Welcome to the www.marketfleet.com site (the "Site"), and/or the MarketFleet marketplace software (the "Software") and selling services (the "Services"). Any person who wants to access the Site and/or use the Software or Services to sell items must accept the terms and conditions of this Participation Agreement without change. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS PARTICIPATION AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE ARE INCORPORATED BY REFERENCE.
MarketFleet, LLC ("MarketFleet"), a Delaware limited liability company, reserves the right to change any of the terms and conditions contained in this Participation Agreement or any policies or guidelines governing the Site, Software, or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site or the site of a third party retailer where the Software may be hosted ("Third Party Retailer Site"). All notice of changes to this Participation Agreement will be posted on the Site for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND/OR THE SOFTWARE OR SERVICES FOLLOWING MARKETFLEET'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS PARTICIPATION AGREEMENT, DO NOT CONTINUE TO USE THE SOFTWARE, SERVICES, OR THIS SITE.
Use of the Site or Software and Services is limited to parties that lawfully can enter into and form contracts under applicable law. Minors are not allowed to use the Services. To register, you must provide your real name, address, phone number, e-mail address, and valid credit card information. You represent and warrant that: (a) you can lawfully enter this Agreement; and if you are a business, (b) you are duly organized, validly existing and in good standing under the laws of the country in which your business is registered and that you are registering for the Services within such country; and (c) you have all requisite right, power and authority to enter into this Participation Agreement and perform your obligations hereunder.
SELLERS' LISTING FEES AND PAYMENT TERMS
Please review the Fee Schedule and Payment Terms contained in the Seller Fees and Payment Terms page for Marketplace listing fees. All listing fees are in U.S. dollars unless stated otherwise and are incorporated herein by reference. The Fee Schedule and Payment Terms may vary in the future. The Fee Schedule and Payment Terms in effect on the date of sale of the item shall govern the transaction. You should check the fees and terms each time you participate. All fees, including but not limited to subscription plan fees, are payable upon demand on a Visa, MasterCard, American Express, Discover, JCB, or Diners Club credit card. Although MarketFleet's customary practice is to retain all Seller's fees from the Buyer's payment prior to disbursing funds to Seller less such fees, by listing an item for sale on the Site, you authorize MarketFleet to charge your credit card for amounts due if necessary to do so.
APPLICABLE POLICIES AND GUIDELINES
THE MARKETFLEET PAYMENT SERVICE
IN ORDER TO SELL ITEMS IN MARKETPLACE, YOU MUST REGISTER WITH MARKETFLEET AND USE THE MARKETFLEET PAYMENT SERVICE (the "Payment Service").
a. The Payment Service facilitates the purchase of Seller items listed on the Site. A Buyer's authorized credit card payment ("Payment Transaction") is credited to a registered Seller's Account Summary, and funds are periodically transferred to the Seller's designated checking account, to Seller via Check, or to Seller's PayPal account (collectively or individually, "Seller's Account"). The Buyer may authorize a Payment Transaction with any major credit card accepted by MarketFleet. The Payment Service helps facilitate Marketplace transactions and is not the purchaser of the Seller's goods. Seller will resolve any dispute directly with Buyer or with the assistance of the MarketFleet End to End Guarantee and not through the Payment Service. Seller must register online with MarketFleet to use the Payment Service. You must provide us true and accurate information when registering and must maintain and update that information as applicable. Seller will not impersonate any person or use a name he or she is not legally authorized to use. Seller authorizes us to verify his or her information (including any updated information), to obtain credit reports about Seller in order to approve Seller for use of the Payment Service and also from time to time while Seller is registered with the Payment Service (including credit reports about Seller's spouse if Seller lives in a community property state), and to obtain an initial credit authorization from Seller's credit card issuer at time of registration.
b. The Payment Service is available only to individuals and others who meet the terms of eligibility for the MarketFleet online selling community, who have been issued a credit card acceptable by MarketFleet, and whose applications are acceptable to MarketFleet. Payment Transactions can be credited only to bank checking accounts in the United States or any other country shown as supported by our standard functionality and enabled for your account (which functionality may be modified or discontinued by us at any time without notice). Sellers waive any rights with respect to the Payment Service when shipping to an address other than that provided by the Payment Service.
c. The Payment Service is generally available seven (7) days per week, twenty-four (24) hours per day, except for scheduled downtime due to system maintenance. We can initiate Payment Transaction credits to Seller's Account only on a Business Day when the automated clearinghouses are open for business. For purposes of this Participation Agreement, a Business Day is a Monday through Friday, excluding federal banking holidays. We will inform you of each completed transaction using our standard procedures. In addition, you can access your Payment Service transaction information online in your Seller Account. You may access the Seller's Transactions feature only with a browser that is compatible with the Payment Service, including any security features that are a part of the Payment Service.
e. All balances for a given 14-day period will be reflected in the Seller's Account Summary. We will initiate a credit to Seller's Account on a rolling 14-day cycle ("Payment Date") based on the original date of Seller's registration with the Payment Service or on the next Business Day if the scheduled Payment Date falls on a non-Business Day. If Seller requests a change to the scheduled Payment Date, the 14-day cycle will be reset to the requested Payment Date. When you either initially provide or later change your bank account information, you must wait 7 days to request a transfer to Seller's Account. After 7 days, you may request transfers to Seller's Account at any time within the 7-day cycle via the Seller's Account Summary page. We will initiate a transfer to Seller's Account on each Payment Date and, initiate a transfer to Seller's Account for the total amount of Payment Transactions you received from Buyer's authorized credit card transactions, less any refunds, adjustments, or other amounts paid to Buyers in connection with Marketplace purchases, or for funds you otherwise received since the last Payment Date. The amount of the fees for Payment Transactions will be posted to Seller's Account Summary and will be deducted from the balance of credits in the Seller's Account Summary to be remitted to you on the next Payment Date.
f. Transfers to the Seller's Account will generally be credited within 5 Business Days of the date we initiate the transfer. On occasion, we may send Seller a paper check instead of an electronic credit to Seller's bank account. We will do so, for instance, if Seller's bank will not accept an electronic credit to Seller's Account.
g. As a security measure, we may, but are not required to, impose transaction limits on some or all Buyers and Sellers relating to the value of any transaction, disbursement, or adjustment, the cumulative value of all transactions, disbursements, or adjustments during a period of time, or the number of transactions per day or other period of time. We will not be liable to Seller: (i) if we do not proceed with a transaction, disbursement, or adjustment that would exceed any limit established by us for a security reason, or (ii) if we permit a Buyer to withdraw from a transaction because the Payment Service is unavailable following the commencement of a transaction.
h. If we reasonably conclude based on information available to us that Seller's actions and/or performance in connection with the Services may result in Buyer disputes, chargebacks, or other claims, then we may, in our sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to you in connection with the Services or this Participation Agreement for the shorter of: (a) a period of 90 days following the initial date of suspension; or (b) completion of any investigation(s) regarding any Seller actions and/or performance in connection with this Participation Agreement. We will not be liable to Seller if we act in accordance with the provisions of this Section.
j. There is no fee for registering for the Payment Service. The fees for using the Payment Service in Marketplace listings are included in the Marketplace listing fees (which means there are no additional fees for use of the Payment Service). We may, in our sole discretion, waive, reduce, or reverse charges or fees for a specific transaction.
k. We may refuse service to anyone for any reason. We may earn interest or other compensation from the balances in our bank accounts that result from the timing difference between our being paid by Buyer and our bank account being debited to pay Payment Transaction credits to Seller. Seller will bear all risk of fraud or loss, including the risk of credit card fraud. We reserve the right to seek reimbursement from Seller if we, in our sole discretion, decide to reimburse Buyer under the terms of the MarketFleet End to End Guarantee, provide a refund to Buyer if Seller cannot promptly deliver the goods, discover erroneous or duplicate transactions, or receive a chargeback from Buyer's credit card issuer for the amount of Buyer's purchase from Seller. We may obtain reimbursement of any amounts owed by Seller to MarketFleet by deducting from future payments owed to Seller, reversing any credits to Seller's Account, charging Seller's credit card, or seeking such reimbursement from Seller by any other lawful means. You authorize us to use any or all of the foregoing methods to seek reimbursement, including the debiting of your credit card or checking account.
l. Seller may terminate his or her participation in the Payment Service at any time by informing us using the standard method then-currently provided by MarketFleet for such termination, and we may terminate Seller's participation in the Payment Service at any time without notice to Seller. Upon termination, Seller must pay us whatever fees were incurred prior to the effective date of the termination. Also upon termination, any pending transactions will be canceled.
m. We reserve the right, upon termination, to set off against any payments to be made to Seller, an amount determined by us to be adequate to cover chargebacks, refunds, adjustments or other amounts paid to Buyers in connection with Marketplace purchases from Seller's Account or GC Account for a prospective three-month period. At the end of such three-month period following termination, we will disburse to Seller any amount not used to offset chargebacks, refunds, adjustments, or such other amounts paid to Buyers, or seek reimbursement from Seller via any of the means authorized in Section k. above for any additional amount required to offset chargebacks, refunds, adjustments, or other amounts paid to Buyers, as applicable.
MARKETFLEET RESERVATION OF RIGHTS
MarketFleet retains the right to determine the content, appearance, design, functionality and all other aspects of the Site, Software, and the Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Service and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Seller not to list, any or all products in our sole discretion. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of your transactions. You will stop and/or cancel orders of your products if we ask you to do so (provided that if you have transferred your products to the applicable carrier or shipper, you will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). You will refund any customer (in accordance with this Participation Agreement) that has been charged for an order that we stop or cancel.
Unless otherwise expressly permitted in writing by MarketFleet, Seller shall not promote, offer for sale, or provide MarketFleet with listings that contain any of the following items or categories:
a. For sales where a Seller lists goods at a fixed price ("fixed price sales"), the Seller is obligated to sell the goods at the listed price to Buyers who meet the Seller's terms. By listing an item in a fixed price sale, you represent and warrant to prospective Buyers that you have the right and ability to sell, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive.
By entering into this Participation Agreement and posting a listing for fixed price sale, you agree to complete the transaction as described by this Participation Agreement. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable. You also agree that you shall not engage in the following practices: (1) using a Buyer's contact information obtained from our Software or Services to offer to sell any listed item outside of the MarketFleet software platform; (2) canceling a listing to sell to a Buyer who found the item through the MarketFleet software platform; (3) selling any other item outside of the MarketFleet software platform to a Buyer to whom you have already made a sale through the MarketFleet software platform.
You agree that it is the Seller's responsibility to determine whether Seller Taxes apply to the transactions and to collect, report, and remit the correct Seller Taxes to the appropriate tax authority, and that MarketFleet is not obligated to determine whether Seller Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction, except to the extent MarketFleet expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by MarketFleet and used by Seller. "Seller Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through the Site or Software, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.
Your password may be used only to access the Site, use the Software or Services, electronically sign your transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site or Software. If your password is compromised, you must change your password.
a. Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized credit card. You may not impersonate any participant or use another participant's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and MarketFleet will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
b. Investigation. MarketFleet has the right, but not the obligation, to monitor any activity and content associated with this Site and investigate as we deem appropriate. MarketFleet also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site or Software, including listings. MarketFleet reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
c. Disclosure of Information. MarketFleet also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect MarketFleet's systems and customers, or to ensure the integrity and operation of MarketFleet's business and systems, MarketFleet may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
b. You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any order information or other data or information acquired by you or your affiliates from MarketFleet or its affiliates (or otherwise) as a result of the Participation Agreement, the transactions contemplated hereby or the parties' performance hereunder (collectively, "MarketFleet Transaction Information"), except you may disclose this information as necessary for you to perform your obligations under this Participation Agreement, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information. The terms of this Section do not prevent you from using other information that you obtain separately from the MarketFleet Transaction Information, even if such information is identical to MarketFleet Transaction Information, provided that you do not target communications on the basis of the intended recipient being a MarketFleet.
THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. MARKETFLEETMAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
a. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
b. THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
c. THAT THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE TIME OF FIXED PRICE SALE, LAWFUL TO SELL, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED;
d. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
e. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF MARKETFLEET. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MARKETFLEET DISCLAIMS ANY AND ALL SUCH WARRANTIES.
BECAUSE MARKETFLEET IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE MARKETFLEET(AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
a. Indemnity and Defense. You will defend, indemnify and hold harmless MarketFleet and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Participation Agreement; or (ii) your own website or other sales channels, the products you sell, any content you provide, the advertisement, offer, sale or return of any products you sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products you sell or content you provide, or Seller Taxes or the collection, payment or failure to collect or pay Seller Taxes. For purposes hereof: "Claim" means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity.
b. Limitation of Liability. MARKETFLEET WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PARTICIPATION AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
The laws of the state of California govern this Participation Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws or the Convention on Contracts for the International Sale of Goods. Any dispute with MarketFleet or its affiliates relating in any way to these terms and conditions or your use of the Services in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in Butte County, California, and you consent to exclusive jurisdiction and venue in such courts.
Because MarketFleet is not the agent of either Seller or Buyer for any purpose, MarketFleet will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction. MarketFleet urges Sellers and Buyers to cooperate with each other to resolve such disputes.
Any dispute or claim relating in any way to your visit to MarketFleet, LLC.com or to products or services sold or distributed by MarketFleet, LLC or through MarketFleet, LLC.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send
a letter requesting arbitration and describing your claim to our registered
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
By entering into this Participation Agreement and listing an item, you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to MarketFleet and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site, Software, and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Services); provided further, however, that nothing in this Participation Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to MarketFleet and its affiliates, and that the use of such materials by MarketFleet and its affiliates will not infringe upon or violate the rights of any third party.
MarketFleet, in its sole discretion, may terminate this Participation Agreement, access to the Site or the Services, or any current fixed price sales immediately without notice for any reason. MarketFleet, in its sole discretion, also may prohibit any Seller from listing items for fixed price sales.
b. No Agency; Third-Party Beneficiary. MarketFleet is not the agent, fiduciary, trustee, or other representative of you. Nothing expressed or mentioned in or implied from this Participation Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Participation Agreement. This Participation Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of MarketFleet, you, and relying Buyers or Sellers.
c. Severability. If any provision of this Participation Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
d. No Waiver. We will not be considered to have waived any of our rights or remedies described in this Participation Agreement unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. MarketFleet's failure to enforce the strict performance of any provision of this Participation Agreement will not constitute a waiver of MarketFleet's right to subsequently enforce such provision or any other provisions of this Participation Agreement.