Welcome to Herdbuy.com.
BY REGISTERING FOR OR USING THE SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS THAT APPLY FOR THE COUNTRY FOR WHICH YOU REGISTER (“YOUR ELECTED COUNTRY”).
As used in this Agreement, “we,” “us,” and “Herdbuy” means Herdbuy.com LLC and its affiliates and “you” means the applicant (if registering as an individual), or the business employing the applicant (if registering as a business). Capitalized terms have the meanings listed in the Definitions below. If there is any conflict between these General Terms and the applicable Service Terms, the Service Terms will govern.
Definitions
As used in this Agreement, the following terms have the following meanings:
“Affiliate” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity.
“Herdbuy Marks” means all Trademarks specified in the Trademark Usage Guidelines.
“Herdbuy Refund Policies” means the return and refund policies published on the Herdbuy Site and applicable to products sold via the Herdbuy Site.
“Herdbuy Site” means that website, the primary home page of which is identified by the applicable one of the following (and any successor or replacement of such website(s)):
the URL www.Herdbuy.com and any Promotion Site that we make available from time to time (if Your Elected Country is the United States)
“Herdbuy Transaction Information” means, collectively, Order Information, and any other data or information acquired by you or your affiliates from Herdbuy or its affiliates, or otherwise as a result of the Agreement, the transactions contemplated hereby or the parties’ performance hereunder.
“BMVD Product” means any book, magazine or other publication, sound recording, video recording, and/or other media product in any format, including any subscription therefor.
“Content” means copyrightable works under applicable Law.
“Estimated Ship Date” means, with respect to any of Your Products, either: (a) the end of the shipping availability period (which begins as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant inventory/product data feed for Your Product; or (b) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that Herdbuy designates as requiring shipment within two (2) business days, two (2) business days after the date on which the relevant order is placed by the customer.
“Excluded Offer” means any discount, rebate, promotional offer, or other term of offer and/or sale that you: (a) have attempted to make available through the Herdbuy Site but that we do not honor or support (but only until such time as we honor or support the same); or (b) make available solely to Third Parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers), or (ii) if Your Elected Country is the United States, have affirmatively elected and opted-in to participate in your and/or one of its affiliates’ membership-based customer loyalty or customer incentive programs.
“Excluded Products” means the products or items set forth in the Excluded Products List.
“Governing Courts” means the applicable one of the following:
the state or Federal court in Norfolk, Virginia (if Your Elected Country is the United States),
“Governing Laws” means the applicable one of the following
the laws of the Commonwealth of Virginia, United States
the laws of the Commonwealth of Virginia, United States together with the Federal Arbitration Act and other applicable federal law (if Your Elected Country is the United States).
“Intellectual Property Right” means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
“Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental authority (e.g. on a federal, state, or provincial level, as applicable) of competent jurisdiction.
“Local Currency” means the applicable one of the following:
U.S. Dollars (if Your Elected Country is the United States),
“Media Product” means any book, magazine or other publication, sound recording, video recording, software product, computer game, videogame, and/or other media product in any format, including any subscription therefore, sold through the Herdbuy Site.
“Order Information” means, with respect to any of Your Products sold through the Herdbuy Site, the order information and shipping information that we provide or make available to you.
“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other cognizable entity, whether or not having distinct legal existence.
“Program Policies” means all terms, conditions, policies, guidelines, rules and other information on the Herdbuy Site.
“Purchase Price” means the total amount payable or paid for Your Product (including taxes and shipping and handling charges only to the extent specified in the applicable Tax Policies).
“Remittance Calculation Date” is defined in Section S-6.
“Required Product Information” means, with respect to each of Your Products, the following (except to the extent expressly not required under Program Policies): (a) description; (b) SKU and UPC/EAN/JAN numbers, and other identifying information as Herdbuy may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed by Herdbuy from time to time); (d) categorization within each Herdbuy product category and browse structure as prescribed by Herdbuy from time to time; (e) digitized image that accurately depicts only Your Product, complies with all Herdbuy image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) shipping and handling charge (in accordance with our standard functionality therefor); (h) any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or sale of the Your Product; (i) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers(and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products).
“Sales Proceeds” means the gross sales proceeds from any of Your Transactions, including all shipping and handling, gift wrap and other charges with respect thereto, including taxes and customs duties only to the extent specified in the applicable Tax Policies.
“Seller-Fulfilled Products” means any of Your Products that are not fulfilled by Herdbuy.
“Service” means each of the following services that Herdbuy makes available for Your Elected Country: Selling on Herdbuy, and any related services we make available.
“Service Terms” means the service terms specific to each Service set forth herein and made a part of this Agreement upon the date you elect to register for the applicable Service and any subsequent modifications we are permitted to make to those terms.
“Shipment Information” means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
“Street Date” means the date(s), if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers.
“Technology” means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology or other functional item.
“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia or any other source or business identifier, protected or protectable under any Laws.
“URL Marks” means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).
“Your Materials” means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items provided or made available by you or your affiliates to Herdbuy or its affiliates
“Your Product” means any product that is made available for listing for sale, offered for sale, or sold by you through the Selling on Herdbuy Service.
“Your Sales Channels” means any website operated by or on behalf of you.
“Your Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption and other taxes, regulatory fees, levies (specifically including environmental levies) or charges 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 or in connection with the Services, or otherwise in connection with any action, inaction or omission of you or its affiliates or their respective employees, agents, contractors or representatives.
“Your Trademarks” means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
“Your Transaction” means any sale of Your Product(s) through the Herdbuy Site.
1. Enrollment.
To begin the enrollment process, you must complete the registration process. Use of the Service is limited to parties that can lawfully enter into and form contracts under applicable law (for example, Your Elected Country may not allow minors to use the Service). As part of the application, you must provide us with your (or your business’) legal name, Business Tax ID, Business URL, address, phone number and e-mail address. We may at any time cease providing the Service at our sole discretion and without notice.
2. Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described fully in the applicable Service Terms. You are responsible for all of your expenses in connection with this Agreement, unless this Agreement or the applicable Service Terms provide otherwise. You will use only a name you are authorized to use in connection with the Service and will update all of the preceding information as necessary to ensure that it at all times remains accurate and complete. At Herdbuy’s option, all payments to you will be remitted to You by check or through an Automated Clearing House (“ACH”) or similar system. For any amounts you owe us, we may (a) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you, (b) invoice you for amounts due to us under this Agreement, in which case you will pay the invoiced amounts upon receipt, (c) reverse any credits to Your Bank Account, or (d) seek such payment or reimbursement from you by any other lawful means. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency. If we discover erroneous or duplicate transactions, then we reserve the right to seek reimbursement from you by deducting from future payments owed to you, or seeking such reimbursement from you by any other lawful means.
If we conclude that your actions and/or performance in connection with the Agreement may result in customer 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 under this Agreement for the shorter of: (a) a period of ninety (90) days following the initial date of suspension; or (b) completion of any investigation(s) regarding your actions and/or performance in connection with the Agreement.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because the Herdbuy Site is unavailable following the commencement of a transaction
Receipt of Sales Proceeds by us on your behalf will satisfy the obligations owed to you by customers for Your Transactions. Upon payment of the Sales Proceeds a receipt indicating that payment has been made will be furnished to customers. Our obligation to remit funds collected by us on your behalf will be limited to funds that we have actually received and that are not subject to chargeback or reversal.
3. Term and Termination.
The term of this Agreement will start on the date of your completed registration for the Service and continue until terminated by us or you as provided below (the “Term”). We may terminate or suspend this Agreement or any Service immediately by notice to you for any reason at any time. You may terminate this Agreement or any Service for any reason at any time by the means then specified by Herdbuy therefor. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 2, 3, 4, 5, 6, 7, 8, 10, 13, 14, 15 and 17 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
4. License.
You grant us a royalty-free, non-exclusive, worldwide, perpetual, right and license to use, reproduce, perform, display, distribute, adapt, re-format, any and all of Your Materials, and to sublicense the foregoing rights to our affiliates; provided, however, that we will not alter any of Your Trademarks 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 Herdbuy Site); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
If Your Elected Country is the United States, conditioned upon your compliance with the Trademark Usage Guidelines, Herdbuy grants you a non-exclusive, non-transferable, non-assignable, revocable right and license during the term of this Agreement to use the Herdbuy Marks solely in connection with your use of the Service for which the Herdbuy Marks were provided to you. You must use the Herdbuy Marks solely in the manner in which they were provided to you, meaning you may not change, alter, amend, vary, or modify the Herdbuy Marks in any way, at any time. You may not use any Herdbuy Mark except as expressly provided herein, and may not sublicense these rights or otherwise permit any party to use the Herdbuy Marks. You acknowledge that Herdbuy is the sole owner of the Herdbuy Marks, and you agree to do nothing inconsistent with that ownership. All goodwill arising out of your use of the Herdbuy Marks will inure to the sole benefit of Herdbuy. Herdbuy may revoke your license to any or all of the Herdbuy Marks at any time in its sole discretion. Upon the termination this Agreement, or termination or suspension of the Service for which any Herdbuy Mark was provided to you, you shall immediately cease and discontinue all further use of the Herdbuy Mark.
5. Representations.
You represent and warrant to us that: (a) if you are a business, 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 Service(s) within such country; (b) you have all requisite right, power and authority to enter into this Agreement and perform your obligations and grant the rights, licenses and authorizations you grant hereunder; and (c) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.
6. Indemnification.
You release us and agree to indemnify, defend and hold harmless us (and our officers, directors, employees, and agents) against any claim, loss, damage, settlement, cost, expense or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any sales channels owned or operated by you, Your Products (including the offer, sale, fulfillment, refund, return or adjustments thereof), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death or property damage related thereto; or (c) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
7. Disclaimer & General Release.
a. THE HERDBUY SITE AND THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICE, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICE, YOU USE THE HERDBUY SITE AND THE SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES WAIVE AND DISCLAIM: (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE HERDBUY SITE AND THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
b. BECAUSE HERDBUY IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE HERDBUY (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.
8. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF HERDBUY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO HERDBUY IN CONNECTION WITH THE SERVICE GIVING RISE TO THE CLAIM.
9. Tax Matters.
As between the parties, you will be responsible for the collection and payment of any and all of Your Taxes, except to the extent Herdbuy expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by Herdbuy and used by you. You agree to and will comply with the Tax Policies and the representations contained therein. All fees payable by you to Herdbuy under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, and you will be responsible for paying Herdbuy any of Your Taxes imposed on such fees.
10. Confidentiality.
During the course of your use of the Service, you may receive information relating to us or to the Service including, but not limited to Herdbuy Transaction Information, that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain Herdbuy’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Service; (c) you will not otherwise disclose Confidential Information to any individual, company, or other third party, and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You may not issue any press release or make any public statement related to the Service, or use our name, trademarks or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
11. Force Majeure.
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
12. Relationship of Parties.
You hereby appoint us as your payment processing agent for the limited purpose of receiving Sales Proceeds on your behalf. Except as provided in the preceding sentence, you and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. 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 or in respect to 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 Herdbuy, you, and relying customers or sellers. As between you and us, you will be solely responsible for all obligations associated with the use of any third party service or feature that you permit us to use on your behalf, including compliance with any applicable terms of use. You will not make any statement, whether on your site or otherwise, that would contradict anything in this section.
13. Use of Herdbuy Transaction Information.
You will not, and will cause your affiliates not to, directly or indirectly: (a) disclose or convey any Herdbuy Transaction Information (except you may disclose this information as necessary for you to perform your obligations under this Agreement and 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); (b) use any Herdbuy Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law; (c) contact a Person that has ordered Your Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Person to make an alternative purchase; (d) disparage us, our affiliates, or any of their or our respective products or services; or (e) target communications of any kind on the basis of the intended recipient being a Herdbuy Site user. The terms of this Section do not prevent you from using other information that you acquire without reference to Herdbuy Transaction Information for any purpose, even if such information is identical to Herdbuy Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Herdbuy Site user
14. Suggestions and Other Information.
If you or any of your affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Herdbuy Site or Service (including any related Technology), we 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 cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history and posted content.
15. Modification.
We may amend any of the terms and conditions contained in this Agreement (including the Service Terms) at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on the Herdbuy Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the Agreement will be posted for at least 30 days. Changes to Service Terms and Policies may be made without notice to you. You should refer regularly to the Herdbuy Site to understand the current Agreement and to be sure that the items you offer for sale can be sold via the Service. YOUR CONTINUED USE OF A SERVICE AFTER HERDBUY’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, YOU MUST TERMINATE THIS AGREEMENT AS PROVIDED ABOVE.
16. Password Security.
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 in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
17. Miscellaneous.
The Governing Laws will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. Any dispute with Herdbuy or its affiliates or claim relating in any way to this Agreement or your use of the Service shall be adjudicated in the Governing Courts, and you consent to exclusive jurisdiction and venue in the Governing Courts, or, if Your Elected Country is the United States, we both consent that any such dispute or claim will be resolved by binding arbitration as described in this paragraph, rather than in court, except that you may assert claims in a small claims court that is a Governing Court if your claims qualify and you or we may bring suit in the Governing Courts to enjoin infringement or other misuse of intellectual property rights. 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 this Agreement as a court would. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Likewise, Herdbuy will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. 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.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
Herdbuy retains the right to immediately halt any transaction, prevent or restrict access to the Service or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited.
Because Herdbuy is not your agent except for the limited purpose of receiving Sales Proceeds on your behalf, or the customer’s agent for any purpose, Herdbuy will not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any transaction.
We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates in your registration application, or by any other means then specified by Herdbuy. You may change your e-mail addresses by updating your information in your account profile. You will update your e-mail addresses (as well as your legal name, address and phone number) as often as necessary to ensure that they are accurate. You must send all notices and other communications relating to Herdbuy using the Contact Us form.
This Agreement incorporates and you hereby accept the applicable Service Terms, which Herdbuy may modify from time to time. 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 conditions and shall not affect the validity and enforceability of any remaining provisions. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings.
The Selling on Herdbuy Service (“Selling on Herdbuy”) is a Service that allows you to list products for sale directly on the Herdbuy Site.
BY REGISTERING FOR OR USING HERDBUY, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND THESE HERDBUY SERVICE TERMS.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide in the format we require accurate and complete Required Product Information for each product that you make available to be listed for sale through the Herdbuy Site and promptly update such information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to list for sale on the Herdbuy Site, any Excluded Products; or provide any URL Marks for use, or request that any URL Marks be used, on the Herdbuy Site.
S-1.2 Product Listing; Merchandising; Order Processing. We will list Your Products for sale on the Herdbuy Site and promote Your Products as determined by us (including any other functions, features, advertising, or programs on or in connection with the Herdbuy Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and/or your performance as a seller and Herdbuy may make these ratings and feedback publicly available. We will provide Order Information to you for each sale of Your Products through the Herdbuy Site. We will also collect all Sales Proceeds as your payment processing agent for each of these transactions and will have exclusive rights to do so, and will remit them to you in accordance with these Service Terms.
S-1.3 Shipping and Handling Charges. For those of Your Products sold on the Herdbuy Site, if Herdbuy does not require free shipping and handling, Herdbuy will determine and collect shipping and handling charges charges via a shipping API on behalf of the Seller, except that, with respect to Buyer created Herds, we may determine the shipping and handling charges or may require shipping be included in the Bid Price (and in either case you will accept the charges as payment in full for your shipping and handling of such products).
S-1.4 Credit Card Fraud. We will bear the risk of credit card fraud (i.e. fraudulent purchase arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with Your Transactions, and you will bear all other risk of fraud or loss; provided, that we will not bear the risk of credit card fraud in connection with any Seller-Fulfilled Product that is not fulfilled strictly in accordance with the Order Information and Shipment Information. 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 Section S-2.2) that has been charged for an order that we stop or cancel.
S-2 Sale and Fulfillment; Herd Size; Refunds and Returns.
S-2.1 Sale and Fulfillment. You will: (a) source, sell, fulfill, ship and deliver your Products, in each case in accordance with the terms of the applicable Order Information, these Service Terms and the Agreement, and all terms provided by you and displayed on the Herdbuy Site at the time of the order and be solely responsible for and bear all risk for such activities; (b) package each of Your Products in a commercially reasonable manner and ship each of Your Products on or before its Estimated Ship Date; (c) retrieve Order Information at least once each business day; (d) not cancel any of Your Transactions except as may be permitted pursuant to your terms and conditions appearing on the Herdbuy Site at the time of the applicable order (which terms and conditions will be in accordance with this Agreement) or as may be required under this Agreement; (e) ship Your Products throughout Your Elected Country (except to the extent prohibited by Law or this Agreement); (f) provide to Herdbuy information regarding shipment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions; (h) notwithstanding any other provision of these Service Terms, ensure that you are the seller of all products made available for listing for sale hereunder; (i) include an orderspecific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (j) identify yourself as the seller of the product on all packing slips or other information included with Your Products and as the Person to which a customer may return the applicable product; and (k) you will send customers emails confirming shipment of Your Products in a format and manner reasonably acceptable to us.
S-2.2 Herd Size. HERD SIZE CALCULATION IS BASED ON THE TOTAL QUANTITY OF THE PRODUCT SOLD AS DETERMINED AT HERD CLOSING. HERD SIZE IS NOT BASED ON NUMBER OF BUYERS. THE HERD PRICE WILL BE THE LOWEST PRICE AVAILABLE TO THE HERD AT TIME OF HERD CLOSING BASED ON HERD SIZE. ANY RETURNS AND/OR REFUNDS AFTER HERD CLOSING WILL NOT REDUCE THE HERD SIZE FOR PURPOSES OF THE HERD PRICE. YOU WILL HONOR THE LOWEST PRICE AVAILABLE TO THE HERD AT TIME OF CLOSING SO LONG AS NINETY PERCENT (90%) OR MORE OF THE HERD CREDIT CARDS ARE AUTHORIZED. IN THE EVENT, LESS THAN NINETY PERCENT (90%) OF THE HERD CREDIT CARDS ARE AUTHORIZED, YOU WILL HONOR THE NEXT LOWEST PRICING TIER AVAILABLE TO THE HERD.
S-2.3 Returns and Refunds. For all of Your Products, you will accept and process returns, refunds and adjustments in accordance with these Service Terms, the Herdbuy Refund Policies published at the time of the applicable order, and the Refund Terms established at time of Herd Creation. We may inform customers that these policies apply to Your Products. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for your account. This functionality may be modified or discontinued by us at any time. You will route all such payments through Herdbuy. We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Product), and you will reimburse us for all amounts so paid. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable Herdbuy Refund Policies and as required by Law, and in no case later than thirty (30) days following after the obligation arises.
S-3 Problems with Your Products.
S-3.1 Delivery Errors and Nonconformities; Recalls. You are responsible for: any non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment and delivery of Your Products, except to the extent caused by: (a) credit card fraud for which we are responsible under Section S-1.4; or (b) our failure to make available to you Order Information as it was received by us or resulting from address verification. You are also responsible for any non-conformity or defect in, or any public or private recall of, any of Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls of Your Products.
S-3.2 Herdbuy Guarantee and Chargebacks. If we inform you that we have received a claim under the “Herdbuy Guarantee” offered on the Herdbuy Site, or any chargeback or other dispute, concerning one of Your Transactions, you will deliver to us within seven (7) days after request by us: (a) proof of delivery of Your Product(s) (as applicable); (b) the applicable Herdbuy order identification number; and (c) a description of Your Product(s) (as applicable). If you fail to comply with the prior sentence, or if the claim, chargeback, or dispute is not caused by: (y) credit card fraud for which we are responsible under Section S-1.4; or (z) our failure to make your Order Information available as the same was received by us or resulting from address verification, then you will promptly reimburse us in accordance with the Service Fee Payments section of the Agreement for the amount of the customer purchase (including the Purchase Price, all associated shipping and handling charges and all taxes, but excluding any associated Referral Fees retained and not subject to refund by Herdbuy) and all associated credit card association, bank or other payment processing, re-presentment and/or penalty fees associated with the original purchase and any chargeback or refund, in each case to the extent paid or payable by us or our affiliates.
S-4 Parity with Your Sales Channels.
You will maintain parity between the products you offer through Your Sales Channels and the products you list on the Herdbuy Site by ensuring: (a) the Purchase Price and every other term of offer and/or sale of Your Product (including associated shipping and handling charges, Shipment Information, 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 Herdbuy users as the most favorable terms upon which a product is offered and/or sold via Your Sales Channels (excluding consideration of Excluded Offers); (b) customer service for Your Products is at least as responsive and available and offers at least the same level of support as the most favorable customer services offered in connection with any of Your Sales Channels (this requirement does not apply to customer service for payment-related issues on Your Transactions, which we will provide); and (c) the Content, product information and other information under Section S-1.1 regarding Your Products that you provide to us is of at least the same level of quality as the highest quality information displayed or used in Your Sales Channels. If you become aware of any noncompliance with (a) above, you will promptly compensate adversely affected customers by making appropriate refunds to them in accordance with Section S-2.2.
S-5 Customer Service.
S-5.1 General. For customer service obligations pertaining to sales of Your Products using Herdbuy, you will refer customer issues to us according to the responsibilities below, in a timely, professional and courteous manner and at the applicable “Contact Us” form, email address and/or phone number provided for such purpose by us.
S-5.2 Our Customer Service Responsibilities. As between you and us, we will be solely responsible for all customer service issues relating to payment, credit card processing, debiting or crediting, and the “Herdbuy Guarantee”.
S-6 Compensation.
You will pay us: (a) the applicable Variable Closing Fee during the term of this Agreement. With respect to each of Your Transactions: (x) “Sales Proceeds” has the meaning set out in this Agreement; (y) “Variable Closing Fee” means the applicable percentage of the Sales Proceeds from Your Transaction through the Herdbuy Site specified on the Herdbuy Fee Schedule at the time of Your Transaction, based on the categorization by Herdbuy of the type of product that is the subject of Your Transaction.
S-7 Remittance of Sales Proceeds & Refunds.
We will remit to you any Sales Proceeds collected by us or our affiliates but not previously remitted to you on a purchase order basis when all of the following conditions are met:
- Seller has uploaded an invoice with tracking numbers
- HerdBuy.com has approved the uploaded invoice
- Herd Close date exceeds 30 days
Seller will accept as payment in full for the sale and shipping and handling of Your Products, less: (a) the applicable Variable Closing Fee due for such sums. If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us, we will refund to you the amount of the Variable Closing Fee paid by you to us attributable to the amount of the customer refund (including refunded taxes and customs duties only to the extent specified in the applicable Tax Policies). We will remit any amounts to be refunded by us pursuant to this subsection from time to time together with the next remittance to be made by us to you.
S-8 Control of Site.
Notwithstanding any provision of this Agreement, we will have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Herdbuy Site (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to, the Herdbuy Site and any element, aspect, portion or feature thereof (including any product listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or to require you not to list, any or all products in our sole discretion.
S-9 Effect of Termination.
Upon termination of these Selling on Herdbuy Service Terms, all rights and obligations of the Parties under these Service Terms will be extinguished, except that the rights and obligations of the Parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
You will use the Manage Your Orders tool to manage and upload the required “shipping confirmation files” which contain all shipment notification, shipping status and order tracking information to process payments based on Your Product shipment status. We will make available certain information and reports relating to Your Transactions as we determine and have no obligation to make available any other information. We retain the right to use mechanisms that rate, or allow users to rate, your performance as a seller, and to post such ratings and feedback on the Herdbuy Site or otherwise make it publicly available.
S-10 Miscellaneous.
Your Representations; Compliance with Laws. In addition to your representation and warranties in Section 5 of the Business Solutions Agreement, you hereby represent and warrant to us that: (a) all of Your Products and their packaging comply and will comply with all applicable marking and labeling requirements required by law; (b) none of Your Products are or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (c) you and all of your subcontractors, agents and suppliers involved in producing or delivering Your Products will strictly adhere to all applicable Laws of Your Elected Country, its territories and all other countries where Your Products are produced or delivered, regarding the operation of their facilities and their business and labor practices, including without limitation working conditions, wages, hours and minimum ages of workers; (d) you will not, unless we otherwise agree, redirect any customers or prospective customers from the Herdbuy Site into any other sales channel (e) Your Materials, Your Products and your offer and subsequent sale of any of the same complies with all applicable Laws (including all marking and labeling requirements) and do not contain any defamatory, obscene or sexually explicit materials (except to the extent expressly permitted under applicable Program Policies); (f) you will ensure that Your Transactions are made at no less than fair value under the antidumping laws of the United States and will otherwise comply with the antidumping laws of the United States, its territories and of all other countries where Your Products are produced, delivered, or intended to be sold; (g) you will not separately ask for or require any customers or prospective customers to provide any credit card, debit card, bank account, or other information related to a payment method.
Effective March 13, 2024