THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION AND USE OF MOTHERSHIP
All registered users of Mothership are called “Merchants.” You will not be able to use Mothership until you register as a Merchant as set forth below. Merchants may create, access, manage, and update their own personal accounts on Mothership; post comments, reviews, and other content on Mothership and/or interact with other Merchants on Mothership; and purchase or sell products from or to other Merchants (“Products”). Merchants may be either a “Retailer” or a “Supplier.”
A “Retailer” is a Merchant who chooses to create an account through which the Merchant may purchase Products from Suppliers.
A “Supplier” is a Merchant who chooses to create an account through which the Merchant may offer or sell Products to Retailers.
Suppliers may provide product information and details for Products that are available for purchase.
Retailers may then place orders (“Orders”) for such available Products through Mothership via the Retailer’s Shopify app or the Site’s API. Orders placed through the Retailer app are initiated in Mothership automatically and do not require the Retailer’s intervention. Orders placed through the API, however, must be initiated by the Retailer. The Supplier may also use Mothership to manually place an order on behalf of the Retailer.
If a Retailer accepts a Quote, the purchase (the “Transaction”) will be executed through Shopify, Inc.’s (“Shopify’s”) checkout process, in which case the Retailer and the Supplier are bound by the Quote and agree to complete the Transaction.
Once an Order is placed, it is the sole responsibility of the Supplier and the Retailer to (i) agree upon payment, delivery, return policy, and customer service details relating to the Order and (ii) ensure the necessary sales and other taxes are collected and remitted to all appropriate taxing authorities. The Supplier may either require the Retailer to pay for the Order prior to the applicable Products are shipped to the end-customer, or may choose to invoice the Retailer on a periodic basis. In either case, the shipping charges are calculated at the time the Order is placed in Mothership.
Valence Labs shall not be responsible for mediating or resolving any dispute between any Retailer and Supplier related to any Order. Notwithstanding the foregoing, Merchants agree to fully cooperate with Valence Labs, in the event Valence Labs elects to pursue any such mediation or resolution.
Valence Labs is under no obligation to accept any individual as a Merchant and may accept or reject any registration in its sole and complete discretion. In addition, Valence Labs may deactivate any account at any time, including, without limitation, if it determines that a Merchant has violated this Agreement.
2. RESTRICTIONS ON USE
By accessing and/or using Mothership, you agree to comply with the following restrictions on use:
We have the right, but not the obligation, to review and reject or remove any Product listing or other Merchant Content that, in our sole discretion, violates this Agreement in any respect. We also reserve the right, in our sole and absolute discretion, to deny you access to Mothership, or to any portion of Mothership, without notice.
3. SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
If you wish to become a Merchant, you will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Merchant. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Site using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Valence Labs will not be liable for any loss or damage caused by any unauthorized use of your account.
4. SUPPLIER TERMS
If you, as a Supplier, receive an Order from one or more Retailers, you shall, with respect to each Retailer, (i) fulfill and ship the purchased Products directly to the Retailer’s end customer(s) in accordance with the details set forth in the Order and as otherwise agreed between you and the applicable Retailer; (ii) adhere to the return policy set forth in the Order or as otherwise agreed between you and the Retailer, as applicable; and (iii) pay all designated fees to Valence Labs and/or Shopify, as applicable, associated with the Order.
5. RETAILER TERMS
As consideration for any Order you place, you shall pay the full purchase price of the Products in such Order as well as any applicable taxes via the Shopify checkout process. The applicable Supplier may require you to provide sales-tax exemption certificates that allow the Supplier to sell such Products to you without charging sales tax or VAT.
You must provide current, complete, and accurate billing and credit card information in connection with each Order. You must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Sign-In Name or Password). If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details.
6. INTELLECTUAL PROPERTY
Mothership contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of Valence Labs (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and Mothership automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Valence Labs (the “Valence Labs Trademarks”) used and displayed on Mothership are registered and unregistered trademarks or service marks of Valence Labs. Other company, product, and service names located on Mothership may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Valence Labs Trademarks, the “Trademarks”). Nothing herein or otherwise on Mothership should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Valence Labs Trademarks inures to our benefit.
Elements of Mothership are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
7. MERCHANT CONTENT
Mothership provides Merchants the ability to post and upload content and information (“Merchant Content”). You expressly acknowledge and agree that once you submit your Merchant Content, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Merchant Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT VALENCE LABS, ARE ENTIRELY RESPONSIBLE FOR ALL MERCHANT CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA MOTHERSHIP, AND YOU WILL INDEMNIFY US IN RESPECT OF ANY LOSS, LIABILITY, CLAIM, OR DAMAGE SUFFERED OR INCURRED BY US IN CONNECTION WITH ANY SUCH MERCHANT CONTENT.
You retain all copyrights and other intellectual property rights in and to your own Merchant Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Merchant Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.
If you submit Merchant Content to us, each such submission constitutes a representation and warranty to Valence Labs that such Merchant Content is your original creation (or that you otherwise have the right to provide the Merchant Content), that you have the rights necessary to grant to Valence Labs the license to the Merchant Content as set forth above, and that it and its use by Valence Labs and third parties as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates this Agreement.
8. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
9. SUPPLIER REPRESENTATIONS AND WARRANTIES
Supplier represents, warrants, and covenants that all Products (i) will conform to all purchase and delivery specifications (including the shipping policy) in the applicable Order, or otherwise provided to Valence Labs or the Retailers, (ii) will be free from defects (e.g., workmanship, material, and manufacture), (iii) will be of merchantable quality, (iv) will be packaged for shipping in a manner consistent with best practices of common carriers and the shipping guidelines, and (v) will be fit for the purposes intended by Valence Labs and/or the Retailers. All warranties run to the benefit of Valence Labs and the Retailers.
If Supplier collects or access any Personal Information or Transaction Information, Supplier shall such Personal Information and Transaction Information solely for the purposes of processing and shipping such Retailer’s order.
10. NO WARRANTIES; LIMITATION OF LIABILITY
All Products are provided by the third-party Suppliers, and not by Valence Labs; therefore, Valence Labs has no control over, and hereby disclaims any and all liability arising out of or associated with, the condition, quality, safety, legality or suitability of any Product. SUPPLIERS AND RETAILERS, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE ASSIGNS, SUBROGEES, REPRESENTATIVES AND ALL OTHER PERSONS OR ENTITIES ACTING FOR, BY OR THROUGH IT, HEREBY RELEASE AND FOREVER DISCHARGE VALENCE LABS, ITS DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, AND INSURERS, FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS OR RIGHTS OF ACTION, OF WHATEVER NATURE, CHARACTER OR DESCRIPTION, FOR PERSONAL INJURY, PROPERTY DAMAGE OR DEATH THAT ARISE FROM, ARE RELATED TO OR ARE IN ANY WAY CONNECTED WITH ANY ORDER OR PRODUCT.
YOU ACKNOWLEDGE THAT THE SITE OR MOTHERSHIP MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. MOTHERSHIP, THE SITE, AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT MOTHERSHIP, THE SITE, OR THE CONTENT WILL OPERATE ERROR-FREE OR THAT MOTHERSHIP, THE SITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE MOTHERSHIP, THE SITE, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF MOTHERSHIP, THE SITE, OR THE CONTENT SHALL BE LIMITED TO THE TOTAL FEES THAT YOU HAVE PAID TO US WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
11. EXTERNAL SITES; THIRD-PARTY VENDORS
Mothership may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of such External Sites. The External Sites are developed and provided by others, and you should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites, and we do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of Mothership or the Content; (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right; and/or (iv) your purchase, sale, or use of a Product. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
13. COMPLIANCE WITH APPLICABLE LAWS
Valence Labs is based in the United States. We make no claims concerning whether Mothership or the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use Mothership or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
14. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Application, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Application at any time without prior notice or liability.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
Valence Labs respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Valence Labs, Inc.
3 Charles W Briggs Rd.
Croton on Hudson, NY 10520
If you believe that your work has been copied on Mothership in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location within Mothership where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
16. CONTROLLING LAW
The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
17. BINDING ARBITRATION
In the event of a dispute arising under or relating to the Agreement, Mothership, the Site, or the Content (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in New York, New York. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 19 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
18. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
19. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
20. COMMUNICATIONS DECENCY ACT NOTICE
Valence Labs is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any Merchant Content is limited as described therein. We are not responsible for any Merchant Content. We neither warrant the accuracy of the Merchant Content nor exercise any editorial control over Merchant Content, nor do we assume any legal obligation for editorial control of Merchant Content or liability in connection with Merchant Content, including any responsibility or liability for investigating or verifying the accuracy of any Merchant Content.
21. DOWNLOADING THE APPLICATION FROM THE SHOPIFY APP STORE
The following terms are in addition to all other terms contained in this Agreement:
If the Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of Sections 4 through 22, which shall remain in full force and effect.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2017 Valence Labs, Inc. All rights reserved.