Seller Agreement - THE ART MARKET
This California Watercolor Seller Agreement ("Agreement") is made by and between California Watercolor with its principal offices located at 560 C Industrial Way, Fallbrook, CA 92028, and the seller providing Products for sale through THE ART MARKET ("Seller"), with a principal place of business as provided by Seller in connection with the online signup process related to this Agreement.
By accepting this Agreement online and using THE ART MARKET (defined below), Seller agrees to be bound by this Agreement. The Seller also acknowledges that Seller has been provided an opportunity to review the terms and conditions of this Agreement.
California Watercolor will be referred to as “CW”, “we”, or “us”, and THE ART MARKET will be referred to as “TAM”.
1. Definitions.The following definitions apply to this Agreement:
a) "Affiliate" means, with respect to a party, an entity that directly or indirectly controls, is controlled by, or is under common control with such party.
b) "Customer" means a user of TAM who places an Order.
c) "CW Entities" means the CW website and its Affiliates.
d) "TAM" means proprietary CW-branded, or co-branded features and services including as made available through (1) CaliforniaWatercolor.com and related websites, (2) CW mobile applications, (3) third party websites, platforms or services of CW partners and platform developers, and (4) any other websites, products, services, or technology owned or operated (in whole or in part) by CW or its Affiliates, now or in the future.
e) "CW Payment System" shall have the meaning set forth in Section 3(a).
f) "CW Transaction Information" means any information relating to Orders, and any other data or information acquired by Seller from CW, or otherwise as a result of the Agreement.
g) "Order" means an order placed by a Customer through TAM for one or more Products.
h) "Payments" shall have the meaning set forth in Section 3(a).
i) "Product(s)" means all of the products offered, sold or provided by Seller in TAM.
j) "Product Data" means, with respect to Products, the following: product description, brand or source, shipping origination, model, weight, in-stock or availability status, dimensions and other shipping specifications, images, shipping and handling information, warranties, disclaimers, returns and exchange policies, warnings (including for example and without limitation any California Proposition 65 warnings applicable to California residents), notices, labels, and any other Product-related information reasonably requested by CW.
k) "Product Listing" means a product listing page on TAM containing the Product Data.
l) "Product Listing Materials" means any Product Data, content (e.g., graphics, photos, and text), and other information or materials provided by Seller or made available by Seller.
m) "Prohibited Products Policy" means the prohibited products policy located http://www.californiawatercolor.com/pages/prohibited-products-policy-the-art-market as it may be updated by CW from time to time.
n) "Referral Fee" has the meaning set forth in Section 3(c).
o) "Regulatory Fees" any regulatory fees imposed on an Order, including without limitation electronic waste fees, bottle deposit fees, recycling fees, and tire fees.
p) "Seller Dashboard" means the portion of TAM that allows the Seller to list Products for sale on TAM. The online dashboard(s) or system(s) designated by CW to enable Seller to communicate and process transactions with Customers and that allows CW to communicate with Sellers. The Seller Dashboard may include any third party order management systems specified by CW. means the portion of TAM that allows the Seller to list Products for sale on TAM.
q) "Seller Guidelines" means any terms, policies, guidelines, or notices that may be published from time to time by CW through the Seller Dashboard or otherwise communicated in writing or email by CW to Seller, including without limitation the guidelines available at http://www.californiawatercolor.com/pages/guidelines-for-listing-artwork-the-art-market and any other written guidance made available to Sellers for providing Product Listing Materials, processing Orders, and messaging Customers. For clarity, while CW may update the Seller Guidelines from time to time, any amendments to the main body of this Agreement will be made solely in accordance with Section 20 (Modifications to Agreement).
r) "Seller Information Form" means the seller information form located at http://californiawatercolor.marketplaceadmin.com/reseller_admin/reseller_profile.php.
Other capitalized terms will have the meanings as set forth in the Agreement.
2. Seller Information; Products Data and Product Listings
a) Seller will be the seller of the Products, and will be identified as such in TAM. The foregoing notwithstanding, CW in its sole discretion will determine which Products Seller will be allowed to sell on TAM. Prior to accepting any Orders Seller will complete the Seller Information Form. Seller will then use the Seller Dashboard to submit Product Data and Product Listing Materials for all Products it wishes to sell under this Agreement.
b) Product Data Seller will provide accurate and complete Product Data for all Products, and ensure that any such Product Data is promptly updated so that such information remains at all times accurate and complete.
c) Seller will ensure that the Products and Product Listing Materials comply with all applicable laws and do not contain any fraudulent, misleading, defamatory or obscene materials. Notwithstanding anything to the contrary in this Agreement, the Product Data for each Product Listing shall meet all the requirements of this Agreement, including the minimum warranty period. Seller will clearly indicate the amount of shipping and handling charges for Products in the Product Data. The amount of such charges will follow industry standards and Seller Guidelines.
d) Prohibited Products. All Products and Product Listing Materials must comply with the Prohibited Products Policy. Seller agrees that multiple violations of the Prohibited Products Policy will result in the suspension or termination of its account and this Agreement. Without limiting any other provision in this Agreement, Seller agrees to be strictly liable for any Products that violate the intellectual property rights of a third party.
3. Payments, Transaction Fees/Referral Fees
a) CW Payment System. All Customer payments for Orders ("Payments") will be remitted to CW through CW’s authorized payment gateway (CaliforniaWatercolor.com). CW will assume all risk of credit card fraud (i.e., fraudulent purchase arising from the theft or unauthorized use of a third party's credit card information) occurring in connection with any Orders.
b) Payment Periods. Subject to Sections 3(c)-3(d) CW will remit all Payments to Seller, using the Seller PayPal account provided by Seller or other means as mutually-agreed to by the parties, within 7 days of the sale. Generally payments are posted once every week.
c) Referral Fee. CW shall have the right to deduct from such Payments, as a referral fee to CW, an amount equal to 20% of the total sale amount of each Product transaction processed through TAM ("Referral Fee"). CW in its discretion may deduct a lesser, or greater Referral Fee for certain categories of Products, as may be identified by CW in the Seller Guidelines. For the purposes of calculating the Referral Fee, such total sale amount shall exclude taxes and duties assessed in connection with such transactions. Seller may not be required to pay a Referral Fee to CW under limited circumstances, as may be set forth in the Seller Guidelines.
d) There is a monthly membership fee for access to TAM. CW offers 3 recurring payment options: monthly, quarterly, and yearly. A PayPal account is required. PayPal is used to automatically debit Sellers membership fees, and make payments to Seller when their product sells. Failing to make a scheduled membership payment may result in termination from TAM.
e) Other deductions. In addition to the Referral Fee, CW reserves the right to deduct from the remittance of Payments to Seller under Section 3(b) any amounts needed (ⅰ) to pay to Customers any unpaid refunds that are due by Seller to Customers pursuant to Sections 6 or 7 but not timely paid by Seller, and in such case CW shall have the right to use such deducted amounts to pay such refunds on Seller's behalf; and (ⅱ) to cover any other liability that Seller may have to CW under this Agreement, and CW shall have the right to use such deducted amounts to offset any such liability, including but not limited to chargebacks and taxes for which Seller is responsible under this Agreement that are paid by CW. If based on unusual events or circumstances involving the Seller or its Products (e.g., epidemic defects) CW reasonably anticipates the need to make any such refunds to customers on Seller's behalf or to offset liability owed to CW hereunder, CW shall have the right to deduct from such remittance and to hold in reserve amounts reasonably anticipated by CW to cover such refunds and liability.
f) Payment Disputes. Seller will be deemed to have accepted the accuracy of any payment made by CW hereunder unless Seller notifies CW of a dispute by email at Payments@CaliforniaWatercolor.com no later than 90 days after the date of the applicable Payment by CW to Seller.
g) Taxes and Fees. As between the parties, Seller will be responsible for all sales, goods and services, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid in connection with any Orders and the payment of all such taxes and duties to the relevant taxing authority. CW is not obligated to determine whether any taxes or duties apply, nor is CW responsible for the reporting, collection or remittance of any taxes from Product order transactions, except to the extent CW expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by CW and used by Seller. However, if a taxing authority requires CW to pay any taxes assessed, incurred or required to be collected or paid in connection with any sale of Products by Seller through TAM for which Seller is responsible under this Agreement, Seller will promptly reimburse CW for the amounts paid. Each party will be responsible for paying all applicable taxes based on any income or revenue received by it as a result of any transactions covered by this Agreement. Seller is solely responsible for the payment of any Regulatory Fees associated with any Order and expressly acknowledges and agrees that CW will not impose any Regulatory Fees on any Customer.
h) Seller acknowledges and agrees that the CW Entities have not provided Seller with any legal advice in general or tax advice in particular in connection with this Agreement. Seller has sought its own tax advice from qualified tax and financial advisors regarding the tax implications of this Agreement and the transactions contemplated hereunder.
4. Order Processing/Fulfillment/Shipping
a) Product Inventory. Seller will keep all Product stock quantity information up to date via the Seller Dashboard at all times.
b) Seller must accept and fulfill all Orders that are properly placed under this Agreement. Seller will be solely responsible for, and bears all risk and liability for, sourcing, storing, selling, fulfilling and delivering Products to Customers.
c) Packing Materials. Seller shall include (ⅰ) in each Product shipment (A) the packing slip generated by the Seller Dashboard for such shipment and (B) a CW insert in a form approved by CW, and (ⅱ) on the outside of the packaging for each such shipment a "CW" or similar sticker in a form approved by CW. Seller agrees not to include into, on or with any Product shipment or packaging any inserts, flyers, marketing collateral or other materials or information which may redirect any Customers or prospective Customers from TAM into any other sales channel, and Seller will not use TAM for any purpose other than the offering for sale of Products as contemplated in this Agreement.
d) Shipment and Delivery. For all Orders Seller will:
I. Process Orders through Seller Dashboard and ship all ordered Products within the lead-time indicated by Seller in the Product Listing Materials;
II. Promptly enter proof of shipment and tracking information in Seller Dashboard;
III. Deliver Products to the Customers and will ensure that all such Products are shipped without any undue delay or damage;
IV. Ensure that Products are packed for safe transit across U.S. and roadworthy for transit using general truckers, including but not limited to ensuring that original manufacturer packaging is in good condition and intact and replacing or repairing any cracked or broken foam pieces; and
V. Use an effective method for protecting fragile items, such as double-boxing or over-boxing, for any Products that are deemed fragile and shipped through carriers that use manual and automated distribution systems, such as UPS and FedEx.
Seller is free to determine the price for each Product, subject to the following: Seller will ensure that, (a) the purchase price for such Product and every other term of offer and/or sale of such Product (including associated shipping and handling charges, any "low price" guarantee, rebate or discount, product warranty, any free or discounted products or other benefit available as a result of purchase one or more other products, and terms of applicable return and refund policies) is at least as favorable to CW users as the most favorable terms upon which the same or substantially similar product is offered and/or sold via Seller's other sales channels; (b) customer service for each such Product is at least as responsive and available and that Seller offers at least the same level of support as the most favorable customer services offered in connection with Seller products offered via any of Seller's other sales channels; and (c) the Product Data that Seller provides to CW is of at least the same level of quality as the highest quality information displayed or used in Seller's other sales channels. If Seller becomes aware of non-compliance with (a) above, Seller will promptly compensate adversely affected customers by making appropriate refunds. To comply with the foregoing, any change in Product pricing should be updated in TAM within two (2) business days.
6. Returns of Product and Warranty
a) Orders may be returned by Customers to Seller in the manner and within the time frame specified by Seller in the applicable Product Listing. Customers will submit return requests through Seller Dashboard. Seller will be responsible for accepting and processing returns, refunds and adjustments for all Orders. Upon a refund request from a customer, Seller will provide the applicable warehouse shipping address for the return and issue a Return Merchandise Authorization (RMA) number along with other pertinent information to the Customer within 48 hours of the return request. Seller will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other chargers) or other amounts to be paid by Seller to customers in connection with Orders. All refund (and adjustment) payments will be routed through the CW Payment System. Seller will promptly provide refunds and adjustments that it is obligated to provide under this Agreement and as required by applicable law, and in no case later than 30 days following after the obligation arises.
b) Replacement of Damaged and Defective Products. Seller will be responsible for refunding or replacing any Product that exhibits any manufacturing defect or is otherwise damaged during transit otherwise agreed to with the Customer, e.g. for a partial refund. Seller will also be responsible for any non-conformity or defect in, including all costs and expenses associated with notices, inspections, replacements and shipping. Seller will notify CW promptly as soon as Seller has knowledge of any applicable public or private recall of any Product.
c) Product Warranties. Seller is responsible for satisfying all Product warranty obligations and for fees and expenses arising out of or related to Product returns
7. Product Disputes
Seller will be responsible for resolving, in a timely manner, any non-delivery, mis-delivery or delivery of damaged or defective Products, or other Customer complaints through Seller Dashboard, following Seller Guidelines. Seller explicitly acknowledges and agrees that any assistance or support offered by CW in connection with any Customer complaint shall not relieve Seller of this responsibility unless otherwise agreed by CW in writing.
This Agreement will have an initial term of one year, and unless otherwise terminated pursuant to Section 9, will automatically renew for successive one-year terms.
9. Termination and Survival
a) Either party may terminate this Agreement at any time on 30 days' written notice.
b) Either party may terminate this Agreement immediately on the other party's material breach of any provision hereof, provided that the non-breaching party provides ten (10) days' written notice to the breaching party and the breach is not cured within such ten-day period.
c) CW may terminate this Agreement immediately upon delivery of written notice if it believes the Products or continued activities under this Agreement could cause legal or business liability to the CW Entities, their partners or users, or if CW cease offering Seller program generally.
d) Termination of this Agreement will not relieve the parties of any obligations accrued through the date of such termination. Without limiting the foregoing, any Orders placed prior to termination must be fulfilled by Seller in accordance with the terms of this Agreement that were in effect as of the date of the termination notice.
e) Sections 6, 7, and 11-17 will survive any termination of this Agreement.
Seller, at its sole cost and expense, will maintain in effect at all times during the term of this Agreement, sufficient insurance to cover its obligations and liabilities under this Agreement, which in any event will be no less (in type or coverage limits) as required by law or as is common practice in Seller’s business; provided however, that the limitations of coverage in Seller’s insurance policies will not limit Seller’s indemnification obligations under this Agreement. Such insurance will include, without limitation, commercial general liability, product liability, completed operations, blanket contractual liability, and personal injury and advertising liability. Upon request at any time, Seller will provide CW with certificates of insurance or evidence of coverage.
11. Control of Site and Intellectual Property
a) Notwithstanding any provision in this Agreement, CW will have the right in its sole discretion to determine the content, appearance, design, functionality and all other aspects of TAM (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to, TAM and any element, aspect, portion or feature thereof (including any Product listings, 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 CW's sole discretion. Without limiting the generality of the foregoing, in the event of Seller's breach of this Agreement or for any act of fraud, misrepresentation or violation of applicable law, rules or regulations, CW reserves the right, in its sole discretion, to remove any Products listed in TAM, cancel pending orders for Products, require Seller to offer its customers refunds for Products or suspend Seller's ability to participate in TAM or otherwise use TAM. CW may at its discretion conduct merchandising, marketing, and promotion of the Products, including providing a mechanism for Customers to publicly review and rate Products.
b) License. Seller grants CW a royalty-free, non-exclusive, worldwide, perpetual right and license to use, reproduce, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, any and all Product Listing Materials in connection with (ⅰ) the offering or promotion of Seller Products in TAM (ⅱ) use with TAM, or (ⅲ) promotion of TAM, or CW, and to sublicense the foregoing rights to CW's Affiliates or partners for TAM-related matters. Seller also grants CW a royalty-free, non-exclusive, worldwide, perpetual right and license, under all rights Seller may have, now or in the future, (ⅳ) to photograph, produce images of or otherwise record the Products, (ⅴ) to use, reproduce, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, such photographs, images or records in connection with the operation or promotion of TAM, and (ⅵ) to sublicense the foregoing rights to CW Affiliates or partners for TAM-related matters.
c) Except as expressly provided herein, neither party will acquire any rights or interest in the other party's trademarks, trade names, trade dress or other intellectual property, and any goodwill generated therein will inure solely to the benefit of the owner party. Each party reserves all of its rights in and to its trademarks, trade names and trade dress, all graphic images and text contained on such party's website, and all other intellectual property owned or licensed by such party.
d) Seller Dashboard Rights. Seller may use the Seller Dashboard solely for managing Orders as described in this Agreement. Seller will ensure that all login credentials for the Seller Dashboard are kept confidential and are not shared, and Seller will be strictly liable for any actions taken through its Seller Dashboard login. Seller will not (and will not allow anyone else to): (a) rent, lease, copy, provide access to or sublicense the Seller Dashboard to a third party; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Seller Dashboard or TAM; or (c) publicly disseminate benchmarks or similar performance information about the Seller Dashboard or TAM.
12. Representations & Warranties
Seller represents and warrants to CW that (a) Seller has the requisite power and authority to enter into and carry out the terms of this Agreement, without conflict with any other obligation Seller may have to any other party, and Seller has obtained and will maintain all rights, approvals and consents necessary to perform its obligations and grant all rights and licenses granted to CW under this Agreement; (b) Seller has full title to the Products, free and clear of all liens, charges and other encumbrances; (c) all Products are in good condition, authentic (not knock-offs, pirated or counterfeit), and comply with the Prohibited Products Policy; (d) all Products are fit for their intended purpose and conform to the Product Data submitted by Seller; (e) all Products have been and will be manufactured, packaged, shipped, stored and labeled in accordance with the terms of this Agreement and all applicable industry standards, laws, rules and regulations ("Laws"), including those related to import, export, health, safety and consumer protection (by way of example, DOT, OSHA, WERC, FTC, USDA and FDA requirements), and Seller will otherwise ensure that Seller, the Products, Product Listing Materials, and Product Data comply with all Laws (including without limitation any California Proposition 65 warnings applicable to California residents and similar laws); and (f) the Product Data and Product Listing Materials will not contain any harmful, fraudulent, misleading, defamatory or obscene content, nor will the Product Data or Product Listing Materials (or CW’s promotion, distribution and sale of the Products as permitted by this Agreement) infringe or misappropriate any intellectual property rights, rights of privacy or publicity or any other proprietary rights of any third party.
TAM (INCLUDING THE SELLER DASHBOARD) AND ALL RELATED FEATURES, PRODUCTS, AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." AS A USER OF TAM, SELLER IS USING TAM AT ITS OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CW AND ITS AFFILIATES AND SUPPLIERS WAIVE AND DISCLAIM: (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING TAM OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. CW DOES NOT WARRANT THAT TAM WILL MEET SELLER'S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND CW WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
Seller agrees to indemnify, defend, and hold harmless the CW Entities and their respective directors, officers, employees, contractors, agents and representatives (the "Indemnified Parties"), from and against any and all losses, damages, liabilities, penalties, costs of settlement and expenses (including, without limitation, reasonable attorneys' fees and expenses) arising from any third- party claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) (collectively, "Losses") arising out of, resulting from, or relating to (ⅰ) any death, bodily injury or property damage occurring or alleged to have occurred as a result of any Products provided by Seller, (ⅱ) the presence, absence, or content of any warranties, statements, instructions for use or warnings on the label(s), boxes, inserts or other packaging for the Products or directions for use or application provided or approved by Seller, (ⅲ) any act or omission of Seller, or the employees, contractors, agents or representatives of Seller, in the advertising or furnishing of Product or in the performance of services under any Order, including any warranty service, (ⅳ) any actual or alleged infringement by Seller Product Listing Materials or Products of any intellectual property right or right of privacy or publicity or other personal or proprietary right of any third party, (ⅴ) any violation of applicable law by Seller, or the employees, contractors, agents or representatives of Seller, and (ⅵ) the Product Data and Product Listing Materials. Notwithstanding the foregoing, Seller shall not have any obligation or liability to CW under this Section 14 to the extent any such Losses arise from any breach of contract, gross negligence or willful misconduct by CW.
15. Limitation of Liability
THE CW ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS,) COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY SELLER OR LOST OR CANCELED ORDERS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CW’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY SELLER TO CW UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING A CLAIM FOR DAMAGES.
CW may provide Seller with certain information that is confidential or proprietary ("Confidential Information"). Confidential Information includes without limitation any not previously publicly disclosed information about CW’s business, finances, customers, information systems, software or technology. Seller will (ⅰ) use Confidential Information solely as necessary to fulfill its obligations under this Agreement and (ⅱ) not disclose Confidential Information to any third parties, other than Seller's employees, agents and advisors with a need to know and for whom Seller agrees to remain strictly responsible under this Agreement. Seller acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure, CW will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. Upon termination of this Agreement for any reason, or upon earlier request by CW, Seller will promptly destroy or return to CW (as specified by CW) all copies of Confidential Information. Seller agrees that all Confidential Information will remain CW's exclusive property and Seller will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.
17. Seller Conduct
Seller agrees to comply at all times with the TOU and Seller Guidelines, which are hereby incorporated into this Agreement. Seller will not, directly or indirectly:
a) Use ".com" or web indicator equivalent in its name, its profile, or anywhere referencing its goods or services on TAM;
b) Add the email addresses of any Customers obtained in connection with any Order to any of Seller's e-mail lists or otherwise use such e-mail addresses or provide such e-mail addresses to any third parties
c) Disparage CW, its Affiliates, or any of their or our respective products or services;
d) Disclose or convey any CW Transaction Information (except Seller may disclose this information as necessary for Seller to perform its obligations under this Agreement);
e) Use any CW Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with CW's or Seller's privacy policies or applicable Law.
All such Seller restrictions on the use of CW Transaction Information shall survive expiration or termination of this Agreement. The terms of this Section 17 does not prevent Seller from using other information that it acquires without reference to CW Transaction Information for any purpose, even if such information is identical to CW Transaction Information.
18. Password and Security
Any password CW provides to Seller may be used only during the Term to access the Seller Dashboard (or other tools we provide) to use TAM, including conducting and reviewing Orders. Seller is solely responsible for maintaining the security of the password. Seller may not disclose its password to any third party (other than third parties authorized by Seller to use the Seller account in accordance with this Agreement), and Seller is solely responsible for any use of or action taken under its password. If Seller's password is compromised, Seller must immediately change its password.
19. Force Majeure
CW will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond CW's reasonable control, including without limitation, hardware failure, interruptions or failure of the Internet or third-party network connections.
20. Modifications to Agreement
Seller can view the Agreement at any time at http://www.californiawatercolor.com/pages/seller-agreement-the-art-market. CW may modify this Agreement from time to time, with notice given to Seller by email or through the Vendor Seller. Such modifications will become effective within the time period specified by CW or, if not specified, within ten (10) days after notice has been given to Seller. If Seller does not agree to such modifications, Seller’s exclusive remedy will be to terminate this Agreement. In any event, Seller may be required to click to agree to the modified Agreement in order to continue using the Seller Dashboard, and continued use of the Seller Dashboard after the modifications take effect constitutes Seller’s acceptance of the modifications. No modification of this Agreement by Seller will be binding on CW unless in a written document signed by CW.
In this Agreement, "including" (and similar terms) will be construed without limitation and headings are for convenience only. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Seller may not assign, transfer or delegate this Agreement (or any part thereof) without CW’s prior written consent. CW may freely assign, transfer or delegate its rights and obligations under this Agreement. This Agreement will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the California state and United States federal courts located in San Diego, California, and both parties hereby submit to the personal jurisdiction of such courts. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties, and Seller will have no authority to make or accept any offers or representations on CW's behalf. CW may send notices to Seller’s then-current email on file or through the Seller Dashboard. All notices to CW must be given in writing to CW’s address set forth above. All notices are effective upon delivery. This is not an exclusive agreement. Seller acknowledges that CW uses (and reserves the right to continue to use) other Sellers to provide goods (or may itself create, brand or distribute its own goods) that are identical, similar or related to the Products. No omission or delay by either party in requiring other party to fulfill its obligations hereunder will be deemed to constitute a waiver of (ⅰ) the right to require the fulfillment of any other obligation hereunder; or (ⅱ) any remedy that may be available hereunder. This Agreement (including Seller Guidelines), together with any Orders or other CW documents referencing this Agreement, constitutes the complete agreement between the parties and supersedes all previous agreements or representations, whether written or oral, with respect to the subject matter set forth in this Agreement; however, this Agreement does not modify any separate agreements between the parties that relate to different subject matter (e.g., the TOU).
(Last modified October 11, 2016)