Coolmarket Seller Terms and Conditions
By registering to sell on the Coolmarket website and any related websites and applications owned or operated by or on behalf of the proprietors of Coolmarket ( “the Website”), you as an individual, or the company on behalf of which you are registering, (referred to herein as “Seller”) agree to be bound by these Coolmarket Seller Terms and Conditions (collectively, with any Attachments or Exhibits, “the Agreement”), which are by and between MZ Holdings t/a Coolmarket.com (together with its affiliates, “Coolmarket”) and Seller (each, a “Party” and collectively, the “Parties”). This Agreement is effective as of the date Seller registers for the Website via the Portal or otherwise accepts the Agreement (the “Effective Date”).
“Account” means Seller's Marketplace account, which is accessible through the Portal.
“Agreement” has the meaning given in the preamble.
“Applicable Law” means all legal rights and obligations of Jamaica and all other countries in which the Merchandise is produced, sold, or delivered.
“Confidential Information” has the meaning given in Section X.A.
“Confidential Personal Information” has the meaning given in Section X.C.
“Claims” has the meaning given it in Section IX.A.
“Effective Date” has the meaning given in the preamble.
“IP Rights” means all intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), confidential information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and «rental» rights and rights to remuneration;
“Liabilities” means all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys' fees) asserted in any claim, action, lawsuit or proceeding.
“Merchandise” means the goods, offers and services Seller markets and lists for sale to Users on the Websites.
“Merchandise Listings” means the offers created for display on the Websites related to the sale of the Merchandise.
“Personnel” means a Party's employees, agents, officers, directors, or others action on behalf of the Party.
“Portal” means the online interface by which Seller accesses its Coolmarket vendor account, uploads its Seller Content and Merchandise Listings, manages its User Orders, and other such activities related to this Agreement.
“Seller” has the meaning given in the preamble.
“Seller Content” means all images, videos, text, Merchandise descriptions, and Merchandise-related data uploaded by Seller to create its Merchandise Listings.
“Seller Marks” means all of Seller's domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.
“Seller Shipping and Delivery Policy” means the policy loaded by Seller into the Seller Portal, in compliance with the Terms of this Agreement.
“Seller Specifications” means all information related to order fulfillment, shipping times, and merchandise returns, as may be designated by Coolmarket, or by Seller, if applicable, via the Portal, and relating to Seller's Merchandise.
“Taxes” has the meaning given in Section II.B.3.
“User” means any user or customer accessing the Websites, or placing or receiving any order for Merchandise via the Websites.
“User Order” has the meaning given in Section II.C.1.
“Website” has the meaning given in the preamble.
I) COOLMARKET'S RESPONSIBILITIES.
A. Websites Hosting and Maintenance. Coolmarket will provide Seller with access to the Website as a platform for Seller to post Merchandise Listings and facilitate the sale of Seller's Merchandise to Users. Coolmarket will be responsible for all operating functions of the Website. Coolmarket may, in its sole discretion, (i) ask Users to rate and/or provide comments regarding Merchandise and/or Seller's performance, using any metrics determined by Coolmarket in its sole discretion, and (ii) post any resulting ratings and/or comments on the Website for public display.
B. User Orders and Payment. Coolmarket will process User Orders (as defined in Section II.C.1) and collect all amounts due from Users for Merchandise ordered from Seller through the Website. Coolmarket will remit such amounts, less any amounts owed to Coolmarket by Seller, by electronic funds transfer to the bank account identified by Seller in the Portal Within fifteen (15) days after the order has shipped. The minimum single payment disbursement to by Coolmarket to Seller is JMD$2500.00 and as such, sums less than this minimum threshold shall be held by Coolmarket on behalf of the Seller until such time as accrued funds held become equal to or greater than the aforementioned minimum disbursement threshold.
Seller hereby appoints Coolmarket as an agent of Seller for the sole and express purpose of receiving payments from Users for Seller's Merchandise sold on the Website. Seller acknowledges that, as between Seller and a User who purchases Merchandise from Seller, Coolmarket's receipt of funds from the User is deemed the receipt of funds by Seller.
II) SELLER'S RESPONSIBILITIES.
A. Enrollment; Account Activation. Seller will provide the information requested on the Portal during Account activation, and agrees to update such information promptly. Seller will not use or incorporate any Coolmarket Mark, in whole or in part, in Seller's account name or any other User-facing identification. Seller agrees to secure the password used to access its Account and not to disclose it to any third party (other than any authorized third-party service providers to Seller). Seller acknowledges and agrees to be strictly liable for all uses or actions occurring through the Seller's Account.
B. Merchandise Listings. Seller will create Merchandise Listings via the Portal for all Merchandise it intends to sell on the Website. All Merchandise Listings will comply with any specifications and policies posted in the Portal, and such Merchandise Listings will not use or incorporate any Coolmarket Marks. Seller is responsible for promptly updating its Merchandise Listing(s) to ensure the Merchandise Listing and inventories are at all times accurate. Seller acknowledges that failure to abide by the terms of this Agreement may subject Seller to penalties and legal liability, and that Coolmarket may reject, remove or censor any Merchandise Listing for any reason, in Coolmarket' sole discretion.
1. Merchandise Pricing. Seller is responsible to establish prices for its Merchandise. Seller will enter pricing via the Portal, unless another method is approved in writing by Coolmarket. If Seller uploads or otherwise provides incorrect pricing information to a Merchandise Listing (a “Seller Pricing Error”), Coolmarket may, at Seller's expense, take any commercially reasonable action necessary to avoid and/or repair harm to Coolmarket due to the Seller Pricing Error. Such action may include requiring Seller to honor all Merchandise purchases occurring due to Seller Pricing Errors and compensating Users for any inconvenience caused by such errors. Seller will also reimburse Coolmarket for all costs Coolmarket incurs directly as a result of Seller Pricing Errors.
2. Prohibited Merchandise. Unless otherwise expressly permitted in writing by Coolmarket, Seller will not promote, offer for sale, or provide Coolmarket with Merchandise Listings that (a) contain any Prohibited Merchandise, (b) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, attempting to scam or defraud a User into surrendering private and/or personal information); or (c) promote or engage in any other illegal activity.
3. Permits and Licenses; Taxes. Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes and assessments which may be due for selling or offering of its Merchandise for sale on or through the Website. It is Seller's responsibility to determine when it has an obligation to collect and remit General Consumption Tax and any other applicable taxes (“Taxes”). Coolmarket will pay over the Taxes collected from the online purchaser directly to the Seller and Seller will be solely responsible for remitting the tax to the applicable taxing authority. Seller acknowledges and agrees that Coolmarket does not provide tax advice, and that Seller is solely responsible for determining the applicability and accuracy of any tax data. Seller agrees to defend, indemnify and hold Coolmarket harmless from Liabilities arising from any tax or other obligation of the Seller.
C. Shipping. Seller is ultimately responsible for all aspects of shipping, including providing adequate packaging, tagging, labeling and packing of the Merchandise in compliance with the Seller Specifications and Applicable Law. Seller authorizes Coolmarket to ship products on its behalf using a shipping service provider of Coolmarket’s choice.
1. Process. When Seller receives notice of an order from a User (a “User Order”) at the e-mail address specified by Seller in the Portal, Seller will process and fulfill the User Order in compliance with the Seller Shipping and Delivery Policy. Seller will not substitute any item(s) for the Requested Merchandise. Title to and risk of loss of and/or damage to the Requested Merchandise will remain with Seller until delivery to the User. Coolmarket will not have title to, or deemed the legal owner of, any Merchandise at any time under the terms of this Agreement. Seller may not include any marketing, promotional materials, or any other solicitations with the Requested Merchandise shipped to Users. In the absence of demonstrably gross negligence on the part of Coolmarket, Seller is fully liable for any loss or damage caused to any party as a result of an incorrect shipment.
2. Overdue Orders. Coolmarket may cancel any User Order that fails for any reason to ship within the applicable shipping period indicated in the Seller Specifications, and Coolmarket will have no duty to compensate Seller for any such cancelled orders. It is Seller's responsibility to monitor all orders and ensure all shipments are made within the timeframes indicated in the Seller Specifications.
3. Delivery Errors, Non-conformities. Seller is responsible for any non-delivery, delivery error, mistake, theft or act in connection with the fulfillment and delivery of its Merchandise.
D. User Service Issues. Seller will resolve all User service issues arising from, or in connection with Seller's promotion, sale, order fulfillment and/or delivery of Merchandise. Coolmarket will direct Users who contact it with service issues related to Merchandise sold pursuant to this Agreement to contact Seller via the contact information Seller has provided in the Portal. If Seller fails to respond to User service issues, or requests from Coolmarket related to same, Coolmarket may take any actions necessary to ensure compliance, up to and including suspending Seller's access to their Account. In the event that Coolmarket believes in its sole discretion that a transaction represents fraudulent activity, Coolmarket may, but is not obligated to, prohibit the transaction. Coolmarket will not be liable to Seller for any such action results in or prevents a User from completing an order or causes a User to cancel an order.
E. Chargebacks. If Coolmarket notifies Seller of a User chargeback or chargebacks received due to non-delivery, or other dispute related to Seller's transactions, Seller must present Coolmarket with all information requested in the chargeback notification within five (5) business days of receiving notice. If Seller fails to comply with Coolmarket' request, Seller will reimburse Coolmarket for the User chargeback(s) in accordance with the settlement and payment terms herein. Notwithstanding the other provisions of this paragraph, Seller will not be responsible for chargebacks due to (a) theft and/or unauthorized use of a third party's credit card information for which Coolmarket is responsible (except to the extent such theft and/or unauthorized use is attributable to Seller), and (b) non-delivery due to Coolmarket's failure to send the order information to Seller.
F. Seller Marketing; Restrictions; Prohibition on use of User Information. Seller (or any of its affiliates or related parties) may not directly or indirectly disclose or use any User information or other transaction information, except as necessary to fulfill its fulfillment and customer service obligations under this Agreement. Seller may not use any User information for any of its own marketing or promotional activities. To the extent Seller obtains User information outside of its relationship with Coolmarket or the Website, the terms of this section will not prevent Sellers from using such User information, provided that Seller may not explicitly target Users on the basis of their purchases or presence on the Website.
G. Refunds; Returned Merchandise. Seller will submit a return policy (the “Seller Return Policy”) using the form provided on the Portal. The Seller Return Policy must (i) apply to all Merchandise, (ii) outline the process for Users to return the Merchandise directly to Seller, and (iii) be at least as accommodating to User returns as the Coolmarket Return Policy. Seller agrees to honor all User returns in accordance with the Seller Return Policy published at the time of the User's purchase of Merchandise.
H. Recalled Merchandise; Defective Merchandise. Seller will immediately notify Coolmarket of any recalls affecting the Merchandise it has listed on Coolmarket Marketplace. Notwithstanding the foregoing Seller is responsible for all defective or recalled Merchandise, including any costs associated with recalls of its Merchandise, all liability related to its Merchandise (regardless of whether such Merchandise is defective), and will bear all costs associated in notifying Users and handling such recalls of its Merchandise.
III) FEES AND COMMISSIONS.
A. Fees & Commissions. Seller will pay fees and/or commissions to Coolmarket according to the Commission Rate Schedule available in the Portal, which is subject to change. Any revised Commission rates are effective as of the date posted. Seller agrees that failure to pay fees due hereunder may result in a breach of this Agreement, removal of Merchandise Listings and/or suspension of access to the Portal.
B. Right of Recoupment and Set-off. Coolmarket and Seller acknowledge and agree that Coolmarket has the right to recoup or set-off any payments owed to Seller by the amount of any fees, commission payments, Seller obligations owed according to the defense and indemnity terms herein, and any other monetary obligations owing by Seller to Coolmarket. Any remaining outstanding funds due to Coolmarket after recoupment or set-off will be paid by Seller promptly upon demand by Coolmarket. Coolmarket may obtain reimbursement of any amounts owed by Seller to Coolmarket by deducting from future payments owed to Seller, reversing any credits to Seller's account, charging Seller's credit card, or seeking such reimbursement from Seller by any other lawful means. Seller hereby authorizes Coolmarket to use any or all of the foregoing methods to seek reimbursement, including the debiting of Seller credit card or bank account.
IV) INTELLECTUAL PROPERTY.
A. Grant of License by Coolmarket. Coolmarket hereby grants to Seller a non-exclusive, revocable, non-transferable license to promote and sell Merchandise on or through the Website to Users, subject to the terms of this Agreement.
B. Grant of License by Seller. Seller hereby grants to Coolmarket a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, display, distribute, perform, re-format, create derivative works of or otherwise commercially or non-commercially exploit in any manner the Seller Content and Merchandise Listings with the right to sublicense such rights through multiple tiers; provided however that Coolmarket will not alter any Seller Marks from the forms provided by Seller except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further than nothing in this Agreement will restrict Coolmarket' right to use the Seller Content to the extent such use is allowable without a license from Seller under Applicable Law.
C. Intellectual Property Rights. All right, title and interest in and to the Website, and all data collected or stored in connection with the Website and any other Coolmarket websites, any of their affiliates' websites, and any other service or website associated with the foregoing, including mobile sites or microsites, and all IP Rights associated with any of the foregoing, will at all times remain the exclusive property of Coolmarket, and except as expressly provided herein, nothing will be construed as conferring on Seller any license to Coolmarket' IP Rights, whether by estoppel, implication or otherwise. If Seller is deemed to have any ownership interest or rights in any of the foregoing, or any part thereof, then Seller will assign, and Seller does hereby assign, all of such ownership interest and rights to Coolmarket, including all Seller IP Rights therein. All rights not expressly granted herein are reserved to Coolmarket.
D. Ownership of Content. Coolmarket and Seller each agree and acknowledge that, as between Coolmarket and Seller, Seller owns all Seller Content and Seller Marks, subject to the License granted herein.
V) TERM AND TERMINATION.
A. Term. The term of this Agreement will commence on the Effective Date, and will continue in effect until such time as revised by Coolmarket, or terminated by either Party in accordance with the notice and termination requirements set forth below (the “Term”).
B. Termination. Seller may terminate this Agreement at any time upon two (5) business days' notice to Coolmarket, in which case Seller will process and fulfill all open orders until the termination is effective. Coolmarket may terminate this Agreement (i) at any time upon notice to Seller; or (ii) if Coolmarket determines in its discretion that Seller has breached any term of this Agreement, immediately, including the right to cancel all open User orders for the Merchandise, and to remove all of Seller's Merchandise Listings from the Website.
C. Survival. Any termination of this Agreement will be without prejudice to the rights of either Party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. Any obligations of the Parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or User services obligation in connection with the sale of Merchandise hereunder, will survive termination of this Agreement.
VI) REPRESENTATIONS AND WARRANTIES.
A. Mutual. Each Party represents and warrants that: it has the authority to enter into the Agreement and to perform the acts required of it; and the execution of this Agreement by each Party, and the performance by such Party of its obligations and duties, does not and will not violate any other agreement to which such Party is otherwise bound.
B. Seller. Seller further represents and warrants that:
1. The Seller Listings and all information and Seller Content provided to Coolmarket is accurate, complete, current, and is not misleading or deceptive in any manner;
2. The publication, reproduction, display, modification, distribution or transmission of Seller Content or a Merchandise Listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights (b) contain defamatory or discriminatory content, (c) constitute an invasion of a party's rights of privacy or publicity; and/or (d) reflect unfavorably on Coolmarket, the Website and/or other Sellers on the Website;
3. Seller will at all times fully comply with Applicable Law, including applicable privacy laws;
4. Seller will include in Merchandise Listings all disclosures associated with the Merchandise as required by Applicable Law;
5. All Merchandise sold pursuant to this Agreement is not subject to any health, safety or product quality recall;
6. Seller will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards;
7. Seller will maintain at a minimum such product liability insurance coverage limits, general liability, vehicle, and worker's compensation coverage limits as required by Applicable Law to operate its business;
8. All information or data uploaded or transmitted by or on behalf of Seller to the Portal, Websites, or any other Coolmarket website, application, or system, or to a User is free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Portal, Websites, any other Coolmarket website, application, or system. Seller will not use the Website to violate the security of, or gain unauthorized access to, any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes to use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Website, collect any information about other Users (including usernames and/or email addresses); or to reformat or frame any portion of the Website), or use the Website and/or any other Seller Content, intentionally or unintentionally, to violate any Applicable Law.
VII) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COOLMARKET MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE WEBSITE, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE WEBSITE ARE PROVIDED BY COOLMARKET ON AN "AS IS" AND “AS AVAILABLE” BASIS AND SELLER'S USE OF THE WEBSITE IS SOLELY AT SELLER'S OWN RISK. COOLMARKET DOES NOT WARRANT THAT SELLER'S USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES COOLMARKET MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITE, OR THE SALE OF ANY MERCHANDISE ITEMS BY SELLER TO USERS THEREON, OR ANY SERVICES PROVIDED BY COOLMMARKET TO SELLER IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT ANY MERCHANDISE LISTING OR ANY RESULTS SELLER MAY OBTAIN UNDER THIS AGREEMENT. THE FUNCTIONALITY PROVIDED BY THE WEBSITE OR COOLMARKET, OR ITS DESIGNEES' SERVERS IS NOT AN ARCHIVE; SELLER IS SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING SELLER CONTENT PROVIDED TO COOLMARKET.
VIII) LIMITATION OF LIABILITY. IN NO EVENT WILL COOLMARKET BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COOLMARKET' LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) BE GREATER THAN THE LESSER OF (I) JMD$50,000 OR (II) THE TOTAL FEES PAID BY SELLER TO COOLMARKET IN THE THIRTY (30) DAYS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE.
IX) DEFENSE AND INDEMNIFICATION.
A. Obligation. Seller will defend, and indemnify and hold harmless the Coolmarket Parties from and against all third-party Liabilities, whether actual or alleged (even though such allegations may be false, fraudulent or groundless), arising out of or relating to any of the following (collectively, the “Claims”): (i) infringement, misuse, dilution, misappropriation, or other violation of any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights; (ii) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any latent or patent defect in Merchandise, including improper manufacture, construction, assembly, installation, repair, display, packaging, service or design of Merchandise, failure of Merchandise to comply with any specification or samples or with any express or implied warranties of Seller, or any claim of strict liability in tort relating to Merchandise; (iii) any violation by Seller (or its affiliates, or their respective Personnel of each of them) in the manufacture, construction, assembly, installation, repair, display, packaging, possession, service, design, use, delivery or sale of Merchandise (“Production or Sale”) of any Applicable Law of Jamaica, or any other country in which the Production or Sale of Merchandise took place; (iv) the publication of Seller Content and product information Seller supplies to Coolmarket to display in Merchandise Listings; (v) the packaging, tagging, labeling, packing, shipping, delivery and invoicing of Merchandise; (vi) failure to warn or to provide adequate warnings or instructions in the use, assembly, service or installation of Merchandise; (vii) the packaging, labeling or advertising claims made by Seller; (viii) the display, assembly or installation of Merchandise, (ix) the assertion by a third party of a security interest, right of replevin, or other legal interest created by a factoring or other credit arrangement in any amount due Seller under a vendor agreement; (x) a breach of any of the Seller's representations and warranties contained herein; or (x) Taxes or the collection, payment or failure to collect or pay Taxes. Notwithstanding the provisions of this Paragraph, Seller will not be liable for damage to third parties to the extent such damage was solely and proximately caused by the negligence or willful misconduct of any Indemnified Party.
B. Process. In performing its obligations under Section IX.A, Seller will retain counsel satisfactory to Coolmarket and will, from time to time, provide reports, consult with Coolmarket' Personnel in conducting the defense of the Claims and otherwise cooperate fully with the reasonable requests of Coolmarket; provided that only with respect to claims arising under Section IX.A.(i) above, Coolmarket may, at its election and at any time, take control of the defense and investigation of said Claims and employ attorneys and other consultants, investigators and experts of its own choice to manage and defend any such Claims at the cost and expense of Seller. In any case in which Seller's indemnity obligation set forth in Section IX.A is not enforceable under Applicable Law and in which any Indemnified Party and Seller are found to be liable to a third party with respect to Merchandise, then Coolmarket and Seller will each contribute to the payment of any judgment awarded in favor of such third party in proportion to the comparative degree of culpability of the Indemnified Parties and Seller.
C. Independent Obligation. The obligations of Seller to defend, indemnify, and hold harmless the Indemnified Parties under this Agreement are independent of each other and any other obligation of the Parties herein.
D. Settlement. Seller may settle, without Coolmarket' consent, Claims if the only obligation under such settlement is the payment of monies by Seller and such settlement provides for a full release of Seller and the Indemnified Parties. All other settlements, including any that would create obligations of (or restrictions upon) the Indemnified Parties or restrictions upon the sale (or disposition) of the Merchandise, will require Coolmarket' prior written consent.
A. Definition and Obligations. “Confidential Information” means any and all technical or business data or information furnished, in whatever form or medium, by Coolmarket regardless of whether marked or identified as “Confidential”, including Confidential Personal Information (as defined below), the terms of this Agreement, and the operations and technology to be utilized in connection with the Portal and Websites. Seller agrees to: (i) treat as confidential, and preserve the confidentiality of all Confidential Information and not disclose it to any third party; (ii) use the Confidential Information solely for the purposes of this Agreement; and (iii) not copy such Confidential Information unless authorized by Coolmarket.
B. Treatment of Confidential Information. The obligations with respect to Confidential Information will not apply to any information that: (i) is already in Seller's possession, as shown by documentation and without obligation of confidentiality; (ii) without action or fault on Seller's part, is or becomes publicly available; or (iii) Seller has obtained from a third person without breach by such third person of an obligation of confidence. Seller must promptly return or destroy all Confidential Information at Coolmarket' request.
C. Confidential Personal Information. In addition to the obligations related to Confidential Information, additional obligations apply to Confidential Personal Information. All information related to Users, including names, addresses, telephone numbers, account numbers, and demographic, financial and transaction information is “Confidential Personal Information.” Seller will not duplicate or incorporate the Confidential Personal Information into its own records or databases. Seller will restrict disclosure of Confidential Personal Information to its employees who have a need to know such information to perform under this Agreement. Seller is liable for any unauthorized disclosure or use of Confidential Personal Information by any of its employees. Except as necessary to fulfill its Customer Service obligations herein, Seller will not disclose the Confidential Personal Information to any third party, including any affiliate or subsidiary of Seller, permitted subcontractor, or other representative without the prior written consent of Coolmarket. Unless otherwise prohibited by law, Seller will: (i) immediately notify Coolmarket of any legal process served on Seller for the purpose of obtaining Confidential Personal Information; and (ii) permit Coolmarket adequate time to exercise its legal options to prohibit or limit such disclosure. Seller will notify Coolmarket promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Personal Information and agrees to indemnify and hold Coolmarket harmless for such loss, unauthorized disclosure or unauthorized use of Confidential Personal Information, including attorneys' fees.
D. No Publicity. Without limiting the foregoing, Seller will not disclose the existence or terms of this Agreement or any other information regarding Seller's sale of Merchandise on the Website, in any advertising, promotional or sales activity, publicity release, or other public communication without Coolmarket' prior written consent and approval in each instance. Coolmarket has the right to review and approve any press release, marketing materials or related content that mentions Coolmarket.
A. Use of Subcontractors. Seller may use subcontractors in its performance under this Agreement, provided that (i) Seller's subcontractors will be required to adhere to the terms of the Agreement and (ii) Seller will be fully responsible for the acts and omissions of its subcontractors. Coolmarket may require Seller to cease use of any subcontractor for any reason, and may immediately suspend Seller's account, or terminate this Agreement in the event Seller refuses to comply with any such request from Coolmarket.
B. Force Majeure. Neither Party will be liable to the other for any failure to perform its obligations under this Agreement to the extent such failure is due to war, riots, embargoes, strikes or other concerted acts of workers, casualties, accidents or other causes to the extent that such failure and the consequences thereof are reasonably beyond the control and without the fault or negligence of the Party claiming excuse.
C. Invalidity; Waiver. No finding that any part of this Agreement is invalid will affect the remaining portions of this Agreement. Seller may not assign or transfer any of its rights or obligations under this Agreement without written consent from Coolmarket. Any such attempted assignment or transfer will be void, and Coolmarket may immediately terminate this Agreement, and Seller's access to the Portal without liability. The waiver by any Party of a breach of any provision of this Agreement by the other Party, will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor will any delay or omission by either Party to exercise or enforce any right or remedy hereunder operate as a waiver of any right or remedy.
1. Unless otherwise noted in the Agreement, Coolmarket will provide notices to Seller at the address, email address, or fax number provided by Seller to Coolmarket at the time of enrollment.
2. Seller must send all notices to Coolmarket through the Portal.
E. Governing Law. This Agreement will be construed and enforced in accordance with the laws of Jamaica. Seller and Coolmarket agree that the Jamaican Courts are the proper and exclusive venue for any dispute concerning this Agreement, and hereby consent to such court's personal and subject matter jurisdiction thereof.
G. Relationship of Parties. The Parties to this Agreement are independent contractors, and no other relationship will be implied from this Agreement. Nothing contained in or done pursuant to this Agreement will be construed as creating a partnership, agency, or joint venture, and neither Party will become bound by any representation, statement, or act of the other Party. Seller is responsible for all expenses necessary to fulfill its obligations under this Agreement.
Coolmarket Deals Merchant Agreement
This Agreement (hereafter “Merchant Agreement” or “Agreement”) is effective as of to(hereafter “Effective Date”) and is entered into by and between (“Merchant”) and MZ Holdings Limited T/A Coolmarket, Cooldeals, Clickmarket, Clickdeals a Jamaican limited liability company with its principal offices located at 2 Graham Street, Ocho Rios, Jamaica (collectively, “Parties” or “the Parties”).
Merchant Agrees to offer its products or services for sale on Coolmarket’s website, through purchase orders which are valid for Merchant’s goods and/or services on Coolmarket.com. Such Deals are offered and available for purchase by the public at Coolmarket.com (“Website” or “the Website”). Deals sold on Coolmarket are eligible for redemption and use according to the details on the face of the Merchant’s offer (“DEAL” or “the DEAL”), the Terms and Conditions listed on the particular Offer (Deal), and the Terms and Conditions for www.Coolmarket.com.
Coolmarket wishes to market and sell Merchant’s Deals to purchasers on the www.Coolmarket.com website. Merchant shall be the seller of any goods and/or services offered via the Cooldeals Purchase Order on www.Coolmarket.com. Coolmarket shall be the seller of intangible rights, embodied within the Merchant’s Deal.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:
1. Offer Terms and Definitions
The following Terms and Definitions embody the general terms of the Merchant Offer and shall be completed by Merchant. This section is subject to, and shall supplement, but not supersede, the remainder of the terms of this Agreement. To the extent there is conflict between the Offer Terms hereunder and the remainder of this Agreement, the remainder of this Agreement shall prevail.
1.1 “Deal” means: Merchant’s product or service provided by Merchant for sale on Coolmarket.com
1.2 “Deal Purchase Price” means the value of the deal as provided by the seller
1.3 “Deal Expiration Date” means the date on which the deal ceases to appear on Coolmarket’s website and is different from the Deal Redemption Date.
1.4 "Deal Redemption Date" means the valid date for utilizing the Deal per Merchant’s contract.
1.5 “Effective Date” means the date on which contract is fully executed by both parties.
1.6 “Face Value” means the total price paid to obtain the deal as presented on Coolmarket.
1.7 “Maximum Number of Deals” means the total number of deals being offered by Merchant for sale on Coolmarket.
1.8 “Merchant” means the merchant or owner of the deal being offered for sale on Coolmarket.com
1.9 “Merchant Payout” means the value of each Deal redeemed, minus 3% credit card processing fee based on the total Cooldeals purchase price, subject to the terms of this Agreement.
1.10. “Specific Conditions” means (list any specific conditions for the offer):
1.11 “Original Value” or “Value” means the original price of the advertised good or service:
2. Merchant Agrees as follows:
Merchant agrees to make Deal/s available for sale to the public on Coolmarket’s website. Merchant will provide all details relating to the Deal/s per Merchant Deal Form (Appendix 1). Merchant will be responsible for communicating any changes with respect to the Deals being offered on Coolmarket. Merchant remains the seller of all goods and services set forth in the Deal and on Coolmarket.com. Merchant shall appoint duly authorized representatives to be the point persons in respect of all Deals. The point person shall make available to Coolmarket, all information in relating to the Deals and shall receive Purchase Orders from Clickmarket on each purchase.
3. Coolmarket Agrees as follows:
4. Restrictions on Deals
There shall be no restrictions on the Deal and related Deals unless specifically provided for within this Agreement. Deals shall be redeemable up to and including the Deal Redemption Date. As required by applicable law, Merchant shall: (1) allow the continued redemption of Deals; or (2) allow the redemption of Deals for credit with the Merchant in the amount of the total amount paid for the Deal. Should applicable law require Merchant to do further, Merchant shall comply with all applicable laws and regulations. Merchant may elect to continue to redeem Deals after the Redemption Date at its discretion.
5. No Additional Charges Beyond Deal Price Allowed
Merchant shall not require any person redeeming a Deal to pay any additional amount, whether in the form of a fee or charge, that conflicts with the terms of the Deal. This section does not preclude the Merchant from requiring the payment of taxes as required by applicable law. However, should Merchant require Deal purchasers to pay tax on the value of the redeemed Deal, Merchant shall indicate on the face of the Deal that taxes are required to be paid by the Deal redeemer.
6. Customer Service Responsibility
Prior to purchase of Merchant’s Deal on the Coolmarket website, Coolmarket shall remain responsible for all customer support. Once a customer has purchased a Deal and the Deal has been electronically provided to customer, Merchant is responsible for any and all customer related
service from then on. Such responsibility includes the responsibility for all customer service related to the supplying of the goods and services that are included within the Deal.
7. Merchant Payout
Coolmarket shall pay Merchant for Deals purchased on Coolmarket.com in one lump sum payment within 10 business days of month end.
8. Cancellation of Deal by Customer
Coolmarket grants Customers the unreserved right to cancel any deal purchased on Coolmarket without cause in line with the Transactional Terms and Conditions found on our Website. All deals may be cancelled by a customer for a full refund by Coolmarket within seven (7) days of purchase so long as the deal has not been redeemed or expired or the Merchant has not been paid. All requests for cancellations must be done in writing by the customer and submitted to our email address at [email protected]
In the event a customer submits a request for cancellation after the 7-day cancellation period and after the Merchant has been paid, the request will be forwarded to Merchant and Merchant shall at its sole discretion provide a refund to the customer less commission paid to Coolmarket.
Merchant hereby attests that it is registered for GCT and shall be responsible for properly accounting for and paying all taxes associated with the goods and/or services listed on Coolmarket.
10. Permit Grant – Merchant’s Name, Logo, Trademarks, Photographs, etc.
Merchant grants Coolmarket a non-exclusive worldwide license and right to use, reproduce, license, display, distribute and transmit the Merchant’s name, logo, trademarks (“Merchant’s Marks”), photographs, graphics, artwork, text, and other content (“Content”) provided or specified by Merchant to market, promote, sell, or distribute Merchant’s Deals. Such license granted by way of this Agreement shall permit Coolmarket to use such Content and Merchant’s Marks in all forms in which Deals are marketed, promoted, transmitted, sold, or distributed, including but not limited to, the Coolmarket’s Website.
11. Termination of This Agreement
Either Coolmarket or Merchant may terminate this Agreement at any time at its discretion by giving each other one (1) month’s written notice of such termination. The termination shall in no way affect the purchaser’s usage of the Deal, or Merchant’s obligation to allow customer redemption of Deals.
12. Deal Period
Each deal may be offered for a period of seven (7) days and shall be replaced with another deal at Merchant’s discretion. Deals may be rotated after three (3) months.
13. Breach of This Agreement
In the event Merchant violates any part of this Agreement, Coolmarket may withhold all pending payments and retain the right to provide a full refund to the customer and provide written proof to Merchant. In the event Merchant violates any part of this Agreement and Coolmarket does not exercise its right to terminate this Agreement, payment for all Deals will be made on an as-redeemed basis.
14. Survival of Terms After Expiration or Termination of Agreement
The following sections of this Agreement shall survive any expiration or termination of this Agreement.
SECTION 2 - Merchant Representations and Warranties, and Indemnification
2.1. Merchant Representations and Warranties
Merchants hereby represents and warrants throughout the Term of this Agreement that: (a) Merchant has the rights, power, and authority to enter into this Agreement; (b) Merchant is registered for General Consumption Tax (GCT) (c) once the Deal has been electronically provided to a purchasing customer, the Deal shall be immediately eligible for redemption by the purchaser; (d) all terms and conditions of the Deal, including all discounts or goods or services presented comply with all local laws, including and not limited to, any law or regulation governing the use, sale, or distribution of alcohol, any Laws governing Deals, gift cards, gift certificates, or deals; (e) Merchant owns all rights, titles, and interest in the Marks and Content and has the right to grant licenses in the Marks and Content as stated in this Agreement; (f) the Deal and any advertising or promotion of Merchant’s products or services do not represent false, deceptive, or unfair advertising or disparagement under any applicable Laws; and (g) the Marks and Content do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or Laws.
Merchant agrees to defend, indemnify and hold harmless MZ Holdings Limited, Coolmarket, Coolmarket Deals and its affiliates, volunteers, partners and service providers, and their respective directors, officers, employees, affiliates and agents and their heirs, successors and assigns (“Indemnitees”), from and against any and all liabilities, demands, losses, damages, costs, expenses, fines, amounts paid in settlements or judgments, including without limitation, costs, reasonable attorneys’ fees, witnesses’ fees, investigation expenses, cost of management time, any and all out-of-pocket expenses, consequential damages, and all other expenses and costs incident thereto (collectively referred to as “Damages”) resulting from: (a) any breach or alleged breach of this Agreement by Merchant or Merchant’s agents or employees; (b) any breach or alleged breach of the Representations and Warranties within this Agreement; (c) any claim or recovery action for state sales tax or use tax obligations (“Taxes”) as a result of the sale and redemption of a Deal; (d) any claim by a local, state, or federal government entity for unused Deals or unredeemed cash value of any Deals or any other amounts under applicable escheat, unclaimed property, abandoned property, including, but not limited to, claims for penalties and interest (“Abandoned Property Claims”); (e) any claim by a local, state, or federal government entity for violating any Laws related to the sale, distribution, or use of alcohol; (f) any claim sounding in warranty, false advertising, product defects, personal injury, death, or property damage due to Merchant’s sale of products or services through a Deal on Coolmarket Deals’ Website (“Consumer Protection Claims”); (g)any claim, lawsuit, investigation, proceeding, regulatory action, or other cause of action that may be suffered by reason of any loss, damage, death, injury, and/or other reason arising out of or in connection with the purchase of a Deal on Coolmarket Deals’ Website and any infringement or alleged infringement or other violation of any patent, trademark, copyright, trade secret, or other intellectual property right or right of privacy or publicity.
Without limitation, the Merchant shall pay all monies owed to any party, as well as all attorneys’ fees, related to any action against, or determinations against, Indemnitees related to any action to pursue Indemnitees for Taxes, Abandoned Property Claims, or Consumer Protection Claims arising from Merchant’s breach.
2.3. Confidentiality of this Agreement and Intellectual Property Rights
This Agreement and the terms contained herein are confidential. Merchant agrees not to disclose the terms of this Agreement to any other party, with the exception of Merchant’s employees, parent companies, and shareholders as required, but only upon exercising reasonable precautions to protect confidential information.
2.4. Intellectual Property
Merchant agrees and acknowledges that Coolmarket Deals owns all rights, titles, and interests in the Coolmarket Deals Website, Coolmarket Deals trademarks, any software, technology, or tools used by Coolmarket Deals to promote, sell, market, generate, or distribute Deals (collectively, “Coolmarket Deals Intellectual Property”).
Merchant shall not redistribute, circulate, sell, rent, license, transfer, rent, display, reproduce, modify, or share Coolmarket Deals Intellectual Property in whole or in part. Nor shall Merchant use Coolmarket Deals Intellectual Property as an element of a good or service for sale, rental, lease, or other distribution.
Merchant shall not use Coolmarket Deals Intellectual Property, in whole or in part, as a basis for derivative work based on Coolmarket Deals Intellectual Property. This prohibition extends to reworking, translating, reverse engineering, decompiling, or dissembling Coolmarket Deals Intellectual Property.
2.5. Limitation of Liability
Any claim related to, resulting from, or arising out of, any error or omission in a Deal must be made within one (1) year of the first publication of Deal on Coolmarket Deals’ Website. If Merchant does not make any such claim within the one (1) year period prescribed, Merchant shall be deemed to have waived any such claim.
2.6. Entire Agreement
This Agreement represents the entire and sole agreement between the parties. This Agreement supersedes any and all prior or contemporaneous agreements, whether written or oral, concerning the subject matter of this Agreement.