS AGREEMENT, WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.

P-9 Effect of Termination.

Upon termination of these Distribution Service Terms  in connection with a particular MonCheri Site, all rights and obligations of the Parties under these Selling on Distribution Service Terms with regard to such MonCheri Site will be extinguished, except that the rights and obligations of the Parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term. Any positive Deposit Account Balance subject to the Terms provided for in this Agreement.

Distribution Service Terms Definitions

 

Deposit Satisfaction” means your submitting an additional Deposit pursuant to the terms of P-1.5.

Deposit Satisfaction Amount” means your submitting an additional Deposit pursuant to the terms of P-1.5.

Insufficient Deposit Account Balance” means a Deposit Account Balance that will fall below $0.00 after a customer transaction.

 

On-Hand Inventory Request” means a request by you for certain delivery of certain Goods by us in order to facilitate a sales opportunity.

"OHIR Goods" are Goods that are part of the On-Hand Inventory Request.

“Retail Price of Goods” as defined in P-1.2.

"Sellable Unit" means a Unit that is not an Unsuitable Unit.

"Shipping Information" means with respect to any purchased Unit(s), the following information: the name of the recipient, the shipping address, the quantity of Units to be shipped, and any other shipping-related information we may reasonably request.

"Unit" means a unit of Goods that are delivered pursuant to a purchase order in connection with the Distribution Service.

"Unsuitable Unit" means a Unit: (a) that was a Sellable Unit when shipped; (b) is defective, damaged, unfit for a particular purpose, or lacking required label that MonCheri determines is unsellable or unfulfillable when returned; or (e) that MonCheri determines is otherwise unsuitable.

"Wholesale Price of Goods" means the price of Goods offered to you by MonCheri per Unit.