Sellers Terms & Conditions
INTRODUCTION
The Seller acknowledges and agrees that by joining Activemile's Marketplace (“Activemile”), expressly agrees to be bound by the following terms and conditions, which may be updated and amended byActivemile from time to time at its sole discretion. Any amendments to this Agreement shall become effective and binding on the Seller as soon as the amendments have been published on this website by Activemile (as applicable). This Agreement contains the terms and conditions that govern the Seller’s access to, and use of, the Activemile Marketplace and is an agreement between the Seller and Activemile.
1. Definitions
1.1. Unless the context indicates otherwise, the words and expressions set out below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
1.2. “Affiliate” means any entity that controls, is controlled by or is under common control with Activemile, where "control" means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies and operations of such entity, whether through ownership of voting securities, by contract or otherwise;
1.3. “Content” means any information that may be generated or encountered through use of the Activemile Marketplace, such as user interfaces, visual interfaces, trademarks, logos, data files, device characteristics, written text, software, graphics, photographs, images, sounds, artwork, messages and computer code, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Activemile Site.
1.4. “Activemile Marketplace”, “the Marketplace”, “Activemile”, “Activemile Site”, “the website” and “us” all mean Activemile.com, a website owned by InStock FZ LLC a Limited Liability Company duly incorporated under the laws of the Emirates of Fujairah with commercial license number 15778/2020 and having its registered office at Dubai, United Arab Emirates; and shall include its Affiliates;
1.5. “Activemile Shipping & Returns Policy” means Activemile's current policy which sets out Activemile's standard shipping terms, customer satisfaction and returns policy which is available on Activemile website, and as may be updated and amended from time to time at the sole discretion of Activemile.
1.6. “Activemile” means www.activemile.com and applicable applications;
1.7. “Payment Card Data” means any information located on a Payment Card, such as, but not limited to, debit or credit card number, expiration date, CCV number, pin number, cardholder name, or cardholder address;
1.8. “PII” means any information that can be used to identify an individual and/or information that constitutes personal identifiable information.
1.9. “Referral Fee” means the commission that Activemile will retain from each sale of the Seller’s Products made through Activemile;
1.10. “Sales Proceeds” means the gross sales proceeds from the sale of the Products, including VAT and excluding shipping;
1.11. “Store Dashboard” shall mean the web based tool or other web services or interfaces, provided by Activemile Marketplace that the Seller can use to manage its settings, content and other information related to the Marketplace Program, and including all associated product listing requirements;
1.12. “Seller Share” shall mean the sale proceeds collected from the sale of the Sellers Products less the referral fee earned by Activemile for such products;
1.13. FBA (Fullfilled by Activemile) shall mean the delivery & handling services that are agreed to be under the responsibility of Activemile.
2. Third Party Service Providers
2.1. The Seller acknowledges that Activemile may contract a service provider to provide management software and services for the Marketplace Platform. The Seller may provide content to Activemile Marketplace using the software and/or services of a service provider.
3. License of Seller’s Content
3.1. Seller hereby grants Activemile Marketplace, its affiliates, and marketing partners, a non-exclusive, royalty-free, perpetual, irrevocable right and license to publish, use, reproduce, distribute, transmit, display, modify, create derivative works of and otherwise commercially exploit all content (excluding the Seller Marks) in connection with the sale of products through Activemile and for the listing, advertising, marketing and promotion of such products or the Marketplace Platform, including without limitation, through Activemile, third party websites, e-mail, social media or any other medium. Seller agrees that Activemile Marketplace may permit users of Activemile to share and post content on their own social media outlets.
3.2. Seller also grants Activemile Marketplace and its Affiliates and marketing partners a non-exclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit and display Seller’s Marks during the term in connection with the Marketplace Platform.
4. Product Information and other content
4.1. Seller will provide Activemile's onbaording team all the required content, inventory, and pricing per unique product. The Seller shall provide such information at least once a week and more if possible. In addition, the Seller will:
4.1.1. use commercially reasonable efforts to ensure the information provided always has an accurate error-free available inventory count per product listed on the website.
4.1.2. at least every day update the Activemile's onboarding team with an error-free updated inventory feed for only those Products where inventory levels have changed since the last inventory feed provided for such Product;
4.1.3. provide Activemile Marketplace's onboarding team through the email communication with a daily inventory feed for all Products;
4.1.4. provide Activemile Marketplace with all Content requested by Activemile Marketplace, including without limitation, the Product information
4.1.5. only provide Content for Products that fit into the categories or parameters.
4.1.6. The Seller will be held solely responsible for the accuracy of its Pricing, available Inventory and all Content for Products and will be obliged to honor any order placed by a Customer through Activemile as a result of the Content provided.
4.1.7. If Seller is restricted from selling certain Products on Activemile due to supplier brand restrictions or if Seller is not an authorized reseller for any Product, Seller will withhold such Products from the assortment it provides on Activemile Marketplace. Provided that if Seller removes a Product from Activemile due to brand restrictions or because Seller is not an authorized reseller it will promptly notify Activemile in writing of such removal. Upon Activemile's request, Seller will provide Activemile with a list of all Products withheld from the Marketplace Program (including why such Product is being withheld).
4.1.8. Activemile will make commercially reasonable efforts to post updated Content provided by Seller on a daily basis through its standard transmission process; provided that Seller acknowledges that Activemile Marketplace will impose freezes on Content updates from time to time in connection with releases on Activemile.
5. Product Authenticity and Safety Authenticity/Authorization
5.1. Seller will receive all Products sold through the Marketplace Platform directly from the brand owner or from an authorized supplier of the brand owner, and Seller must be an authorized reseller of the Products. Seller will maintain adequate processes and procedures for conducting diligence to ensure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. Upon Activemile's request, Seller will promptly provide Activemile Marketplace with:
5.1.1. certificates of authenticity (or similar documentation) for Products; and
5.1.2. documentation (e.g. email verifications from the brand owner or supplier) showing that Seller is permitted to sell specific brands or Products through Activemile in the United Arab Emirates.
6. Fees and Payments
6.1. Activemile will earn a Referral Fee equal to a percentage of Sales Proceeds from each sale of Seller’s Products through Activemile. The Referral Fee Percentages for Seller’s Products are specific to each category and are listed on the website. The Referral Fee Percentages are subject to change at any time, without prior notice to the Seller, and shall be effective as soon as the changes are reflected on Activemile's website.
6.2. For each order that meet the Deemed Completion criteria, the Seller’s share is equal to any Sales Proceeds not previously remitted to Seller as of the applicable Payment Calculation Date (which Seller will accept as payment in full for Sellers Transactions), less: (a) the Referral Fees listed on Activemile website; (b) the Variable Closing Fee if applicable; (c) any other applicable fees described in this Agreement (including any applicable Program Policies); and (d) any taxes that Activemile automatically calculates, collects and remits to a tax authority according to applicable law.
6.3. An Order is deemed complete only once:
6.3.1. The Product has been delivered with a proof of delivery signed by the customer; and
6.3.2. The returns and/or cancellation period stipulated in Activemile's Shipping & Returns Policy has expired
6.3.3. Activemile will make payment of the Seller Share for Orders that meet the Deemed Completion criteria every 15 days. When these dates do not fall on business days, payment will be made on the next business day after such a date.
6.3.4. For the sake of clarity, Orders that meet the Deemed Completion criteria on or before the 14th of a month will be paid on the last day of that month. Orders that meet the Deemed Completion criteria after the 15th of a month (but before the last day of that month) will be paid on or before the 15th day of the following month.
6.4. The Seller expressly acknowledges and accepts that payment of the Seller Share by Activemile shall at all times be subject to Activemile having received the corresponding Sales Proceeds from the Customer. Activemile shall have no liability to the Seller, and the Seller shall have no claim against Activemile, for any failure by Activemile to make payment of the Seller Share in circumstances where Activemile has not received the corresponding Sales Proceeds from the Customer.
6.5. Parties acknowledge that Activemile has the right to recover and enforce the payment of any amounts due and owed by the Seller under the Agreement and shall include the right to set-off such amounts against the total amount due from Activemile.
7. Taxes
7.1. The Seller shall bear and shall pay any and all liabilities or claims for any taxes, or any other governmental charges which any governmental authority claiming jurisdiction over the Agreement or the area of operations hereunder may impose, assess or levy against the Seller on account of or resulting from the Seller’s execution of or performance under the Agreement.
7.2. The Seller shall defend and indemnify Activemile against liabilities or claims for taxes which are obligations of the Seller and are assessed by and paid to any taxing authority by Activemile in connection with the Seller’s operations under this Agreement. Such indemnification shall include interest and penalties only if the interest and penalties are assessed and paid as a result of incorrect or inaccurate information supplied by Activemile to the Seller.
7.3. The Seller, in the event that it is so required by law, may withhold any tax or governmental charge imposed, levied, or assessed on account of Activemile’s operations pursuant to the Agreement. In this event, the Seller shall provide valid support documents and tax deposit receipts to Activemile. If the Seller fails to do so, Activemile shall have right to recover compensation and payments from the Seller.
7.4. All compensation and payments due to Activemile hereunder are presumed to be exclusive of any value added tax, sales tax or similar tax levied on such compensation or payments as per local tax laws. Activemile shall charge such taxes separately and additionally and shall provide valid invoices to Seller according to local tax regulations.
7.5. Should there be any increase in Activemile’s cost in the event of any changes in the taxation laws, decrees, ruling, practices or regulations of the host country or any changes in the interpretation of the same made, published or become effective after the date of the Agreement, both Activemile and the Seller shall mutually agree and execute the increase in compensation of Activemile.
7.6. In the event of any discrepancy of tax report/statement, the seller shall notify Activemile within three working days from the date of receipt of such report failing which it is deemed that the tax report is accepted as correct and complete by the Seller.
8. Purchase/Order Processing, Fulfillment and Shipping Orders
8.1. Customers purchasing Products through the Activemile website will place Orders using the Activemile’s website checkout and payment gateway or cash on delivery. Activemile will collect all proceeds from such transactions. Activemile will make available on the Purchase Order all the Transaction Information.
8.2. Sellers need to manage all Orders received on Activemile's website.
8.3. Sellers will only receive Orders that have been paid for in full and accepted by Activemile.
8.4. The Seller is obligated to update Activemile that the Order is ready for collection “Ready for Collection” (which means the Order is packed and ready for collection by the courier), via email within two (2) hours of receiving an Order, during business hours.
8.5. The Order status will be deemed “Complete” once the Order is sent Out with Courier by Activemile.
8.6. Activemile will bear the risk of credit card fraud occurring in connection with any Order.
8.7. The Seller shall bear the full risk in and to any valid cancellation of an Order by a Customer, and expressly acknowledges that Customer’s may have additional rights against the Seller as a result of the terms and conditions contained on the Activemile website (if any).
8.8. If Seller cannot fulfill the entire quantity of a purchase order line in an Order, then the Seller will (prior to acceptance) promptly notify Activemile of such inability. If the Order consists of one purchase order line and the Seller cannot fulfill the entire quantity for, then the Seller will be expected to reject or cancel the entire Order and promptly notify Activemile via email or call and will provide any additional information that may be required by Activemile.
8.9. All packaging material needs to comply with the minimum packaging standards as set out by Activemile on Activemile’s website. Under no circumstances should packaged orders contain any materials that are not included as standard with regard to the specific Product being sold.
8.10. The seller acknowledges that Activemile only features products on its website which are in stock and all orders should be delivered within 1 to 3 business days. Therefore, the seller understands the critical importance to make any order ‘ready for collection’ within maximum two (2) hours.
8.11. It is agreed between parties that Activemile will complete the shipping leg of all Orders on the Sellers’ behalf. Activemile will either collect approved couriers through their own fleet or make use of approved couriers to collect and distribute all Seller Orders.
8.12. Sellers are obligated to make available all facilities as are necessary in order for Activemile approved couriers to collect packaged orders from a single Seller warehouse or collection point.
8.13. Seller is obligated to complete the packing, and waybill printing functions in order for the “Ready for Collection” status to be achieved.
8.14. Seller shall avoid multiple shipments and shall prepare all ordered items together as reasonably practicable.
8.15. Seller shall pack items using adequate packaging cardboard to protect the items during transport and with sufficient wrapping inside the box to prevent items from moving during the transport.
8.16. The unbranded boxes shall be all Regular Slotted Container (RSC) type.
9. Cancellations, Returns and Refunds
9.1. It is agreed between parties that Activemile shall process and fulfill all Customer requests for cancellations, returns, refunds and/or customer service price adjustments. Seller will stop and/or cancel any order if requested by Activemile; provided that if Seller has transferred Products to Activemile or one of Activemile’s selected couriers, Seller will immediately notify Activemile and use commercially reasonable efforts to stop and or cancel the delivery.
9.2. The Seller expressly acknowledges and agrees that it shall at all times be bound by, and agrees to adhere to, the terms and conditions of Activemile’s Shipping & Returns Policy as may be updated and amended from time to time at the sole discretion of Activemile.
9.3. Activemile retains the right to accept or reject all refund, return, and exchange requests by Customers. Activemile will process all refunds, returns, and exchanges immediately upon confirmation from the Seller, which shall be provided by the Seller within 24 (twenty four) hours from receipt of a request from Activemile, failing which the Seller will be deemed to have provided its confirmation by default.
9.4. Refunds, returns, and exchanges will be determined via Activemile’s Shipping & Returns Policy. Seller will be responsible for all exchanges and replacements, where applicable.
9.5. A Customer may return or cancel any order for a Product sold through the Activemile Site at any time within, and in accordance with, the Activemile Shipping & Returns Policy. The Seller is obligated to accept any return or cancellation that meets the return policy as stipulated in the Activemile Shipping & Returns Policy or on the Activemile Site. Activemile will use all reasonable and commercially viable means to endeavor to keep such returns and cancellations to a minimum.
9.6. Seller will be responsible and will pay for the cancellation fees as set out on Activemile’s Fee Schedule on the website, incurred in ensuring that the Product collected from the Customer is returned back to the Seller. Alternatively, 50% of the cancellation fees will be waived in case the Seller will approve for Activemile to keep the returns to be stored in Activemile’s warehouse for further sale. This will only apply to undamaged (and without any defects) returns.
9.7. A Customer may return Products sold by the Seller and request that Activemile collects the Products from the same location they were delivered to.
9.8. The Seller acknowledges that a return in terms of Activemile’s Shipping & Returns Policy shall be deemed to have complied with Activemile’s Shipping & Returns Policy if the Customer returns the Product to the Seller within the stipulated period. This will apply notwithstanding the fact that the Seller may only receive the actual Products at a time after expiration of the applicable period.
9.9. The ultimate decision on whether or not to refund a Customer will always lie with Activemile.
9.10. Sellers are obligated to facilitate all warranty claims made within 60 (sixty) days of purchase date by the Customer, or within the warranty period provided by the applicable Original Equipment Manufacturer and attached to the Product.
10. Parity with Seller Sales Channels
10.1. Seller will maintain parity between the Products it offers through the Seller Site and the Products offered on the Activemile Site by ensuring that at all times:
10.2. Except for in connection with Excluded Offers, the selling price and every other term of offer and/or sale of the Products (including associated shipping and handling charges and options, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies) is at least as favorable to users of the Activemile Site as the most favorable terms upon which that Product is offered and/or sold via the Seller Site; customer service for the Products is at least as responsive and available and offers at least the same level of support as the most favorable customer service offered in connection with the Seller Site; and the Content provided by Seller to Activemile for the Activemile Site is of at least the same level of quality as the highest quality information displayed or used on the Seller Site and it provides users of the Activemile Site with at least as much product information, images and other content as the information provided on the Seller Site.
10.3. Seller will notify Activemile Marketplace by email at [email protected] of all special offers and promotions (i.e., where Seller discounts an item or items by a certain amount for a certain period of time) offered on the Seller Site. Seller will make special offers and promotions available to Activemile Customers in connection with the Marketplace Program and will use commercially reasonable efforts to allow Activemile to support any such special offer or promotion on the website. If Seller makes any Public Promotions generally available to all users of the Seller Site and Activemile cannot support such Public Promotion, then Seller will provide an equivalent offer or promotion to Activemile Customers to the extent possible. For example, if Seller lists a promotion code on the Seller Site that can be used by any customer for 20% off specific Products or all Products sold on the Seller Site and Activemile cannot support the promotion code, Seller will reduce the price of such Product or all Products, as applicable, on the inventory update information by 10% for the duration of the special offer or promotion on the Seller Site. Seller will work in good faith with Activemile to maximize the number of Seller offers and promotions (including equivalent offers and promotions) made available to Activemile Customers.
10.4. Activemile may choose, in its sole discretion, not to permit certain special offers or promotions offered by Seller on the Activemile Site (e.g., where Activemile Marketplace cannot support the special offer or promotion) and may request that Seller filter out any such special offers or promotions. Notwithstanding the foregoing, Seller will not be required to make Excluded Offers available to Activemile Customers, provided that, if Activemile is able to support any Excluded Offer at any time during the Term and desires to do so, it will notify Seller and after receipt of such notification, Seller will make such special offer or promotion available to Activemile in connection with the Marketplace Platform.
11. Recalls and Defects
11.1. Seller is solely responsible for any non-conformity or defect in, or any public or private recall of Seller’s Products. Activemile will have no responsibility or liability for any recalls of Products sold through the Activemile Site. If Products are subject to a recall, Seller is responsible for all matters, costs and expenses associated with such recall, including without limitation, notices and refunds to Customers, contact and reporting of the recall to any governmental agency having jurisdiction over the affected Products, and compliance with all applicable Law with respect to such recall. Seller will promptly remove any recalled Products from the Activemile Site by unpublishing or retiring the Product through sending an email to ActiveMile marketplacr. Seller will notify Activemile Marketplace by e-mail at [email protected] of all Product recalls within 24 hours of becoming aware of the recall. Seller will promptly provide Activemile Marketplace with all information reasonably requested in connection with the recall of any Product.
12. Contact with customers and customer service escalation
12.1. Activemile will be responsible for providing 1st line telephonic or email support for Customers;
12.2. Where Activemile Marketplace is unable to resolve a Customer support query, Activemile will escalate the support query to the Seller for 2nd line support and resolution.
12.3. Seller will always represent itself as a separate entity from Activemile when providing customer service for its Products sold through the Activemile Site.
12.4. For the sake of clarity, the Seller shall not be entitled to contact the Customer directly under any circumstances without having first obtained Activemile’s prior written consent.
12.5. Neither Party will disparage the other party or its affiliates or its or their products or services when performing obligations under this Agreement.
13. Seller systems and service levels
13.1. Seller shall be solely responsible for the adequate maintenance and uptime of all Seller systems that are necessary for the Seller to fulfill Orders and meet its obligations of this Agreement.
13.2. The Seller shall notify Activemile within 2 (two) business hours, of any down-time or related system issues, that may or will have an impact on the Sellers ability to fulfill orders or otherwise meet its obligations on terms of this agreement.
13.3. The Seller will comply with any service levels prescribed by Activemile from time to time, in connection with Seller’s systems that, directly or indirectly, impacts the Marketplace systems and Platform; and
13.4. The Seller shall at all times comply with the Order and Customer Service Level Agreement, attached hereto as Annexure B.
14. Reporting and Audits
14.1. Seller will, within a reasonable period of time, not to exceed thirty (30) days, following request from Activemile, make commercially reasonable efforts to provide Activemile with any reports, information or other documentation relating to Seller’s compliance with this Agreement and applicable Law reasonably requested by Activemile; provided, however, that in the event Activemile requests that Seller provide Activemile with copies of reports that Seller was required to file with any regulatory agency, Seller will provide such reports within seven (7) days of Activemile 's written request.
14.2. Seller will keep accurate and complete books, records and accounts related to Marketplace transactions and this Agreement, and will allow Activemile, or its duly authorized representative, the right, upon not less than five (5) business days prior written notice, during the Term of this Agreement and for two (2) years after its termination or expiration, to conduct, during regular business hours, full and independent audits and investigations of all information, books, records and accounts reasonably required by Activemile to confirm Seller’s compliance with the terms of this Agreement and applicable Law.
14.3. Upon Activemile’s request, Seller will provide Activemile with written certification from an officer of Seller stating that Seller has complied with any of Seller’s obligations under this Agreement, including, for example and without limitation, consumer product safety laws, authenticity of Products, or restrictions on use of Transaction Information.
15. Representations and Warranties
15.1. Each Party hereby represents and warrants to the other Party the following:
15.2. The Party is a duly organized, validly existing and in good standing under the laws of the Emirate where such Party was organized and the Party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid and binding obligations of the Party.
15.3. Neither the execution and delivery of this Agreement by the Party nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract or license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.
15.4. Seller hereby represents and warrants to Activemile the following:
15.5. Seller has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances and to sell the Products.
15.6. Seller and all of its employees, subcontractors, agents and suppliers will comply with all applicable Law, as may be amended from time to time, in performing any of its obligations or exercising any of its rights under or related to this Agreement. All Products (including all packaging) and Content will comply with applicable Law. The production, manufacturing, offer, sale, shipping and delivery of all Products will comply with all applicable Law. Products will not be produced or manufactured by child labor or convict or forced labor.
15.7. Seller’s principal place of business is in the United Arab Emirates and Seller will not conduct any operations relating to this Agreement from outside the United Arab Emirates.
Content
15.8. All Content will be truthful and accurate. Content will not:
15.8.1 be misleading or deceptive
15.8.2 be defamatory, libelous, threatening or harassing;
15.8.3 infringe upon or violate any Intellectual Property Rights or other right of any third party;
15.8.4 promote or depict gratuitous violence, the use of alcohol, tobacco or illegal substances or adult-oriented content; or
15.8.5 reflect unfavorably on Activemile, its Affiliates, or the Activemile Site or be the type of content that could otherwise reasonably adversely impact or damage the reputation or public image of Activemile or its Affiliates. Seller will not use the Content to redirect Activemile Customers to any other sales channels.
15.9. Seller will only offer Products for sale on the Activemile Site that may be sold and shipped throughout the United Arab Emirates. Seller will not offer for sale any Products through the Activemile Site that Activemile indicates as prohibited, including without limitation, the Prohibited Products attached hereto as Annexure A. The list of Prohibited Products may be updated by Activemile from time to time and Activemile will notify Seller of such updates by email.
15.10. Except as otherwise expressly provided herein, the representations and warranties made in this Agreement are continuous in nature and will be deemed to have been given by Seller at the execution of this Agreement and each stage of performance of this Agreement.
16. Control of Activemile Site
16.1. Activemile has the sole right to determine the content, appearance, design, functionality and all other aspects of Activemile Site, including, without limitation, all content provided in connection with the sale of Products sold by Seller through the Activemile Site. Activemile intends to use one set of content for each item sold through the Activemile Site. Activemile may suspend any Product listing or display of Content or refuse to list any Products in its sole discretion and Activemile may require Seller to exclude any Products from the Activemile Site. If Activemile requests that Seller removes Products from the Activemile Site, the Seller will make commercially reasonable efforts to remove those Products by unpublishing or retiring such Products through contacting Activemile Marketplace within twenty four (24) hours of such request so such Products no longer appear for sale on the Activemile Site and Seller will not include such removed Products on Activemile Site at any time unless the inclusion of such Products is specifically authorized by Activemile in writing. The Seller acknowledges that Activemile only authorizes products to be featured on the website which are available in stock and can be delivered within maximum 24 hours. Activemile will have sole control of any marketing of:
16.2. any products on the Activemile Site, including without limitation, Seller’s Products; and
16.3. the Marketplace Platform.
17. Ownership and Use of Transaction Information
17.1.Activemile will own all Transaction Information. Seller may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of the Agreement, the website Privacy Policy and applicable Law. Seller will not:
17.2. disclose or convey any Transaction Information to any third party (except as necessary for Seller to perform its obligations under the Agreement);
17.3. use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes;
17.4. contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; or
17.5. target communications of any kind on the basis of the intended recipient being an Activemile Marketplace user.
18. Ratings and Reviews
18.1. Activemile Marketplace uses mechanisms that rate or review, or allow shoppers to rate or review, Seller’s Products and Seller’s performance as a seller and Activemile may make these ratings publicly available. Activemile will have no liability to Seller for the content or accuracy of any ratings or reviews. Seller will have no ownership interest in or license to use any rating or reviews posted on the Activemile Site.
19. Suggestions and Feedback
19.1. If Seller or any of Seller’s Affiliates or agents elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to Activemile in connection with or related to any Activemile Site or The Marketplace Platform (including any related technology), Activemile will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to protect Activemile Marketplace’s systems and customers, or to ensure the integrity and operation of Activemile’s business and systems, Activemile may access and disclose any information Activemile considers necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content.
20. Confidential Information and Information Security
20.1. Seller shall, at all times during the term of this Agreement and three (3) years after its termination, keep any and all information acquired by Seller that may be considered confidential and secret by Activemile or our subsidiaries or affiliates. Such information may include, but is not limited to, information pertaining to Activemile that may be of value to a competitor. Seller shall not disclose such information to any third party, except in the following context:
20.1.1. If such information becomes public knowledge beyond seller’s control; or
20.1.2. Disclosure to any government or other regulatory body if such body requests such information and such information is required by applicable law.
21. Term Termination and Suspension Term
21.1. This Agreement will apply to the Seller from the moment of listing the seller's product on Activemile's site, and shall continue to apply for so long as the Seller remains part of the Marketplace Platform;
21.2. Seller acknowledges and agrees that Activemile may amend and/or replace this Agreement at any time in its sole discretion, and by logging onto the website, the Seller shall automatically be bound by the latest Agreement.
21.3. Either Party may terminate this Agreement for any reason by giving 48 (forty-eight) hours prior written notice to the other Party.
21.4. Seller will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to:
21.4.1. fulfill all Orders that have been accepted but not yet delivered;
21.4.2. provide customer service to Customers who purchased Products on the Activemile Site; 21.4.3. pay any invoices delivered by Activemile in connection with the Agreement;
21.4.4. notify Activemile and Customers of any recalls of its Products;
21.4.5. remit any taxes collected to the proper jurisdiction(s); and
21.4.6. immediately notify Activemile of any security breach that allows a third party to view or access or otherwise compromises any Transaction Information.
21.5. Activemile will pay Seller the Seller Share attributable to Orders placed by Customers prior to the termination of the Agreement in accordance with the payment terms set forth in this Agreement.
21.6. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement will survive its termination.
22. Indemnification
22.1. Seller will defend, indemnify and hold harmless Activemile and its Affiliates and each of their respective stockholders, successors, assigns, officers, directors, employees, agents, representatives (each an “Indemnitee”) from and against any and all Losses arising out of or related to any third party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:
22.1.1. an actual or alleged breach by Seller of this Agreement;
22.1.2. the Seller Site and other sales channels, the Content or the Products (including, without limitation, the offer, sale, refund, or return of Products) or any violation of Law with respect to the foregoing (including but not limited to the Consumer Rights), or any actual or alleged infringement of any Intellectual Property Right by any of the foregoing, or personal injury, death or property damage related thereto or arising therefrom; and
22.1.3. any and all income, sales, use, ad valorem, and other taxes, surcharges, fees, assessments or charges of any kind whatever, together with any interest, penalties and other additions with respect thereto, imposed by any federal, state, local or foreign government in any way related to the sale of the Products on the Activemile Site, specifically excluding, however, any such taxes related to Activemile’s net income.
22.2. Upon receipt of notice, from whatever source, of Claims against Activemile for which Seller is obligated to indemnify Activemile, Seller immediately will take necessary and appropriate action to protect Activemile’s interests with regard to the Claims. Activemile will notify Seller of the assertion, filing or service of any Claims of which Activemile has knowledge, as soon as is reasonably practicable. Seller will use counsel reasonably satisfactory to Activemile to defend each Claim.
22.3. Neither Activemile, nor its affiliates, officers, directors, licensors, suppliers, employees or agents make any representations or warranties, express or implied, that the Activemile site, the marketplace platform, any store dashboard, services provided by Activemile or any service provider, or software used to provide the services will be uninterrupted, timely, secure, virus-free or error-free, and seller agrees that Activemile marketplace will not be liable for the consequences of any interruptions or errors, including without limitation, system or software failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of any transactions. neither Activemile nor its affiliates, officers, directors, licensors, suppliers, employees or agents make any representations or warranties, express or implied, to seller with respect to the sale of seller’s products through the Activemile site pursuant to this agreement, and all such services provided by Activemile are provided on an “as-is” and “as available” basis.
22.4. Activemile and its affiliates, employees, directors, officers, agents, licensors and suppliers expressly disclaim all warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of proprietary rights and those implied warranties arising out of course of performance, course of dealing or usage of trade.
23. Limitation of Liability
23.1. In no event shall Activemile be liable to seller or any third party under any theory of tort, contract, strict liability or other legal or equitable theory for:
23.2. Lost profits, lost revenue, loss of business or loss of data;
23.3. Exemplary, punitive, special, incidental, indirect or consequential damages or the like; or
23.4. For cost of cover, recovery or recoupment of any investment, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether Activemile has been advised of the possibility of such damages.
23.5. In no event shall Activemile’s aggregate liability to seller or any third party for any claims, losses, injuries, suits, demands, judgments, liabilities, costs, expenses or damages for any cause whatsoever, and regardless of the form of action or legal theory, exceed the total referral fees paid by seller to Activemile pursuant to this agreement during the six month period preceding the event giving rise to such liability. The limitations of liability reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
24. Insurance, Risk, and Ownership
24.1. Seller will maintain, at Seller’s expense, commercial general, umbrella and/or excess liability in the aggregate covering liabilities caused by or occurring in connection with this Agreement or Seller’s business (including without limitation, product, completed operations, hijacking, overturning and bodily injury), or as otherwise required by Activemile Marketplace from time to time. All such policies will be occurrence based, will include Activemile Marketplace as an additional insured, and will contain a waiver of subrogation.
24.2. The Seller acknowledges that it shall retain all risk in and to the Products until the Products have been delivered with a proof of delivery signed by the Customer. Ownership in and to the Products shall pass to the Customer when the Products have been delivered with a proof of delivery signed by the Customer.
25. Choice of Law, Jurisdiction and Venue
25.1. The Parties mutually acknowledge and agree that this Agreement will be construed and enforced in accordance with the Laws of the United Arab Emirates as applicable in the Emirates of Dubai and without regard to any conflict of law provisions. The Parties agree that in any dispute arising from or related to this Agreement, shall be subject to the exclusive jurisdiction of the Dubai Courts, United Arab Emirates. The Parties mutually acknowledge and agree that they will not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The Parties acknowledge that they have read and understand this Section and agree voluntarily to its terms.
26. General
26.1. Assignment: Seller may not assign (including, without limitation, by way of merger, consolidation or sale of all or substantially all of Seller’s stock or assets) this Agreement, or any of its respective rights or obligations hereunder, without the prior written consent of Activemile. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns. Any assignment or assumption without Activemile’s prior written consent will be null and void.
26.2. Integrated Agreement: This Agreement, including all Annexures and policies referenced herein, constitutes the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded in their entirety.
26.3. Amendments: Activemile Marketplace may amend the terms of this Agreement (including without limitation, any Annexures hereto) from time to time at its discretion. If Seller objects to any amendment to the terms of this Agreement (including any Annexure hereto), Seller should terminate this Agreement. If Seller continues to sell through the marketplace platform after the effective date of any amendment, Seller will be deemed to have agreed to and accepted any modifications set forth in the amendment.
26.4. Waiver: No waiver of any of the provisions of this Agreement will constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions.
26.5. Severability: If any provision of this Agreement is found by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this Agreement will not be affected thereby, and that this Agreement will in any event otherwise remain valid and enforceable.
26.6. Where any provision of this Agreement constitutes a provision in favor of Activemile, such provision shall constitute a stiplulation alteri capable of acceptance by Activemile at any time.
26.7. Independent Contractors: Activemile and Seller are acting hereunder as independent contractors. Seller will not be considered or deemed to be an agent, employee, joint venture or partner of Activemile. Seller’s personnel will not be considered employees of Activemile, will not be entitled to any benefits that Activemile grants its employees and will have no authority to act or purport to act on Activemile’s behalf. If any federal, state or local government agency, any court or any other applicable entity determines that any such personnel of Seller is an employee of Activemile for any purpose, Seller will indemnify, defend and hold harmless Activemile, its Affiliates, officers, directors, employees and agents from all liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) associated with such determination. Seller will remain primarily liable for Seller’s obligations performed by any third party and for any act or omission of any such third party.
26.8. Publicity: Except as specifically provided herein, neither Party will use the name, logo, trademarks or trade names of the other Party or otherwise, directly or indirectly, refer to the other party in publicity releases, promotional material, customer lists, advertising, marketing or business generating efforts, whether written or oral, without obtaining such Party’s prior written consent. Notwithstanding the foregoing, Activemile will have the right to refer to Seller as a participant in the Marketplace Platform in marketing and promoting the Marketplace Platform.
26.9. Nonexclusive: Each Party acknowledges and agrees that the rights granted to the other Party in this Agreement are nonexclusive and that without limiting the generality of the foregoing, nothing in this Agreement will be deemed or construed to prohibit either Party from participating in similar business arrangements as those described herein.
26.10. Force Majeure: Notwithstanding the other provisions of this Agreement, if either Party is in good faith prevented from performing its obligations under this Agreement because of an unexpected extraordinary event beyond the control of the Party concerned, including without limitation, war (declared or undeclared), acts of god, terrorism, earthquake, accident, explosion, fire or flood, such Party will promptly notify the other Party, and while so affected, the affected Party will be relieved from performing its obligations provided that, the Party affected will take all reasonable steps to promptly remedy the cause of such delay or failure if it is in its power to do so.
26.11. Store Dashboard: Seller is solely responsible for maintaining the security of its password for any Store Dashboard and for all action taken in connection with its account. If Seller has knowledge or suspects that its password has been compromised, Seller will immediately notify Activemile and fully cooperate with Activemile in investigating and preventing any further breach to Activemile’s systems. Activemile shall not be liable to the Seller for any Losses it may suffer as a result of the Store Dashboard being unavailable for any reason.
ANNEXURE A
LIST OF PROHIBITED PRODUCTS
“Prohibited Products” means:
1. cigars, cigarettes, or other tobacco products;
2. guns intended to provide lethal force (and related gun parts, kits and ammunition); mace, black powder and other explosives; disguised, undetectable or switchblade knives; martial arts weapons; or BB guns, stun guns, paintball guns, or airsoft guns;
3. any drug, vitamin, herbal product or similar substance which requires a doctor’s or other health care provider’s prescription as a prerequisite for purchase;
4. used, remanufactured, reconditioned or refurbished products;
5. stolen, counterfeit, misbranded or illegal products;
6. products that have been recalled;
7. products that violate applicable Law;
8. products that violate or infringe upon any Intellectual Property Right or other third party right;
9. products that contain material that is obscene, pornographic or offensive;
10. products containing viruses, Trojan horse, spyware or malicious code;
11. ‘sex and sensuality’ products;
12. loose gemstone products;
13. any product for which Seller is not an “authorized reseller” (as designated by the product’s manufacturer or distributor), or does not provide to Customers the manufacturer’s standard warranty therefor;
14. products containing human growth hormone;
15. any age restricted products;
16. specific products or brand names that may not be sold on the Activemile Site as are indicated by Activemile Marketplace to Seller separately in writing (which in this case may include email or through any Store Dashboard); and
17. any other types of products that in Activemile Marketplace’s discretion are not appropriate for sale on the Activemile Site as indicated by Activemile Marketplace to Seller separately in writing; provided that a Prohibited Product will cease to be a Prohibited Product when Activemile informs Seller of such change.
ANNEXURE B ORDER AND CUSTOMER SERVICE LEVEL AGREEMENT
Activemile is committed to customer service excellence. Sellers participating in the Marketplace Platform will endeavor to meet the following service levels:
1. Seller will maintain an On-Time Ship Standard of at least 99%.
2. Seller will ensure that the correct Product is delivered to the correct Customer at a rate of 99.5% of all Products shipped.
3. Seller will maintain inventory to fulfill Customer Orders that result in a cancel rate (excluding Customer requested cancellations) of 1.5% or less;
4. Returns due to damaged or defective Products shall not exceed 3% of Sales Proceeds for Products sold on the Activemile Site.
5. Seller shall limit emergency updates related to product information through any Store Dashboard to a rate no greater than .03% of its entire SKU count in Activemile’s catalogue per month; provided however, that Activemile makes no guarantee that all requests will be granted. Activemile will assess each emergency request on a case by case basis and make updates in situations Activemile deems critical.
6. Ninety-day Seller ratings shall, on average, remain above a seller rating of 90% positive.
7. Seller will within one (1) hour of receipt on a 24/7 basis, confirm every Order file received by Activemile.
8. Seller will, within two (2) hours of receipt on business days, confirm every order line within every Order file received by Activemile.
9. If agreed that Seller will deliver the product to the Customer, Seller will provide Activemile with electronic notice confirming shipment of each Product shipped and the corresponding shipment tracking information (if available) within four (4) hours of the Product/Order actually shipping so that Activemile may notify the Customer and allow the Customer to track shipment of Products.
10. Ninety percent (90%) of emails received from Activemile shall be answered by Seller within less than twenty four (24) hours of receipt.
Activemile may, at its discretion, work with a Seller to remedy any failure of a service level or performance issue under this Annexure B; provided, however, that no waiver by Activemile of any provision of this Annexure B may be deemed or constitute a waiver of any provision of this Agreement, whether or not similar, nor may the waiver constitute a continuing waiver by Activemile unless otherwise expressly so provided in writing. The failure of Activemile to require at any time performance by Seller of any of the provisions herein, may in no way be construed to be a present or future waiver of provisions or in any way affect the ability of Activemile to enforce each and every provision after such event.