Terms of Service

Terms of Service

Fulfill Engine, LLC: Terms of Service

Our Site, Services and related content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Site Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear on our Site or Service are owned by us, our licensors, or both. Except for the limited use rights granted in these Terms of Use, you shall not acquire any right, title or interest in our Site or Service. Any rights not expressly granted in these Terms of Use are expressly reserved.

Enrollment.

Only sellers must complete the registration process to be eligible for the Services. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable law. As part of the application, you must provide Fulfill Engine with certain information. Whenever you submit information to us, you agree to provide true, accurate and complete information and agree to, if the option is available, promptly update the information if there have been changes to the information you provided.

Limitation, Suspension or Termination.

We may, in our sole discretion, temporarily or permanently change, limit, suspend or terminate your access to our Site or Services (including any Site Content or User Content) without prior notice. We may do so based on changes to our business practices (e.g., eliminating a Service, etc.), if you violate the letter and spirit of these Terms of Use, or for any other lawful reason. You agree that we are not liable to you or any third party for any such action. We reserve all rights to our site and to take any action to protect same.

Any limitation, suspension or termination we impose shall not alter your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive any such action on our part shall survive including, but not limited to, the rights and licenses that you have granted to us in your User Content and provisions relating to indemnities, releases, disclaimers, limitations on liability, mandatory arbitration, no class action and all of the miscellaneous provisions in the within document.

License.

You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our Affiliates and operators of Fulfill Engine; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks (provided you are unable to do so using standard functionality made available to you via the Site or Services); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).

Representations.

You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the laws of the State in which your business is registered; (b) you have all requisite right, power and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Fulfill Engine or its Affiliates is at all times accurate and complete; and (d) you and all of your subcontractors, agents and suppliers will comply with all applicable laws in your performance of your obligations and exercise of your rights under this Agreement.

Indemnification.

You agree to indemnify and hold harmless Fulfill Engine and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or related to: (i) your access to or use of our Site or Services; (ii) your User Content; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty or covenant that you have made to us; or (v) your acts or omissions; (v) your improper and/or unauthorized use of any 3rd party’s information in any way, shape or form including any use of a 3rd party’s trademarks, servicemarks, copyrights, patents or any other confidential and/or proprietary information. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.

Disclaimer & General Release.

THE SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, YOU USE THE SITES AND THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, 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. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.

BECAUSE FULFILL ENGINE 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 FULFILL ENGINE (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

Limitation of Liability.

WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF FULFILL ENGINE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO FULFILL ENGINE IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.

Tax Matters.

As between the parties, you will be responsible for the collection, reporting and payment of any and all tax obligations, except to the extent Fulfill Engine expressly agrees to receive taxes or other transaction-based charges in connection with tax calculation services made available by Fulfill Engine and used by you if applicable.

Force Majeure.

We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.

Relationship of Parties.

The relationship between Fulfill Engine and you is that of independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable

right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of Fulfill Engine, 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 section.

Miscellaneous.

No waiver of any breach or default under these Terms of Use shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used in these Terms of Use are for convenience only and shall not be given any legal import. Except where specifically stated otherwise, if any part of these Terms of Use are deemed unlawful or unenforceable for any reason, we both agree that only that part of the Terms of Use shall be stricken and that the remaining terms in the Terms of Use shall not be affected and shall remain in force and effect.

You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent.

These Terms of Use (including the Privacy Policy and any additional terms incorporated by reference) constitute the entire agreement, and supersede all previous written or oral agreements, between you and Fulfill Engine in connection with the Site and Services.

13(a). Product Listing and Orders (if applicable).

13(a)(i). Product Listing; Merchandising; Order Processing. We will enable you to list your products on the Site, and conduct merchandising and promote your products as permitted by us. We may use mechanisms that rate, or allow shoppers to rate, your products and your performance as a seller and Fulfill Engine may make these ratings and feedback publicly available. We will provide order information to you for each order of your products through the Site. We will also receive all Sales Proceeds on your behalf for each of these transactions and will have exclusive rights to do so, and will remit them to you in accordance with these Selling on Fulfill Engine Service Terms.

13(a)(ii). Shipping and Handling Charges.

For your products ordered by customers on or through the Site, you will determine the shipping and handling charges. When we determine the shipping and handling charges, you will accept them as payment in full for your shipping and handling.

13(b) Refunds and Returns.

Cancellations, Returns and Refunds. Any and all refunds and returns are at our discretion. Due to the nature of our business many items may be custom ordered and therefore are considered special orders that are never subject to return or refund. Cancellations are not subject to reimbursement due to the specialized nature of our products and services.

13(c) Delivery Errors and Nonconformities; Recalls.

You are solely responsible for any non-performance, non-delivery, misdelivery, theft, mistaken ordering and/or any other mistake or omission or act in connection with the fulfillment of your products, except to the extent caused by: our clear mistake in fulfilling an order due to an omission on our part. All other errors, non-conformities, recalls that may be at question are at our discretion for reimbursement/replacement.

13(d) Control of Site.

We have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Site, including by redesigning, modifying, removing or restricting access to any of them, and by suspending, prohibiting or removing any listing.

Payments Processing Agency Appointment.

You authorize STRIPE to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying Fulfill Engine and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with Fulfill Engine and/or its Affiliates.

Your Funds

Your Sales Proceeds will be held in an account with Fulfill Engine (a “Seller Account”) and will represent an unsecured claim. Your Sales Proceeds are not insured by the Federal Deposit Insurance Corporation. You will not receive interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, Stripe will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds.

Verification

We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or in the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change.

Dormant Accounts

If there is no activity (as determined by us) in connection with your Seller Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Seller Account open and maintaining the Sales Proceeds in your Seller Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds in your Seller Account to your state of residency, as determined by us based on the information in your Seller Account. If we are unable to determine your state of residency or your Seller Account is associated with a foreign country, your funds may be sent to the State of Delaware.

Software Terms.

The following additional terms apply to any software (including any updates or upgrades to the software and any related documentation) that we make available to you from time to time for your use in connection with Services (the “Fulfill Engine Software”):

19(a). Use of the Fulfill Engine Software.

You may use Fulfill Engine Software solely for purposes of enabling you to use and enjoy Fulfill Engine Services as provided by Fulfill Engine, and as permitted by these Terms of Use and any Service Terms. You may not incorporate any portion of the Fulfill Engine Software into your own programs or compile any portion of it in combination with your own programs, transfer it for use with another service, or sell, rent, lease, lend, loan, distribute or sub-license the Fulfill Engine Software or otherwise assign any rights to the Fulfill Engine Software in whole or in part. You may not use the Fulfill Engine Software for any illegal purpose. We may cease providing any Fulfill Engine Software and we may terminate your right to use any Fulfill Engine Software at any time. Your rights to use the Fulfill Engine Software will automatically terminate without notice from us if you fail to comply with any of these Terms of Use and any Service Terms. Additional third party terms contained within or distributed with certain Fulfill Engine Software that are specifically identified in related documentation may apply to that Fulfill Engine Software (or software incorporated with the Fulfill Engine Software) and will govern the use of such software in the event of a conflict with these Terms of Use. All software used in any Fulfill Engine Service is the property of Fulfill Engine or its software suppliers and protected by United States and international copyright laws.

19(b) Use of Third Party Services.

When you use the Fulfill Engine Software and website, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile platform provider. Your use of these third party services may be subject to the separate policies, terms of use, and fees of these third parties.

19(c) No Reverse Engineering.

You may not, and you will not encourage, assist or authorize any other person to copy, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Fulfill Engine Software/website, whether in whole or in part, or create any derivative works from or of the Fulfill Engine Software/website.

19(d) Export Regulations; Government End Users.

You must comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities that may apply to the Fulfill Engine Software. If you are a U.S. Government end user, we are licensing the Fulfill Engine Software or website to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Fulfill Engine Software are the same as the rights we grant to all others under these Terms of Use.

Privacy.

Please review our Privacy Notice, which also governs your use of the Services, to understand our practices.

Electronic Communications.

When you use the Services, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We may communicate with you by e-mail, by posting notices on our websites, by delivering notifications through our mobile applications or through other electronic means. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. We also reserve the right to store your emails and associated general seller/user information for our records and our legitimate business use including for purposes of marketing and sales communication.

All content included in or made available through the Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Fulfill Engine or its content suppliers and protected by United States and international copyright laws. The compilation of all content included in or made available through any Fulfill Engine Service is the exclusive property of Fulfill Engine and protected by U.S. and international copyright laws. All software used on this Fulfill Engine website is the property of Fulfill Engine or its software suppliers and protected by United States and international copyright laws.

Trademarks.

Fulfill Engine, the Services, the Fulfill Engine and Fulfill Engine Services logos, and other graphics, logos, page headers, button icons, scripts, and product and service names included in or made available through any Fulfill Engine Service are trademarks or trade dress of Fulfill Engine in the United States and other countries. Fulfill Engine’s trademarks and trade dress may not be used in connection with any product or service that is not Fulfill Engine’s, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits Fulfill Engine. All other trademarks not owned by Fulfill Engine that appear in any Fulfill Engine Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Fulfill Engine.

Patents.

One or more patents owned by Fulfill Engine, if applicable, apply to Fulfill Engine Services and to the features and services accessible via Fulfill Engine Services. Portions of Fulfill Engine Services may operate under license of one or more patents.

License and Access.

Subject to your compliance with these Terms of Use and your payment of any applicable fees, Fulfill Engine, LLC grants you a limited license to access and make personal use of this Fulfill Engine website and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Fulfill Engine. This license does not include any resale or commercial use of any Fulfill Engine Services its contents; any derivative use of any Fulfill Engine Services or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. This Fulfill Engine Service or any portion of this Fulfill Engine Service may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Fulfill Engine without our express written consent. You may not use any meta tags or any other ‘hidden text’ utilizing Fulfill Engine’s names or trademarks without our express written consent. Any unauthorized use terminates the permission or license granted by Fulfill Engine, LLC. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the website. Fulfill Engine.com so long as the link does not portray Fulfill Engine, or its products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any logo or other proprietary graphic or trademark of Fulfill Engine as part of the link without our express written permission.

Your Account.

If you use any Fulfill Engine Services, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computers and other applicable devices, and you agree to accept responsibility for all activities that occur under your account or password under our site or our software. Fulfill Engine Services are not intended for use by children. If you are under 18, you may use Fulfill Engine Services only with involvement of a parent or guardian. Fulfill Engine reserves the right to refuse service, terminate accounts, or remove or edit content in its sole discretion.

Applicable Law.

By using any Fulfill Engine Service, you agree that the laws of the State of South Carolina together with the South Carolina Uniform Arbitration Act (if applicable) and other applicable United States federal law governing interstate commerce (see Para. 23) with regard to the Federal Arbitration Act (FAA), without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods, will govern these Terms of Use and any dispute of any sort that might arise between you and Fulfill Engine.

Disputes: Arbitration.

In the event the parties are not able to resolve any dispute arising between them arising out of or concerning the provisions herein, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to either State law and/or the Federal Arbitration Act (whichever may apply whether intrastate or interstate commerce) for application of the proper arbitration jurisdiction determination). The parties agree that arbitration shall be conducted by one (1) single arbitrator through the American Arbitration Association selected by the parties, in the County of Charleston, South Carolina. The award delivered shall be final and binding on both parties and judgment entered upon any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises of these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney fees. The parties agree to resolve any disputes among them through arbitration only and agree to waive any other action that may be available to them to settle these differences and disputes. This arbitration provision shall survive the termination of these Terms of Conditions.

Changes in Terms.

Fulfill Engine reserves the right, in its discretion, to change the Terms under which these services are offered. The most current Terms of Use supercede any previous versions. We encourage you to periodically review the Terms to stay informed of updates.