Vendor terms of services

Seller terms and conditions

 

MARKETPLACE: SITE TERMS

Version 1.2

WELCOME TO Tomoronline!

  1. INTRODUCTION: These terms and conditions (the Site Terms) set out how you may use our services to sell your merchandise (Products) via thecom Marketplace, or the relevant part of the Marketplace (Site). In order to use the Site or any of our services (Our Services) to sell Products, you must create a valid Seller account for all over the world in which you wish to sell your Products. Our Services may be amended from time to time by us.
  2. WORDS USED IN THESE SITE TERMS: Capitalized terms or terms in bold have the meanings given to them in these Site Terms. Seller, shall mean either you, as an individual if using the services on behalf of yourself, or the business employing you as its representative (if registering for or using a service as (or part of) a business or any of your Affiliates (individually in all over the world or collectively) as the context requires)) who elects to create a Seller account in all Countries and/or register on the Site. The Seller agrees to be bound by and comply with these Site Terms.

 

In these Site Terms, the words Tomor Online, we or us or our means, as applicable, each of or all of the Tomor online Contracting Party(ies) (as set out for each Elected Country referred to below) or any of its Affiliates. The term “Affiliate” means, with respect to any entity, any other entity or Person that directly or indirectly controls, is controlled by, or is under common control with that entity. A “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.

  1. CREATING A SELLER ACCOUNT FOR all over the world: In accordance with the directions on the Site, you will need to create a Seller account with us for all over the world in which you wish to receive Our Services. If you are in individual you need to be a resident of all countries and if you are a business, you need to be able to conduct business in all Countries in accordance with the laws in that Elected Country. We may assist you with creation of a Seller account in all Countries after receiving necessary information from you (and each of your Affiliates if applicable). You must first familiarise yourself with the process set out on the Site and all the Site Terms. You must not register under a false name and/or impersonate any other Sellers’ log-in credentials, or password(s). Such fraudulent conduct could result in violation of applicable federal, national, regional or international laws and regulations (Applicable Laws) in all over the world. You agree to provide all relevant information to us while your account is active. When registering your Seller account, for all countries, you must provide valid and authentic supporting documents as we may specify (in accordance with Applicable Laws in the Elected Country) and/or as may be requested by us through the Site or your Seller account.

 

  1. PASSWORDS: If you choose, or you are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential. 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 these Site Terms) and you are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password. We have the right to disable any user identification name or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of these Site Terms.

 

 

  1. SPECIFIC POLICIES: By creating a valid Seller account for each country you agree, at the time of creation or registration, to be bound by and comply with these Site Terms, and all policies, protocols guidelines, and other terms incorporated on the Site (which shall form a part of these Site Terms). This shall include:

1-    any country specific terms about which you may be notified from time to time and that shall apply to each Country for which you register or elect to use Our Services (using functionality we may enable for your Seller account); and

2-    any service specific terms for any of Our Services that you may request from us and which we may agree to provide to you from time to time (using functionality we may enable for your account) in accordance with such service specific terms (which may relate only to specific Products) (Other Service Terms) and which form part of these Site Terms. The Other Service Terms include, without limitation, the Fulfilled-by-Tomor online (FBS) Terms (FBS Terms) which are set out at the end of these Site Terms.

 

9- SALE AND FULFILMENT: Other than where we agree to provide Our Services to you in accordance with Other Service Terms (and then only in accordance with and to the extent set out in such Other Service Terms), for any of Our Services that you apply to use or use (and which we agree to provide), in each Country, you will:

  1. provide to Tomor online (on request) an updated copy of your trade license (if you are a corporate Person) or a copy of your passport or national ID (if you are a natural Person);
  2. provide the required warranties and maintenance for the purchased Products in accordance with market practices, Tomor online guidelines and protocols, and Applicable Law(s);
  3. remain responsible for after-sales services, guarantees, warranties, maintenance, and any defects that may arise for or in respect of your Products including where required in accordance with Applicable Law (which you may ask us to provide on your behalf);
  4. source, offer, sell and fulfil your Products, in each case in accordance with the terms of the applicable order and shipping information (with respect to any of your Products ordered through the Site), these Site Terms, and all terms provided by you (with our agreement) or us and displayed on the Site at the time of the order and be solely responsible for and bear all risk for those activities;
  5. fulfil your Products using one of our authorised third party courier companies (which shall be notified to you using the details provided through your Seller account);
  6. package each of your Products in a commercially reasonable manner complying with all applicable packaging and labelling requirements as provided in each Country(ies);
  7. subject to the Other Services Terms, at your own expense or your customer’s expense (as agreed with us) ship each of your Products on or before either: (i) 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 (ii) if you do not specify shipping availability information in such inventory/product data feed or that your Product is in a product category that Tomor online designates as requiring shipment within, three business days after the date on which the relevant order is placed by the customer and you acknowledge and agree that we reserve the right to charge for any loss suffered or incurred by us for: (i) your delays in delivery against agreed timelines; or (ii) cancellation of a confirmed order placed by a customer;
  8. retrieve the order information and shipping information with respect to any of your Products ordered through the Site in order to comply with your obligations according to these Site Terms;
  9. only cancel any sale of your Product(s) through the Site as permitted pursuant to guideline and policies issued by us and in force at the time of the applicable order or as may be required under these Site Terms;
  10. fulfil your Products throughout the whole Countries (except to the extent prohibited by Applicable Law or these Site Terms);
  11. provide to Tomor online information regarding fulfilment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, of which we may make any of this information publicly available;
  12. comply with all instructions, if any, specified by the manufacturer, distributor, and/or licensor of a Product specifying the date before which specified information for 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;
  13. be the Seller of each of your Products and not act on behalf of any other Person (in any capacity);
  14. include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of your Products;
  15. identify yourself as the Seller of each of your Products on all packing slips or other information included or provided in connection with your Products and as the Person to which a customer may return the applicable product; and
  16. except as expressly permitted by these Site Terms, not contact customers (whether by telephone, email or other communication method) confirming orders or fulfilment of your Products or for any other reason.

 

  1. OUR POLICIES: The Site Terms are applicable to all activities or transactions made on or via the Site in each Country. If Tomor online is notified by a Seller or a third party brand owner, or via a court, administrative or government order that Products or any part thereof violates, in accordance with Applicable Laws in the Elected Country, the Intellectual Property Rights (IPRs) (which means without limitation (i) copyright, patents, database rights and rights in trademarks, designs, know-how domain name, moral right, trade secret right, or any other intellectual property right arising under any Applicable Laws and all ancillary and related rights and confidential information (whether registered or unregistered); (ii) applications for registration, and the right to apply for registration, for any of these rights; and (iii) all other IPRs and equivalent or similar forms of protection existing anywhere in the world and causes of action for violation, misappropriation or infringement of any of the foregoing) of any third party or any other rights of any third party or any Applicable Laws in the each Country, we may remove such Products from the Site and our warehouses (if relevant) at our sole discretion or request removal of such Products by the Seller within a reasonable timeframe notified in writing or through the Seller account. Seller acknowledges that Tomor online may from time to time introduce and implement new business rules, and customer care guidelines. Additionally, we are under no obligation to provide any information, material or document back to you, either before or after termination of these Site Terms or cancelation of a Seller account.

 

  1. SELLER WARRANTIES AND REPRESENTATIONS: Seller represents and warrants that: (i) if you are a business, you are duly organized, validly existing and in good standing under the Applicable Laws of all Countries in which your Seller account is registered and that you are registering for Our Services provided under these Site Terms within such Country; (ii) Seller has all requisite right power, and authority to enter into these Site Terms, perform your obligations, and grant the rights, licenses, and authorizations in these Site Terms ; (iii) Seller has the power and licences, permissions, authorisations, proprietary rights, consents and permits in the Products and to sell and promote Products in the territory in which they are sold via the Site; (ii) Seller’s Products conform to applicable quality and safety standards; (iv) Seller shall be solely responsible for any Products placed or distributed through the Site and breach of any third party contracts; (v) placement and sale of Seller’s Products through the Site will not be in breach of any Applicable Laws in each Country or third party rights; (vi) all Products including the Materials supplied to Tomor online are original and free from any defects; (vi) Seller will not engage in any unfair trade practices, and/or publish any inaccurate or misleading advertisement or information about Products on or via the Site, (viii) Seller will neither sell nor deliver to a customer any refurbished or used items, and the Products will always be new and unused; and (ix) Seller understands its consumer protection obligations as a supplier and indemnifies Tomor online against any losses or costs incurred by Tomor online in respect of Seller’s obligations under any Applicable Laws in each Country.

 

  1. DELIVERY ERRORS AND NON-CONFORMITIES: You are solely responsible for any non-performance, non-delivery, mis-delivery, theft, or other mistake or act in connection with the fulfilment of your Products, except to the extent caused by: (a) credit card fraud (and where we are responsible for such fraud); or (b) our failure to make available to you (with respect to any of your Products ordered through the Site), the order information and shipping information as it was received by us or resulting from address verification. Notwithstanding the previous sentence, for those of your Products that are fulfilled according to the FBS Terms, if any, the FBS Terms for the Site will apply to non-delivery, mis-delivery, theft, or other mistake or act in connection with the fulfilment of those Products. You are responsible for any nonconformity or defect in, or any public or private recall of, any of your Products or other products provided in connection with your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls of your Products or other products provided in connection with your Products.
  2. INTELLECTUAL PROPERTY: Tomoronline has the right to and you license Tomoronline to use, copy, distribute, modify and disclose to third parties any content, trademarks, materials or product images that you upload on the Site (and Seller warrants that it is entitled to grant that licence). This license you grant to us is royalty-free, nonexclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Seller’s Materials, and to sublicense these rights to the Affiliates of Tomoronline; provided, however, that we will not alter any of Seller’s trademarks from the form provided by Seller (except to resize trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with Seller’s removal requests as to specific uses of Seller’s trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Our Service (as applicable)). Nothing in these Site Terms will prevent or impair Tomoronline’s right to use Seller’s Materials without your consent to the extent that such use is allowable without a license from Seller or its Affiliates under Applicable Law. We do not grant any license to you except solely as is strictly necessary for you to use Our Services that we agree to provide to you. “Materials” means all technology, trademarks, content, product information, data, materials, and other items or information provided or made available by you or your Affiliates to Tomoronline or its Affiliates.
  3. CHANGES, UPDATES AND UPGRADES: Tomoronline reserves the right to change these Site Terms at any time and in its sole discretion. Any changes will be effective upon the earlier of: posting of the revisions on the Site and/or notification to you (including by email, or through your Seller account), without any further notice to you. You are responsible for reviewing any applicable changes. Your continued use of the Site (which may be illustrated through your accessing of your Seller account) and Our Services following our posting of any changes, notification and/or ‘click through’ acceptance will constitute your acceptance of such changes. If you do not agree to any change to these Site Terms, you must not continue to use the Site or Our Services. The Seller agrees that no terms of business that it produces or sends to Tomoronline shall have any legal force or effect. Whilst Tomoronline endeavours to keep the Site safe and secure, we cannot guarantee the continuous operation or access to the Site. Seller acknowledges that Tomoronline may, from time to time, upgrade features of the Site and or certain aspects of Our Services that it provides to its customers generally. In order for Seller to benefit from any such upgrade, Tomoronline may make changes to the provision of any of Our Services and the procedures by which Seller receives any of Our Services. Tomoronline may also, from time to time change any of Our Services to the extent required to comply with any change in Applicable Laws in the Elected Country.
  4. TOMORONLINE’S LIABILITY: The Site and any of Our Services provided through it, or any functionality used or relied on, including all content, software, functions, materials, and information made available on or provided in connection with Our Services, are provided “as-is.” Each Tomoronline entity or Person is severally liable for its own obligations under these Site Terms and is not jointly liable for the obligations of any other Tomoronline entity or Person under these Site Terms. As a user of the Site, Seller uses the Site and Our Services provided to Seller at its own risk. To the fullest extent permissible by law, Tomoronline and its Affiliates disclaim: (i) any representations or warranties regarding these Site Terms, any of Our Services or the transactions contemplated by these Site Terms, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement; (ii) implied warranties arising out of course of dealing, course of performance, or usage of trade; and (iii) any obligation, liability, right, claim, or remedy in tort, whether or not arising from our negligence. Tomoronline does not warrant that the functions contained in the Site and Our Services will meet Seller’s requirements or be available, timely, secure, uninterrupted, or error free, and Tomoronline 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. Tomoronline is not involved in transactions between customers and Sellers or other participant dealings, if a dispute arises between one or more participants, each participant releases Tomoronline and its affiliates (and their 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. Our liability arising out of or in connection with these Site Terms or the transactions contemplated, whether in contract, warranty, tort (including negligence, product liability, or other theory) to Seller or any other Person for cost of cover, recovery or recoupment of any investment made by Seller or its Affiliates in connection with these Site Terms, or for any loss of profit, revenue, business or data or punitive or consequential damages arising out of or relating to these Site Terms, even if Tomoronline or its Affiliates have been advised of the possibility of those costs or damage, shall not exceed in aggregate an amount equal to the amounts during the prior six-month period paid to Seller in connection with the particular service giving rise to the claim immediately preceding the event giving rise to the liability.
  5. SELLER’S RELEASE AND INDEMNITY: Seller releases Tomoronline and agrees to indemnify, defend, and hold harmless Tomoronline, its Affiliates, and its respective officers, directors, employees, representatives, 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) Seller’s actual or alleged breach of any obligations in these Site Terms; (b) any of Seller’s other means through which it or any of its Affiliates offers products or services, other than the Site, (b) your Products (including their offer, sale, performance, and fulfilment), (c) your Materials, (d) 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; (e) any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfilment of your Products, including any of your employees, representatives, agents, contractors, or subcontractors (including any act or omission by any of them or any Claim brought or directed by any of them); or (d) taxes imposed on or payable by Seller or for the sale and/or supply of Products. Seller will use counsel reasonably satisfactory to Tomoronline to defend each indemnified Claim. If at any time Tomoronline reasonably determines that any indemnified Claim might adversely affect Tomoronline, we may take control of the defence. 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. We reserve the right to enforce our rights under this provision by withholding amounts otherwise due to Seller under these Site Terms.
  6. MITIGATION OF LOSS: Except in relation to any Claim or action for non-payment of the fees, each party shall take all reasonable steps to mitigate the loss and damage it incurs in relation to any Claim or action (whether for negligence, breach of contract, misrepresentation, under any indemnity or otherwise) which it brings against the other.
  7. CONFIDENTIALITY: During the course of your use of Our Services, you may receive information relating to us or to Our Services, (including Tomoronline Transaction Information) that is not known to the general public (“Confidential Information“). You agree that: (a) all Confidential Information will remain Tomoronline’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in Our Services; (c) you will not otherwise disclose Confidential Information to any other person or 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 these Site Terms. You may not issue any press release or make any public statement related to Our Services, 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.
  8. DISCLOSURE OF INFORMATION: Tomoronline reserves the right to report any activity that either it suspects violates any Applicable Law to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Tomoronline and its customers, or to ensure the integrity and operation of Tomoronline business and systems, Tomoronline may access and disclose any information it considers necessary or appropriate, including but not limited to Seller account details, contact details, IP address and traffic information, usage history, and posted content. Both Tomoronline and Seller each shall protect customer data as per their respective policies and the Applicable Laws of the Elected Country.
  9. USE OF TOMORONLINE TRANSACTION INFORMATION You will not, and will cause your Affiliates not to, directly or indirectly: (a) disclose any Tomoronline Transaction Information (except that you may disclose that information solely as necessary for you to perform your obligations under these Site Terms if 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 Tomoronline Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or Applicable Law in an Elected Country; (c) contact a Person that has ordered Your Product with the intent to collect any amounts in connection therewith or to influence that Person to make an alternative transaction; (d) disparage us, our Affiliates, or any of their or our respective products or services or any customer; or (e) target communications of any kind on the basis of the intended recipient being a Site user. In addition, you may only use tools and methods that we designate to communicate with users of our Site regarding transactions that you carry out on it, including for the purpose of scheduling, communicating, or cancelling the fulfilment of Products. The terms of this paragraph do not prevent you from using other information that you acquire without reference to Tomoronline Transaction Information for any purpose, even if that information is identical to Tomoronline Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Site user. Tomoronline Transaction Information means, collectively, order information and any other data or information acquired by you or your Affiliates from Tomoronline, its Affiliates, or otherwise as a result of these Site Terms, the transactions contemplated by these Site Terms, or the parties’ performance under these Site Terms.
  10. RIGHTS IN MWS, MWS MATERIALS, MWS SPECIFICATIONS, AND TOMORONLINE. Marketplace Web Service (“MWS”) is a Service that is operated by our Affiliate that enables your systems to interface with certain features or functionality available to Sellers. “MWS Materials” means any software, data, text, audio, video, images, or other content we make available in connection with MWS, including application programming interfaces, related documentation, software libraries, and other supporting materials, regardless of formatMWS Specifications” means any technical and operational specifications, security protocols and other documentation or policies provided or made available by us with respect to MWS or MWS Materials. “TOMORONLINE” means our Affiliates internal data centre facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within our or their reasonable control and are used to provide MWS or MWS Materials. As between you and us, we, our Affiliates or our licensors own all right, title, and interest in and to MWS, MWS Materials, MWS Specifications, and the Tomoronline. You obtain no rights under these Site Terms from us or our licensors to MWS, MWS Materials, MWS Specifications, or the Tomoronline, including any related intellectual property rights.
  11. SUSPENSION OF SERVICES: Tomoronline may suspend performance of Our Services or access to a Seller account (either generally or in respect of a particular Elected Country) without liability where we have identified an actual or potential personal, financial or legal risk to the customer (which may include the following circumstances: (i) if Seller breaches these Site Terms or any of our policies; (ii) if Seller fails to reasonably cooperate with an investigation by Tomoronline; (iii) where Tomoronline reasonably believes that its continued provision of any of Our Services would expose Seller or Tomoronline or their respective affiliates or customers to a material security risk or a regulatory action; or (iv) Seller’s performance does not meet Tomoronline’s reasonable projections).
  12. FORCE MAJEURE: We will not be liable for any delay or failure to perform any of our obligations under these Site Terms by reasons, events or other matters beyond our reasonable control.

 

  1. INDEPENDENT PARTIES: You and the Tomoronline Contracting Parties are independent contractors, and nothing in these Site Terms 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. These Site Terms will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from these Site Terms is intended or will be construed to give to any Person other than the parties to these Site Terms any legal or equitable right, remedy, or claim under or in respect to these Site Terms. These Site Terms and all of the representations, warranties, covenants, conditions, and provisions in these Site Terms are intended to be and are for the sole and exclusive benefit of Tomoronline, you, and customers. 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 clause.
  2. WAIVER: Tomoronline’s rights under these Site Terms: (i) may be exercised as often as necessary; (ii) unless otherwise expressly provided in these Site Terms, are cumulative and not exclusive of rights and remedies provided by Applicable Law; and (iii) may be waived only in writing and specifically. Delay in the exercise or non-exercise of any right is not a waiver of that right.
  3. THIRD PARTIES: Except in the case of Affiliates of Tomoronline, a Person who is not a Party to these Site Terms may not enforce any of them.
  4. SEVERABILITY. If any of these Site Terms and the documents referred to in them (including any Other Service Terms) is or becomes illegal, invalid or unenforceable in any jurisdiction, such illegality, invalidity or unenforceability shall not affect: (i) the legality, validity or enforceability in that jurisdiction of any other term of these Site Terms and the documents referred to in them (including any Other Service Terms); or (ii) the legality, validity or enforceability in other jurisdictions of that or any other provision of these Site Terms and the documents referred to in them (including any Other Service Terms).
  5. ENTIRE AGREEMENT: These Site Terms and the documents referred to in them (including any Other Service Terms) contains the whole agreement between the parties relating to the contracts, agreements and transactions contemplated by them and supersedes all previous agreements between the parties relating to these contracts, agreements and transactions. Except as required by Applicable Law, no terms shall be implied (whether by custom, usage or otherwise) into these Site Terms and the documents referred to in them. Each party acknowledges that, in agreeing to enter into these Site Terms and the documents referred to in them (including any Other Service Terms) it has not relied on any express or implied representation, warranty, collateral contract or other assurance (except those set out in these Site Terms and the documents referred to in it).
  6. COMPLIANCE:
    1. Seller represents and warrants that the country of origin of the Products is not a country subject to US or other applicable government authority sanctions prohibiting a US Person or other individual, corporation, organization or entity from importing such Products at the time of import into the destination country or at the time Seller delivers the Products to Tomoronline.  Seller represents and warrants that all Products that Seller provides to Tomoronline are not controlled under the US Export Administration Regulations (EAR), EU Dual-Use Regulations, US International Traffic in Arms Regulations (ITAR), or any other applicable government export laws and regulations, unless Seller discloses to Tomoronline in advance of shipment or transfer in writing and provides to Tomoronline complete, accurate and up to date information necessary or that Tomoronline may otherwise request to lawfully export the Products to Seller (Export Information), including, but not limited to, the US, EU or other government authority export control classification number(s), any applicable Commodity Classification (CCATS) or classification ruling, any applicable commodity jurisdiction rulings, a copy of the export license (where an export license is required), country of origin, and, where applicable, the General License type or license exception eligibility.
    2. Seller represents and warrants that Seller and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
    3. Notwithstanding anything to the contrary herein, nothing in the Site Terms shall, or shall be interpreted or construed to, induce or require either party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules, or requirements that apply to any party to these Site Terms.
  7. ASSIGNMENT: Neither party may assign its rights or obligations set out in these Site Terms without the prior written consent of the other party, except that Tomoronline may assign these Site Terms to an Affiliate or in connection with any merger, reorganization, sale of all or substantially all of its assets or any similar transaction. Subject to this limitation, these Site Terms will be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.

FULFILLED BY TOMORONLINE (FBS): FBS TERMS
www.tomoronline.com

 

  1. FBS TERMS: Upon agreeing to provide the FBS Services to you, in all countries, (and to your Affiliates in each other Country(ies) as agreed with us), we shall do so in accordance with these terms which are called the “FBS Terms”. These FBS Terms are part of the Site Terms, and, unless specifically provided otherwise, apply only to the Seller’s participation in FBS and the receipt of the FBS Services in each Country as agreed with us. By using the FBS Services or listing Products for FBS, you (either in your individual capacity or on behalf of the business that you represent) as the Seller, reconfirm your agreement to be bound by the Site Terms and the FBS Terms. The FBS Terms apply only to the FBS Services. Save as otherwise set out in these FBS Terms, the Seller acknowledges that we do not take title or ownership of the FBS Products or the inventory of FBS Products at any point in time by virtue of the provision of these FBS Services according to these FBS Terms. Title to the FBS Products shall remain with the Seller until successful and completed delivery to the customer, or will remain with Seller for FBS Products that are returned to the Seller. You expressly agree that the Tomor online may engage its Affiliate(s) or a third party in order to complete one or more of the FBS Services. To the extent of any inconsistency or conflict between the Site Terms and the FBS Terms, the FBS Terms, unless expressly stated otherwise, take precedence.
  2. FULFILLMENT SERVICES: As part of our Fulfillment Services, we will ship FBS Products from our inventory of your FBS Products to the shipping addresses in all Countries as included in valid customer orders. We may ship FBS Products together with products purchased from other merchants, including any of our Affiliate or may ship FBS Products separately that are included in a single customer order.
  3. ORDER FULFILLMENT AND SHIPPING: In each Country, to the extent that Products are to be shipped to the Seller’s customer, Tomor online shall provide the relevant FBS Services upon the placement of the order through the Site (subject to the Seller’s inventory of FBS Products being available to allow Tomor online to provide the FBS Services). The Seller retains full responsibility for ensuring that FBS Products are available to allow Tomor online to provide the FBS Services.
  4. FBS FEES NOTICE PERIOD: The FBS Fees Notice Period shall commence upon midnight on the date that the Site is updated to indicate the commencement of the FBS Fees Notice Period. The Seller shall not be liable to pay for FBS Fees for the FBS Services provided before the expiry of the FBS Fees Notice Period. Upon expiry of the FBS Fees Notice Period, the Seller shall pay Tomor online the FBS Fees for the FBS Services. The Seller acknowledges and expressly agrees that Tomor online may deduct the FBS Fees from the Seller’s account in accordance with the Site Terms. The Seller acknowledges Tomor online can monitor all payment activities conducted through the Seller’s account in accordance with the Site Terms.
  5. SHIPPING TO Tomor Online (GENERAL): Seller is responsible for delivering the Products to the relevant Tomor online fulfillment center facility in each Country which shall be subject to inspection in accordance with these FBS Terms. Seller shall pay for all costs incurred to ship the Products to Tomor online (including costs of freight and transit insurance) and Tomor online shall not pay any shipping costs. Seller is responsible for payment of all customs, duties, taxes, and other charges. Seller shall not deliver to Tomor online, and Tomor online may refuse to accept, any Products or shipment that does not conform to the Site Terms or these FBS Terms. Tomor online’s confirmed receipt of delivery does not: (a) indicate or imply that any Product has been delivered free of loss or damage, or that any loss or damage to any Product later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that Tomor online actually received the number of units of the Product(s) specified by the Seller; (c) waive, limit, or reduce any of Tomor online’s rights under these FBS Terms; or (d) confirm that such FBS Product(s) meets any necessary criteria (including as to the authenticity of the Product(s)), (e) confirm that such FBS Product(s) have not expired by reference to any expiry date or period applicable to the Products or (f) warrant, represent, affirm or contest the scope or validity of any intellectual property rights related to the Products. In addition, if you ship Products from outside the applicable countries to fulfilment centres, you will list yourself as the importer/consignee and nominate a customs broker. If Tomor online is listed on any import documentation, Tomor online reserves the right to refuse to accept the FBS Products covered by the import documents and any costs assessed against or incurred by Tomor online will be collected from you in accordance with the Site Terms (including by way of deduction from amounts payable to you), or by other method at our election.
  1. SHIPPING TO Tomor online (DISCOUNT): Subject always to paragraph 12 of these FBS Terms, we may, at our option, allow you to ship the FBS Product(s) in the Countries at your expense to fulfilment centers using discounted shipping rates that we may make available to you for certain carriers. In such event, you will use the processes and supply the information that we require for you to obtain such discounted rates. You also must comply with standard operating procedures, weight and size restrictions, and other shipping requirements of the applicable carriers. If we provide you with the estimated shipping costs prior to shipment, you acknowledge and agree that actual shipping costs may vary from such estimates. In addition, if the weight of the FBS Product(s), as determined by the applicable carrier, differs from that submitted by you to us for purposes of determining the estimated shipping costs, then: (a) you may be charged more than the estimated shipping costs if the carrier determines that such FBS Product(s) weigh(s) more than as submitted by you; or (b) you may be charged the full amount of the estimated shipping costs even if the carrier determines the weight to be less than that submitted by you. You will not use carrier account information (e.g., carrier account number, amount of shipping rates, etc.) for any purpose, nor disclose such information to any third party, and you will protect such information as Tomor online’s confidential information in accordance with Site Terms. As between you, us, and the applicable carrier, you will be the shipper of record, and we will make payment to the carrier with respect to the shipment of all applicable FBS Product(s) using such discounted rates. Title and risk of loss for any such FBS Product(s) shipped using discounted rates provided by us under this paragraph of these FBS Terms will remain with you, and our provision of such shipping rates will not create any liability or responsibility for us with respect to any delay, damage, or loss incurred during shipment. You authorize the applicable carrier to provide us with all shipment tracking information.

 

  1. SHIPPING AND GIFT WRAP: For any FBS Products, where relevant, we will determine the amounts charged to the customer for shipping and gift wrap services (if any) for the FBS Products that we fulfil as part of the FBS Services in the all Countries. As between you and us, these charges will be your charges to the customer, and we will report them to you. We will charge you (and you will pay us) a fee equal to the amount of such charges to the customer. In the case of shipments of FBS Products sold through the Site that qualify for the “Free Shipping” promotion, the amounts charged to the customer for shipping any such FBS Products that Tomor online fulfils will first be charged to the customer and will next be deducted from the total charges to the customer as your promotion and Tomor online will not charge you the fee described above. If you ship FBS Products to us using the shipping rates that we may make available pursuant to these FBS Terms, you will reimburse us for the actual amounts charged to us by the applicable carrier for such shipments.

 

  1. INSPECTION: Upon receipt at or delivery to a Tomor online fulfillment center facility (whether for the first time or following a return from the Seller’s intended customer) of a FBS Product(s), the Seller acknowledges and agrees that, at Tomor online’s discretion, any such FBS Product(s) shall be subject to a quality inspection by Tomor online(or on its behalf). To the extent that the packaging of such FBS Product(s) is opened or removed, and the FBS Product(s) passes the inspection, Tomor online agrees that the FBS Product(s) shall be repacked or resealed in such a manner as to be suitable for sale to customers. Tomor online retains the right in its sole discretion to refuse to accept the FBS Products or refuse to provide the FBS Services in respect of any such FBS Product(s) that Tomor online determines: (a) is defective, damaged, unfit for a particular purpose, or lacking required label(s); (b) the labels for which were not properly registered with Tomor online before shipment or does not match the Product that was registered by the Seller; (c) is otherwise an excluded Product (in accordance with the Site Terms) or does not comply with the Site Terms; (d) is unsellable, or cannot be fully and properly repaired by or for us to a suitable condition for resale (including where the expiry dates have passed, or where the remaining period prior to expiry date is less than fifty percent (50%) of the total shelf life of that Product); or (e) is otherwise unsuitable, and together such FBS Products as set out in (a) to (e) shall be called “Failed Inspection Products”.

 

  1. UNSOLD ITEMS: To the extent that Products stored at a Tomor online fulfillment center facility are not sold within sixty calendar days from the date of their receipt at Tomor online fulfillment center facility (“Unsold Items”), such Products must be collected by the Seller. Tomor online may offer the Seller transportation/shipment facilities to remove the items from Tomor online fulfillment center facility at its standard price. If you do not respond to a request to collect an Unsold Item, or do not collect an Unsold Items, we shall deem it to be an “Uncollected Unsold Item”.

 

 

  1. RETURNS TO Tomor online AND RE-LISTING: Tomor online shall allow the Seller’s customer to return any FBS Products according to the Site Terms provided that such FBS Products were shipped to addresses within the same Countries in accordance with the terms of these FBS Terms. Following their return, if the FBS Products are in a condition that may allow the FBS Products to be resold through the Site (to be determined by Tomor online at its discretion) and have been returned in accordance with these FBS Terms, then Tomor online agrees to re-list such Products for sale according to these FBS Terms in the same Elected Country (but not according to any other terms or by reference to any other service that Tomor online (or its affiliates) may offer). Except as provided in paragraph 20, you will retain or retake title of all FBS Products that are returned by customers.
  2. RETURNS TO YOU: You may, at any time, request that FBS Products be returned to you or that we dispose of FBS Products. We may (i) make available for collection those FBS Products that you have requested to be returned to you, or (ii) return: (a) FBS Products to you (for any reason), (b) Failed Inspection Products or (c) Unsold Items, including (in each of (i) and (ii)) upon termination of these FBS Terms (Return Products) and we shall charge you the Return Fees for the return of each such Return Product. The Return Products will be sent to your designated shipping address. However, if (a) the designated shipping address we have for you is outdated or incorrect, (b) you have not provided a designated shipping address in the Elected Country, or (c) we cannot make arrangements for you to pay for the return shipment, then the FBS Product(s) will be deemed abandoned and we, to the extent permitted by Applicable Laws in the Elected Country, may elect to dispose of them in our sole discretion in accordance with paragraph 20 of these FBS Terms.

 

  1. FBS PRODUCT RECALLS: You will promptly notify us of any recalls or potential recalls, of any FBS Products and cooperate and assist us in connection with any such recalls, including initiating the procedures for Return Products. In addition, to the Return Fees, you will be responsible for all costs and expenses you, we or any of our or your affiliates incur in connection with any recall or potential recall of any FBS Products (including the costs to return, store, repair, liquidate, or deliver to you or any vendor any of these Products).

 

 

  1. DISPOSAL OF RETURN PRODUCTS: We, if we so elect, may dispose of any Return Products or Uncollected Unsold Items (and you will be deemed to have consented to our action): (i) immediately if we determine in our sole discretion that such FBS Product creates a health, safety, or liability risk to Tomor online , our personnel, or any third party; (ii) if you fail to direct us to return or dispose of any such FBS Product within thirty (30) days after we notify you that such FBS Product has been recalled; or (iii) if you fail to direct us to return or dispose of any such FBS Product within thirty days (or as otherwise specified on the Site) after we notify you. We may dispose of any such FBS Products in the manner we prefer. Title to each such disposed FBS Product(s) will transfer to us at no cost, as necessary for us to dispose of the FBS Product(s), and we will retain all proceeds, if any, received from the disposal. You will reimburse us for all costs and expenses we incur in connection with the storage, and return or disposal of any such FBS Products.

 

  1. TAX: Seller acknowledges that it or its agent is solely responsible for identifying and resolving any sales, customs and use tax collection issues for product orders, including the necessity of charging and collecting such taxes. Seller understands and acknowledges that storing Products at fulfilment centres may create a tax nexus for Seller in any Elected Country or other country, state, province, emirate, or other localities in which FBS Products are stored, and Seller will be solely responsible for any taxes owed as a result of such storage. If any taxes are assessed against Tomor online as a result of performing the FBS Services for the Seller, Seller shall be responsible for such taxes and Seller shall indemnify and hold Tomor online harmless from such taxes. All FBS Fees are exclusive of applicable taxes and duties, including, without limitation, VAT, sales and other similar transaction taxes, excise taxes and gross receipt taxes (“Indirect Taxes”). If the FBS Fees payable by Seller are subject to Indirect Taxes, then Indirect Taxes will be charged by Tomor online in addition to the FBS Fees payable under these FBS Terms. Seller will provide such information to Tomor online as reasonably required to determine whether Tomor online is obligated to collect Indirect Taxes from Seller or to allow Tomor online to comply with its legal obligations in relation to the correct collection and enforcement of Indirect Taxes.

 

  1. INDEMNITY: In addition to your obligations under the Site Terms, you agree to indemnify, defend, and hold harmless us, our affiliates, and our and their respective officers, directors, employees, representatives, and agents against any Claim that arises from or relates to: (a) the FBS Product(s) (whether or not title has transferred to us, and including any FBS Product(s) that we identify as yours), including any personal injury, death, or property damage; (b) the shipment, export, or delivery of your Products to addresses outside of the Elected Country in accordance with paragraph 4 of these FBS Terms (including with respect to any classification data and other information provided by you to us in connection therewith, and notwithstanding any rights we have under paragraph 4 of these FBS Terms or any certifications we may make in connection with the shipment, export, or delivery of your FBS Products); (c) any of your taxes or the collection, payment, or failure to collect or pay your taxes; and, if applicable (d) any sales, use, value added, personal property, gross receipts, excise, franchise, business, or other taxes or fees, or any customs, duties, or similar assessments (including penalties, fines, or interest on any of the foregoing) imposed by any government or other taxing authority in connection with the shipment of the FBS Product(s) outside of the Elected Country in accordance with paragraph 4 of these FBS Terms (collectively, “Foreign Shipment Taxes“).

 

  1. SUBCONTRACTORS:Tomor online reserves the right to subcontract with other individuals and businesses for FBS Services required to be performed pursuant to these FBS Terms.
  2. EFFECT OF TERMINATION: Following any termination of these FBS Terms (whether in whole or in part), Tomor online shall, as directed by Seller, return to you or dispose of the FBS Products held subject to these FBS Terms. Upon any termination of these FBS Terms, all rights and obligations of the Parties under these FBS Terms, except that the rights and obligations of the Parties with respect to FBS Products received or stored by Tomor online as of the date of termination will survive the termination. To the extent relevant, Seller shall immediately return to Tomor online all property (including without limitation, Confidential Information and all material related to any customers) that it has received from Tomor online in connection with the performance of its obligations.
  3. INSURANCE: During the FBS Term, Tomor online recommends that the Seller maintains with a financially sound insurance company an insurance policy or policies insuring the Seller against potential liabilities under or in relation to the receipt of the FBS Services (including in respect of product Liability and bodily Injury, including death and property damage) for each Elected Country in which the FBS Services are provided and to an extent and to limits that would be reasonably expected under the standards of good industry practice and Applicable Laws in the Elected Country.