Mobi Ask Seller Agreement
1. Enrollment.
To begin the enrollment process, you must complete the registration process for one or more of the Services. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law (for example, the Elected Cities of India may not allow minors to use the Services). As part of the application, you must provide us with your (or your business’) legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.
2. Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described in the applicable Service Terms and Program Policies. You are responsible for all of your expenses in connection with this Agreement. To use a Service, you must provide us with a valid bank account information for a bank account or bank accounts acceptable by Mobi Ask conditions for acceptance may be modified or discontinued by us at any time without notice.
a) Payment will be reimbursed against your sale in 10 days after delivered your product to buyer.
b) All your payment will be reimbursed in your company bank account only as per your login details.
c) Your payment will get paid after deducting our charge (Mobi Ask service charge with GST), like our commission charge, fixed order charge and shipping charge.
d) All these charge may vary according to the category, size, weight, distance and price,
e) Minimum transferable amount will be 2000.
f) If product is under conflict then payment will transfer after all clearance.
g) If product return, not received, or not delivered then shipping charge will be pay by Vendor (seller) and this charge will be deducted from your payment.
3. Term and Termination.
The term of this Agreement will start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the “Term”). We may terminate, suspend or change this Agreement or any Service for any reason at any time by notice to you. You may terminate this Agreement or any Service for any reason at any time by the means then specified by Mobi Ask. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that all Sections will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
4. 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 Cities of India in which your business is registered and that you are registering for the Services within India only
(b) You have all requisite right, power, and authorities to enter into this agreement, performs 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 Mobi Ask 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.
5. Indemnification.
You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to:
(a) Your actual or alleged breach of any obligations in this Agreement;
(b) Any of Your Sales Channels other than Mobi Ask Sites and Mobi Ask Associated Properties, Your Products (including their offer, sale, performance, and fulfillment), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto;
(c) Your Personnel (including any act or omission of Your Personnel or any Claim brought or directed by Your Personnel); or
(d) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
6. Tax Matters.
All taxes will be applicable as per the state between state and between the parties, where the material has transit you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent Mobi Ask expressly agrees to receive taxes or other transaction-based charges in connection with tax calculation services made available by Mobi Ask and used by you. You agree to and will comply with the Tax Policies. All fees payable by you to Mobi Ask under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, and you will be responsible for paying Mobi Ask any of Your Taxes imposed on such fees.
7. Confidentiality.
During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to Mobi Ask Transaction Information, that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain Mobi-Ask’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other Person; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
8. Limitation of Liability for Warranty and Insurance.
We will not be liable (whether in contract, warranty, insurance 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 Mobi Ask 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 Mobi Ask in connection with the particular service giving rise to the claim.
9. 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.
10. Relationship of Parties.
Subject to the Transaction Processing Service Terms you and we are 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 Mobi Ask, 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.
11. Use of Mobi Ask Transaction Information.
You will not, and will cause your Affiliates not to, directly or indirectly:
(a)
disclose any Mobi Ask Transaction Information (except that you may disclose that information solely as necessary for you to perform your obligations under this Agreement if you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information);
(b)
Use any Mobi Ask Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law;
(c)
Contact a Person that has ordered Your Product with the intent to collect any amounts in connection therewith or to influence that Person to make an alternative transaction;
(d)
Disparage us, our Affiliates, or any of their or our respective products or services or any customer; or
(e)
Target communications of any kind on the basis of the intended recipient being a Mobi Ask Site user. In addition, you may only use tools and methods that we designate to communicate with Mobi Ask Site users regarding Your Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Your Products. The terms of this Section 11 do not prevent you from using other information that you acquire without reference to Mobi Ask Transaction Information for any purpose, even if that information is identical to Mobi Ask Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Mobi Ask Site user.
12. Suggestions and Other Information.
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any Mobi Ask Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content.
13. Modification.
We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on Seller Central, on the MWS Site, or on the applicable Mobi Ask Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the General Terms and the Service Terms will be posted for at least 30 days. Changes to Program Policies may be made without notice to you. You should refer regularly to Seller Central and the MWS Site, as applicable; to review the current Agreement (including the Service Terms and Program Policies) and to be sure that the items you offer can be offered via the applicable Service.
Selling on Mobi Ask Service Terms
Selling on Mobi Ask service (“selling on Mobi Ask”) is a service that allows you to offer certain products and services directly on the Mobi Ask sites. These selling on Mobi Ask service terms are part of the agreement, but, unless specifically provided otherwise, concern and apply only to your participation in selling on Mobi Ask. By registering for or using the selling on Mobi Ask service, you (on behalf of yourself or the business you represent) agree to be bound by the agreement, including these selling on Mobi Ask service terms. Notwithstanding the previous sentence, if you have entered into a separate agreement that permits you to offer your products through a particular Mobi Ask site (e.g., a vendor@mobiask.com program agreement, info@mobiask.com program agreement or any predecessor of those agreements), then to the extent that you continue to list and sell your products on that Mobi Ask site pursuant to such separate agreement, transactions of your products on that Mobi Ask site and any tax services we make available under that agreement are governed by the terms of that agreement and not by these selling on Mobi Ask service terms.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide in the format we require accurate and complete Required Product Information for each product or service that you offer through any Mobi Ask Site and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on any Mobi Ask Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on any Mobi Ask Sites; or provide any URL Marks for use, or request that any URL Marks be used, on any Mobi Ask Site.
S-1.2 Product Listing; Merchandising; Order Processing.
We will enable you to list Your Products on a particular Mobi Ask Site, and conduct merchandising and promote Your Products as permitted by us (including via the Mobi Ask Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable Mobi Ask Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Mobi Ask may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the applicable Mobi Ask 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 Mobi Ask Service Terms.
S-1.3 Shipping and Handling Charges.
For Your Products ordered by customers on or through an Mobi Ask Site that are not fulfilled using Fulfillment by Mobi Ask, you will determine the shipping and handling charges subject to our Program Policies and standard functionality (including any category-based shipping and handling charges we determine, such as for products offered by sellers on the Individual selling plan and BMVD Products generally). When we determine the shipping and handling charges, you will accept them as payment in full for your shipping and handling. Please refer to the Fulfillment by Mobi Ask Service Terms for Your Products that are fulfilled using Fulfillment by Mobi Ask.
S-1.4 Credit Card Fraud.
We will bear the risk of credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with Your Transactions except in connection with Seller-Fulfilled Products that are not fulfilled strictly in accordance with the Order Information and Shipment Information. You will bear all other risk of fraud or loss. 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 or cancel orders of Your Products if we ask you to do so. If you have already transferred Your Products to a carrier or shipper when we ask you to stop or cancel an order, you will use commercially reasonable efforts to stop or cancel delivery of that order. You will refund any customer (in accordance with Section S-2.2) that has been charged for an order that we stop or cancel.
S-2 Sale and Fulfillment; Refunds and Returns.
S-2.1 Sale and Fulfillment. Other than as described in the Fulfillment by Mobi Ask Service Terms for each Mobi Ask Site for which you register or use the Selling on Mobi Ask Service, you will:
(a) source, offer, sell and fulfill your Seller-Fulfilled Products, and source and, offer and sell your Mobi Ask-Fulfilled Products, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on the applicable Mobi Ask Site at the time of the order and be solely responsible for and bear all risk for those activities;
(b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and ship each of Your Products on or before its Expected Ship Date;
(c) retrieve Order Information at least once each business day;
(d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on the applicable Mobi Ask Site at the time of the applicable order or as may be required under this Agreement;
(e) fulfill Your Products throughout the Elected Cities of India (except to the extent prohibited by Law or this Agreement);
(f) provide to Mobi Ask information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available;
(g) comply with all Street Date instructions;
(h) ensure that you are the seller of each of Your Products;
(i) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products;
(j) identify yourself as the seller of each of Your Products on all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product; and
(k) except as expressly permitted by this Agreement, not send customers emails confirming orders or fulfillment of Your Products. If any of Your Products are fulfilled using Fulfillment by Mobi Ask, the Fulfillment by Mobi Ask Service Terms for the applicable Mobi Ask Site will apply to the storage, fulfillment, and delivery of such Mobi Ask-Fulfilled Products.
S-2.2 Cancellations, Returns, and Refunds. The Mobi Ask Refund Policies for the applicable Mobi Ask Site will apply to Your Products. Subject to Section F-6, for any of Your Products fulfilled using Fulfillment by Mobi Ask, you will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with this Agreement and the Mobi Ask Refund Policies for the applicable Mobi Ask Site, using functionality we enable for your account. Without limiting your obligations, we may in our sole discretion accept, calculate, and process cancellations, returns, refunds, and adjustments for the benefit of customers. You will route any payments to customers in connection with Your Transactions through Mobi Ask. We will make any payments to customers in the manner we determine, and you will reimburse us for all amounts we pay.
S-3 Problems with Your Products.
S-3.1 Delivery Errors and Nonconformities; Recalls. You are solely responsible for any nonperformance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by:
(a) credit card fraud for which we are responsible under Section S-1.4; or
(b) our failure to make available to you Order Information as it was received by us or resulting from address verification. Notwithstanding the previous sentence, for those of Your Products that are fulfilled using Fulfillment by Mobi Ask, if any, the Fulfillment by Mobi Ask Service Terms for the applicable Mobi Ask Site will apply to nondelivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of those of Your Products. You are also responsible for any non-conformity or defect in, or any public or private recall of, any of Your Products or other products provided in connection with Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls of Your Products or other products provided in connection with Your Products.
S-3.2 A-to-z Guarantee and Chargebacks. If we inform you that we have received or initiated a claim under the “A-to-z Guarantee” offered on a particular Mobi Ask Site, or any chargeback or other dispute, concerning one of Your Transactions, you will deliver to us in a format and manner we specify: (a) proof of fulfillment of Your Product(s) (as applicable); (b) the applicable Mobi Ask order identification number; (c) a description of Your Product(s) (as applicable); and (d) any terms provided by you or us and displayed on the Mobi Ask Site at the time of the transaction in question. If you fail to comply with the prior sentence, or if the claim, chargeback, or dispute is not caused by: (i) credit card fraud for which we are responsible under Section S-1.4; or (ii) our failure to make your Order Information available as the same was received by us or resulting from address verification, then you will promptly reimburse us in accordance with the Service Fee Payments section of this Agreement for the amount of the customer purchase (including the Purchase Price, all associated shipping and handling charges and all taxes, but excluding any associated Commission retained and not subject to refund by Mobi Ask) and all associated credit card association, bank, or other payment processing, re-presentment and/or penalty fees associated with the original purchase and any chargeback or refund, in each case to the extent paid or payable by us or our Affiliates. If the Elected Cities of India is Japan and we receive or initiate a claim under the “A-to-z Guarantee” concerning one of Your Transactions and we determine that we are responsible for that claim then we will purchase the returned products from the customer.
S-4 Parity with Your Sales Channels.
Subject to this Section S-4, you are free to determine which of Your Products you wish to offer on a particular Mobi Ask Site. You will maintain parity between the products you offer through Your Sales Channels and the products you list on any Mobi Ask Site by ensuring that : (a) the Purchase Price and every other term of offer or sale of Your Product (including associated shipping and handling charges, Shipment Information, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable cancellation, return and refund policies) is at least as favorable to Mobi Ask Site users as the most favorable terms upon which a product is offered or sold via Your Sales Channels (excluding consideration of Excluded Offers); (b) customer service for Your Products is at least as responsive and available and offers at least the same level of support as the most favorable customer services offered in connection with any of Your Sales Channels (this requirement does not apply to customer service for payment-related issues on Your Transactions, which we will provide); and (c) the Content, product and service information, and other information under Section S-1.1 regarding Your Products that you provide to us is of at least the same level of quality as the highest quality information displayed or used in Your Sales Channels. If you become aware of any non-compliance with (a) above, you will promptly compensate adversely affected customers by making appropriate refunds to them in accordance with Section S-2.2. For Mobi Ask-Fulfilled Products, if the shipping and handling charges associated with the sale and fulfillment of any of Your Products offered on an Mobi Ask Site are included (and not separately stated) in the item price listed for Your Product (collectively a “Shipping Inclusive Purchase Price”), then the parity obligation in (a) above will be satisfied if the Shipping Inclusive Purchase Price and each other term of offer or sale for the product on the Mobi Ask Site are at least as favorable to Mobi Ask Site users as the purchase price and each other term of offer or sale for the product (including any and all separately stated shipping and handling charges) pursuant to which the product or service is offered or sold via any of Your Sales Channels.
S-5 Compensation.
You will pay us: (a) the applicable Commission; (b) any applicable Variable Check out fee; (c) the non-refundable Selling on Mobi Ask Subscription Fee in advance each month; and (d) any other applicable fees described in this Agreement (including any applicable Program Policies). “Selling on Mobi Ask Subscription Fee” means the fee specified as such on the Selling on Mobi Ask Fee Schedule for the applicable Mobi Ask Site at the time such fee is payable. With respect to each of Your Transactions: (i) “Sales Proceeds” has the meaning set out in this Agreement; (ii) “Variable Check out fee” means the applicable fee, if any, as specified on the Variable Check out fee Schedule for the applicable Mobi Ask Site; and (iii) “Referral Fee” means the applicable fee based on the Sales Proceeds from Your Transaction through the applicable Mobi Ask Site specified on the Selling on Mobi Ask Fee Schedule for that Mobi Ask Site at the time of Your Transaction, based on the categorization by Mobi Ask of the type of product that is the subject of Your Transaction; provided, however, that Sales Proceeds will not include any shipping charges set by us in the case of Your Transactions that consist solely of products fulfilled using Fulfillment by Mobi Ask.
S-6 Remittance of Sales Proceeds & Refunds. Except as otherwise stated in this Agreement, we will remit to you your available balance on a biweekly (15 day) (or at our option, more frequent) basis, which may vary for each Elected State. For each remittance, your available balance is equal to any Sales Proceeds received by us or our Affiliates but not previously remitted to you as of the applicable Remittance Calculation Date (which you will accept as payment in full for Your Transactions), less:
(a) the Commission;
(b) the applicable Variable Check out fee;
(c) any Selling on Mobi Ask Subscription Fees;
(d) any other applicable fees described in this Agreement (including any applicable Program Policies); and
(e) any amounts we require you to maintain in your account balance pursuant to this Agreement (including payments withheld pursuant to Section 2 of the General Terms, Section S- 1.4, and applicable Program Policies). We may establish a reserve on your account based on our assessment of risks to Mobi Ask or third parties posed by your actions or performance, and we may modify the amount of the reserve from time to time at our sole discretion. When you either initially provide or later change Your Bank Account information, the Remittance Calculation Date may be deferred by up to 14 days. For sellers that registered after September 22, 2018, and are on the Individual selling plan, the remittance amount will not include Sales Proceeds from the 14-day period before the date of remittance. If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us (or our Affiliate), on the next available Remittance Calculation Date we will refund to you the amount of the Referral Fee paid by you to us attributable to the amount of the customer refund (including refunded taxes and customs duties only to the extent specified in the applicable Tax Policies), less the Refund Administration Fee for each of Your Products refunded that is not a BMVD Product, which amount we may retain as an administrative fee; provided, however, that in the case of a complete refund of Sales Proceeds for a Media Product, we will refund to you the full amount of any Variable Check out fee paid by you to us (and in the case of a partial refund of Sales Proceeds for a Media Product, we will not refund to you any portion of any Variable Check out fee paid by you to us). We will remit any amounts to be refunded by us pursuant to this subsection from time to time together with the next remittance to be made by us to you. “Refund Administration Fee” means the applicable fee described on the Refund Administration Fee Schedule for the applicable Mobi Ask Site.
S-7 Control of Mobi Ask Sites.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Mobi Ask Sites, including by redesigning, modifying, removing, or restricting access to any of them, and by suspending, prohibiting, or removing any listing.
S-8 Effect of Termination.
Upon termination of these Selling on Mobi Ask Service Terms in connection with a particular Mobi Ask Site, all rights and obligations of the Parties under these Selling on Mobi Ask Service Terms with regard to such Mobi Ask Site will be extinguished, except that the rights and obligations of the Parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term. Selling on Mobi Ask Definitions “Mobi Ask-Fulfilled Products” means any of Your Products that are fulfilled using the Fulfillment by Mobi Ask Service. “Mobi Ask Refund Policies” means the return and refund policies published on the applicable Mobi Ask Site and applicable to products and services offered via that Mobi Ask Site. “BMVD Product” means any book, magazine or other publication, sound recording, video recording, and/or other media product in any format, including any subscription, in each case excluding any software product, computer game, and/or video game. “Excluded Offer” means any discount, rebate, promotional offer, or other term of offer and/or sale that you:
(a) have attempted to make available through a particular Mobi Ask Site but that we do not honor or support (but only until such time as we honor or support the same on such Mobi Ask Site); or
(b) Make available solely to third parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers), or
(c) The end of the shipping availability period (which begins as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant inventory/product data feed for Your Product; or
(d) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that Mobi Ask designates as requiring shipment within two (2) business days, two (2) business days after the date on which the relevant order is placed by the customer. “Media Product” means any book, magazine or other publication, sound recording, video recording, software product, computer game, videogame, or other media product in any format, including any related subscription, offered through Mobi Ask Site. “Purchase Price” means the total amount payable or paid for Your Product (including taxes and shipping and handling charges only to the extent specified in the applicable Tax Policies). “Remittance Calculation Date” is the date that is two (2) business days prior to the date of remittance (the “Remittance Calculation Date”). “Required Product Information” means, with respect to each of Your Products in connection with a particular Mobi Ask Site, the following (except to the extent expressly not required under the applicable Program Policies):
(a) description, including as applicable, location-specific availability and options.scheduling guidelines and service cancellation policies;
(b) SKU and UPC/EAN/JAN numbers, and other identifying information as Mobi Ask may reasonably request;
(c) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed by Mobi Ask from time to time);
(d) Categorization within each Mobi Ask product category and browse structure as prescribed by Mobi Ask from time to time;
(e) digitized image that accurately depicts only Your Product, complies with all Mobi Ask image guidelines, and does not include any additional logos, text or other markings;
(f) Purchase Price;
(g) Shipping and handling charge (in accordance with our standard functionality);
(h) any text, disclaimers, warnings, notices, labels, warranties, or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising, or sale of Your Product; (i) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers (and
Customer by Mobi Ask Service Terms
Fulfillment by Mobi Ask provides fulfillment and associated services for Your Products.
These FBA Service Terms are part of the Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in FBA. BY REGISTERING FOR OR USING FBA, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE FBA SERVICE TERMS. You expressly agree that Mobi Ask may engage its Affiliate(s) or a third party in order to complete one or more of the fulfillment and associated services outlined below.
Fulfillment Services
F-1 Your Products
Once you are accepted into FBA, you must apply to register each product you offer that you wish to include in the FBA program. We may refuse registration in FBA of any product, including on the basis that it is an FBA Excluded Product or that it violates applicable Program Policies. You may at any time withdraw registration of any of Your Products from FBA.
F-2 Product and Shipping Information
You will, in accordance with applicable Program Policies, provide in the format we require accurate and complete information about Your Products registered in FBA, and will provide Fulfillment Requests for any Units fulfilled using FBA that are not sold through an Mobi Ask Site (“Multi-Channel Fulfillment Units”). You will promptly update any information about Your Products in accordance with our requirements and as necessary so that the information is at all times accurate and complete.
F-3 Shipping to Mobi Ask
F-3.1 Except as otherwise provided in Section F-3.4 and Section F-5, FBA is limited to Units that are shipped to and from fulfillment centers located within the applicable Elected Area, to be delivered to customers in the same Elected Cities of India only. You will ship Units to us in accordance with applicable Program Policies. You will be responsible for all costs incurred to ship the Units to the shipping destination (including costs of freight and transit insurance) and Mobi Ask will not pay any shipping costs. You are responsible for payment of all customs, duties, taxes, and other charges. In the case of any improperly packaged or labeled Unit, we may return the Unit to you at your expense (pursuant to Section F-7) or re-package or re-label the Unit and charge you an administrative fee.
F-3.2 You will not deliver to us, and we may refuse to accept, any shipment or Unsuitable Unit.
F-3.3 We may, at our option, allow you to ship Units at your expense (as described in Section F-9.2) to fulfillment centers using discounted shipping rates that we may make available to you for certain carriers. In such event, you will use the processes and supply the information that we require for you to obtain such discounted rates. You also must comply with standard operating procedures, weight and size restrictions, and other shipping requirements of the applicable carriers. If we provide you with the estimated shipping costs prior to shipment, you acknowledge and agree that actual shipping costs may vary from such estimates. In addition, if the weight of the Unit, as determined by the applicable carrier, differs from that submitted by you to us for purposes of determining the estimated shipping costs, then: (a) you may be charged more than the estimated shipping costs if the carrier determines that such Unit weighs more than as submitted by you; or (b) you may be charged the full amount of the estimated shipping costs even if the carrier determines the weight to be less than that submitted by you. You will not use carrier account information (e.g., carrier account number, amount of shipping rates, etc.) for any purpose, nor disclose such information to any third party, and you will protect such information as Mobi Ask’s confidential information in accordance with Section 11 of the General Terms of this Agreement. As between you, us, and the applicable carrier, you will be the shipper of record, and we will make payment to the carrier with respect to the shipment of all Units using such discounted rates. Title and risk of loss for any Unit shipped using discounted rates provided by us under this Section will remain with you, and our provision of such shipping rates will not create any liability or responsibility for us with respect to any delay, damage, or loss incurred during shipment. You authorize the applicable carrier to provide us with all shipment tracking information.
F-3.4 If you ship Units from outside the applicable Elected Cities of India to fulfillment centers, you will list yourself as the importer/consignee and nominate a customs broker. If Mobi Ask is listed on any import documentation, Mobi Ask reserves the right to refuse to accept the Units covered by the import documents and any costs assessed against or incurred by Mobi Ask will be collected from Your Bank Account, deducted from amounts payable to you, or by other method at our election.
F-4 Storage
We will provide storage services as described in these FBA Service Terms once we confirm receipt of delivery. We will keep electronic records that track inventory of Units by identifying the number of Units stored in any fulfillment center. We will not be required to physically mark or segregate Units from other inventory units (e.g., products with the same Mobi Ask standard identification number) owned by us, our Affiliates or third parties in the applicable fulfillment center(s). If we elect to commingle Units with such other inventory units, both parties agree that our records will be sufficient to identify which products are Units. We may move Units among facilities. If there is a loss of or damage to any Units while they are being stored, we will, as your sole remedy, reimburse you in accordance with the FBA Guidelines, and you will, at our request, provide us a valid tax invoice for the compensation paid to you. If we reimburse you for a Unit, we will be entitled to dispose of the Unit pursuant to Section F-7. This reimbursement is our total liability for any duties or obligations that we or our agents or representatives may have and is your only right or remedy. At all other times, you will be solely responsible for any loss of, or damage to, any Units. Our confirmed receipt of delivery does not: (a) indicate or imply that any Unit has been delivered free of loss or damage, or that any loss or damage to any Unit later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that we actually received the number of Units of Your Product(s) specified by you for such shipment; or (c) waive, limit, or reduce any of our rights under this Agreement. We reserve the right to impose, and change from time to time, scheduling restrictions and volume limitations on the delivery and storage of your inventory in fulfillment centers, and you will comply with any of these restrictions or limitations.
F-5 Fulfillment
As part of our fulfillment services, we will ship Units from our inventory of Your Products to the shipping addresses in the Elected Cities of India included in valid customer orders, or submitted by you as part of a Fulfillment Request. We may ship Units together with products purchased from other merchants, including any of our Affiliates. We also may ship Units separately that are included in a single Fulfillment Request. If you elect to participate in our export fulfillment services, we will also ship Your Products that we determine to be eligible (each, a “Foreign-Eligible Product”) to Foreign Addresses within Cities we determine to be eligible for foreign shipments, subject to the additional terms on foreign shipments in the applicable FBA Guidelines.
F-6 Customer Returns
F-6.1 You will be responsible for and will accept and process returns of, and provide refunds and adjustments for, any Multi-Channel Fulfillment Units in accordance with the Agreement (including the applicable Program Policies).
F-6.2 We will receive and process returns of any Mobi Ask Fulfillment Units that were shipped to addresses within the Elected Cities of India in accordance with the terms of your Seller Agreement, these FBA Service Terms, and the Program Policies. Any Sellable Units that are also Mobi Ask Fulfillment Units and that are properly returned will be placed back into the inventory of Your Products in the FBA Program. We may fulfill customer orders for Your Products with any returned Mobi Ask Fulfillment Units. Except as provided in Section F-7, you will retake title of all Units that are returned by customers.
F-6.3 Subject to Section F-7, we will, at your direction, either return or dispose of any Unit that is returned to us by a customer and that we determine is an Unsuitable Unit.
F-6.4 If Mobi Ask receives a customer return of a Multi-Channel Fulfillment Unit, you will direct us to return or dispose of the Unit at your own cost failing which we may dispose of the Unit as provided in Section F-7.
F-7 Returns to You and Disposal
F-7.1 You may, at any time, request that Units be returned to you or that we dispose of Units.
F-7.2 We may return Units to you for any reason, including upon termination of these FBA Service Terms. Returned Units will be sent to your designated shipping address. However, if
(a) the designated shipping address we have for you is outdated or incorrect,
(b) You have not provided or, upon our request, confirmed a designated shipping address in the Elected Cities of India, or
(c) We cannot make arrangements for you to pay for the return shipment, then the Unit(s) will be deemed abandoned and we may elect to dispose of them in our sole discretion.
We may dispose of any Unsuitable Unit (and you will be deemed to have consented to our action): (i) immediately if we determine in our sole discretion that the Unit creates a safety, health, or liability risk to Mobi Ask, our personnel, or any third party; (ii) if you fail to direct us to return or dispose of any Unsuitable Unit within ten (10) days after we notify you that the Unit has been recalled; or (iii) if you fail to direct us to return or dispose of any Unsuitable Unit within ten (10) days (or as otherwise specified in the applicable Program Policies) after we notify you. In addition, you will reimburse us for expenses we incur in connection with any Unsuitable Units.
F-7.3 We may dispose of any Unit we are entitled to dispose of (including any Unsuitable Units) in the manner we prefer. Title to each disposed Unit will transfer to us at no cost to us as necessary for us to dispose of the Unit, and we will retain all proceeds, if any, received from the disposal.
F-7.4 You will promptly notify us of any recalls or potential recalls, or safety alerts of any of Your Products and cooperate and assist us in connection with any recalls or safety alerts, including by initiating the procedures for returning items to you under our standard processes. You will be responsible for all costs and expenses you, we or any of our or your Affiliates incur in connection with any recall or potential recall or safety alerts of any of Your Products (including the costs to return, store, repair, liquidate, or deliver to you or any vendor any of these products).
F-8 Customer Service
F-8.1 For Multi-Channel Fulfillment Units we will have no customer service obligations other than to pass any inquiries to your attention at the contact you provide, and to make available a reasonable amount of information regarding the status of the fulfillment of Your Products if you request it and if and to the extent we possess the requested information. You will ensure that all of your policies and messaging to your customers regarding shipping of Your Products and other fulfillment-related matters, reflect our policies and requirements, including with regard to shipping methods, returns, and customer service; and, you will conspicuously display on your website(s), in emails or in other media or communications any specific disclosures, messaging, notices, and policies we require.
F-8.2 We will be responsible for and have sole discretion regarding all customer service issues relating to packaging, handling and shipment, and customer returns, refunds, and adjustments related to Mobi Ask Fulfillment Units. We will have the right to determine whether a customer will receive a refund, adjustment or replacement for any Mobi Ask Fulfillment Unit and to require you to reimburse us where we determine you have responsibility in accordance with the Agreement (including these FBA Service Terms and the Program Policies). Except as provided in this Section F-8 regarding any Mobi Ask Fulfillment Units, customer service will be handled in accordance with your Seller Agreement.
F-8.3 In situations relating to Mobi Ask Fulfillment Units where the wrong item was delivered or the item was damaged or lost or is missing, unless we determine that the basis for such request is caused by you or any of your employees, agents, or contractors, we will, as your sole and exclusive remedy and at our option: (a) for any Mobi Ask Fulfillment Unit, (i) ship a replacement Unit to the customer and reimburse you in accordance with the FBA Guidelines for the replacement Unit, or (ii) process a refund to the customer and reimburse you in accordance with the FBA Guidelines for the Unit; or (b) for any Multi-Channel Fulfillment Unit, reimburse you in accordance with the FBA Guidelines for the Unit (and you will, at our request, provide us a valid tax invoice for the compensation paid to you). Any customer refund will be processed in accordance with the Selling on Mobi Ask and the Transaction Processing Service Terms (if the Elected Cities of India for a Service is the United States). Notwithstanding the Selling on Mobi Ask Service Terms, we will be entitled to retain the applicable fees payable to us under the Selling on Mobi Ask Service Terms and these FBA Service Terms, respectively. Except as expressly provided in this Section F-8.3, you will be responsible for all costs associated with any replacement or return.
F-8.4 If we provide a replacement Unit or refund as described in Section F-8.3 to a customer and that customer returns the original Unit to us, we will be entitled to dispose of the Unit pursuant to Section F-7, or, if it is a Sellable Unit, we may, at our option, place such Unit back into your inventory in accordance with Section F-6. If we do put a Unit back into your inventory, you will reimburse us for the applicable Replacement Value (as described in the FBA Guidelines) of the returned Unit. Any replacement Unit shipped by us under these FBA Service Terms will be deemed to be, and will be treated in the same manner as, an order and sale of such Unit from you to the customer via the applicable Mobi Ask Site or Service in accordance with, and subject to, the terms and conditions of this Agreement and your Seller Agreement.
F-9 Compensation for Fulfillment Services
F-9.1 Handling and Storage Fees. You will pay us the applicable fees described in the applicable Fulfillment by Mobi Ask Fee Schedule. You will be charged the Storage Fees beginning on the day (up to midnight) that the Unit arrives at a fulfillment center and is available for fulfillment by Mobi Ask (or in the case of any Unsuitable Unit, the arrival day (up to midnight)), until the earlier of: (a) the day (up to midnight) we receive a valid customer order for such product or a request from you to return or dispose of the Unit; or (b) the day (up to midnight) we actually ship the Unit to your designated return location or dispose of the Unit.
F-9.2 Shipping and Gift Wrap. For any Mobi Ask Fulfillment Units we will determine the amounts charged to the customer for shipping and gift wrap services for the Units that we fulfill through the FBA Program. As between you and us, these charges will be your charges to the customer, and we will report them to you. We will charge you (and you will pay us) a fee equal to the amount of such charges to the customer. In the case of shipments of Units sold through the Mobi Ask Site that qualify for the “Free Shipping” promotion, the amounts charged to the customer for shipping the Selling on Mobi Ask Units that Mobi Ask fulfills will first be charged to the customer and will next be deducted from the total charges to the customer as your promotion and Mobi Ask will not charge you the fee described above. If you ship Units to us using the shipping rates that we may make available pursuant to Section F-3.3, you will reimburse us for the actual amounts charged to us by the applicable carrier for such shipments.
F-9.3 Proceeds. We may keep all proceeds of any Units that we dispose of or to which title transfers, including returned, damaged, or abandoned Units. You will have no security interest, lien, or other claim to the proceeds that we receive in connection with the sale, fulfillment, and/or shipment of these Units.
F-10 Indemnity
In addition to your obligations under Section 6 of the General Terms of this Agreement, you also agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any Claim that arises from or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death, or property damage; (b) the shipment, export, or delivery of Your Products to Foreign Addresses (including with respect to any classification data and other information provided by you to us in connection therewith, and notwithstanding any rights we have under Section F-5 or any certifications we may make in connection with the shipment, export, or delivery of Your Products); (c) any of Your Taxes or the collection, payment, or failure to collect or pay Your Taxes; and, if applicable (d) any sales, use, value added, personal property, gross receipts, excise, franchise, business, or other taxes or fees, or any customs, duties, or similar assessments (including penalties, fines, or interest on any of the foregoing) imposed by any government or other taxing authority in connection with the shipment of Foreign-Eligible Products to Foreign Addresses (collectively, “Foreign Shipment Taxes”).
F-11 Release
You, on behalf of yourself and any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the “Releasing Parties”), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge Mobi Ask and each of our Affiliates, and any and all of our and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all Persons acting by, through, under, or in concert with any of them (collectively, the “Released Parties”), from any and all claims,
obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, “Losses”) which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or any of them, arising out of, resulting from, or in any way related to the shipment, export, or delivery of Your Products to Foreign Addresses, including any tax registration or collection obligations. You, on behalf of yourself and all other Releasing Parties, recognize that you, and each of them, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after the date you register for or use FBA, which the Releasing Parties are giving up by agreeing to these FBA Service Terms. It is your intention in agreeing to these FBA Service Terms that these FBA Service Terms will deprive the Releasing Parties of each and all such Losses and prevent the Releasing Party from asserting any such Losses against the Released Parties, or any of them. In addition to the foregoing, you acknowledge, on behalf of yourself and all other Releasing Parties
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You, on behalf of yourself and all other Releasing Parties, if any similar provision of the law of any other jurisdiction, to the full extent that you may lawfully waive all such rights pertaining to the subject matter of these FBA Service Terms.
F-12 Disclaimer
IN ADDITION TO THE DISCLAIMER IN SECTION 7 OF THE GENERAL TERMS OF THIS AGREEMENT, WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.
F-13 Effect of Termination
Following any termination of the Agreement or these FBA Service Terms in connection with a particular Elected Cities of India, we will, as directed by you, return to you or dispose of the Units held in that Elected Cities of India as provided in Section F-7. If you fail to direct us to return or dispose of the Units within thirty (30) days (or as otherwise specified in the applicable Program Policies) after termination, then we may elect to return and/or dispose of the Units in whole or in part, as provided in Section F-7, and you will be deemed to have consented to our actions. Upon any termination of these FBA Service Terms in connection with a particular Elected Cities of India, all rights and obligations of the parties under these FBA Service Terms in connection with such Elected Cities of India will be extinguished, except that the rights and obligations of the parties under Sections F-1, F-2, F-3, F-4, F-5, F-6, F-7, F-8, F-9, F-11, F-12, and F-13 with respect to Units received or stored by Mobi Ask as of the date of termination will survive the termination.
F-14 Tax Matters
You understand and acknowledge that storing Units at fulfillment centers may create tax nexus for you in any Cities of India, state, province, or other localities in which your Units are stored, and you will be solely responsible for any taxes owed as a result of such storage. If any Foreign Shipment Taxes or Your Taxes are assessed against us as a result of performing services for you in connection with the FBA Program or otherwise pursuant to these FBA Service Terms, you will be responsible for such Foreign Shipment Taxes and Your Taxes and you will indemnify and hold Mobi Ask harmless from such Foreign Shipment Taxes and Your Taxes as provided in Section F-10 of these FBA Service Terms.
F-15 Additional Representation
In addition to your representations and warranties in Section 5 of the General Terms of this Agreement, you represent and warrant to us that: (a) you have valid legal title to all Units and all necessary rights to distribute the Units and to perform under these FBA Service Terms; (b) you will deliver all Units to us in new condition (or in such condition otherwise described by you in the applicable Your Product listing) and in a merchantable condition; (c) all Units and their packaging will comply with all applicable marking, labeling, and other requirements required by Law; (d) no Unit is or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (e) you and all of your subcontractors, agents, and suppliers involved in producing or delivering Units will strictly adhere to all applicable Laws of the Elected Cities of India, its territories, and all other Cities where Units are produced or delivered, regarding the operation of their facilities and their business and labor practices, including working conditions, wages, hours, and minimum ages of workers; and (f) that all Foreign-Eligible Products (i) can be lawfully exported from Canada, Mexico, Japan, or the United States, as applicable, without any license or other authorization; and (ii) can be lawfully imported into, and comply with all applicable Laws of, any eligible Cities of India.
FBA Definitions
“Mobi Ask Fulfillment Units” means Units fulfilled using FBA that are sold through an Mobi Ask Site. For avoidance of doubt, if you have successfully registered for or used both the FBA and Selling on Mobi Ask Services, then the term “Mobi Ask Fulfillment Units” and the defined term “Mobi Ask Fulfilled Products” in the Selling on Mobi Ask Service Terms both refer to the same items.
“Fulfillment Request” means a request that you submit to us (in accordance with the standard methods for submission prescribed by us) to fulfill one or more Multi-Channel Fulfillment Units.
“Multi-Channel Fulfillment Units” has the meaning in Section F-2.
“Sellable Unit” means a Unit that is not an Unsuitable Unit.
“Seller Agreement” means the Selling on Mobi Ask Service Terms, the Merchants@ Program Agreement, the Marketplace Participation Agreement, any successor to any of these agreements, or any other similar agreement (as determined by Mobi Ask) between you and us that permits you to offer products and services via a particular Mobi Ask Site.
“Shipping Information” means with respect to any purchased Unit(s), the following information: the name of the recipient, the shipping address, the quantity of Units to be shipped, and any other shipping-related information we may reasonably request.
“Unit” means a unit of Your Product that you deliver to Mobi Ask in connection with the FBA Program.
“Unsuitable Unit” means a Unit: (a) that is defective, damaged, unfit for a particular purpose, or lacking required label(s); (b) the labels for which were not properly registered with Mobi Ask before shipment or do not match the product that was registered; (c) that is an FBA Excluded Product or does not comply with the Agreement (including applicable Service Terms and Program Policies); (d) that Mobi Ask determines is unsalable or unfulfillable; or (e) that Mobi Ask determines is otherwise unsuitable.