Welcome to the Shop PO Platform. These Marketplace General Terms (the “Terms”) along with the Marketplace Retailer Agreement, the OC and Feed Specs (collectively, the “Agreement”) govern your access to and use of the Shop PO Platform and the Terms are made between you or the business you represent (“you” or “Retailer”) and Shop PO, LLC (“Shop PO”) (each a “Party” and collectively, the “Parties”). You acknowledge and represent that, if you are entering into these Terms for your business, you have the appropriate authority to enter into these Terms on behalf of your organization.

1. Definitions. 

Capitalized terms not defined in the Agreement are defined in the Marketplace Retailer Agreement and Schedule A. 

2. Shop PO Rights/Obligations.

(a)Control of the Platform.

Without undertaking any obligation to monitor and curate the Platform:  (A) Shop PO shall have the right in its sole discretion to (i) remove Products and/or Retailer Content, refuse to list and delay any or all Products and/or Retailer Content; (ii) investigate and refuse an order if the Platform detects any fraudulent or possibly illegal activity in connection with the placement or processing of such order or otherwise as provided in the Customer Terms of Use for the Platform; and (B) Shop PO has the right in its sole discretion to determine the content, appearance, design, functionality and other aspects of the Platform, including the right to redesign, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Platform and any element, aspect, portion or feature thereof. Shop PO also has the right to cease providing Retailer with access to the Platform at any time and without notice or to delay, halt any transaction, suspend the listing or de-list any of Retailer’s Products, or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited under Applicable Law or this Agreement. 

(b) Customer Service. 

Shop PO will be responsible for general customer service inquiries (“Shop PO Contacts”), provided that Shop PO may direct Customers who contact it with service issues to Retailer via the contact information Retailer has provided (“Retailer Direct Contacts”).  Retailer shall (i) respond and handle Retailer Direct Contacts in accordance with the OC and in any event to the same standards as it does to its own customer service contacts from its customers, and (ii) for Shop PO Contacts assist as needed in order to enable Shop PO to respond to the Customer in accordance with the OC. Without limiting the foregoing, if a Customer notifies Shop PO that a Product ordered by such Customer has not been received in accordance with the applicable service levels set forth herein or that such Product is non-conforming or has been received in a damaged or defective condition, or has any other Retailer or Product concern, Shop PO may issue a refund and/or credit or other applicable appeasement to the Customer (an “Appeasement”) at Retailer’s expense and such Appeasement will be included in amounts owed to Shop PO.  

(c) Payment Card Fraud. 

In the event that Shop PO believes in its sole discretion that a transaction represents fraudulent activity, Shop PO may, but is not obligated to, prohibit the transaction. Shop PO will not be liable to Retailer for any such action that results in or prevents a Customer from completing an order or causes a Customer to cancel an order.  As between Retailer and Shop PO, Shop PO bears the risk of payment card fraud as evidenced by the chargeback notification reason code (“Payment Card Fraud”).  However, any Service-Related Chargeback is the responsibility of the Retailer pursuant to the provisions of Section 3(g), below.

(d) Platform Promotions. 

From time to time, Shop PO may: (i) run promotions, offers, coupons, loyalty rewards or other pricing or promotional discounts (“Shop PO Promos”) which could impact the Base Selling Price.  Shop PO will bear the expense of any Shop PO Promos unless Retailer has agreed in writing (including via email) to bear all or some of the expense of the Shop PO Promos; and (ii) offer you the opportunity for a fee to advertise and promote Products separate from any Shop PO Promos.

3. Retailer Rights/Obligations.

(a) Product Requirements. 

Retailer will not promote, offer for sale, or provide through the Platform any Products that (a) are defective, not first quality, inauthentic, counterfeit, replicas or knock-off goods; (b) are or contain any Restricted Products; (c) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, attempting to scam or defraud a Customer into surrendering private and/or personal information); (d) subject to any health, safety or quality recalls; or (e) promote or engage in any other illegal activity.  Retailer will not list any Products it does not currently have in stock and will only list Products for which it has stock to meet reasonably anticipated demand or otherwise specifies that quantities are limited.

(b) Legal Compliance. 

Retailer is responsible for monitoring its own Products for compliance with Applicable Laws and promptly removing any Products, including the Restricted Products, that are prohibited by Applicable Law or recalled and is responsible for any consumer notification related to such Restricted Products.  Retailer will immediately notify Shop PO of any recalls affecting the Products and is responsible for all liability related to Retailer’s Products, including where defective, and will bear all costs associated with notifying Customers and handling such recalls of its Products.  Retailer agrees to list any text, images, disclaimers, warnings, notices, labels, warranties, or other content required by Applicable Law, including California Proposition 65, to be displayed in connection with the offer, merchandising, advertising or sale of the Products.   Sale of your Products on or through the Platform does not imply any affiliation or endorsement of the Retailer’s Products.

(c) Pricing.

Retailer accepts all responsibility for establishing the Base Selling Prices, MSRP’s or other reference pricing, shipping fees (excluding standard ground shipping, which is at Retailer’s cost), promotions and other offers provided by Retailer to Shop PO.  Reference pricing provided in any promotions or other offers provided by Retailer will comply with Applicable Law.  Retailer will provide or maintain up-to-date Retailer Content on the Platform.

(d) Pricing Errors. 

If Retailer provides incorrect Base Selling Prices or other pricing or promotional errors, Shop PO may take any commercially reasonable action, at Retailer’s expense, to avoid and/or repair any harm to Shop PO due to the pricing error.  Such action may include requiring Retailer to honor all Product purchases occurring due to the error and compensating Customers via an Appeasement for any inconvenience caused by such errors. Retailer agrees to reimburse Shop PO for all costs incurred as a result of any Retailer pricing error.   

(e) Pricing Parity.

Retailer will at all times maintain parity between the Products it offers on the Platform and identical products offered through Retailer’s other sales distribution channels, including Retailer’s own website(s) or any third-party website(s). The term “parity” means that sales prices, product quality (including quality assurances), promotional pricing, and shipping and handling charges associated with a Product (including any “low price” guarantees, rebates, or other benefits) are at least as favorable to Customers of the Platform as the most favorable terms at which Products are offered for sale or sold on Retailer’s website(s) or its other sales distribution channels.   Shop PO acknowledges that:  (i)  Retailer’s loyalty promotions and other unique or single use discount codes may not be available to Shop PO; and (ii) Retailer is not responsible for promotional programs established and fully-funded by third parties (e.g. third party’s own discounting or free shipping) who may resell Retailer’s Products.

(f) Refunds; Returns. 

Retailer authorizes Shop PO to act as its agent to process all refunds and adjustments for Orders that are cancelled, returned or disputed, including the refund of any sales tax collected and obtaining credit on any applicable sales tax return that Shop PO files.  Retailer agrees not to pay refunds or adjustments directly to Customers.  The Platform provides free returns for Customers and the cost of such free return is the responsibility of the Retailer.  Retailer agrees that Shop PO will provide the Customer with a pre-paid return shipping label with a carrier of Shop PO’s choice and a return packing slip.   Any refunds, return shipping costs, other adjustments or reverse logistics costs will be deducted from amounts owed to Retailer.  Retailer will accept, process and notify Shop PO via its integration with the Portal of any returned Product within seven (7) calendar days from Retailer’s receipt of such returned Product. Customers seeking to return Products must return them directly to Retailer.  Retailer’s return policy on the Platform must, at a minimum, (i) provide for free returns; (ii) apply to all Products and (iii) outline the process for Customers to return the Products directly to Retailer.  Retailer agrees to honor all Customer returns in accordance with the Retailer return policy published on the Platform as of the time of the purchase.

(g) Service-Related Chargebacks.

If Shop PO notifies Retailer of a Service-Related Chargeback, which is any Customer chargeback due to non-delivery, or other service related dispute related to Retailer’s transactions as evidenced by the chargeback notification reason code, Retailer must present Shop PO with all information requested in the chargeback notification within five (5) business days of receiving notice. If Retailer fails to comply with Shop PO’s request, Retailer will reimburse Shop PO for the Customer chargeback(s) in accordance with the settlement and payment terms herein. Notwithstanding the other provisions of this paragraph, Retailer will not be responsible for chargebacks due to Payment Card Fraud for which Shop PO is responsible pursuant to the provisions of Section 2(c), above.

(h) Insurance.

Retailer will at its sole cost and expense maintain policies of insurance to maintain insurance as follows: statutory amounts of workers’ compensation; commercial general liability (including contractual liability) for bodily injury and tangible property damage with a combined single limit of at least $2,000,000 per occurrence; employer’s liability in the amount of $500,000; and product liability with limits of at least $1,000,000 per claim. Such policies shall name Shop PO as an additional insured.

(i) Permits and Licenses.

Retailer will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable fees and assessments which may be due for selling or offering of its Products for sale on or through the Platform.

4. Other Rights. 

Shop PO and Retailer acknowledge and agree that Shop PO has the right to recoup or set-off any payments owed to Retailer by the amount of any Commission payments, Retailer obligations owed according to the defense and Indemnification provision of these Terms, and any other monetary obligations owing by Retailer to Shop PO.  Any remaining outstanding funds due to Shop PO after recoupment or set-off will be paid by Retailer promptly upon demand by Shop PO.  Shop PO may obtain reimbursement of any amounts owed by Retailer to Shop PO by deducting from future payments owed to Retailer, reversing any credits to Retailer’s Account, or seeking such reimbursement from Retailer by any other lawful means.  Retailer hereby authorizes Shop PO to use any or all of the foregoing methods to seek reimbursement.

5. Taxes. 

Shop PO will calculate, collect and remit to the applicable tax agency any applicable sales taxes on the sale of Retailer’s Products through the Platform (“Sales Taxes”) and Retailer hereby acknowledges and agrees  that Shop PO will be calculating, collecting and remitting applicable sales taxes on the sale of its products.   It is Retailer’s responsibility to provide to Shop PO the correct information regarding its Products so that Shop PO can correctly determine the taxability, and appropriate sales tax rate, for the sale of Retailer’s Products.  Any errors in such calculation resulting in any way from incorrect information provided by the Retailer shall be at the expense of the Retailer, and Shop PO has the right to charge the Retailer for any taxes, interest and penalty resulting from such error.  As between the Parties, and except as otherwise provided in this Section, Retailer shall be solely liable for determining and collecting the correct Retailer Taxes, and reporting and remitting the correct Retailer Taxes to the appropriate tax authority.  Retailer acknowledges and agrees that Shop PO does not provide tax advice. Retailer further acknowledges and agrees that Shop PO does not make any representation or warranty as to the accuracy of the Sales Tax calculations or that Retailer’s Sales Tax calculation needs will be satisfied.  All fees (including Commissions) and payments payable by Retailer to Shop PO under the Agreement are exclusive of any applicable  sales, use and similar taxes and Retailer will be responsible for paying Shop PO any of such taxes imposed on such amounts.  If any such deductions or withholdings are required on any amount payable to Shop PO, Retailer will pay such additional amounts as are necessary so that the net amount received by Shop PO is equal to the amount then due and payable under this Agreement. 

6. Intellectual Property.

(a) Grant of License by Shop PO.  

Shop PO hereby grants to Retailer a non-exclusive, revocable, non-transferable license to promote and sell Products on or through the Platform to Customers, subject to the terms of this Agreement.

(b) Grant of License by Retailer.  

Retailer hereby grants to Shop PO a royalty-free, non-exclusive, revocable, worldwide, royalty-free, right to use and to reproduce, display, publish, distribute, re-format, create derivative works of the Retailer’s Products and Retailer Content with the right to sublicense such rights through multiple tiers; provided however that Shop PO will not alter any Retailer trademarks or logos from the forms provided by Retailer except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further that nothing in this Agreement will restrict Shop PO’s right to use the Retailer Content to the extent such use is allowable without a license from Retailer under Applicable Law.

(c) Intellectual Property Rights.

All right, title and interest in and to the Platform, and all data collected or stored in connection with the Platform (including all information and data related to how Customers view, navigate and use the Platform, and all manner of connectivity and association between Customer and the Platform) and any other Shop PO websites, any of its affiliates’ websites, and any other service or website associated with the foregoing, including mobile sites or microsites, and all IP Rights associated with any of the foregoing, will at all times remain the exclusive property of Shop PO, and except as expressly provided herein, nothing will be construed as conferring on Retailer any license to Shop PO’s IP Rights, whether by estoppel, implication or otherwise. If Retailer is deemed to have any ownership interest or rights in any of the foregoing, or any part thereof, then Retailer will assign, and Retailer does hereby assign, all of such ownership interest and rights to Shop PO, including all Retailer IP Rights therein. All rights not expressly granted herein are reserved to Shop PO.

(d) Ownership of Retailer Content. 

Shop PO and Retailer each agree and acknowledge that, as between Shop PO and Retailer, Retailer owns all Retailer Content and all IP Rights associated with the foregoing, subject to the license granted herein.

(e) Notification to Shop PO.

Retailer will immediately notify Shop PO of any actual or alleged infringement of any patent, trademark, copyright, trade secret, trade dress or other intellectual property right of a third party in connection with the Products or Retailer Content. Notwithstanding the foregoing, Retailer is responsible for ensuring that its Products and Retailer Content do not infringe the intellectual property of any third-party and is responsible for any costs associated with such rights, including liability related to its Products.

(f) Feedback. 

If Retailer provides Shop PO with any suggestions, ideas, feedback, error identifications or other information related to the Platform (together, “Feedback”), Retailer hereby assigns to Shop PO all right, title and interest in and to all such Feedback, including all Intellectual Property Rights therein. Shop PO may, in its sole discretion, (i) ask Customers to rate and/or provide comments regarding Products and/or Retailer’s performance, using any metrics determined by Shop PO in its sole discretion, and/or (ii) post any resulting ratings and/or comments on the Platform for public display, any of which will be Shop PO’s licensed property.

7. Confidentiality and Data Security. 

(a) Definition and Obligations.

“Confidential Information” means any and all technical or business data or information furnished, in whatever form or medium, by Shop PO regardless of whether marked or identified as “Confidential,” including Customer Personal Information, Transactional Data (as defined in Schedule A to the Terms), the terms of this Agreement, and the operations and technology to be utilized in connection with the Portal and Platform. Retailer agrees to: (i) treat as confidential, and preserve the confidentiality of all Confidential Information and not disclose it to any third party; (ii) use the Confidential Information solely for the purposes of this Agreement; and (iii) not copy such Confidential Information unless authorized by Shop PO.

(b) Treatment of Confidential Information.

The obligations with respect to Confidential Information will not apply to any information that: (i) is already in Retailer’s possession, as shown by documentation and without obligation of confidentiality; (ii) without action or fault on Retailer’s part, is or becomes publicly available; or (iii) Retailer has obtained from a third person without breach by such third person of an obligation of confidence. Retailer must promptly return or destroy all Confidential Information at Shop PO’s request.

(c) Security.

Retailer will ensure that it has developed, implemented and will maintain effective information security controls, policies and procedures that include administrative, technical and physical safeguards designed to: (a) ensure the security and confidentiality of Confidential Information, data and information provided by Shop PO or otherwise accessed or acquired by Retailer in connection with the use of the Portal and/or Platform, including, as applicable, all Customer Personal Information (collectively, the “Shop PO Data”); (b) protect against anticipated threats or hazards to the security or integrity of such Shop PO Data; (c) protect against unauthorized access or use of such Shop PO Data; and (d) ensure the proper disposal of Shop PO Data. Retailer will ensure that access to Shop PO Data shall be limited to those employees, agents or subcontractors of Retailer who are required to receive such Shop PO Data in order to perform Retailer’s obligations as set forth in this Agreement. In the event of unauthorized access to Shop PO Data, Retailer shall promptly notify Shop PO of such unauthorized access and take appropriate action to prevent further unauthorized access.

(d) Customer Personal Information.

There are restrictions on your use of Customer Personal Information. Except as otherwise set forth in this Agreement with respect to Exclusive Retailers, Retailer may use the Customer Personal Information solely to perform your obligations and exercise your rights under this Agreement and for purposes of legal compliance. Without limiting the foregoing and except as to Marketable Customers, Retailer may not directly or indirectly use Customer Personal Information to (a) contact any Customer that has ordered Product that has not yet been delivered, or any related individual such as a designated shipment recipient, with the intent to offer or solicit any purchase, (b) call a Customer for any reason (including any fulfillment questions which should be handled by carriers except for any fulfillments that require a scheduled delivery with the Customer) or, (c) solicit additional information from the Customer or related individual (which in any case would be deemed Customer Personal Information). Retailer agrees that it will assist Shop PO as required by Shop PO with data access, deletion, portability, or other rights of Customers with respect to Customer Personal Information under Applicable Law.

(e) Press Releases, etc. 

Without limiting anything set out in this Section 7, Retailer may not issue press releases or engage in any interview, discussions and/or other communications regarding the Platform without Shop PO’s prior written consent in each instance. 

8. Term/Termination.

(a) Unless terminated earlier as provided herein, this Agreement shall have an initial term of two (2) years from the Effective Date, and shall be automatically renewed for additional one (1) year periods after the initial term (the initial term and any renewals, the “Term”), unless either Party is otherwise notified by the other in writing at least sixty (60) days prior to the applicable anniversary date of the Effective Date of this Agreement.  If the Parties continue to do business with each other after such termination or after the expiration of the above term without full documentation, the relevant terms hereof will continue to govern the relationship unless otherwise expressly agreed in writing. 

(b) This Agreement may be terminated by either Party: (i) upon written notice of a material breach of this Agreement by either Party, which breach is not cured within twenty (20) business days from receipt of written notice thereof; or (ii)  if the other ceases to do business, or otherwise terminates its business operations; (iii) if the other shall fail to promptly secure or renew any license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within sixty (60) days and the foregoing has a material adverse effect on either party’s ability to perform its obligations hereunder on the other party; or (iv) If the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days).

(c) Upon expiration or termination of this Agreement for any reason, (i) Retailer will cease use of the Platform provided that any rights and obligations of Retailer and Shop PO with respect to any outstanding sale transaction (including fulfillment and returns) will survive until completed as set forth in this Agreement, and (ii) all Commissions due and owing to Shop PO shall be paid to Shop PO within thirty (30) days of the effective date of termination.

(d) Any termination of this Agreement will be without prejudice to the rights of either Party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. Any obligations under this Agreement that by their nature are intended to survive, will survive termination of this Agreement, including any payment owed by Retailer or customer service or return obligation in connection with the sale of Products hereunder, Section 5 of the Marketplace Retailer Agreement (Customer and Marketing Choice), Section 6 (Intellectual Property), Section 7 (Confidentiality and Security), Section 8(c) and (d) (Term and Termination), Section 10 (Indemnification), Section 12 (Limitation of Liability) and Section 13 (Miscellaneous).

9. Representations and Warranties.

(a) Capacity. 

Each Party represents and warrants to the other that:  (i)  it is a duly organized business existing in good standing under the Applicable Laws of the state of its organization and that it has the rights, power and authority to enter into this Agreement; and (ii) its performance of its obligations under the Agreement will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound.

(b) Shop PO. 

Shop PO represents and warrants that: (i) Retailer’s authorized use of the Platform will not infringe, misappropriate or otherwise violate any copyright, trademark, or other intellectual property right of any third party; and (ii) Shop PO will operate the Platform and perform its obligations under this Agreement in compliance with all Applicable Laws.

(c) Retailer.  

Retailer represents and warrants to Shop PO that all Retailer Content, and all elements and components thereof will not (i) infringe, misappropriate or otherwise violate any copyright, trademark, patent or other intellectual or proprietary property right, or right of publicity or privacy, of any third party, or violate any rights or duties under consumer protection, product liability, tort or contract theories;  (ii) contain any illegal, obscene, discriminatory or defamatory material; or (iii) violate Applicable Laws.  Retailer further represents and warrants that:  (a) it will comply will Applicable Law; (b) it has, will maintain, enforce and abide by an appropriate privacy policy that complies with Applicable Law; (c) all Retailer Content shall be complete, true, and accurate at the time provided and kept up-to-date; (d) Retailer will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (e) it will deliver to Customers good and marketable title to the Products sold via the Platform.  Retailer will use commercially reasonable efforts to ensure that information and data uploaded or transmitted by Retailer to the Platform is free from viruses and other malware designed to damage or degrade the performance of the Platform or that create risk to the Transactional Data or Confidential Information.

10. Indemnification. 

Retailer agrees to defend, indemnify, release and hold harmless the Shop PO Parties from and against any Damages related to any demand, action, suit, liability, claim, arbitration or similar proceeding arising out of or attributable to: (i) any breach or alleged breach of this Agreement by Retailer Parties; (ii) the Products, including the packaging, labeling, pricing or advertising of the Products and any death, illness, personal injury or property damage, both in law and equity, arising out of or resulting in any way from the Products; (ii) distribution or use of Retailer Content, including without limitation the disclosures, promotions, advertising, labeling, shipping of the Products; (iii) misuse by any of the Retailer Parties of Shop PO IP Rights; or (v) any act or omission, negligence or willful misconduct of the Retailer Parties and their respective agents, employees, or subcontractors relating to the sale of any of the Products; or (vi) any actual or alleged breach of Retailer’s written warranty for the Products.

In the event of a claim, lawsuit, demand or other matter covered by this Agreement, Shop PO shall notify Retailer in writing and provide Retailer the opportunity to assume full responsibility for the defense and resolution of such claim, lawsuit, demand or matter; provided however, that (a) Retailer, its agents, representatives, attorneys or insurers shall not bind Shop PO Parties in settlement without the Shop PO Parties’ prior written consent, and (b) the Shop PO Parties shall be permitted to participate in its own defense at its own expense. If Retailer fails to take timely action to defend any such suit then Shop PO or the Shop PO Parties can defend such suit at Retailer’s expense.

11. Disclaimer of Warranty. 

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SHOP PO MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE PLATFORM, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE PLATFORM IS PROVIDED BY SHOP PO ON AN “AS IS” AND “AS AVAILABLE” BASIS AND RETAILER’S USE OF THE PLATFORM IS SOLELY AT RETAILER’S OWN RISK. SHOP PO DOES NOT WARRANT THAT RETAILER’S USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES SHOP PO MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE PLATFORM OR THE SALE OF ANY PRODUCTS ITEMS BY RETAILER TO CUSTOMERS THEREON, OR ANY SERVICES PROVIDED BY SHOP PO TO RETAILER IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT TO ANY PRODUCTS OR ANY RESULTS RETAILER MAY OBTAIN UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, SHOP PO MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, SUSPEND OR TERMINATE OPERATION OF THE SHOP PO PLATFORM, INCLUDING FOR THE PURPOSE OF REMEDIAL OR PREVENTATIVE MAINTENANCE, IMPROVEMENT AND FUNCTIONALITY CHANGES, AND MAY CEASE TO USE ALL OR ANY PORTION OF THE SHOP PO PLATFORM.  THE FUNCTIONALITY PROVIDED BY THE PLATFORM OR SHOP PO OR ITS DESIGNEES’ SERVERS IS NOT AN ARCHIVE; RETAILER IS SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING RETAILER CONTENT PROVIDED TO SHOP PO.

12. Limitation of Liability. 

IN NO EVENT WILL SHOP PO 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 SHOP PO HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, SHOP PO’S  AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS PAID BY RETAILER TO SHOP PO DURING THE SIX MONTH PERIOD PRIOR TO THE PRODUCT PURCHASE OR OTHER RELEVANT EVENT GIVING RISE TO THE CLAIM.

13. Miscellaneous.

(a) Notices. 

Retailer shall deliver all notices in writing and addressed to Shop PO at its address set out above or via the Portal. Retailer shall deliver all notices by nationally recognized overnight courier, e-mail (SPOoperations@sspo.com), or certified or registered mail. 

(b) Assignment. 

Retailer may not assign all or any part of this Agreement without the prior written consent of Shop PO. Shop PO may freely assign its rights or obligations hereunder.  Any assignment in violation of this provision shall be void and of no effect. This Agreement is binding upon and inures to the benefit of the Parties and each of their successors and permitted assigns.

(c) Independent Contractors. 

The Parties to this Agreement are independent contractors.  Nothing done pursuant to this Agreement will be construed as creating a partnership, joint venture, sales representative, employment relationship or agency and neither Party may be bound by acts of the other Party.  Retailer bears full responsibility for all expenses necessary to fulfill its obligations under this Agreement.

(d) Entire Agreement. 

This Agreement (including any schedules, addenda, or policies or procedures referenced herein) constitutes the sole and entire agreement between Retailer and Shop PO with respect to all matters contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to all matters contained herein. 

(e) Amendment. 

This Agreement and the policies and procedures communicated to Retailer either via the Portal or as otherwise set forth herein, govern Retailer’s use of the Platform to sell Products to Customers. Shop PO may modify the Agreement (including these Terms, the Marketplace Retailer Agreement, OC and Feed Specs) at any time by posting changes on the Portal or otherwise communicating such changes to Retailer. Retailer’s continued access and use of the Platform after such posting will be construed as Retailer’s acceptance of such modifications made by Shop PO. It is Retailer’s responsibility to monitor the Agreement, including these Terms, for changes from time to time. In some cases, Shop PO may, but is not obligated to, provide Retailer with notice of any changes to the Agreement and/or policies or procedures. All notices provided by Retailer through the Portal, or any communications by email, fax, or any other form of electronic communications by and between the Parties will satisfy any legal requirement that such communications be in writing. All rights not expressly granted herein are reserved by Shop PO and may be exercised by Shop PO without restriction. In the event of any conflict between the terms of these Terms and the terms of the Marketplace Retailer Agreement, the Marketplace Retailer Agreement shall govern.

(f) Waiver. 

The waiver by a Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.  If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall remain in full force and effect.

(g) Governing Law/Collection/Claim. 

This Agreement (including applicable Shop PO policies and procedures) and all matters arising out of or relating to this Agreement shall be governed by the Applicable Laws of the State of New York, without regard to its conflict of law provisions.  To the fullest extent permitted by Applicable Laws, no claim under this Agreement may be joined to any other claim and no class action proceedings will be permitted. Each Party hereby irrevocably waives its right to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.  Should Shop PO need to resort to legal process to effect collection of any amounts due to it with respect to this Agreement, Retailer shall be liable for all costs and attorney's fees incurred by Shop PO as a result of said collection. ANY CLAIM RETAILER HAS MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CLAIM OR WILL BE VOID AND UNENFORCEABLE.

(h) Force Majeure. 

Neither Party will be liable to the other for any failure to perform its obligations under this Agreement to the extent such failure is due to war, riots, embargoes, strikes or other concerted acts of workers, casualties, accidents or other causes to the extent that such failure and the consequences thereof are reasonably beyond the control and without the fault or negligence of the Party claiming excuse.

(i) Headings/Counterparts. 

The section headings used herein are for convenience only and shall not be given any legal import. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but both of which together shall constitute one and the same original.  This Agreement may be executed by facsimile and/or electronic copy, and such signatures shall be binding and deemed original for the purposes of implementing and enforcing this Agreement.

Schedule A - Definitions

Account:  Retailer’s marketplace account, which may be accessible through the Portal.

Applicable Laws:  All U.S. and international laws, ordinances, rules, regulations, orders, judgments and decrees, as the same may change from time to time, in any territory that apply to a Party’s obligations under this Agreement.

Base Selling Prices:  The selling prices set by Retailer that correspond to the selling prices on the Platform prior to the application of promotional pricing.

Customer: Any end user, visitor or customer accessing the Platform, or placing or receiving any order for Products via the Platform. Customers are owned exclusively by Shop PO.

Customer Personal Information:  Information about identified or identifiable Customers and related third-parties (such as third parties to whom Customers designate as recipients for shipments), including without limitation names, contact information, email address, purchase information, and the fact that individuals have a relationship with Shop PO, received as a result of sales and other activity through the Platform.

Damages:  Liabilities, losses, damages, expenses, settlements, costs or judgments, including reasonable attorneys’ fees.

IP Rights:  All intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), Confidential Information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and “rental” rights and rights to remuneration.  With respect to the Platform, IP Rights includes all technology, infrastructure, know-how, design features, methods and materials used to provide, maintain and display the Platform.

Platform:  Shop PO’s online outlet shopping platform and any mobile applications. The Platform includes the proprietary ecommerce platform www.shoppremiumoutlets.com and any successor site and its related applications and interfaces.

Portal:  The online interface by which Retailer accesses its marketplace Account, communicates with Shop PO, uploads its Retailer Content and Products, manages its Customer orders, and other such activities related to this Agreement, in any event as such Portal may be made available by Shop PO from time to time.

Products:  The goods, offers and services Retailer markets and/or lists for sale to Customers on the Platform.

Product Price:  The actual price paid by a Customer for a Product sold by Retailer on the Platform after giving effect to any promotions or discounts successfully applied plus any shipping fees charged by Retailer.

Restricted Products:  The list of items that Shop PO prohibits. This list is not exhaustive, as there may be other items that Shop PO prohibits. Shop PO strives to maintain high quality and reserves the right to modify our list of Restricted Products at any time. Please note that there may be exceptions to the list where Shop PO will authorize pre-approved Retailers to sell an item or category on this list on a case-by case basis.  Shop PO prohibits the following:

• Anything illegal, whether to sell in the United States, or any products that are illegal on a state or municipal level
• Alcoholic beverages
• Animals
• Body-piercing or body-piercing equipment
• Branding or branding equipment
• Currency, Coins, Cash Equivalents, and Gift Cards
• Drugs or other controlled substances or products that are intended to simulate illegal drugs (or items containing them)
• Drug paraphernalia
• Dietary supplement containing ephedrine group alkaloids
• Explosives, including fireworks
• Hazardous or dangerous chemicals (or items containing them)
• Guns, gun parts and ammunition
• Lottery tickets or games
• Medical goods, including (1) products that require FDA clearance or approval and have not been cleared or approved by the FDA for over-the-counter use or (2) certain other medical devices (regardless of FDA clearance or approvals), such as catheters or hearing aids - please contact us with any questions
• Real property and real estate
• Recalled products (visit www.recalls.gov)
• Stocks and other securities
• Tattoos or tattoo equipment
• Tobacco or products that contain tobacco, or any other product containing nicotine
• Weapons
• Any material, including books, articles, magazines, photographs, recordings, videos, motion pictures with sexually explicit, pornographic, or obscene content
• Tanning equipment

Retailer Content:  Retailer Marks and all content provided to Shop PO, or which is accessible by Shop PO, by Retailer hereunder, including, without limitation, all product names, logos, text, images, inventory data, data feeds, Product listings (including Product disclaimers, warnings, notices, labels, warranties, or other content required by Applicable Law, including California Proposition 65) information about promotions and special offers and other information or materials about Retailer or its Products. 

Retailer Marks:  All of Retailer’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.

Retailer Parties:  Retailer and its affiliates and related entities, and each of their respective officers, directors, employees, shareholders, consultants, subcontractors, suppliers, agents, licensees, successors and assigns.

Retailer Taxes:  Any and all  goods and services, use, excise, import, export, value added, consumption and other taxes assessed, incurred or required to be collected or paid for any reason in connection with Retailer’s business or any advertisement, offer or sale of Products by Retailer on or through the Platform.  Retailer Taxes shall include any penalties and interest assessed by a tax or other government agency.

Shop PO Parties:  Shop PO and its affiliates and related entities, and each of their respective officers, directors, employees, shareholders, consultants, subcontractors, suppliers, agents, licensees, successors and assigns.

Transactional Data:  Information regarding the fulfillment of Customers’ order, including the Customer’s ship to name, ship to address, the Products purchased, the purchase price(s) of such Product and any related information.  Transactional Data is owned exclusively by Shop PO.

Vendors:  Subcontractors used by Shop PO to provide any features and/or functions of the Platform.