PLEASE READ THIS ENTIRE HOMELANDSHOPPING.COM VENDOR AGREEMENT (THE "AGREEMENT") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT AND WHO IS SHOWN AS THE "VENDOR" IN THE HOMELANDSHOPPING.COM SELLER MENU ("You") AND HOMELAND MARKETING SERVICES, LLC OR ONE OF ITS OPERATING COMPANIES ("Homelandshopping.com" or "We") (each, a "Party," and together, the "Parties").
Please print a copy of this Agreement for Your records.
To be a Homelandshopping.com Vendor who’s Items will be resold by Homelandshopping.com to Customers through the Homelandshopping.com Site and/or shopping cart facilities, you must first agree to the terms and conditions in this Agreement. If you do not accept this Agreement, then Homelandshopping.com will not resell Your Items and you may not use Homelandshopping.com's Services.
Your electronic acceptance of this Agreement constitutes an offer to Homelandshopping.com. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND YOU TO THIS AGREEMENT. The commencement of Homelandshopping.com's performance of its obligations hereunder shall constitute Homelandshopping.com's acceptance of this Agreement, and upon commencement of such performance this Agreement shall form a binding agreement between the parties. You also agree to these terms (or the current terms then in force) each time you log into Your Seller Menu account and use Homelandshopping.com's Services.
BY LISTING PRODUCTS AND/OR SERVICES FOR SALE THROUGH HOMELANDSHOPPING.COM AND USING HOMELANDSHOPPING.COM'S SERVICES YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL DOCUMENTS, REGULATIONS, POLICIES, AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where defined.
A. "Homelandshopping.com Site" means Homelandshopping.com's web site, found at www.Homelandshopping.com.is (and at other addresses from time to time), through which Homelandshopping.com will be the seller and merchant of record for sales of Items to Customers.
B. "Customer" means any person, organization or entity that visits the Homelandshopping.com Site, through which that person, organization or entity may choose to purchase Items from Homelandshopping.com.
C. "Items", "Product", or "Products" means the products and/or services that you will list at Homelandshopping.com Site for sale by Homelandshopping.com to Customers through the Homelandshopping.com Site that Homelandshopping.com agrees to sell.
D. "Transaction", or "Customer Transaction" means a sale of an Item made by Homelandshopping.com to a Customer be it a one-off sale or a pre-authorized recurring sale.
E. "Pricing Details" means the financial terms of your relationship with Homelandshopping.com (including the retail margin earned by Homelandshopping.com, and any fees charged by Homelandshopping.com), which is available at the Vendor Fee Schedule (or other locations from time to time) and which is hereby incorporated by reference.
F. "Suggested Retail Price" means the price that you input into the Homelandshopping.com system as the recommended selling price of the Items. For the avoidance of doubt, while you may provide suggested retail prices for Items, Homelandshopping.com is solely responsible for setting the retail price at which Items are resold to Customers by Homelandshopping.com, which may reflect the Suggested Retail Price at Homelandshopping.com's discretion.
G. "Services" refers to services provided to you as a retailer of your products by Homelandshopping.com, primarily served online from the Homelandshopping.com Site through the Homelandshopping.com seller menu ("Seller Menu").
H. "Account Profile" refers to details about your business including geographical address and ownership information that are completed online within the Seller Menu to allow you to start selling, and then later signed and sent to Homelandshopping.com in order for
Purchase Payments to be sent to you.
I. "Purchase Payment" refers to the purchase payment comprising each completed sales transaction delivered to a Customer during a Pay Period, being the Sales Price of the Items sold by Homelandshopping.com less I) the Retail Margin for that sales transaction, ii) any Other Fees, and iii) any Reserve Amounts.
J. "Other Fees" refers to Dispute Charges, Fees for Sending Purchase Payment to Vendor, Vendor Error Fees, and other fees that may be listed from time to time on the Pricing Details schedule.
K. "Reserve Amount" or "Reserve Account" refers to a percentage of total gross sales held back by Homelandshopping.com or its acquiring banks to protect against serious risks associated with non-delivered goods or services, pre-paid fees for future services to be performed, or similar risks.
L. "Pay Period" refers to either one week, or one month's worth of sales. Each week making up the Pay Period runs from Sunday to Sunday (with all of the week's orders up to midnight GMT on the Sunday being included. Homelandshopping.com settles one week in arrears (please refer to the Operating Regulations).
M. "Settlement Day" refers to the banking day when Your Purchase Payment is initiated at Homelandshopping.com's bank(s).
N. "Release Level" refers to a per account limit set from time to time that is used to decide if a regular settlement of Homelandshopping.com's Purchase Payment to You should be initiated for the appropriate Pay Period.
. "Primary Email Address" refers to the email address set in your online Account Profile at the Homelandshopping.com Seller Menu and which is used amongst other things for sending notices to you.
P. "Your" or "Yours" refer to things that you own, and the rights or obligations applicable to you as set forth in this Agreement.
2. ACCEPTANCE, EFFECTIVE DATE AND AMENDMENT
A. Effective Date and Incorporation of Documents, Policies and Procedures. This Agreement becomes effective when you accept it by electronic signature, or sign a printed copy of this agreement ("Effective Date"). In the event that there is a difference in dates between the dates you accepted by electronic signature, and a printed paper copy of this Agreement signed by both parties, the Effective Date is the earliest date that the Agreement was agreed to by either method.
The Vendor fee schedule ("Vendor Fee Schedule") the information gathered by Homelandshopping.com from Vendor in the online registration process ("Vendor Registration"), the list of Products that may not be marketed via Homelandshopping.com and such other documents, regulations, policies, and procedures Homelandshopping.com requires Vendor to conform to, are all incorporated into and become a part of the Agreement by this reference.
B. Vendor Accounts. After you agree to be bound by this Agreement and complete the Vendor Registration, Homelandshopping.com will establish an account for You ("Account" or "Primary Account"). Vendor may establish more than one Account for the Products it offers for sale ("Additional Account(s)") in order to support different charging and settlement currencies, or for the other operational reasons. This Agreement shall be binding upon the Primary Account and all Additional Account(s). Both Primary Accounts and Additional Accounts ("Accounts") shall be governed by this Agreement.
C. Underwriting. Vendor authorizes Homelandshopping.com to obtain a credit history or credit report ("Credit Reports") regarding Vendor and the owners and directors of Vendor through a credit reporting agency chosen by Homelandshopping.com. Vendor and the owners and directors of Vendor authorize Homelandshopping.com to obtain and use such Credit Reports from time to time for the purpose of evaluating the creditworthiness of Vendor throughout the term of this Agreement.
Homelandshopping.com may establish an Account for Vendor upon receipt of the Vendor Registration and prior to the verification of Vendor's identity or determination of Vendor's creditworthiness. If Homelandshopping.com determines that there is insufficient information to verify the identity and/or physical address of Vendor or Homelandshopping.com determines that the creditworthiness of Vendor is unsatisfactory, Homelandshopping.com may terminate this Agreement without notice. In the alternative, and at the sole discretion of Homelandshopping.com, Homelandshopping.com may request that Vendor provide additional information or fulfill additional requirements to provide security to Homelandshopping.com, including without limitation, the execution of a personal guaranty.
3. CONDITIONS OF USING HOMELANDSHOPPING.COM
A. Internet Business. Homelandshopping.com provides an Internet-based marketplace for products and services ("Products") obtained from Vendors and offered for resale via the Internet. It operates from the Homelandshopping.com Site and/or other locations from time to time, and is an online retailer and provider of online checkout services.
B. Real Time Purchases. Homelandshopping.com purchases Products from Vendors for the sole purpose of immediate resale to persons who make a decision to buy Products of a Vendor on Homelandshopping.com's Site ("Customers") rather than directly from Vendor's website. Homelandshopping.com's Site provides access for Customers to Products of all Vendors in an online distribution center for tangible or digital products and services ("Shopping Center") and allows Customers to purchase the Products from Homelandshopping.com by using such electronic payment methods that Homelandshopping.com accepts from time to time, allows a Customer to obtain a refund for a Product previously purchased, and allows a Customer to exchange a Product previously purchased (individually and collectively, "Transaction").
C. Services. In addition to the purchase of Products from Vendor for immediate resale to Customers, Homelandshopping.com processes all Transactions using an encrypted network infrastructure certified to the highest level of industry security standards including the
Payment Card Industry Data Security Standard ("PCI DSS"), made available via the processing platform of its merchant service providers (collectively, "Services").
D. Service Usage Requirements. As may be modified from time to time by the Operating Regulations, to keep Your Accounts active and in good standing you must:
(a) Login to Your Account(s) at least once within the first thirty (30) days of Account establishment and complete Your Account Profile as per Section 7 (B) regarding Vendor Identification,
b) Login to Your Account(s) at least once every ninety (30) days,
(c) Have a Customer sale debit or credit transaction attempt (be it accepted or declined) at least once every ninety (30) days.
E. Force Majeure. Homelandshopping.com assumes no liability for disruptions in service or improper operation of its equipment or software for any reason, including, without limitation, vandalism, theft, phone service outages, Internet disruptions, human error, extreme or severe weather conditions, or any other causes commonly referred to as "Acts of God".
F. Disclaimer. At the request of Homelandshopping.com, Vendor shall include in its website a prominently displayed disclaimer of any implied warranties, including without limitation, the warranty of non-infringement, the implied warranties of merchantability and fitness for a particular purpose, and disclaimer of liability for the use of goods supplied, or services performed by Vendor, on behalf of Homelandshopping.com as authorized retailer. The lack of display of such a notice shall not affect Your or Homelandshopping.com's liabilities under this Agreement.
G. Certain Warranties Not Permitted. Vendor agrees it will not provide, offer, or advertise a "lifetime warranty," "lifetime guarantee," or any other guarantee for a period of more than one-hundred and eighty (180) days without the express written consent of Homelandshopping.com.
H. Adequate Inventory. Vendor shall maintain sufficient inventory to fulfill purchases by Homelandshopping.com for resale to Customers in a timely manner. Vendor shall not rely on the existence of a particular Transaction to obtain funds or credit to enable Vendor to obtain the Product necessary to complete the Transaction.
I. License. To enable Homelandshopping.com to use the information You supply to Homelandshopping.com, including without limitation, the images, trademarks, trade names and logos found on Your website(s), without violating any rights You might have in the information and the images, trademarks, trade names and logos found on Your website, You agree to grant, and hereby do grant, Homelandshopping.com a royalty free, worldwide, nonexclusive, perpetual and irrevocable license to exercise the copyright, publicity and database rights, and to sublicense such rights through multiple tiers of sub licensees, that You have in such information, images, trademarks, trade names and logos, in any media now known or not currently known, with respect to the information, images trademarks, trade names and logos. This is intended to ensure that we may publish details of supplied products both to our own Shopping Center and to partner websites from time to time as may be required for marketing purposes according to this Agreement.
4. ACCEPTANCE OF LIMITATIONS IN SERVICE
A. Limitations on Sale of Products. Homelandshopping.com may prohibit the sale of Products in its Prohibited Items List. Vendor further understands and agrees that Homelandshopping.com may amend the Prohibited Items List, from time to time, at its sole discretion, without prior notice.
B. Limitations on Customer Transactions. Homelandshopping.com may impose limits on sales of Products and refuse to process Transactions for specific Customers for any reason, at its sole discretion.
C. Limitations on Services. Homelandshopping.com may: (1) limit or restrict sales to a minimum Product price; (2) impose limits on the amount or number of purchases which may be charged to the credit or debit card of a Customer during any time period; (3) request additional validation information from Customers, such as signed contracts and/or receipts or authorization forms; (4) refuse to accept orders from Customers with a prior history of questionable charges; or (5) impose certain limits or restrictions on Transactions; or (6) institute Reserve Amounts on specific Accounts as per Section 6. C., either temporarily or permanently, which are more restrictive than limits placed on Accounts of other Vendors.
D. No Liability. Homelandshopping.com shall not be liable to Vendor for any losses, expenses, or damages Vendor sustains, including claims for lost profits, resulting from or related to Homelandshopping.com's imposition of limits on Transactions or Reserve Amounts, for any reason.
5. VENDOR'S WARRANTIES AND REPRESENTATIONS
Vendor makes the following representations and warrants that at all times during the term of this Agreement such representations shall be true and accurate:
A. Contractual Capacity. Vendor has the power and authority to carry on its business as it is conducted, is duly authorized to enter into this Agreement and that no other authorizations, consents or approvals are required in connection with the validity and enforceability of this Agreement or the execution, delivery and performance of this Agreement by Vendor.
B. Truthful Information. All information and data Vendor provides to Homelandshopping.com, or for which it engages a third party to provide to Homelandshopping.com is complete, truthful, accurate, valid, the lawful property of the Vendor, and Vendor has the right to communicate such information.
C. Verification. All email, domain, URL, secure instant messenger, geographical address, and telephone information provided by Vendor is complete and correct.
D. Intellectual Property Ownership. Vendor owns or otherwise has the full right, authority, and license to use and disseminate (1) all information, data, graphics, text, video, music, or other intellectual property which forms a part of its website, or which is used by Vendor in its advertising and promotional efforts, and (2) the Items it supplies to Homelandshopping.com (or to potential Customers).
E. Authority to Conduct Business. Vendor is legally authorized to sell any Item it offers and Vendor has obtained all necessary regulatory approvals and certificates (hereafter, "Certificates"). Vendor will provide Homelandshopping.com any copies of Certificates immediately upon Vendor's receipt of such a request by Homelandshopping.com.
F. Compliance with Laws and Regulations. Vendor is in compliance with all applicable national, federal, state, or local laws, rules, regulations, requirements and/or other standards established by any governmental authority having jurisdiction to control such activities, including without limitation but only as applicable, any national, state or local consumer protection agencies.
G. Compliance with Industry Security Standards. Vendor is in compliance with the regulations of applicable card associations regarding the sale of Products over the Internet or other transactions where the credit or debit card utilized for the purchase is not present, which are in effect prior to the Effective Date of this Agreement, or which become effective during the term of this Agreement, and Vendor is in compliance with the security standards applicable to their business, including but not limited to, the PCI DSS at all times.
Vendor makes commercially reasonable efforts to protect all personally identifiable customer information, according to industry security standards and applicable law. Upon receipt of a current and correctly completed PCI DSS Self-Assessment Questionnaire and Attestation of Compliance, Homelandshopping.com may at its sole discretion permit Vendor to enter certain additional information associated with a Customer's order to allow its completion with Homelandshopping.com. Such information collected by telephone may include without limitation primary account number, expiration date, and the card verification value/card security code (collectively, "Cardholder Data"). Vendor will not solicit, collect, store, or disclose this Cardholder Data except as specified under the Security Guidelines specified by
Homelandshopping.com in its Operating Regulations for Mail Order/Telephone Orders, and which mandates strict adherence to PCI DSS compliant standards of care in handing Cardholder Data prior to authorization of the sale, and in particular to the handling of sensitive authentication data. Vendor's failure to comply with these Security Guidelines may result in fines and/or penalties being levied by Homelandshopping.com against Vendor because of Vendor's actions.
6. FEES AND TRANSACTION PAYMENTS
A. Continuing Payments for Services. Vendor agrees to pay Homelandshopping.com all Transaction fees and other amounts required by this Agreement, when due.
B. Transaction Fees and Charges. For all items sold through its marketplace, Homelandshopping.com charges a fee based on a percentage of the sale price, as set forth under the document entitled Fees. The Vendor of an item is responsible for paying this fee. The Transaction Fees shall be deducted from the proceeds received by Homelandshopping.com for the resale of the Product prior to payment of any funds to Vendor. Fees may change at any time without notice. The fee in effect on the date of sale of the item shall govern the transaction. Please view the Fees page to view the latest fee structure. By listing an item for sale in our marketplace, you agree to pay the applicable fees and any collection costs related to non-payment of fees.
C. Transaction Payments. Contingent upon the purchase by a Customer of a Product offered by Vendor, in accordance with the terms hereof, Homelandshopping.com will pay Vendor for the purchase of Products resold by Homelandshopping.com, in accordance with the terms set forth under the document entitled Fees.
D. Reserve Account. Homelandshopping.com may retain a portion of the proceeds of Transactions, to establish and maintain a Reserve Account as set forth in the Operating Regulations. Any funds held in a Reserve Account for whatever reason shall accrue no interest, or any other earnings to Vendor.
7. ONLINE ACCOUNT PROFILE AND SUPPORTING DOCUMENTS
A. Vendor Identification. To ensure that Homelandshopping.com knows the identity of Vendor and is paying the appropriate party for Product purchases, Vendor must, within thirty (30) days of opening an Account, ensure that the legal name of Vendor set within the Account(s), is the same as the name of the person or entity that is to be the payee receiving Purchase Payments, and if sales through the Account have commenced, have sent to Homelandshopping.com a signed Account Profile and any required supporting documents (such as a copy of Your government issued identification; Driver's License, Passport or National Identity Card). If Vendor does not fulfill such requirement, Homelandshopping.com may, at its sole discretion, suspend Vendor's Account, or terminate this Agreement.
B. Receipt of Identifying Documents. Homelandshopping.com shall only settle to a bank account, in Your name or registered doing business as/trading name if You are a sole trader/proprietor and will not settle funds until a paper copy of the signed Account Profile (and supporting documents) has been received. Such documents should be sent to the designated Homelandshopping.com office by trackable courier service only (EMS, FedEx, DHL, UPS, TNT, etc.) where progress and delivery of the documents can be tracked; Your Account Profile and supporting documents contain sensitive private information, and being able to track their progress and final receipt at our offices is important.
If You are operating via an incorporated company for Your Site(s) We will initiate bank wires in that company name. Supporting documents for the person(s) who manage(s) the company (and exercise signing power for the settlement bank account) will be required including a copy of government issued identification for that person (or persons). In addition We will require a copy of the government issued identification for any other natural person (or persons) who ultimately own or control the company through direct or indirect ownership of a 25% or more share in the company, or control 25% or more of the voting rights, or are deemed to exercise control by other means, of the company.
Homelandshopping.com complies with the applicable requirements of the United States Government Bank Secrecy Act and its implementing regulations, including but not limited to Anti-Money Laundering rules, financing of terrorism, fraud, and or other corrupt or illegal objectives or practices.
D. Account Changes. In the event that Vendor requires a change of settlement bank account, or that other details have changed regarding the Account, a freshly signed Account Profile and as applicable, new supporting documents, must be provided to Homelandshopping.com, either as a paper copy or as a good quality color scan uploaded securely to the Seller Menu’s document upload facility, as may be required.
More than three bank account changes per year is not allowed unless there is a good reason. Changes to settlement bank accounts require five (5) days’ notice to allow for processing of updated Account Profiles and any new supporting documents, as explained in the Operating Regulations.
This Agreement shall remain in effect from the Effective Date until:
Homelandshopping.com or Vendor issues a "Notice of Cancellation" as set forth in Section 10 (C) of this Agreement,
The Agreement is terminated as otherwise provided in Section 10.
A. Obligation to Pay Own Taxes. Vendor is responsible for registration and filing regarding, and the payment of, all taxes applicable to the conduct of its business, including but not limited to, excise, sales, and value added taxes on sales transactions.
B. Vendor's Obligation to Pay Taxes Resulting from Homelandshopping.com Services. The parties agree that if additional taxes in the nature of an excise, sales, or use tax are imposed in connection with Homelandshopping.com's Services and paid by Homelandshopping.com on behalf of the Vendor, Vendor shall be liable to Homelandshopping.com in an amount equal to the amount of such tax payment made by Homelandshopping.com. Vendor authorizes Homelandshopping.com to collect and pay over taxes in the nature of an excise, sales, or use tax on behalf of Vendor or on account of Homelandshopping.com's sale of Products if reasonably required to do so by any jurisdiction's taxing authority having jurisdiction thereof. Homelandshopping.com shall have the right to recover from Vendor the amount of any such taxes, related penalties and interest paid by Homelandshopping.com with its own funds. Vendor shall also pay Homelandshopping.com for any related expenses incurred by Homelandshopping.com, including reasonable attorney's fees, in its collection of any amounts due from Vendor.
C. Obligation to Repay Homelandshopping.com. Vendor agrees that if Homelandshopping.com pays any taxes that result from the resale of Vendor's Products, Vendor will immediately reimburse Homelandshopping.com an amount equal to such taxes paid by Homelandshopping.com and all related interest, fines, and/or penalties.
A. By Vendor. Vendor may terminate this Agreement, and any associated Accounts with Homelandshopping.com at any time upon providing a notice of its intent to terminate at least five (5) days prior to the desired date of termination.
B. By Homelandshopping.com. Homelandshopping.com may terminate this Agreement, and Vendor's associated Accounts at any time for any reason. Homelandshopping.com may suspend Vendor's access to Homelandshopping.com's Site, Seller Menu, and/or Services, immediately and without notice if Vendor is in breach of any of its obligations hereunder and then terminate this Agreement and Vendor's access to Homelandshopping.com's Services, or Homelandshopping.com may terminate this Agreement and Vendor's access to Homelandshopping.com's Services immediately and without notice if Vendor is in breach of any of its obligations hereunder. If the termination is at the convenience of Homelandshopping.com, and not immediate and without notice, Homelandshopping.com shall endeavor to provide Vendor with notice seven (7) days in advance of the date of termination.
C. Notice of Cancellation. If a party to the Agreement intends to terminate the Agreement, it must send a notice to the other party of its intent to terminate ("Notice of Cancellation"). The Notice of Cancellation shall contain the date upon which the termination shall become effective and shall be delivered in accordance with Section 20 of this Agreement. Provided, however, that in the event Homelandshopping.com determines it is necessary to immediately terminate the Agreement, Homelandshopping.com may provide notice to Vendor via voice or secure instant message, followed by delivery of a Notice of Cancellation as required in Section 20. Such termination shall be effective as of the time of the voice message, or secure instant message to Vendor.
D. Payments/Obligations to be Completed After Termination. Upon termination of this Agreement, any outstanding and unpaid fees and charges of Vendor to Homelandshopping.com shall become immediately due and payable.
Homelandshopping.com may at termination of the Agreement and at its sole discretion, hold back all then due Purchase Payments including any existing Reserve Amounts for a period of up to one-hundred and eighty (180) days ("Holdback") in order to cover additional financial risks related to Disputes, Refunds or Returns of Products supplied by Vendor that extend beyond the time of termination of the Agreement. If the majority of funds are the result of purchases from Homelandshopping.com using American Express cards, or from yearly subscriptions then the Holdback period may be up to one (1) year.
Such Holdback may be necessary in order to protect Homelandshopping.com from serious risks associated with Vendors who are for example, going out of business or declaring bankruptcy, or may have claims for non-delivered goods/services, and/or pre-paid yearly fees lodged against them. Any Holdback funds retained for this period will be used by Homelandshopping.com to pay for any outstanding Disputes, Refunds or Returns of Products supplied by Vendor and/or related card association fines that are necessary for this period of financial risk to Homelandshopping.com after termination of this Agreement. The remainder of the Holdback monies will be returned after that period has elapsed.
In the event Homelandshopping.com is holding funds related to Account at the termination of the Agreement and it is later determined that such funds should be sent to Vendor, the Vendor legal name and address, email, and other details, as set in the Account Profile on the date of termination, will be used to try to contact Vendor regarding any funds that are being held for Vendor. Any changes to the settlement bank account are subject to the requirements of 7 (D). If Homelandshopping.com is unable to complete the payment of funds to Vendor (or as applicable their official receiver or trustee in bankruptcy), after a period of attempting to contact the Vendor, of not less than one (1) year, the funds will be subject to the applicable laws regarding escheat of unclaimed property. Should there be no laws applicable regarding escheat of the unclaimed account balance, the funds shall be donated to a charity (or charities) of Homelandshopping.com's choice.
E. Survival. Upon Termination of this Agreement, the provisions of Sections 6 (C), 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21 and 22 shall survive such Termination.
11. DISCLAIMER OF WARRANTIES
VENDOR UNDERSTANDS AND AGREES THAT HOMELANDSHOPPING.COM IS PROVIDING ITS SERVICES TO VENDOR "AS IS" AND THAT HOMELANDSHOPPING.COM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NONINFRINGEMENT.
12. LIMITATION OF LIABILITY
VENDOR ASSUMES ALL LIABILITY FOR ITS USE OF HOMELANDSHOPPING.COM'S SERVICES. HOMELANDSHOPPING.COM SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOMELANDSHOPPING.COM SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
IN NO EVENT SHALL VENDOR BE ENTITLED TO RECOVER DAMAGES FROM HOMELANDSHOPPING.COM THAT EXCEED THE SUM OF FEES RETAINED BY HOMELANDSHOPPING.COM UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
HOMELANDSHOPPING.COM ASSUMES NO LIABILITY FOR VENDOR'S FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY ACTS, OMISSIONS OR NEGLIGENCE OF THE VENDOR, A SUBCONTRACTOR OR AN AGENT OF VENDOR OR AN EMPLOYEE OF ANY ONE TO THEM, NOR SHALL HOMELANDSHOPPING.COM HAVE ANY LIABILITY FOR CLAIMS OF THIRD
PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, VENDOR'S PRODUCTS, SERVICES, MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.
13. CHOICE OF LAW JURISDICTION AND VENUE
This Agreement shall be governed by and interpreted under the laws of the state of New Jersey, United States, without reference to its conflict of law principles. You agree that any claim or suit arising out of or related to this Agreement must be brought exclusively in a court in Hudson County, New Jersey (subject to the paragraphs below regarding mediation and arbitration).
A. Mediation. If there are any disputes or conflicts related to or arising out of this Agreement, You and Homelandshopping.com shall first use reasonable means to resolve the conflict prior to starting any arbitration, lawsuit, or other litigation. Such means shall include negotiation between management personnel capable of resolving the conflicts.
B. Arbitration. Notwithstanding anything herein to the contrary, You agree that any claim or dispute regarding the Agreement, shall be resolved exclusively and finally by binding arbitration, administered by the American Arbitration Association (“AAA”) administered in accordance with AAA’s Procedures for Commercial Disputes.
The arbitration will be conducted in New Jersey in front of a single arbitrator selected by the agreement of you and Homelandshopping.com. If you and Homelandshopping.com are unable to agree upon an arbitrator, the arbitrator shall be selected by the AAA.
The arbitration shall be limited to the dispute involving you and no claim or dispute of any other Homelandshopping.com Client or person shall be included or joined in the arbitration. Unless otherwise ruled by the arbitrator, you and Homelandshopping.com shall equally share the expenses of conducting the arbitration. Any arbitration brought under this provision shall be governed by the relevant New Jersey state law.
You understand that you might have had a right to litigate disputes through a court of competent jurisdiction and you have expressly and knowingly waived that right and agreed to resolve any claim or dispute through binding arbitration. Notwithstanding the fact that You and Homelandshopping.com have agreed to settle claims and disputes exclusively through binding arbitration, in the event there is a claim or dispute with regard to the intellectual property of Homelandshopping.com, including without limitation, trade secrets and software code, Homelandshopping.com may immediately proceed to a court of competent jurisdiction to obtain equitable relief, You agreeing that there would be no adequate remedy at law under arbitration for Homelandshopping.com for such a claim.
14. ENFORCEMENT ACTIVITIES
A. Lawful Use. The Website and Services of Homelandshopping.com may be used only for lawful purposes and in a lawful manner. Vendor agrees to comply with all applicable laws and regulations. Vendor may not register under a false name, mask the true identity of Vendor or the Products it offers to the public, or use an invalid or unauthorized credit or debit card, or invalid or unauthorized bank account information. Vendor may not impersonate any participant or use another participant's information. Such fraudulent conduct may be reported to law enforcement by Homelandshopping.com, and Homelandshopping.com may cooperate in an investigation by law enforcement if compelling evidence of such conduct is presented to Homelandshopping.com.
B. Investigation. Homelandshopping.com has the right, but not the obligation, to monitor any activity and content associated with its Site and Services. Homelandshopping.com may investigate any reported violation of its policies or complaints and take any reasonable action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of materials related to Vendor on Homelandshopping.com's Site. Homelandshopping.com reserves the right to request the removal or editing of any content that violates this Agreement or is otherwise objectionable and violates the spirit of this Agreement. As part of the investigation into content that may violate this Agreement, Vendor hereby consents that Homelandshopping.com representatives may examine Vendor's website(s) including through the use of automated tools that allow Homelandshopping.com or its representatives to visit Vendor's website incognito.
C. Disclosure of Information.
(a) You agree that Homelandshopping.com may share aggregated details from Your Account statements, and such minimal Personal Information as is required to identify You to a specific agent or affiliate if You were referred to Homelandshopping.com by said agent or affiliate, subject to the restrictions of the Partner Agreement signed with said agent or affiliate, for the purpose of compensating said agent or affiliate for bringing Your Account(s) to Homelandshopping.com.
(b) Homelandshopping.com may use or disclose Personal Information without Your consent in certain circumstances:
If we are required by law or by an order or requirement of a court, or by court rules concerning the production of records;
If we have reasonable grounds to believe that use or disclosure is necessary to protect the rights, privacy, property, or safety of our users or others;
If we have reasonable grounds to believe that the information relates to a breach of agreement or violation of the law that has been, is being, or is about to be committed;
If it is necessary for fraud protection, risk reduction, or the establishment of amounts or collection of monies owed to us;
If it is necessary to enforce or apply our Operating Regulations and other agreements, to pursue remedies, or to limit damages to Homelandshopping.com;
In these circumstances Homelandshopping.com may access and disclose the information it considers necessary or appropriate, including but not limited to user contact details, IP address and traffic information, usage history, communications with Vendor and/or Customers, and posted content.
When we are required or permitted to disclose information without consent, we will not disclose more information than is necessary to fulfill the disclosure purpose. We do not like or support unlawful and unreasonable "fishing expeditions" by governmental agencies (or individuals) without a court order.
D. Suspension of Account. In the event Homelandshopping.com determines that Vendor is in breach of this Agreement, Homelandshopping.com may suspend activity on the Account(s), until Vendor cures the breach of this Agreement, or until Homelandshopping.com terminates this Agreement.
15. PRIVACY AND SECURITY
B. Commitment to Privacy. Unless otherwise authorized by Homelandshopping.com in writing, Vendor agrees not to use any information regarding Customers except for the purpose of entering into and completing Transactions. Vendors agree not to use Customer information for purposes of solicitation, advertising, unsolicited electronic communication including spamming by email or instant message, harassment, invasion of privacy, or conduct which may be otherwise deemed to be objectionable conduct. Inappropriate communication by Vendor with a Customer may result in suspension of the Vendor's Account(s) or termination of this Agreement by Homelandshopping.com.
C. Commitment to Industry Security Standards. Homelandshopping.com will at all times while this Agreement is in effect, and thereafter as required, take responsibility for the security of cardholder information and data in its possession during storage, processing and transmission of said data, and will maintain reasonable and expected compliance with the Payment Card Industry Data Security Standard (PCI DSS) and other relevant industry security standards. Homelandshopping.com's merchant service providers are classified as "service providers" under Requirement 12.8 of the PCI DSS and Homelandshopping.com makes commercially reasonable efforts to ensure that its service providers have performed the necessary steps to validate their compliance with the PCI DSS.
16. COPYRIGHT ISSUES
A. Copyright Notice. Homelandshopping.com's Site is subject to the protection of the copyright laws of the United States. No part of Homelandshopping.com's Site may be reproduced without the prior written permission of Homelandshopping.com, other than the content that is permitted according to this Agreement.
B. Notices of Alleged Copyright Infringement. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on the Homelandshopping.com site or through the Services, you may notify us according to the requirements for appropriate notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”) by sending us written notice that includes all of the following:
A legend or subject line that says: “DMCA Copyright Infringement Notice”;
A physical signature of a person authorized to act on behalf of the owner of an exclusive right that is being infringed;
Identification of the copyrighted work claimed to have been infringed;
Identification of the material that is allegedly infringing (URL(s) for example);
The complaining party's address, telephone number and email address;
A signed statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or under fair use; and
A signed statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted as a written notification at the mailing address provided in Section 20 (Notices).
In the event that Vendor fails to perform any duty, obligation, or provision contained in this Agreement ("Default"), Vendor agrees to pay to Homelandshopping.com any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney's fees incurred by Homelandshopping.com due to Vendor's Default.
18. AMENDMENTS AND MODIFICATIONS
A. Homelandshopping.com's Right to Amend or Modify Agreement. Homelandshopping.com may amend or modify this Agreement and any such amendment or modification will be binding on Vendor when posted to Homelandshopping.com's Site. Continued use of Homelandshopping.com's Services after such posting occurs shall be deemed to be an acceptance of all terms in the amended/modified Agreement. Vendor accepts the responsibility of a continuing review of the content of Homelandshopping.com's Site to determine whether any amendments have occurred.
B. Other Amendments/Modifications. Vendors may communicate any proposed modifications or amendments to this Agreement to Homelandshopping.com at the mailing address provided in Section 20. However, such changes or amendments will only become effective if agreed upon by Homelandshopping.com, at its sole discretion, in writing.
Vendor. Vendor agrees to indemnify and hold Homelandshopping.com, its employees, officers, agents, shareholders and directors harmless from any and all claims, losses, damages, costs, expenses (including attorney's fees), fines, penalties regardless of whether the same are actual, direct, indirect, special, incidental, consequential, or punitive ("Damages") resulting from or in connection with this Agreement or incurred as a result of, or related to, the causes set forth below:
Vendor's breach of any warranty or representation;
Vendor's violation of any applicable law, rule, or regulation;
Intellectual property infringement claims related to the Vendor's site or service;
Vendor's reckless or willful misconduct;
Claims of third parties arising out of or resulting from, or in connection with Vendor's products, services, messages, programs, caller contracts, promotions, advertising, infringement or any claim for libel or slander.
Homelandshopping.com. In no event will Homelandshopping.com be liable to indemnify any party for any Damages arising directly or indirectly from any use of this Internet resource, or Homelandshopping.com's Service(s), even if Homelandshopping.com is expressly advised of the possibility of such damages.
Homeland Marketing Services, LLC;
Homeland Marketing Services, LLC
310 Passaic Avenue
Harrison, NJ 07029
21. SEVERABILITY OF PROVISIONS
Each provision of this Agreement shall be considered severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.
22. INTELLECTUAL PROPERTY
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology of Homelandshopping.com to Vendor and all rights, title and interest in such intellectual Should such and technology, whether developed, licensed or owned by Homelandshopping.com shall remain with Homelandshopping.com. Vendor agrees that Vendor will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of Homelandshopping.com.
23. AGREEMENT, RELATIONSHIP OF PARTIES
Vendor agrees to be bound by any electronic affirmation, assent or agreement transmitted through Homelandshopping.com's Site. Vendor represents and warrants that Vendor has the authority to agree to this Agreement. Vendor agrees that any decision or action to click on an "I Agree", "I Consent", or other similarly worded "button" or entry field using a mouse, keystroke or other computer device ("Agreement Using Digital Signature"), will indicate Vendor's agreement and will be legally binding and enforceable and the legal equivalent of Vendor's handwritten signature.
Vendor acknowledges (a) that Vendor has read and understood this Agreement; (b) that even if Vendor has consented to this Agreement by Agreement Using Digital Signature, Vendor agrees to provide a printed copy of this Agreement containing handwritten signature(s) if Homelandshopping.com may also so require it; and (c) that this Agreement constitutes the entire agreement between Homelandshopping.com and Vendor and governs Vendor's use of the Services, superseding any prior agreements between Vendor and Homelandshopping.com pertaining to the Services.
The relationship between Homelandshopping.com and Vendor shall be that of independent contractors. Neither party will be considered an agent, employee, joint venture, or partner of the other, unless otherwise specifically provided herein.