ShopSpell - Marketplace Participation Agreement

Welcome to the ZiFiti.com website (the "Website") and our marketplace services (the "Services"). This Website is owned and operated by ZiFiti, LLC ("ZiFiti"). Any Seller (as defined in Section 3 below) that wants to access the Website and use the Services to sell items must accept the terms and conditions (the "Terms") of this Marketplace Participation Agreement (the "Agreement"), which incorporates by reference the ZiFiti Privacy Notice and Terms of Use. The Privacy Notice is available at www.zifiti.com/privacy-policy and the Terms of Use is available at www.zifiti.com/terms-conditions. All capitalized terms not defined herein shall have the meanings set forth in the Privacy Notice or Terms of Use. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING "I ACCEPT" BELOW AND USING THE WEBSITE OR SERVICES, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE WEBSITE OR SERVICES AS A SELLER.

Eligibility. Use of the Website and Services is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to use the Services. To register to use the Services, Seller must provide its registered business name, address, phone number, e-mail address, and valid credit card or other payment information.
Seller's Fees; Seller is Merchant; Payment to Seller.
1. Transaction Fees; Processing Fees. Listing on ZiFiti is free. If your item sells, ZiFiti will deduct from the payment processed through ZiFiti a commission of ten percent (12%) of the total amount of the sale, including shipping (the "Fees") and then transfer the balance of the payment to the Seller. The Fees do not include any taxes owed on your sale, which remains Seller's sole responsibility. All fees are calculated in US dollars. Currency conversion is handled automatically by our payment processing service. The Fees and payment terms may vary in the future and any changes will be posted on the Website as set forth above. The Fees and payment terms in effect on the date of listing the item shall govern the transaction. Seller should check the Fees and terms each time Seller creates a listing. The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive taxes or otherwise avoid fees.
2. Seller is Merchant; Sales, Use and Similar Taxes. Notwithstanding anything herein to the contrary, ZiFiti is the merchant of record and Seller is the Seller of record for all sales through the Website. ZiFiti is not the agent of either party. ZiFiti merely facilitates the purchase of Seller's items on the Website and processes payment. ZiFiti shall collect sales taxes on behalf of Seller as required by law and remit such taxes to Seller, provided, however, (i) that ZiFiti does not represent and shall not represent that any amounts collected is or will be in compliance with any or all applicable laws and (ii) that if Seller directs ZiFiti (e.g. selects an option, checks a box) not to collect sales taxes, then Seller shall assume all risk and responsibility for fulfilling its sales taxes obligations. Seller is responsible to determine whether sales, use or similar taxes apply to the transaction and report and remit the correct tax to the appropriate tax authority. Seller agrees that ZiFiti is not obligated to determine whether sales, use or similar taxes apply and is not responsible to collect, report or remit any sales, use or similar taxes arising from any transaction, unless agreed to in writing by and between ZiFiti and the Seller. Notwithstanding the foregoing, in the event ZiFiti is required or consents to enter into an agreement with any governmental authority to remit actual or estimated sales or use tax of any kind, Seller agrees to indemnify, defend and hold harmless ZiFiti for any such remittances, penalties or liabilities incurred as a result of Seller's failure to remit such taxes.
3. IRS Reporting. ZiFiti complies with all IRS reporting obligations, including but not limited to the filing of Form 1099-Ks to report unadjusted annual gross sales information for Sellers that have more than $20,000 in gross sales and more than 200 transactions in a calendar year (reporting). Sellers may be required to provide taxpayer-identification information to assist with these reporting requirements.
Payment to Seller. On the fifth and twentieth day of each month (each a "bi-monthly payment due date"), ZiFiti shall pay to Seller all amounts collected from Buyer on Seller's behalf, less the Fees, from the two-week period preceding the previous bi-monthly payment due date. Seller shall receive a monthly statement at the end of each month detailing the amounts collected on Seller's behalf during that month. Seller is required to maintain a PayPal account or other form of account acceptable to ZiFiti that accepts merchant to merchant or merchant to seller transfers.
ZiFiti's Role. ZiFiti provides a platform (the "Marketplace") for third-party sellers ("Sellers") and buyers ("Buyers") to complete sales transactions. As set forth in Section 2b, ZiFiti shall be the merchant for all sales made through the Website and shall be responsible for payment of all sales. As a Seller, Seller may list any item on the Website related to Indian cultural and other products and services, including 1) food or culinary products; 2) utensils; 3) apparel; 4) handicraft; 5) decor; or 6) art, unless the sale of such item is prohibited by applicable law. Seller may not list any item or link or post any related material that: (a) infringes any third-party intellectual property rights or other proprietary rights including, without limitation, copyright, trademark, patent, trade secrets, rights of publicity or privacy rights; (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen or fraudulent. It is up to Seller to accurately describe the item for sale. As a Seller, Seller uses the Website and the Services at its own risk.
Illegal Activity
1. Compliance with Policies and Applicable Laws. Seller agrees to be bound by ZiFiti's Terms of Use. While selling any items in the Marketplace or using the Website or Services for any reason whatsoever, Seller agrees to comply with all applicable international, foreign, state and federal laws, rules, statutes and regulations including, without limitation, rules and regulations of the Federal Trade Commission and any federal, state, and foreign legislative, regulatory, and judicial authority, body, or agency, now existing or hereinafter enacted. Seller also agrees to post a sales policy in a clear and conspicuous manner governing the terms and conditions of Seller's sale to Buyer and to make this sales policy available to Buyer prior to purchase.
2. Fraud. Seller may not register under a false name or use an invalid or unauthorized credit card. Seller may not impersonate another Seller or use another Seller's password. Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement and ZiFiti will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
3. Investigation. ZiFiti has the right, but not the obligation, to monitor any activity and content associated with the Website. ZiFiti may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action includes, without limitation, issuing warnings, suspension or termination of service, and denying access or removal of any materials on the Website including listings. ZiFiti reserves the right and has absolute discretion to remove, screen or edit any content that violates these provisions or is otherwise objectionable as determined in ZiFiti's sole discretion.
4. Disclosure of Information. ZiFiti 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 ZiFiti's systems and customers, or to ensure the integrity and operation of ZiFiti's business and systems, ZiFiti may access and disclose any information it considers necessary or appropriate including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
Termination. Seller may terminate its participation in this Agreement at any time by giving notice to ZiFiti. ZiFiti, in its sole discretion, may terminate Seller's participation, this Agreement, access to the Website or the Services, or any sales in the Marketplace immediately without notice for any reason. Within thirty (30) days of termination, Seller shall pay all Fees outstanding to ZiFiti with respect to sales or listings completed prior to termination and any pending sales transactions will be canceled.
ZiFiti's Reservation of Rights. ZiFiti reserves the right to immediately prevent or restrict access to the Website or the Services, or take any other action to restrict access to or availability of objectionable material, any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by this Agreement or ZiFit's policies posted on the Website.
Seller's Transactions.
1. Compliance with Sale Offer. Seller is obligated to sell items at the listed price to Buyers who meet the Seller's terms. Seller represents and warrants to prospective Buyers that Seller has the right and ability to sell, and that the listing is accurate, current and complete and is not misleading or otherwise deceptive. The item price is the amount payable by a Buyer, excluding shipping and handling, as it appears when Seller lists an item ("Item Price"). The total price is the amount payable by a Buyer as well as all terms of sale including, without limitation, shipping and handling charges, any discounts, rebates, or special sales or promotions offered by Seller with respect to purchases ("Total Price").
2. Returns. Seller shall accept returns of items sold by Seller to Buyers in accordance with Seller's return policy which shall conform to the requirements of this Section 8b. Seller must honor returns by Buyers that were properly returned to Seller within thirty (30) days from delivery to Buyer. Seller shall notify ZiFiti of its return policy and the procedures to be followed to process returns. All returns of Seller's items are to be received by Seller, then Seller shall notify ZiFiti in writing of its receipt of the returned item. If Seller receives cancellation request or a returned item in accordance with its return policy (together "return"), it must notify ZiFiti of the return, whereupon ZiFiti shall credit the Buyer with an amount equal to the full purchase price of the item returned ("Credit"). Seller, in turn, owes ZiFiti the same amount equal to the Credit. ZiFiti will not refund or credit any Fees to Buyer or Seller pursuant to a return of any items sold by Seller or for any other reason. Instead the full Credit is owed by Seller to Buyer. ZiFiti will merely remit such Credit back to the Buyer on behalf of the Seller. For paying the Credit, ZiFiti will be refunded by the Seller through deducting the Credit amount from Seller's future transactions processed by ZiFiti in addition to any Fees owed for such transaction. ZiFiti further reserves the right to require Seller to provide ZiFiti with its active credit card information to secure Seller's obligations under this Agreement. Seller agrees that ZiFiti has the right to charge such credit cards or other source of funds or payments any amounts due or owed to ZiFiti by Seller, including any Credits or Fees.
3. Shipping. Seller shall deliver items sold by Seller directly to Buyers in accordance with Seller's shipping policy, which shall conform to the requirements of this Section 8c. All items shall be shipped in a timely manner by Seller in accordance with the terms of the ZiFiti policies relating to shipping. In the event Buyer does not receive any item within said time period, Buyer shall be permitted to return the item to Seller or cancel the order, as applicable. Seller shall then notify ZiFiti in writing of its receipt of the returned item or Buyer's canceling of an order, whereupon ZiFiti shall refund to Seller the applicable Fees.
Seller's Obligation. By entering into this Agreement and posting a listing for sale in the Marketplace, Seller agrees to complete the transaction as described by this Agreement. Seller acknowledges that by not fulfilling these obligations, Seller's action or inaction may be legally actionable and that ZiFiti shall, in such event, have the right to terminate Seller's continued right to use the Website.
Password Security. Seller's password may be used only to access the Website and use the Services. Seller is solely responsible for maintaining the security of its password. Seller may not disclose its password to any third party (other than third parties authorized by Seller to use Seller's password) and Seller is solely responsible for any use of or action taken under Seller's password on this Website. If Seller's password is compromised, Seller must change its password.
Privacy. Seller is bound by and responsible for reviewing the Privacy Notice of the Website, available at www.zifiti.com/privacy-policy. The Privacy Notice may be changed by ZiFiti in the future. Seller should check the Privacy Notice frequently for changes. Unless otherwise authorized or consented, Seller agrees not to use any information regarding other Sellers, which is accessible from the Website or disclosed to Seller by ZiFiti or a Buyer, except to enter into and complete transactions through the Website and Services. Seller agrees not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy or otherwise objectionable conduct. ZiFiti may communicate with Seller in connection with Seller's listings, sales and the Services, electronically and in other media, and Seller consents to such communications.
Ownership of User Data. All User data shall be owned solely by ZiFiti and Seller shall have no right to access or use any User data except for the sole purpose of fulfilling a sale of Seller's items on the Website, as applicable.
No Warranties. THE WEBSITE AND THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER INCLUDING, WITHOUT LIMITATION:
1. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
2. THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR;
3. THAT THE INFORMATION, CONTENT, ITEMS OR PRODUCTS INCLUDED ON THE WEBSITE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE TIME OF PURCHASE, LAWFUL TO SELL, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED;
4. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
5. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ZIFITI.
General Release. SINCE ZIFITI IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND SELLERS IN THE MARKETPLACE, IF A DISPUTE ARISES BETWEEN ONE OR MORE BUYERS AND SELLERS, SELLER HEREBY RELEASES ZIFITI AND ITS AGENTS AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES, ACTUAL OR CONSEQUENTIAL, OF ALL KINDS AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Indemnity; Limitation of Liability.
1. Indemnification. Seller agrees to defend, indemnify and hold harmless ZiFiti and its respective employees, directors, agents and representatives from and against any and all claims, actions, audits, investigations, inquiries or other proceedings (whether based on warranty, contract, tort, or any other legal theory) instituted by any person or entity, costs, losses, damages, judgments, penalties, interests and expenses, including reasonable attorneys' fees and costs of suit, arising out of or relating to: (i) any actual or alleged breach of Seller's representations, warranties or obligations set forth in this Agreement; (ii) any products liability or use of Seller's products resulting in bodily injury, wrongful death, or any other harm; (iii) any act or omission that fails to comply with requisite statutes, regulations, treaties, agency guidance, or any other law or form of legal authority in any jurisdiction in and outside of the United States; (iv) your use of this Website; or (v) any items or products Seller sells on the Website, Seller's own website or other sales channels, any content Seller provides, the advertisement, offer, sale or return of any items or products Seller sells, any actual or alleged infringement of any intellectual property or proprietary rights of third parties, or the collection, payment or failure to collect or pay any sales, use, excise, import, export, value added 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 Seller on or through the Website, Seller's own website or any other sales channel.
2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZIFITI SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, THE PURCHASE OR USE OF ANY GOODS OR SERVICES FROM THE WEBSITE, OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
Applicable Law; Jurisdiction; Venue. Your use of this Website, Marketplace or Services and any dispute arising out of or in connection therefrom shall be governed by the laws of the State of New Jersey without giving effect to any conflict of laws provisions. Any action or proceeding arising out of or in connection with this Website, Marketplace or Services shall be brought solely in a court of competent jurisdiction sitting in the State of New Jersey. You agree to submit to the personal and exclusive jurisdiction of the courts located in New Jersey. You hereby waive any defense of an inconvenient forum to the maintenance of any action or proceeding in other courts and any objection to venue with respect to such proceeding.
Seller's Grant. By entering into this Participation Agreement and listing an item, Seller grants ZiFiti a nonexclusive, worldwide, royalty-free, irrevocable right to exercise all copyright, trademark rights, and rights of publicity over the content Seller submits to ZiFiti in any existing or future media, known or unknown, now or at any later date. Seller represents and warrants that it owns or otherwise controls all of the rights to the content it submits to ZiFiti and that the use of such materials by ZiFiti will not infringe upon or violate the rights of any third party.
General Provisions
1. Entire Agreement. This Agreement and all policies of the Website including, without limitation, the Terms of Use and Privacy Notice, constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings of the parties in connection with the subject matter hereof.
2. No Agency; Third-Party Beneficiary. ZiFiti is not the agent, fiduciary, trustee or other representative of Seller. Nothing expressed or mentioned in or implied from this 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 this Agreement. This 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 ZiFiti, Seller, and relying Buyers or Sellers.
3. Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
4. No Waiver. We will not be considered to have waived any of our rights or remedies described in this 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. ZiFiti's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of ZiFiti's right to subsequently enforce such provision or any other provisions of this Agreement.