Thank you for your interest in establishing a storefront at the web site www.makatto.com (the "Makatto Site"). The Makatto Site is owned and operated by Makatto.com Inc.") for the purpose of giving sellers a place to open storefronts and present their products and services ("Goods") to prospective buyers. Makatto.com agrees to your establishing a Storefront on the following terms and conditions, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged.
For purposes of this agreement, a "Storefront" means a web presence located within and accessible through the Makatto Site whereby a particular "Seller" offers goods for sale. You are the "Seller," namely, the person or entity that has entered into this Seller Agreement for the purpose of offering goods for sale in a Storefront that you control ("Seller Storefront").
"Buyer" shall mean any person or entity who visits the Makatto Site and makes one or more purchases from Seller's Storefront therein.
SELLER ELIGIBILITY
Seller represents and warrants that Seller, or if Seller is not a natural person, the natural person executing this Seller Agreement, is 18 years or older and is able to enter into and form contracts lawfully under applicable law. Seller represents and warrants that Seller is a United States citizen or a legal entity formed under the laws of the U.S. Prior to setting up a Storefront and offering goods for sale therein, Seller agrees to set up a seller's account with Makatto.com. In setting up this account, Seller shall provide its real name, current address, phone number, email address, and valid credit card information or other account information as required by Makatto.com for registration as a seller. Seller hereby authorizes but does not obligate Makatto.comMakatto.com to verify the accuracy of Seller's information and to perform credit or background checks as Makatto.com desire Makatto.com may deny or terminate a seller account for any reason.
PURPOSE AND USE
Makatto.com provides the Makatto Site solely as a location for buyers to locate and purchase Goods from sellers. When a buyer makes a purchase from you, the Seller, at your Storefront, the Seller Storefront, the buyer is purchasing the Goods from Seller and not from Makatto.com. Seller agrees and understands that Makatto.com is not an agent for Seller or for any buyer and has no authority to act on Seller's or on a buyer's behalf. Because Makatto.com is not involved in the transaction between Seller and any buyer, Makatto.com has no control over the buyers who make purchases or the ability of buyers to pay for Goods they may purchase from Seller. Makatto.com has no responsibility to ensure that a buyer completes a transaction with Seller or makes final payment to Seller. Seller agrees and represents and warrants that Seller's use of the Makatto Site will comply with applicable laws, ordinances and regulations.
AUTHORITY
Makatto.com has the sole authority and discretion to operate and maintain the Makatto Site. Accordingly, Makatto.com reserves the right to remove any item (e.g., Goods), picture, or posting from a Seller Storefront at any time for any reason without notice to Seller. Makatto.com is under no obligation to remove or change any item, picture, or posting from the Makatto Site at Seller's request and any such requests shall be resolved at Makatto.com's sole discretion. Makatto.com is not responsible for addressing any disputes between Seller and any buyers. In the event of a concern, claim or dispute, Seller shall communicate directly with the other party to resolve such concern, claim or dispute. In the event that Makatto.com receives a complaint from a buyer about Seller, Makatto.com will investigate the complaint at Makatto.com's sole discretion and may direct that Seller respond to the buyer directly. Makatto.com reserves the right to refuse service to anyone, to reject Seller's membership application, and to discontinue existing service at any time. Makatto.com also reserves the right to close down any Storefront, or stop offering any of Makatto.com's services to Seller, due to unprofessional conduct or practices, buyer complaints, and other issues which Makatto.com considers, at its sole discretion, to be disruptive to the business and reputation of the Makatto Site.
SELLER REPRESENTATIONS AND WARRANTIES
Information and Content Provided by Seller. Seller represents and warrants that any product or service description provided by Seller in its Storefront, any advertising on Seller's Storefront and any advertising placed by Seller on another Storefront, and any other information and/or content that Seller provides to buyers, to other sellers or to Makatto.com at any time: (a) will be truthful, accurate and not misleading or otherwise deceptive; (b) will not violate the intellectual property rights of any third party such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) will not violate any law, statute, ordinance or regulation; (d) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and, (e) will not create liability for Makatto.com. Seller agrees that any all information and content may be publicly displayed by Makatto.com as Makatto.com sees fit and at no charge to Makatto.com. Seller automatically grants as well as represents and warrants that Seller has the right to grant to Makatto.com an irrevocable, perpetual, sublicenceable, transferable, non-exclusive, royalty-free and fully-paid, worldwide right and license to use, copy, transmit, perform, display, modify and create derivative works, incorporate and embed into other works, and distribute such information and content throughout the Makatto Site in any medium or form now existing or later created.
Goods Offered by Seller. Seller represents and warrants that Seller will not list, offer or sell Goods that: (a) are stolen or counterfeit; (b) violate the intellectual property rights of others such as copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (c) Seller does not have full right and authority to sell; (d) contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) violate any law, statute, ordinance or regulation (such as those governing export control or consumer protection); (f) contain any material that is obscene, pornographic or that contains child pornography; (g) are not merchantable or fit for their particular purpose, and/or (h) create liability for Makatto.com. Seller agrees to sell the Goods to the buyer for the listed purchase price Seller sets. By posting Goods in Seller's Storefront, Seller agrees to complete a purchase transaction as contemplated by this Seller Agreement.
PAYMENT
When Seller sells Goods that it owns to a buyer through Seller's Storefront and the buyer makes payment to Makatto.com, Makatto.com will then give the funds to Seller within one business day. The method for payment is established by associating an account with the Storefront Site. When Seller sells one or more Goods on Resale (which refers to the practice of offering and selling goods in a Storefront that are owned by a different seller until a sale is made), Seller will be entitled to a commission as specified in the terms of Resale. Makatto.com will pay the commissions owing for any Resale sales to Seller when the return period for the item(s) has expired. In the event that this Seller Agreement is terminated by either party, upon request of Seller within 30 days of termination, Makatto.com will pay the dollar amount of any Resale commissions after the return period has expired. . Makatto.com reserves the right to collect interest on the funds that it is holding pending expiration of the return period.
Makatto.com is not the purchaser of the Goods and any dispute with the buyer must be resolved by Seller directly with the buyer. Makatto.com is merely a facilitator of the transaction and will not hold funds while a dispute is pending between Seller and any buyer, or between Seller and any other seller where either party has sold Goods on resale from the other party. Makatto.com will not act as arbitrator nor in any other way act to resolve a dispute between Seller and any buyer or any other seller. When a buyer places an order with Seller on Seller's Storefront, Makatto.com will authorize the applicable credit card or other payment source approved for use within the Makatto Site for the entire order amount. After Makatto.com receives verifiable shipment information for Goods included in such order, Makatto.com will charge the credit card or other approved payment source of the buyer for the amount associated with such shipped Goods. Commission fees and other amounts owed to Makatto.com or Reseller by Seller ("Seller Payment") will be in Makatto.com's sole discretion either to [be charged directly to Seller's credit card or other account on file or deducted from the amounts received by buyers for the purchase of seller's goods and or services through the Makatto site], and Makatto.com shall have no obligation to make any payment to Seller with respect to any purchase made by a buyer, unless and until Makatto.com actually receives payment from such buyer. Payments to Seller shall be made to Seller's PayPal account or to the U.S. bank account that Seller designates to receive payment. Makatto.com may set transaction limits on Seller and will not be liable to Seller for blocking or otherwise refusing to proceed with any transaction. Makatto.com also reserves the right to withhold the payment of funds to Seller or to return funds to the buyer if Makatto.com is simultaneously investigating any claim or any suspected or alleged wrongful conduct by Seller or any violation of this Seller Agreement, and Seller agrees that Makatto.com will not be liable to Seller for any such amounts. Upon any termination or suspension of Seller's account, Makatto.com may hold all Seller payments for 90 days to allow for the settlement of all amounts owed to Makatto.com.
SHIPMENT
When a buyer makes a purchase from Seller's Storefront, or makes a purchase from another seller's Storefront of Goods being offered by that seller on Resale from Seller, Makatto.com will notify Seller of order placement. Seller agrees to ship Goods ordered by buyers within 48 hours following such notification of the order or communicate with the buyer concerning anticipated shipment date. Seller shall provide notice of shipment and a tracking number from the shipper to Makatto.com, and Seller hereby represents and warrants that Seller will only provide notification of shipment following the actual shipment of the Goods. If Makatto.com does not receive such shipment notification within the 48 hour shipment window. Makatto.com may cancel such order, and Makatto.com shall have no liability to Seller with respect to such cancellation, including without limitation, for any shipment made in reliance on the order or notification of such order. Seller agrees that Makatto.com has no obligation to ship any Goods that Seller sells to a buyer through Seller's Storefront or on Resale from another seller's Storefront. Seller agrees to pay the shipping charges in full for any Goods that Seller ships in connection with an order made by a buyer. Seller agrees that legal ownership and all risk of loss of Seller's Goods remains with Seller until the buyer physically receives the Goods from Seller. Seller agrees that to ship only the Goods purchased by the buyer and will not include any additional Goods, materials or information not purchased by the buyer. Seller agrees that Makatto.com is obligated to pay to Seller standard shipping rates solely for Goods that are actually shipped, delivered and accepted by the buyer minus any fees including handling fees deducted by Makatto.com from the shipping fee.
TAXES
Seller agrees that Seller is solely responsible for determining the amount of sales, use or other taxes that Seller may owe as a result of any sale, and Seller is solely responsible to collect, report and remit any such sales, use or other taxes required under applicable law. Seller hereby represents and warrants that Seller will (a) identify all states in which Seller has an obligation to collect and remit sales and/or use tax during registration, (b) keep such information updated at all times, and (c) remit all such taxes collected and provided to Seller by Makatto.com. Upon the request of Makatto.com, Seller hereby agrees to provide verifiable proof acceptable to Makatto.com of Seller's remittance of all sales/use tax collected through the Makatto Site, and if Seller is unable to provide such proof to the satisfaction of Makatto.com, Makatto.com may withhold and retain all such amounts and/or terminate Seller's account in accordance with the termination provisions set forth herein. Seller acknowledges and agrees that Makatto.com has no responsibility to collect, report or remit sales, use or any other applicable taxes in connection with any sale. Seller hereby agrees to indemnify, defend and hold Makatto.com harmless in full from any and all claims, demands, damages, awards, fines, costs, expenses and liability in any way associated with the foregoing obligations or otherwise with respect to any claim, demand or allegation of sales or use tax in any way associated with any sale made by Seller through the Makatto Site, Seller's nexus contacts within any state, and/or any claim alleging that Makatto.com or any of its affiliated entities is a seller, merchant or reseller. Makatto.com may immediately charge Seller's credit card on file and/or set-off any and all of its costs and/or expenses that are incurred in connection with the foregoing against any amounts owing to Seller. Makatto.com also reserves the right to freeze the account of Seller in the event that Seller does not comply with the above.
FEES
Seller agrees to pay Makatto.com the commissions and other fees and charges as set forth in Schedule A, as may be amended from time to time upon advance written notice. All fees and charges are payable by Seller upon Makatto.com's demand. Seller agrees that Makatto.com is authorized to charge any credit card or bank account connected to Seller's account for these fees and charges. Seller also agrees that Makatto.com may deduct such fees and charges from amounts payable to Seller by buyers. Without limiting any of its rights or remedies available at law or equity, Makatto.com may suspend or terminate Seller's account if any such amounts are overdue, and all such overdue amounts shall be subject to a late charge equal to the prime lending rate in the United States as of the first date that the amounts are overdue, which interest will be immediately due and payable from the due date for payment until the date of actual receipt of the amount in cleared funds by Makatto.com.
SELLER ADVERTISING
Advertising widgets. Seller may purchase advertising widgets from Makatto.com according to pricing set by Makatto.com. These advertising widgets allow Seller to sell advertising of another storefront owner on Seller's space, whether on the Seller's Storefront or another page of Seller including Seller's profile page. Makatto.com does not guarantee that Seller will be able to sell advertising space at its Storefront, and all widget purchases are at Seller's own risk.
Placement of advertising. Makatto.com provides a method by which Seller may offer advertising on Seller's Storefront or may purchase advertising space at another seller's storefront Makatto.com does not place the advertising and is merely a facilitator of the purchase and sale of advertising space. Makatto.com will not hold funds while a dispute is pending between Seller and any storefront owner related to purchase, sale and/or placement of advertising. Makatto.com will not act as arbitrator nor in any other way act to resolve a dispute between Seller and any buyer or between Seller and any other seller.
CUSTOMER SERVICE
Other than to verify that payment to Seller by a buyer through the buyer's Makatto Site account was completed, Makatto.com will provide no customer support for transactions made through the Makatto Site. Seller agrees that Makatto.com is not responsible to provide any such support.
PRIVACY
Seller acknowledges, consents and agrees that Makatto.com (a) shall provide buyers with information that is reasonably necessary for buyers to communicate with Seller regarding the purchase and shipment of goods and services purchased from Seller and any issues that may arise in connection with their purchase (including, without limitation, the seller information provided during registration and Seller's email address) and (b) may post feedback about Seller through the Makatto Site, including without limitation, seller details, ratings, buyer feedback and email address. Seller hereby agrees that Makatto.com shall have no responsibility, obligation or liability with respect to the disclosure of such information to, or any collection, use or disclosure of such information by, any buyer. Makatto.com may give Seller access to certain information concerning other Makatto Site users when Seller uses the Makatto Site but is under no obligation to do so. Seller hereby represents, warrants and agrees (a) not to use any information regarding other Makatto Site users which is accessible from the Makatto Site or that may be disclosed to Seller by Makatto.com, except to enter and complete transactions, and (b) not to use any such information for purposes of solicitation, sending unsolicited email or spamming, harassment, or other conduct that Makatto.com deems unacceptable or objectionable.
INTELLECTUAL PROPERTY RIGHTS
Makatto.com's Rights. Makatto.com does not grant to Seller any intellectual property rights in any intellectual property of Makatto.com, including without limitation any rights in and to Makatto.com's patents, trademarks, logos, trade name, the Makatto Site, or any content developed by Makatto.com, all of which shall remain the exclusive property of Makatto.com.
Rights of Third Parties. Makatto.com is committed to protecting the intellectual property rights of third parties. Makatto.com provides the opportunity for a third party who believes that Seller is infringing the intellectual property rights of the third party to make an infringement complaint in accordance with Makatto.com's Intellectual Property Rights Holder Policy. Makatto.com reserves the right to remove any product or service in Seller's Storefront against which it receives such a complaint and, in its sole discretion, can suspend a Storefront in its entirety or terminate this Agreement immediately upon notice to Seller of a third party infringement complaint..
TERMINATION
Either party may terminate this Seller Agreement immediately upon written notice thereof to the other party if such other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, or is subject to the appointment of a receiver.Except for immediate termination due to intellectual property infringement claims, in the event of a claim of breach, this Seller Agreement may be terminated by the non-breaching party upon at least thirty (30) days prior written notice to the other in the event of a material breach of this Seller Agreement by the other party, provided that such notice contains a detailed description of the default and, if capable of being cured, such default is not cured within thirty (30) days following such notice. If the same material breach occurs a second or subsequent time, the non-breaching party may, at its sole discretion, immediately terminate this Agreement and the breaching party shall have no opportunity to cure the breach.
AMENDMENT AND NOTIFICATION
Makatto.com reserves the right to change any of the terms and conditions contained in this Seller Agreement or any policies or rules governing the Makatto Site at any time and in its sole discretion. Any such changes will be effective upon the posting of the revised Seller Agreement or such policies and rules on the Makatto.com site. With respect to material changes to the Seller Agreement, such changes shall be accompanied with a 30 day advance notice on the Makatto Site, and Seller is solely responsible for reviewing any such notice and the corresponding changes to the Seller Agreement. Seller's continued use of the Makatto Site following any such notifications and revisions to the Seller Agreement, policies or rules constitute Seller's acceptance of such changes.
LIMITATION OF LIABILITY
The entire risk arising out of Seller's use of the Makatto Site, the use of any services offered in connection with the Makatto Site, and/or the use of any content remains with Seller. In no event shall Makatto.com or its licensors or any of their officers, directors, employees, agents or affiliates be liable for any consequential, incidental, direct, indirect, special, punitive, or other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of this Seller Agreement, Seller's use of the Makatto Site or any of Makatto.com's services, any information obtained through the Makatto Site, any delay or inability to use the Makatto Site or related services, the provision of or failure to provide services to Seller in connection with the Makatto Site, theft or conversion of funds by a third party, or otherwise arising out of the use of the Makatto Site whether based on contract, tort, negligence, strict liability or otherwise even if Makatto.com has been advised of the possibility of such damages. Notwithstanding anything else in this Seller Agreement, the maximum liability that Makatto.com shall have is limited to the actual value of any commissions actually received by Makatto.com in connection with any sales made by Seller through the Makatto Site during the 12 months preceding the date of the action or claim. Seller is obligated to mitigate the impact of any damage arising from or related to this Seller Agreement. Seller acknowledges and agrees that the limitations of liability, disclaimers of warranties and limited remedies set forth herein represent an inseparable allocation of risk (including, without limitation, in the event of a total and fundamental breach of this Seller Agreement) that is an essential basis of the bargain between the parties.
INDEPENDENT ALLOCATIONS OF RISK
Each provision of this Seller Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Seller Agreement between the parties. This allocation is in view of the venue being offered by Makatto.com to Seller and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Seller Agreement, and each of these provisions will apply even if the warranties in this Seller Agreement have failed of their essential purpose.
DISPUTE RESOLUTION STEPS AND REFUNDS
The Makatto Site contains a messaging system for the purpose of communication among users (sellers and buyers of the Makatto Site. Makatto.com recommends that users of the Makatto Site use this messaging system for all communications related to purchases made or anticipated on the Makatto Site. . Seller agrees to respond promptly to inquiries by buyers made through the messaging system. Seller will provide an immediate order cancellation notice to Makatto.com if Seller is unable to ship the Goods within 48 hours of order placement. Seller agrees that to provide a prompt refund to a buyer if the buyer did not receive the Goods shipped by Seller, if the Goods are damaged during shipment, if the Goods do not match the description as listed, or if the buyer receives Goods other than the one that the buyer ordered. Seller agrees that any such refund will be made at the latest within 10 business days of the buyer's request. Makatto.com will not mediate disputes or contact buyers on Seller's behalf. If the buyer submits a claim to Makatto.com concerning Goods or an order from Seller, Makatto.com may research the claim and may contact Seller concerning the claim. Seller agrees to respond promptly to any inquiry by Makatto.com. Makatto.com's decision concerning the claim is final and binding and Seller agrees to abide by such decisions. In the event that Makatto.com provides any amount to a buyer in connection with a buyer's claim, or the buyer seeks a chargeback with the buyer's credit card company, Seller agrees to reimburse Makatto.com promptly for the amount of the transaction and any associated fees and charges. Makatto.com may immediately offset any such amount from any other amount to be paid to Seller in accordance with this Seller Agreement, may charge Seller's credit card on file, and/or may collect such funds in any other lawful manner. Without limiting any of its rights to remedies, if Makatto.com determines that Seller has directly or indirectly attempted or committed fraud activity with respect to the Makatto Site, Makatto.com may immediately suspend or terminate Seller's account, withhold payments to Seller, and/or offset any such amount from any other amount to be paid to Seller in accordance with this Seller Agreement, charge Seller's credit card on file, and/or collect such funds in any other lawful manner to recover any damages and costs incurred by Makatto.com in connection with such fraudulent activity. In addition, any such fraudulent activity is a criminal offense and violators will be prosecuted to the fullest extent of the law.
INDEMNITY
Seller agrees to indemnify, defend and hold harmless Makatto.com and its parents, sister companies, subsidiaries, affiliates, service providers, sellers, distributors, licensors, officers, directors and employees from any claim or demand, including reasonable attorneys' fees, made by any third party arising out of or related to any claim, demand or action, which if true, would constitute a breach or violation of any provision of this Seller Agreement, or of any law, regulation or third-party right. Makatto.com may immediately set-off any and all of its costs and/or expenses that are incurred in connection with the foregoing against any amounts owing to Seller (including, without limitation, any payments to Seller). Seller agrees to indemnify and hold harmless Makatto.com and its parents, sister companies, subsidiaries, affiliates, service providers, sellers, distributors, licensors, officers, directors and employees from any claim or demand, including reasonable attorneys' fees, made by any third party related to infringement or other violation of that third party's intellectual property rights, including but not limited to patents, trademarks, trade names, copyrights and trade secrets, arising out of the sale of any Goods from Seller's Storefront.
RELEASE
In the event of a dispute or claim regarding any order or purchase made through the Makatto Site, or between Seller and a buyer or other third party related to any order or purchase made through the Makatto Site, Seller hereby releases Makatto.com and its parents, sister companies, subsidiaries, affiliates, service providers, sellers, distributors, licensors, officers, directors and employees from all claims, damages or demands of any kind, whether known or unknown, arising out of or in any way connected with such dispute or claim.
Seller acknowledges that Seller may discover facts different from or in addition to those which Seller now knows or believes to be true and that this release shall be and remain effective in all respects even if Seller discovers new or additional facts after Seller executes this agreement.
WARRANTY DISCLAIMER
SELLER AGREES THAT SELLER IS USING THE MAKATTO SITE AT SELLER'S OWN RISK. THE MAKATTO SITE AND ANY RELATED PRODUCTS, SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED "AS IS." MAKATTO.COM EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE MAKATTO SITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION.
GOVERNING LAW; SEVERABILITY
This Seller Agreement will be governed by and construed in accordance with the laws of the State of New Jersey, USA, as applied to agreements entered into and to be performed entirely within the State of New Jersey, USA, and between New Jersey residents, without regard for conflict of laws principles or principles of comity. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Seller Agreement will continue in full force and effect.
VENUE
The parties agree that any claim or dispute that arises under this Seller Agreement shall be resolved by a court located in the State of New Jersey, USA. The parties agree to submit to the personal jurisdiction of the courts located within the State of New Jersey, USA, for the purpose of litigating all such claims or disputes.
MISCELLANEOUS
No delay or failure by Makatto.com to take action under this Seller Agreement shall constitute any waiver by Makatto.com of any provision of this Seller Agreement. This Seller Agreement will bind and inure to the benefit of Makatto.com's permitted successors and assigns. Any claim under this Seller Agreement must be brought within one (1) year after the cause of action arises. This Seller Agreement is personal to Seller and may not be transferred, assigned or delegated to anyone. Any attempt by Seller to assign, transfer or delegate this Seller Agreement shall be null and void. Makatto.com may freely assign this Seller Agreement without consent or notice. This Seller Agreement constitutes the complete and exclusive agreement between Makatto.com and Seller with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.