Seller Participation Agreement
Welcome to the Bookblues.com site (the "Site") and our selling services (the "Services"). Any person who wants to access the Site and use the Services to sell items must accept the terms and conditions of this Seller Participation Agreement without change. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS SELLER PARTICIPATION AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE ARE INCORPORATED BY REFERENCE.
Bookblues Role. Bookblues provides a platform for third-party sellers ("Sellers") and buyers ("Buyers") to negotiate and complete transactions. Bookblues is not involved in the actual transaction between Sellers and Buyers. As a Seller, you may list books on the Site unless it is a prohibited item as defined in the guidelines contained in the Terms of Service, or otherwise prohibited by law. Without limitation, you may not list any item or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy) ; (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent. It is up to the Seller to accurately describe the item for sale. As a Seller, you use the Site and the Services at your own risk.
Bookblues, Inc. ("Bookblues," "we," "us," and "our") reserves the right to change any of the terms and conditions contained in this Seller Participation Agreement or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to this Seller Participation Agreement will be posted on the Site for thirty (30) days. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING BOOKBLUES'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS SELLER PARTICIPATION AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.
1. Eligibility. Use of the Site and Services is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to use the Services. To register, you must provide your real name, address, phone number, e-mail address, and valid Paypal user id. You represent and warrant that: (a) if you are a business, you are duly organized, validly existing and in good standing under the laws of the country in which your business is registered and that you are registering for the Services within such country; (b) you have all requisite right, power and authority to enter into this Seller Participation Agreement and perform your obligations hereunder; and (c) any information provided or made available by you or your affiliates to Bookblues or its affiliates is at all times accurate and complete.
2. Sellers' Listing Fees and Payment Terms. Please review the Fee Schedule contained in the Fee Schedule section for the Services. All listing fees are in U.S. dollars unless stated otherwise and are incorporated herein by reference. The Fee Schedule and Payment Terms may vary in the future. The Fee Schedule and Payment Terms in effect on the date of sale of the item shall govern the transaction. You should check the fees and terms each time you participate. All fees, including but not limited to subscription plan fees, are payable upon demand on a PayPal Account, Visa, MasterCard, Discover, or American Express credit card.
3. Applicable Policies and Guidelines. You agree to abide by the guidelines--contained in the Terms of Service--for conducting fixed price sales, which are incorporated by reference into, and made part of, this Seller Participation Agreement. The guidelines contained in the Terms of Service explain the acceptable conduct and prohibited practices. We may change these guidelines in the future, and such changes will be effective immediately upon posting without notice to you. You should refer regularly to the Terms of Service to understand the guidelines for participating and to be sure that the items you offer for sale can be sold on the Site. For each item you list on the Site, you will provide to us the state or country from which the item ships. You will provide to us (using the processes and timing that we designate) any requested information regarding shipment, tracking (to the extent available) and order status, and we may make any of this information publicly available. You will not send customers emails concerning shipping confirmation of products you sell (except that to the extent we have not yet enabled functionality for your account that allows payment to be processed on the basis of when shipment occurs, then you will send customers emails confirming shipment of products you sell in a format and manner reasonably acceptable to us). Promptly after shipment of a customer's order (or any portion of the customer's order), you will accurately inform us that the order has been shipped (and, in the case of a customer order that is shipped in more than one shipment, accurately inform us which portion of the order has been shipped), using our standard functionality for communicating such information when we make that functionality available to you ("Confirmation of Shipment"). If you fail to provide Confirmation of Shipment within the time frame specified by us (e.g., 5 days after the date an order was placed), we may in our sole discretion cancel (and/or direct you to stop and/or cancel) any such transaction, and you will stop and/or cancel any such transaction upon such request by us. You will comply with any instructions from the manufacturer, distributor and/or licensor of a product regarding Street Date for Delivery (which means the date, if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which such product should not be delivered or otherwise made available to customers) or the Street Date for Disclosure (which means the date, if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly).
4. The Transaction Processing Service. By registering for or using the Services, you authorize Bookblues Inc. ("Bookblues Payments") to act as your agent for purposes of processing payments to your PayPal account, refunds and adjustments for Your Transactions (as defined below), receiving and holding Sales Proceeds (as defined below) on your behalf, remitting Sales Proceeds to your PayPal account, charging your credit card, and paying Bookblues and its affiliates amounts you owe in accordance with this Seller Participation Agreement or other agreements you may have with Bookblues or its affiliates (collectively, the "Transaction Processing Service"). "Sales Proceeds" means the gross proceeds from any of Your Transactions, including all shipping and handling, and other charges, but including any taxes separately stated and charged. "Your Transaction" means any sale of your items through the Site. As used in this Section 4, "we," "us" and "our" mean Bookblues Inc. Notwithstanding anything to the contrary in this Seller Participation Agreement, Bookblues, Inc. may in its discretion perform the Transaction Processing Services described in this Section 4.
5. Bookblues Reservation of Rights. Bookblues retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Service and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Seller not to list, any or all products in our sole discretion. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of your transactions. You will stop and/or cancel orders of your products if we ask you to do so (provided that if you have transferred your products to the applicable carrier or shipper, you will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). You will refund any customer that has been charged for an order that we stop or cancel.
6. Bookblues Participation. Employees of Bookblues and its affiliates are permitted to participate in their personal capacity (i.e., not as Bookblues employees, representatives, or agents of Bookblues or its affiliates) in the transactions conducted through this Site (unless they have confidential information about a particular item). Employees of Bookblues and its affiliates, when participating in any transaction in their personal capacity, are subject to this Seller Participation Agreement and the same guidelines contained in the Terms of Service as any Buyer or Seller on this Site.
7. Your Transactions
a. For sales where a Seller lists goods at a fixed price ("fixed price sales"), the Seller is obligated to sell the goods at the listed price to Buyers who meet the Seller's terms. By listing an item in a fixed price sale, you represent and warrant to prospective Buyers that you have the right and ability to sell, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive.
b. For fixed price sales, Seller will determine the purchase price for each item he or she lists on the Site via and subject to Bookblues.com's standard functionality for listing the purchase price, provided that Seller must abide by the same procedures and guidelines contained in the Terms of Service and the Fee Schedule section with respect to pricing.
8. Your Obligation. By entering into this Seller Participation Agreement and posting a listing for fixed price sale, you agree to complete the transaction as described by this Seller Participation Agreement. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable.
9. Seller Taxes. You agree that it is the Seller's responsibility to determine whether Seller Taxes apply to the transactions and to collect, report, and remit the correct Seller Taxes to the appropriate tax authority, and that Bookblues is not obligated to determine whether Seller Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction. "Seller Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.
10. Returns and Refunds. You will accept and process returns, refunds and adjustments in accordance with this Seller Participation Agreement and the Bookblues return policies published on the Site at the time of the applicable order, and we may inform customers that these policies apply to your products. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to Buyers in connection with Your Transactions, using functionality from your Paypal account, and will route all such payments through PayPal. The Bookblues return policies published on the Site at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable Bookblues return policies and as required by law, and in no case later than thirty (30) days after the obligation arises.
11. Password Security. Your password may be used only to access the Site, use the Services, electronically sign Your Transactions, and review your completed transactions. 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) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised, you must change your password.
12. Illegal Activity
a. Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized credit card. You may not impersonate any participant or use another participant's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and Bookblues will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
b. Investigation. Bookblues has the right, but not the obligation, to monitor any activity and content associated with this Site and investigate as we deem appropriate. Bookblues also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site, including listings. Bookblues reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
c. Disclosure of Information. Bookblues also reserve the right to report any activity that suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Bookblues's and customers, or to ensure the integrity and operation of Bookblues. Bookblues may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
13. Privacy; Use of Bookblues Transaction Information.
a. Read the Bookblues.com Privacy Notice. These Privacy Notices may be changed by Bookblues and its affiliates in the future. You should check the Privacy Notices frequently for changes. Bookblues and its affiliates may communicate with you in connection with your listings, sales, and the Services, electronically and in other media, and you consent to such communications regardless of any "Customer Communication Preferences" (or similar preferences or requests) you may have indicated on the Site or by any other means. When you use the Services, some personally identifiable information about you, including your feedback and the e-mail address associated with your account, may be displayed on the Site and may be viewed by potential buyers.
b. You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any order information or other data or information acquired by you or your affiliates from Bookblues or its affiliates (or otherwise) as a result of the Seller Participation Agreement, the transactions contemplated hereby or the parties' performance hereunder (collectively, "Bookblues Transaction Information"), except you may disclose this information as necessary for you to perform your obligations under this Seller Participation Agreement, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information. The terms of this Section 13.b. do not prevent you from using other information that you obtain separately from the Bookblues Transaction Information, even if such information is identical to Bookblues Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Bookblues.com user.
14. No Warranties. THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. BOOKBLUES DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
a. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
b. THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
c. THAT THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE TIME OF FIXED PRICE SALE, LAWFUL TO SELL, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED;
d. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
e. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOOKBLUES.
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BOOKBLUES DISCLAIM ANY AND ALL SUCH WARRANTIES.
15. General Release. BECAUSE BOOKBLUES IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE BOOKBLUES (AND THEIR RESPECTIVE 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.
16. Indemnity/Limitation of Liability.
a. Indemnity and Defense. You will defend, indemnify and hold harmless Bookblues, and each of their affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Seller Participation Agreement; or (ii) your own website or other sales channels, the products you sell, any content you provide, the advertisement, offer, sale or return of any products you sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products you sell or content you provide, or Seller Taxes or the collection, payment or failure to collect or pay Seller Taxes. For purposes hereof: "Claim" means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity.
b. Limitation of Liability. BOOKBLUES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SELLER PARTICIPATION AGREEMENT, THE SITE, THE SERVICES, THE TRANSACTION PROCESSING SERVICE, THE INABILITY TO USE THE SERVICES OR THE TRANSACTION PROCESSING SERVICE, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
17. Applicable Law. The laws of the state of Michigan govern this Seller Participation Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws or the Convention on Contracts for the International Sale of Goods. Each party consents that any dispute or claim relating in any way to this Seller Participation Agreement or your use of the Services or Transaction Processing Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that you may assert claims in a small claims court in Lenawee County, Michigan if your claims qualify and you or we may bring suit in the state or Federal courts in the Eastern District of Michigan to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Seller Participation Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Tim Simpson, 301 Industrial Drive, Tecumseh, MI 49286. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Bookblues will not seek attorneys' fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in Washtenaw County, Michigan, or at another mutually agreed location. Each party agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
18. Disputes. Because Bookblues is not the agent of Seller and is not the agent of Buyer for any purpose, neither Bookblues nor its agents will act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction. Bookblues urges Sellers and Buyers to cooperate with each other to resolve such disputes.
19. Your Grant. By entering into this Seller Participation Agreement and listing an item, 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 the content you submit to Bookblues and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) 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 Seller Participation Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to Bookblues and its affiliates, and that the use of such materials by Bookblues and its affiliates will not infringe upon or violate the rights of any third party.
20. Termination. Bookblues, in its sole discretion, may terminate this Seller Participation Agreement, access to the Site or the Services, or any current fixed price sales immediately without notice for any reason. Bookblues, in its sole discretion, also may prohibit any Seller from listing items for fixed price sales.
21. General Provisions
a. Entire Agreement. This Seller Participation Agreement, including any terms and conditions incorporated herein by reference, and the general terms and conditions of the Site, including but not limited to the Privacy Notices and Terms and Conditions, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes and cancels all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
b. No Agency; Third-Party Beneficiary. You and Bookblues are independent contractors and nothing in this Seller Participation Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. Nothing expressed or mentioned in or implied from this Seller Participation Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Seller Participation Agreement. This Seller Participation Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Bookblues, you, and relying Buyers or Sellers.
c. Severability. If any provision of this Seller Participation Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
d. No Waiver. Bookblues will not be considered to have waived any of its rights or remedies described in this Seller Participation Agreement unless the waiver is in writing and signed by the relevant party. No delay or omission by Bookblues in exercising its rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Bookblues failure to enforce the strict performance of any provision of this Seller Participation Agreement will not constitute a waiver of either party's right to subsequently enforce such provision or any other provisions of this Seller Participation Agreement.