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Welcome to Pollen Services Business Solutions, a suite of optional services for Merchants including: Selling on Pollen, Transaction Processing Services, and the Marketplace Web Service.
THIS POLLEN SERVICES BUSINESS SOLUTIONS AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND POLLEN. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY FOR EACH COUNTRY FOR WHICH YOU REGISTER OR ELECT TO USE A SERVICE (IN EACH CASE, THE “ELECTED COUNTRY”).
As used in this Agreement, “we,” “us,” and “Pollen” means the applicable Pollen Contracting Party and any of its applicable Affiliates, and “you” means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement. If there is a conflict among terms in this Agreement, the Program Policies will prevail over any applicable Service Terms and the General Terms, and the applicable Service Terms will prevail over the General Terms.
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 Country 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 valid credit card information from a credit card or credit cards acceptable by Pollen (“Your Credit Card”) as well as valid bank account information for a bank account or bank accounts acceptable by Pollen (conditions for acceptance may be modified or discontinued by us at any time without notice) (“Your Bank Account”). You will use only a name you are authorized to use in connection with a service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Pollen or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Pollen or third parties persist. For any amounts that we determine you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Pollen or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with the terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and merchants relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because Pollen Site or Service is unavailable following the commencement of a transaction.
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 or suspend 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 Pollen. 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 Sections 2, 3, 4, 5, 6, 7, 8, 9, 11, 14, 15, 16, and 19 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our Affiliates and operators of Pollen Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks (provided you are unable to do so using standard functionality made available to you via the applicable Pollen Site or Service); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
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 country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Pollen or its Affiliates is at all times accurate and complete; (d) you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) 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.
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 Pollen Sites and Pollen 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.
7. Disclaimer & General Release.
THE POLLEN SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, YOU USE THE POLLEN SITES, THE SERVICES, THE MWS SITE, AND POLLEN MERCHANT PORTAL AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE Pollen SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
BECAUSE POLLEN IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND MERCHANTS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES Pollen (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
8. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF POLLEN 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 Pollen IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
if requested by us, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term for each applicable Elected Country commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming Pollen and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage to the following email address: attention: Pollen Insurance, email@example.com
10. Tax Matters.
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that (i) Pollen automatically calculates, collects, or remits taxes on your behalf according to applicable law; or (ii) Pollen expressly agrees to receive taxes or other transaction-based charges on your behalf in connection with tax calculation services made available by Pollen and used by you. You agree to and will comply with the Tax Policies. All fees and payments payable by you to Pollen under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and you will be responsible for paying Pollen any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.
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 Pollen Transaction Information, that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain Pollen’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.
12. 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.
13. Relationship of Parties.
14. Use of Pollen Transaction Information.
You will not, and will cause your Affiliates not to, directly or indirectly: (a) disclose any Pollen 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 Pollen 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 Pollen Site user. In addition, you may only use tools and methods that we designate to communicate with Pollen Site users regarding Your Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Your Products. The terms of this Section 14 do not prevent you from using other information that you acquire without reference to Pollen Transaction Information for any purpose, even if that information is identical to Pollen Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Pollen Site user.
15. 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 Pollen 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. If we make suggestions on using the Services, you are responsible for any actions you take based on our suggestions.
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 Pollen Merchant Portal, on the MWS Site, or on the applicable Pollen 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 Pollen Merchant Portal 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. YOUR CONTINUED USE OF A SERVICE AFTER POLLEN’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
17. Password Security.
Any password we provide to you may be used only during the Term to access Pollen Merchant Portal (or other tools we provide, including the MWS Site, as applicable) to use the Services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force which rules are deemed to be incorporated by reference in this clause.
The seat of the arbitration shall be Singapore.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Services, including by redesigning, modifying, removing, or restricting access to any of them.
Because Pollen is not your agent (except for the limited purposes set out in the Transaction Processing Service Terms (if the Elected Country for a Service is Singapore)), or the customer’s agent for any purpose, Pollen will not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any transaction.
We will send all notices and other communications regarding this Agreement to you at the email addresses you designated for notifications and updates in your program application, as applicable, or by any other means then specified by Pollen. We may also communicate with you electronically and in other media, and you consent to such communications regardless of any “Email Preferences” (or similar preferences or requests) you may have indicated on the applicable Pollen Site, or by any other means. You may change your email addresses and certain other information in program application, as applicable. You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to Pollen to our Merchant Services Team by using the Contact Us form.
This Agreement incorporates and you accept the applicable Service Terms and Program Policies, which Pollen may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. If the Elected Country is Canada, then it is the express wish of the parties that this Agreement and the applicable Service Terms and Program Policies have been drafted in English. (The following is a French translation of the preceding sentence: Si le pays de service est le Canada, les parties conviennent que la présente autorisation et tous les termes et conditions applicables s’y rattachant soient rédigés en anglais.) If the Elected Country is any country other than Japan, we may make available translations to this Agreement and the applicable Service Terms and Program Policies, but the English version will control. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
As used in this Agreement, the following terms have the following meanings:
“Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
“Pollen Associated Properties” means any website or other online point of presence, mobile application, service or feature, other than Pollen Site, through which any Pollen Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised, or described.
“Pollen Contracting Party” means the parties outlined below.
Pollen Tech Pte Ltd – Singapore
Pollen Tech Sdn Bhd – Malaysia
“Pollen Transaction Information” means, collectively, Order Information and any other data or information acquired by you or your Affiliates from Pollen, its Affiliates, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement, or the parties’ performance under this Agreement.
“Content” means copyrightable works under applicable Law and content protected by database rights under applicable Law.
“Excluded Products” means the items described on the applicable Restricted Products pages, any other applicable Program Policy, or any other information made available to you by Pollen.
“Intellectual Property Right” means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
“Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.
“Local Currency” means the applicable one of the following:
U.S. Dollars (if the Elected Country is the United States),
Singapore Dollars (if the Elected Country is Singapore),
Malaysian Ringgit (if the Elected Country is Malaysia),
“MWS Site” means that website (and any successor or replacement of such website), the primary homepage of which is currently located at http://www.pollenstores.co/.
“Optional Coverage Plans” means warranties, extended service plans and related offerings, in each case as determined by us, that you offer.
“Order Information” means, with respect to any of Your Products ordered through a Pollen Site, the order information and shipping information that we provide or make available to you.
“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
“Program Policies” means all terms, conditions, policies, guidelines, rules, and other information on the applicable Pollen Site, on Pollen Merchant Portal, or on the MWS Site, including those shown on the “Policies and Agreements” section of Pollen Merchant Portal or elsewhere in the “Help” section of Pollen Merchant Portal (and, for purposes of the Fulfillment by Pollen Service, specifically including the FBP Guidelines).
“Sales Proceeds” means the gross proceeds from any of Your Transactions, including (a) all shipping and handling, gift wrap and other charges; (b) taxes and customs duties to the extent specified in the applicable Tax Policies; and (c) in the case of invoiced orders, any amounts that customers fail to pay to us or our Affiliates on or before the applicable invoice due date.
“Pollen Merchant Portal” means the online portal and tools made available by Pollen to you, for your use in managing your orders, inventory, and presence on a particular Pollen Site or any other online point of presence.
“Service” means each of the following services: Selling on Pollen, the Marketplace Web Service, the Transaction Processing Services, together in each case with any related services and materials we make available
. “Service Terms” means the service terms applicable to each Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms.
“Technology” means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.
“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
“Your Materials” means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Pollen or its Affiliates.
“Your Personnel” means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
“Your Product” means any product or service (including Optional Coverage Plans) that you: (a) have offered through the Selling on Pollen Service; (b) have made available for advertising through the Pollen; or (c) have fulfilled or otherwise processed through the Transaction Processing Service.
“Your Sales Channels” means all sales channels and other means through which you or any of your Affiliates offers products or services, other than physical stores.
“Your Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. Also, if the Elected Country is the United States, Mexico, Canada, or Japan as it is used in the Fulfillment by Pollen Service Terms, this defined term also means any of the types of taxes, duties, levies, or fees mentioned above that are imposed on or collectible by Pollen or any of its Affiliates in connection with or as a result of fulfillment services including the storage of inventory or packaging of Your Products and other materials owned by you and stored by Pollen, shipping, gift wrapping, or other actions by Pollen in relation to Your Products pursuant to the Fulfillment by Pollen Service Terms.
“Your Trademarks” means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
“Your Transaction” means any sale of Your Product(s) through a Pollen Site.
Selling on Pollen Service Terms
The Selling on Pollen Service (“Selling on Pollen”) is a Service that allows you to offer certain products and services directly on the Pollen Sites.
These Selling on Pollen Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on Pollen. BY REGISTERING FOR OR USING THE SELLING ON POLLEN SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE SELLING ON POLLEN SERVICE TERMS. NOTWITHSTANDING THE PREVIOUS SENTENCE, IF YOU HAVE ENTERED INTO A SEPARATE AGREEMENT THAT PERMITS YOU TO OFFER YOUR PRODUCTS THROUGH A PARTICULAR POLLEN SITE (E.G., A MERCHANTS@POLLEN.TECH PROGRAM AGREEMENT OR ANY PREDECESSOR OF THOSE AGREEMENTS), THEN TO THE EXTENT THAT YOU CONTINUE TO LIST AND SELL YOUR PRODUCTS ON THAT POLLEN SITE PURSUANT TO SUCH SEPARATE AGREEMENT, TRANSACTIONS OF YOUR PRODUCTS ON THAT POLLEN 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 POLLEN 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 Pollen 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 Pollen 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 Pollen Sites; or provide any URL Marks for use, or request that any URL Marks be used, on any Pollen Site.
S-1.2 Product Listing; Merchandising; Order Processing.
We will enable you to list Your Products on a particular Pollen Site, and conduct merchandising and promote Your Products as permitted by us (including via the Pollen Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable Pollen Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a merchant and Pollen may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the applicable Pollen 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 Pollen Service Terms. We may permit certain customers to place invoiced orders for Your Products, in which case remittance of Sales Proceeds may be delayed according to each customer’s invoicing terms. You will accept and fulfill invoiced orders in the same manner as you accept and fulfill non-invoiced orders, except as otherwise provided in this Agreement.
S-1.3 Shipping and Handling Charges.
For Your Products ordered by customers on or through a Pollen Site that are not fulfilled using Fulfillment by Pollen, 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 Merchant on the standard selling plan). 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 Pollen Service Terms for Your Products that are fulfilled using Fulfillment by Pollen.
S-1.4 Credit Card Fraud and Unpaid Invoices.
We will bear the risk of (a) 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, and (b) late payments or defaults by customers in connection with invoiced orders for Your Products, except, in each case, in connection with Merchant-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 Pollen Service Terms for each Pollen Site for which you register or use the Selling on Pollen Service, you will: (a) source, offer, sell and fulfill your Merchant-Fulfilled Products, and source and, offer and sell your Pollen-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 Pollen 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 Pollen Site at the time of the applicable order or as may be required under this Agreement; (e) fulfill Your Products throughout the Elected Country (except to the extent prohibited by Law or this Agreement); (f) provide to Pollen 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 Merchant 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 Merchant 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 Pollen, the Fulfillment by Pollen Service Terms for the applicable Pollen Site will apply to the storage, fulfillment, and delivery of such Pollen-Fulfilled Products.
S-2.2 Cancellations, Returns, and Refunds.
The Pollen Refund Policies for the applicable Pollen Site will apply to Your Products. Subject to Section F-6, for any of Your Products fulfilled using Fulfillment by Pollen, you will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with this Agreement and the Pollen Refund Policies for the applicable Pollen 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 Pollen. 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 non-performance, 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 Pollen, if any, the Fulfillment by Pollen Service Terms for the applicable Pollen Site will apply to non-delivery, 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, any public or private recall of, or safety alert 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, or safety alerts of Your Products or other products provided in connection with Your Products.
S-3.2 Return Guarantee and Chargebacks.
If we inform you that we have received or initiated a claim under the “Return Guarantee and Chargebacks“ offered on a particular Pollen 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 Pollen 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 Pollen 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 Referral Fees retained and not subject to refund by Pollen) 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.
You will pay us: (a) the applicable Merchant Fees; and (b) any other applicable fees added subsequent to this agreement, described on the MWS (including any applicable Program Policies).. With respect to each of Your Transactions: “Merchant Fee” means the applicable fee you set per product based on the Sales Proceeds from Your Transaction through the applicable Pollen Site specified on community.pollenstores.co for that Pollen Site at the time 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 Pollen.
S-5 Remittance of Sales Proceeds & Refunds.
Except as otherwise stated in this Agreement, we will remit to you your available balance according to the billing options you have enabled. As a default, if you are connecting with a bank account, we will transfer on a bi-weekly (14 day) (or at our option, more frequent) basis, which may vary for each Elected Country. For each remittance, your available balance is equal to any Sales Proceeds 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 Merchant Fees; (b) 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); and (f) any taxes that Pollen automatically calculates, collects and remits to a tax authority according to applicable law, as specified in the Tax Policies
We may establish a reserve on your account based on our assessment of risks to Pollen 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. . If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us , on the next available Remittance Calculation Date we will refund to you the amount of the Merchant 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;provided, however, that in the case of a complete refund of Sales Proceeds for a Product, we will refund to you the full amount of any Merchant Fee paid by you to us (and in the case of a partial refund of Sales Proceeds for a Product, we will not refund to you any portion of any Merchant 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 Pollen Site.
Net Sales Proceeds from non-invoiced orders will be credited to your available balance when they are received by us or our Affiliates. Sales Proceeds from invoiced orders will be credited to your available balance: (a) if you have elected in advance to pay a fee to accelerate remittance of Sales Proceeds from invoiced orders, on the day all of Your Products included in an invoiced orders are shipped; or (b) otherwise, no later than the seventh day following the date that an invoiced order becomes due.
S-6 Control of Pollen Sites.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Pollen Sites, including by redesigning, modifying, removing, or restricting access to any of them, and by suspending, prohibiting, or removing any listing.
S-7 Effect of Termination.
Upon termination of these Selling on Pollen Service Terms in connection with a particular Pollen Site, all rights and obligations of the Parties under these Selling on Pollen Service Terms with regard to such Pollen 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 Pollen Definitions
>“Pollen-Fulfilled Products” means any of Your Products that are fulfilled using the Fulfillment by Pollen Service.
“Pollen Refund Policies” means the return and refund policies published on the applicable Pollen Site and applicable to the products and services offered via that Pollen 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 Pollen Site but that we do not honor or support (but only until such time as we honor or support the same on such Pollen 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 (ii) if the Elected Country is Canada, Mexico, or the United States, have affirmatively elected and opted-in to participate in your or one of your Affiliates’ membership-based customer loyalty or customer incentive programs.
“Expected Ship Date” means, with respect to any of Your Products, either: (a) 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 (b) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that Pollen 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 a Pollen 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 Pollen 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 Pollen 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 Pollen from time to time); (d) categorization within each Pollen product category and browse structure as prescribed by Pollen from time to time; (e) digitized image that accurately depicts only Your Product, complies with all Pollen 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 other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products; and invoices and other documentation demonstrating the safety and authenticity of Your Products).
“Merchant-Fulfilled Products” means any of Your Products that are not fulfilled using the Fulfillment by Pollen Service.
“Shipment Information” means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
“Street Date” means the date(s), if any, specified by the manufacturer, distributor, and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers.
“URL Marks” means any Trademark, or any other logo, name, phrase, identifier, or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com).
“Your Transaction” is defined in the General Terms of this Agreement; however, as used in these Selling on Pollen Service Terms, it means any and all such transactions through Selling on Pollen only.
Fulfillment by Pollen Service Terms
Fulfillment by Pollen (“FBP”) provides fulfillment and associated services for Your Products.
These FBP Service Terms are part of the Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in FBP. BY REGISTERING FOR OR USING FBP, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE FBP SERVICE TERMS. You expressly agree that Pollen may engage its Affiliate(s) or a third party in order to complete one or more of the fulfillment and associated services outlined below.
F-1 Your Products
Once you are accepted into FBP, you must apply to register each product you offer that you wish to include in the FBP program. We may refuse registration in FBP of any product, including on the basis that it is an FBP Excluded Product or that it violates applicable Program Policies. You may at any time withdraw registration of any of Your Products from FBP.
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 FBP, and will provide Fulfillment Requests for any Units fulfilled using FBP that are not sold through a Pollen 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 Pollen
Except as otherwise provided in Section F-3.4 and Section F-5, FBP is limited to Units that are shipped to and from fulfillment centers located within the applicable Elected Country, to be delivered to customers in the same Elected Country 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 Pollen 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.
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 Pollen’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.
If you ship Units from outside the applicable Elected Country to fulfillment centers, you will list yourself as the importer/consignee and nominate a customs broker. If Pollen is listed on any import documentation, Pollen reserves the right to refuse to accept the Units covered by the import documents and any costs assessed against or incurred by Pollen will be collected from Your Bank Account, deducted from amounts payable to you, or by other method at our election.
We will provide storage services as described in these FBP 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 Pollen 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 FBP 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.
As part of our fulfillment services, we will ship Units from our inventory of Your Products to the shipping addresses in the Elected Country 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 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 countries we determine to be eligible for foreign shipments, subject to the additional terms on foreign shipments in the applicable FBP Guidelines.
F-6 Customer Returns
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).
We will receive and process returns of any Pollen Fulfillment Units that were shipped to addresses within the Elected Country in accordance with the terms of your Merchant Agreement, these FBP Service Terms, and the Program Policies. Any Sellable Units that are also Pollen Fulfillment Units and that are properly returned will be placed back into the inventory of Your Products in the FBP Program. We may fulfill customer orders for Your Products with any returned Pollen Fulfillment Units. Except as provided in Section F-7, you will retake title of all Units that are returned by customers.
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.M
If Pollen 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.
We may return Units to you for any reason, including upon termination of these FBP 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 Country, 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 Pollen, our personnel, or any third party; (ii) if you fail to direct us to return or dispose of any Unsuitable Unit within thirty (30) 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 thirty (30) 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.
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.
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
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.
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 Pollen Fulfillment Units. We will have the right to determine whether a customer will receive a refund, adjustment or replacement for any Pollen Fulfillment Unit and to require you to reimburse us where we determine you have responsibility in accordance with the Agreement (including these FBP Service Terms and the Program Policies). Except as provided in this Section F-8 regarding any Pollen Fulfillment Units, customer service will be handled in accordance with your Merchant Agreement.
In situations relating to Pollen 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 Pollen Fulfillment Unit, (i) ship a replacement Unit to the customer and reimburse you in accordance with the FBP Guidelines for the replacement Unit, or (ii) process a refund to the customer and reimburse you in accordance with the FBP Guidelines for the Unit; or (b) for any Multi-Channel Fulfillment Unit, reimburse you in accordance with the FBP 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 Pollen and the Transaction Processing Service Terms (if the Elected Country for a Service is the United States). Notwithstanding the Selling on Pollen Service Terms, we will be entitled to retain the applicable fees payable to us under the Selling on Pollen Service Terms and these FBP 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
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 FBP Guidelines) of the returned Unit. Any replacement Unit shipped by us under these FBP 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 Pollen Site or Service in accordance with, and subject to, the terms and conditions of this Agreement and your Merchant 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 Pollen 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 Pollen (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 Pollen 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 FBP 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 Pollen Site that qualify for the “Free Shipping” promotion, the amounts charged to the customer for shipping the Selling on Pollen Units that Pollen fulfills will first be charged to the customer and will next be deducted from the total charges to the customer as your promotion and Pollen 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.
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.
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”).
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 Pollen 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 FBP, which the Releasing Parties are giving up by agreeing to these FBP Service Terms. It is your intention in agreeing to these FBP Service Terms that these FBP 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 that you are familiar with Section 1542 of the Civil Code of the State of California, as follows:
“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, expressly waive and relinquish any rights that you had or may have under Section 1542 of the Civil Code of the State of California or 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 FBP Service Terms.
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 FBP Service Terms in connection with a particular Elected Country, we will, as directed by you, return to you or dispose of the Units held in that Elected Country 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 FBP Service Terms in connection with a particular Elected Country, all rights and obligations of the parties under these FBP Service Terms in connection with such Elected Country 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 Pollen 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 country, 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 FBP Program or otherwise pursuant to these FBP Service Terms, you will be responsible for such Foreign Shipment Taxes and Your Taxes and you will indemnify and hold Pollen harmless from such Foreign Shipment Taxes and Your Taxes as provided in Section F-10 of these FBP 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 FBP 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 Country, its territories, and all other countries 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 country.
“Pollen Fulfillment Units” means Units fulfilled using FBP that are sold through a Pollen Site. For avoidance of doubt, if you have successfully registered for or used both the FBP and Selling on Pollen Services, then the term “Pollen Fulfillment Units” and the defined term “Pollen Fulfilled Products” in the Selling on Pollen Service Terms both refer to the same items.
“FBP Excluded Product” means any Unit that is an Excluded Product or is otherwise prohibited by the applicable Program Policies.
“Foreign Address” means ) if the Elected Country is not the Singapore, any mailing address that is not within the Elected Country.
“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.
“Merchant Agreement” means the Selling on Pollen 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 Pollen) between you and us that permits you to offer products and services via a particular Pollen 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 Pollen in connection with the FBP 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 Pollen before shipment or do not match the product that was registered; (c) that is an FBP Excluded Product or does not comply with the Agreement (including applicable Service Terms and Program Policies); (d) that Pollen determines is unsellable or unfulfillable; or (e) that Pollen determines is otherwise unsuitable.
Pollen Clicks Service Terms
Pollen Clicks, including Pollen Sponsored Products (“Pollen Clicks”), is a Service that allows you to advertise Your Products on Pollen Network Properties.
These Pollen Clicks Service Terms are part of the Agreement, and, unless specifically provided otherwise, concern and apply only to your participation in Pollen Clicks. BY REGISTERING FOR OR USING POLLEN CLICKS, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE POLLEN CLICKS SERVICE TERMS.
C-1 Pollen Clicks
Your Ads may be displayed or made available on Pollen Network Properties as we determine. We do not guarantee that Your Ads will be displayed or made available on any Pollen Network Property, or that Your Ads will appear in any particular position or rank. Notwithstanding any other provision of the Agreement, we may in our sole discretion restrict, modify or otherwise determine the content, appearance, design, functionality and all other aspects of Your Ads, and we may remove any of Your Ads without notice. Except to the extent expressly stated in the Agreement, you are solely responsible for all obligations, risks and other aspects pertaining to the sale of any of Your Products referred to in Your Ads, including without limitation order processing, order fulfillment, returns, refunds, recalls, misdelivery, theft, customer service, and collection of taxes. In addition, you are solely responsible for all ad content, URLs and any other information you submit to us in connection with Your Ads, and the websites and/or other properties to which Your Ads direct users (other than the Pollen Site).
We may use mechanisms that rate, or allow users to rate, Your Products and/or your performance, and we may make these ratings and feedback publicly available. We may use any means we determine necessary to review and monitor Your Ads to improve our service and ad quality.
C-2 Product Information
You will, in accordance with applicable Program Policies, provide, in the format we require, accurate and complete information for each of Your Ads. You will update this information as necessary to ensure that it is at all times accurate and complete. You will not provide any information for, or otherwise seek to advertise for sale on any Pollen Network Property, any products that are unlawful or are otherwise prohibited by applicable Program Policies.
C-3 Pollen Clicks Requirements
Using the highest industry standards, you will treat users and customers who link to Your Products via any of Your Ads with courtesy and respect during all stages of the buying process and resolve to our and their satisfaction in a timely and professional manner any related customer service matters we or they bring to your attention. You will ensure that Your Materials and your advertisement, offer, sale and fulfillment of Your Products comply with all applicable Laws and Program Policies. You will not, directly or indirectly, engage in any fraudulent, impermissible, inappropriate or unlawful activities in connection with your participation in Pollen Clicks, including: (a) sending multiple listings of identical products in the same feed or sending multiple feeds under different accounts; (b) generating fraudulent, repetitive or otherwise invalid clicks, impressions, queries or other interactions, whether through the use of automated applications or otherwise; (c) collecting any user information from any Pollen Network Property or retrieving, extracting, indexing or caching any portion of any Pollen website or services or the websites or services of our Affiliates, whether through the use of automated applications or otherwise; (d) targeting communications of any kind on the basis of the intended recipient being a user of any Pollen Network Property; (e) interfering with the proper working of any Pollen Network Property, Pollen Clicks or our systems; or (f) attempting to bypass any mechanism we use to detect or prevent any of the activities described in this paragraph.
C-4 Payment and Tax Matters
You will pay us the applicable fees we calculate for your use of the Pollen Clicks Service. Any per Click fee will be determined solely by Pollen based on the amount you bid for each of Your Ads, consistent with any applicable product category minimums and Program Policies. You agree to pay us the applicable fees we calculate for your use of the Pollen Clicks Service in the applicable Local Currency only. In addition to any other means permitted by the Agreement, we may collect the applicable fees: (a) in accordance with the payment ladder described in the Program Policies; and (b) on a recurring monthly basis for any remaining unpaid fees accrued after the last ladder payment charged each month. If we choose to invoice you for amounts due to us under the Agreement, you will pay the invoiced amounts within 30 days of the date of the applicable invoice. We may require payment of interest at the rate of 1.5% per month compounded monthly (19.56% compounded annually) or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until paid in full. You will reimburse us for all fees incurred in connection with our collection of amounts payable and past due. You waive all claims related to the fees we charge (including without limitation fees based on suspected invalid Clicks on or invalid impressions of Your Ads), unless claimed within 60 days after the date charged. You understand third parties may generate impressions or Clicks on Your Ads for improper purposes, and you accept this risk. Your sole and exclusive remedy for any suspected invalid impressions or Clicks is to request advertising credits within the timeframe set out above.
C-5 Effect of Termination
Upon any termination of the Term of the Agreement or these Pollen Clicks Service Terms, all rights and obligations of the parties under these Pollen Clicks Service Terms will terminate, except that Sections C-1, C-2, C-4, C-5, C-6 and C-7 will survive termination.
If you are an Agent: (a) you represent and warrant that you have been appointed as an agent of a Pollen Clicks Participant, that you are duly authorized to enter into this Agreement on behalf of the Pollen Clicks Participant and have full power and authority to bind the Pollen Clicks Participant to this Agreement, that all of your actions related to this Agreement and the Pollen Clicks Service will be within the scope of this agency, and that the Agreement including these Pollen Clicks Service Terms will be enforceable against the Pollen Clicks Participant in accordance with its terms; (b) you will, upon our request, provide us written confirmation of the agency relationship between you and the Pollen Clicks Participant, including, for example, the Pollen Clicks Participant’s express acknowledgment that you are its Agent and are authorized to act on its behalf in connection with Pollen Clicks; (c) except as set forth in the Agreement, you will not make any representation, warranty, promise or guarantee about Pollen Clicks, us or your relationship with us; (d) you will perform your duties pursuant to the Agreement including these Pollen Clicks Service Terms in a professional manner consistent with any requirements we may establish; (e) you will not at any time use information received in connection with Pollen Clicks to conduct any marketing efforts targeted at our existing advertisers or Pollen Clicks Participants; (f) you and the Pollen Clicks Participant are each responsible for all payment obligations under these Pollen Clicks Service Terms, and you and the Pollen Clicks Participant each waive any rights that might require us to proceed against one or more of you prior to proceeding against the other; and (g) you will abide by all restrictions applicable to the Pollen Clicks Participant under this Agreement, including without limitation confidentiality and non-use obligations (e.g., you will not disclose any Confidential Information generated or collected in connection with Pollen Clicks to any person or entity other than to the Pollen Clicks Participant to which such data or information relates, and you will not use any Confidential Information generated or collected in connection with Pollen Clicks for any purpose other than creating, managing, and reporting advertising campaigns on Pollen Network Properties on behalf of the particular Pollen Clicks Participant that has expressly authorized you to do so).
In addition to your obligations under Section 6 of the Agreement, you agree to indemnify, defend and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives and agents against any Claim arising from or related to: (a) your participation in Pollen Clicks, including without limitation the display of any of Your Ads, any Content, data, materials or other items or information to which Your Ads link, or any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing; (b) your actual or alleged breach of any representation, warranty, or obligation set forth in these Pollen Clicks Service Terms or the Program Policies; or (c) if you are an Agent, any breach or alleged breach of Section C-6 or your other representations, warranties, or obligations set forth in these Pollen Clicks Service Terms.
IN ADDITION TO THE DISCLAIMERS IN SECTION 7 OF THE AGREEMENT, WE AND OUR AFFILIATES DISCLAIM AND YOU WAIVE ALL CLAIMS REGARDING ANY GUARANTEES ABOUT TIMING, POSITIONING, ADJACENCY, PERFORMANCE, QUANTITY OR QUALITY OF (AS APPLICABLE): PLACEMENTS, TARGETING, IMPRESSIONS, CLICKS, CLICK RATES, CONVERSION RATES, AUDIENCE SIZE, DEMOGRAPHICS OR ADVERTISING COSTS.
C-7.4 API Partner
You may authorize another entity (“API Partner”) to access or use the Pollen Clicks Service on your behalf through an application program interface or other means as we may designate. Your authorization of an API Partner to access or use the Pollen Clicks Services is conditioned on our consent, which we may grant or withdraw at any time in our sole discretion. You will require your API Partner to be bound by, and your API Partner will comply with, all restrictions applicable to you under this Agreement (including without limitation your confidentiality and non-use obligations). As between you and us, you will be fully responsible for the acts, omissions, and obligations of your API Partner as if such acts, omissions, and obligations were your acts, omissions, and obligations.
Pollen Clicks Definitions
“Agent” means an advertising agency or other person or entity who represents a Pollen Clicks Participant as its agent.
“Pollen Clicks Participant” means any person or entity enrolled in Pollen Clicks by you if you are the Agent of that person or entity.
“Pollen Network Properties” means: (a) the Pollen Site; (b) any website, device, service, feature or other online point of presence operated by Pollen or any of our Affiliates; and (c) any Pollen Associated Properties.
“Click” means each time a user clicks on any of Your Ads as determined solely by Pollen.
“Your Ads” means any advertisement for Your Product based upon Your Materials that is displayed through Pollen Clicks.
Transaction Processing Service Terms
BY REGISTERING FOR OR USING ANY SERVICE OTHER THAN POLLEN CLICKS FOR WHICH THE ELECTED COUNTRY IS SINGAPORE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THESE TRANSACTION PROCESSING SERVICE TERMS FOR THAT SERVICE. NOTWITHSTANDING THE FOREGOING, IF A SEPARATE AGREEMENT GOVERNS THE OFFER, SALE OR FULFILLMENT OF YOUR PRODUCTS ON POLLEN SITE, THE TERMS OF THAT AGREEMENT WILL CONTINUE TO GOVERN THE PROCESSING OF YOUR TRANSACTIONS TO THE EXTENT DESCRIBED IN THAT AGREEMENT.
P-1 Payments Processing Agency Appointment
For non-invoiced orders, you authorize Pollen Pte. Ltd and/or Pollen Sdn. Bhd or appointed affiliated companies. to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying Pollen and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with Pollen Affiliates. For invoiced orders, you authorize: (a) Pollen and its affiliated to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, and receiving and holding Sales Proceeds on your behalf;
When a buyer instructs us to pay you, you agree that the buyer authorizes and orders us to commit the buyer’s payment (less any applicable fees or other amounts we may collect under this Agreement) to you. You agree that buyers satisfy their obligations to you for Your Transactions when we receive the Sales Proceeds. We will remit funds to you in accordance with this Agreement.
Subject to Section 2 of the General Terms of this Agreement, the applicable Pollen Payments Agents will remit funds to you in accordance with Section S-5 of the Agreement and these Transaction Processing Service Terms. Each applicable Pollen Payments Agent’s obligation to remit funds collected or received by it or otherwise credited to your available balance in connection with Your Transactions is limited to funds in your available balance that have become available in accordance with this Agreement less amounts owed to Pollen and any taxes that Pollen automatically calculates, collects and remits to a tax authority according to applicable law, as specified in the Tax Policies, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. Without limiting Pollen’s rights to collect any amounts you owe, the applicable Pollen Payments Agent’s receipt of Sales Proceeds or crediting of Sales Proceeds to your available balance discharges your obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds received or credited equal or exceed the fees and other amounts you owe and the Sales Proceeds are applied to the payment of those fees and amounts.
P-3 Your Funds
Your Sales Proceeds will be held in an account with the applicable Pollen Payments Agent (a “Merchant Account”) and will represent an unsecured claim against that Pollen Payments Agent. Your Sales Proceeds are not insured by the Federal Deposit Insurance Corporation, nor do you have any right or entitlement to collect Sales Proceeds directly from any customer. Prior to disbursing funds to you, a Pollen Payments Agent may combine Sales Proceeds held with the funds of other users of the Services, invest them, or use them for other purposes permitted by applicable Laws. You will not receive interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, a Pollen Payments Agent will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds.
We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Merchant Account or in the event of a dispute relating to this Agreement or the activity under your Merchant Account. You agree to update all Merchant Account information promptly upon any change. The Pollen Payments Privacy Notice applies to transactions processed by Pollen Payments, Inc.
P-5 Dormant Accounts
If there is no activity (as determined by us) in connection with your Merchant Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Merchant Account open and maintaining the Sales Proceeds in your Merchant Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds in your Merchant Account to your state of residency, as determined by us based on the information in your Merchant Account.
Marketplace Web Service Terms
The Marketplace Web Service (“MWS”) is a Service that enables your systems to interface with certain features or functionality available to Merchant. These MWS Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in MWS.
BY REGISTERING FOR OR USING THE MARKETPLACE WEB SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE MARKETPLACE WEB SERVICE TERMS.
MWS-1 Description of the Marketplace Web Service.
We may make available to you MWS Materials that permit your systems to interface with certain features or functionality available to Merchants. MWS and MWS Materials are provided by us at no charge, subject to the General Terms of this Agreement and the Marketplace Web Service Terms. All terms and conditions applicable to MWS and MWS Materials are solely between you and us. MWS Materials that are Public Software may be provided to you under a separate license, in which case, notwithstanding any other provision of this Agreement, that license will govern your use of those MWS Materials. For the avoidance of doubt, except to the extent expressly prohibited by the license governing any MWS Materials that are Public Software, all of the non-license provisions of this Agreement will apply.
MWS-2 License and Related Requirements.
MWS-2.1 Generally. Subject to your completion of our online registration process for MWS and compliance with the terms of this Agreement, including all applicable Program Policies, we grant you a limited, revocable, non-exclusive, non-sublicenseable, nontransferable license to do the following: (a) access and use MWS, and install, copy, and use MWS Materials, solely in support of your use of the Services covered by this Agreement in accordance with any applicable MWS Specifications, or (b) access and use MWS, and install, copy, use, and distribute MWS Materials, for the purpose of integrating or enhancing a Merchant’s systems with the features and functionality permitted by us to be accessed through MWS, but solely in support of Merchants who (i) we approve as participating in good standing in the applicable Services covered by this Agreement, and (ii) have specifically authorized you to provide support services for their Merchant Account under an agreement between you and the applicable Merchant.
MWS-2.2 Merchant Account.
You must maintain a Merchant Account (which may be a Staging Account) in good standing at all times during the Term.
MWS-2.3 License Restrictions.
You may use and access MWS and applicable MWS Materials only through MWS APIs documented and communicated by us to you. You may not and may not authorize any other party to do any of the following with MWS or MWS Materials: (a) reverse engineer, decompile, or disassemble them; (b) modify or create derivative works based upon them in whole or in part; (c) distribute copies of them; (d) remove any proprietary notices or labels on them; (e) use any Public Software in any manner that requires, pursuant to the license applicable to such Public Software, that MWS or any MWS Materials be disclosed, licensed, distributed, or otherwise made available to anyone; (f) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to them; (g) access or use them in a way intended to avoid incurring any applicable fees or exceeding usage limits or quotas; or (h) engage in any activities we otherwise prohibit. In addition, all licenses granted in these Marketplace Web Service Terms are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
MWS-2.4 Account Identifiers and Credentials.
To access MWS APIs, you must use your Account Identifiers and Credentials in accordance with these Marketplace Web Service Terms. Your Account Identifiers and Credentials are for your personal use only and you must maintain their secrecy and security. You are solely responsible for all activities that occur using your Account Identifiers and Credentials, regardless of whether the activities are undertaken by you or a third party (including your employees, contractors, or agents). You will provide us with notice immediately if you believe an unauthorized third party may be using your Account Identifiers and Credentials or if your Account Identifiers and Credentials are lost or stolen. We are not responsible for unauthorized use of your Account Identifiers and Credentials.
MWS-2.5 Security of Your Information.
You are solely responsible for the development, content, operation, and maintenance of Your Information, and for properly configuring and using MWS and taking your own steps to maintain appropriate security, protection and backup of Your Information, including using encryption technology to protect them from unauthorized access and routinely archiving them. We are not responsible for any unauthorized access to, alteration of, or deletion, destruction, damage, loss, or failure to store any of Your Information in connection with MWS (including as a result of your or any Merchant’s or other third party’s errors, acts, or omissions).
MWS-2.6 MWS Applications.
Prior to making your MWS Application available for commercial use, you must thoroughly test your MWS Application to ensure that it operates properly with MWS and MWS Materials, including, without limitation, that it complies with MWS Specifications.
MWS-2.7 Information and System Access.
To the extent you access or use MWS or MWS Materials for the purposes set forth in Section MWS-2.1 of this Agreement, you will not access or use any Selling Account unless and only for so long as the access and use is (a) approved beforehand in writing by the Merchant as part of a binding agreement between you and the Merchant, and (b) required to deliver or operate an MWS Application to or on behalf of the Merchant in accordance with that agreement. You may not modify the account settings, Content, or offers of any Selling Account or make any other change to a Selling Account except to the extent authorized in writing by the Merchant as part of a binding agreement between you and the Merchant. You will not access or use any MWS Transaction Information or Personal Information for any purpose other than the delivery or operation of an MWS Application to or on behalf of the Merchant. You may not reproduce or disseminate or disclose to any third party any MWS Transaction Information or Personal Information for any purpose. Without limiting the foregoing, you will (i) take appropriate technical and organizational measures to protect against unauthorized or unlawful processing or use of MWS Transaction Information or Personal Information and against accidental loss or destruction of, or damage to, MWS Transaction Information or Personal Information, (ii) maintain all MWS Transaction Information and Personal Information logically separate from all other information, and (iii) at all times ensure that you are aware of and have documentation of the location of all copies of any MWS Transaction Information or Personal Information stored by or for you.
MWS-3.1 Termination of Your Access to MWS and MWS Materials. Without limiting the parties’ rights and obligations under the Agreement, we may limit, suspend, or terminate your access to MWS and all MWS Materials at any time and for any reason upon notice to you, including but not limited to circumstances where your access to any other Service is suspended or terminated, where the access of any Merchant you support to use one or more Services is suspended or terminated, or if we determine:
your use of MWS or MWS Materials (a) poses a security risk to MWS or MWS Materials or any Merchant or other of our customers, (b) may harm our systems or any Merchant or other of our customers, or (c) may subject us or any third party to liability;
you are using MWS or MWS Materials for fraudulent or illegal activities; or our provision of any aspect of MWS or MWS Materials to you is prohibited by law.
Upon any suspension or termination of your access to MWS, you will immediately cease use of MWS and all MWS Materials. Upon any termination of your access to MWS, you will also immediately destroy all MWS Materials. Upon any suspension or termination of your access to MWS, we may cause your Account Identifiers and Credentials to cease to be recognized by the Pollen Network for the purposes of MWS and MWS Materials.
MWS-3.2 Effect of Termination.
Upon termination of these Marketplace Web Service Terms, all rights and obligations of the Parties under these Marketplace Web Service Terms will be extinguished, except that Sections MWS-1, MWS-3, MWS-4, MWS-5, MWS-6, MWS-7, MWS-8, MWS-9, and MWS-10 survive termination.
MWS-4 Modifications to MWS or MWS Materials.
We may change, deprecate, or discontinue MWS or MWS Materials (including by changing or removing features or functionality of MWS or MWS Materials) from time to time.
For notices made by you to us under these Marketplace Web Service Terms and for questions regarding this Agreement, MWS, or MWS Materials, you may contact us at the Contact Address.
If you suggest to us improvements to MWS or MWS Materials (collectively, “MWS Suggestions”), in addition to the rights you grant to us in the General Terms, we will own all right, title, and interest in and to the MWS Suggestions, even if you have designated the MWS Suggestions as confidential. We will be entitled to use the MWS Suggestions without restriction. You irrevocably assign to us all right, title, and interest in and to the MWS Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the MWS Suggestions. We reserve the right to contact Merchants in order to conduct periodic surveys to ascertain Merchant’s general level of satisfaction with the MWS and MWS Materials and with your delivery of related services to Merchants, and you agree that we may publicly report the results of surveys without restriction.
MWS-7 Rights in MWS, MWS Materials, MWS Specifications, and the Pollen Network.
As between you and us, we or our licensors own all right, title, and interest in and to MWS, MWS Materials, MWS Specifications, and the Pollen Network. Except as provided in Section MWS-2 of this Agreement, you obtain no rights under this Agreement from us or our licensors to MWS, MWS Materials, MWS Specifications, or the Pollen Network, including any related intellectual property rights.
In addition to your obligations under the General Terms of this Agreement, you agree to defend, indemnify, and hold harmless us, our Affiliates, our and their licensors, and each of our and their respective employees, officers, directors, and representatives from and against any Claims arising out of or relating to: (a) your use of MWS or MWS Materials (including any of Your Materials you upload, transfer, or otherwise make available to or through MWS); (b) Your Information or the combination of Your Information with other applications, Content, or processes, including any claim involving alleged infringement or misappropriation of third party rights or the use, development, design, production, advertising, or marketing of Your Information; or (c) any dispute between you and any Merchant. If we or any of our Affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process in connection with your use of MWS or MWS Materials (including as described in clause (a) above), you will also reimburse us for reasonable attorneys’ fees, as well as our or their employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our or their then-current hourly rates. For Claims outlined in clauses (a) through (c) above, you must: (i) defend against any Claim with counsel of your own choosing (subject to our prior written consent); or (ii) settle the Claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the Claim at any time.
IN ADDITION TO THE DISCLAIMERS IN THE GENERAL TERMS OF THIS AGREEMENT, MWS AND MWS MATERIALS ARE PROVIDED “AS IS”. WE AND OUR AFFILIATE COMPANIES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING MWS OR MWS MATERIALS, INCLUDING ANY WARRANTY THAT MWS OR MWS MATERIALS WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY SOFTWARE, DATA, TEXT, AUDIO, VIDEO, IMAGES, OR OTHER CONTENT YOU ACCESS, USE, STORE, RETRIEVE, OR TRANSMIT IN CONNECTION WITH MWS, INCLUDING YOUR INFORMATION, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) THE INABILITY TO USE MWS OR MWS MATERIALS, INCLUDING AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO MWS OR MWS MATERIALS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO MWS OR MWS MATERIALS; OR (D) ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO MWS OR MWS MATERIALS. WE AND OUR AFFILIATE COMPANIES AND LICENSORS MAY DISCONTINUE PROVIDING OR DEPRECATE MWS AND ANY MWS MATERIALS, AND MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF MWS AND ANY MWS MATERIALS FROM TIME TO TIME, AND YOU AGREE THAT NEITHER WE NOR ANY OF OUR AFFILIATE COMPANIES OR LICENSORS WILL BE LIABLE TO YOU FOR ANY OF THE FOREGOING ACTIONS.
MWS-10 Other Terms.
MWS-10.1 Non-Exclusive Rights.
The rights we grant you in this Agreement are nonexclusive, and we reserve the right (a) to develop or have developed for us products, services, concepts, systems, or techniques that are similar to or compete with any of the products, services, concepts, systems, or techniques that you may develop or use in connection with MWS or MWS Materials and (b) to hire, appoint, or assist third party developers or systems integrators who may offer products, services, concepts, systems, or techniques that are similar to or compete with yours. Each of us will be free to establish our own pricing for our products and services. As between you and us, you will be solely responsible and liable for payment of all costs and expenses of any nature incurred by you or your employees in connection with the performance of your obligations and exercise of your rights under these Marketplace Web Service Terms or under any agreement you enter into with any Merchant or other third party.
You agree not to disclose any Confidential Information we make available under these Marketplace Web Service Terms. However, you will not be required to maintain the confidentiality of any information we make available under these Marketplace Web Service Terms that: (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to you at the time of your receipt from us without breach of this Agreement or any other agreement between you and us; (c) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (d) can be shown by documentation to have been independently developed by you without reference to Confidential Information.
MWS-10.3 Import and Export Compliance.
In using MWS and MWS Materials, you will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
MWS-10.4 No Third Party Beneficiaries.
Except as expressly set forth in these Marketplace Web Service Terms, these Marketplace Web Service Terms do not create any third party beneficiary rights in any individual or entity that is not a party to these Marketplace Web Service Terms.
Marketplace Web Service Definitions
“Account Identifiers and Credentials” means account IDs and any unique public key/private key pair issued by us or an Affiliate Company that enables you to access and use MWS or MWS Materials.
“Pollen Network” means our and our Affiliate Companies’ internal data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within our or their reasonable control and are used to provide MWS or MWS Materials.
“API” means an application programming interface.
“Contact Address” means: firstname.lastname@example.org, with a copy to Pollen Tech Pte Ltd, 7 Temasek Boulevard #12-07 Suntec Tower One Singapore 038987, Attn: Marketplace Web Service Support.
“MWS Application” means a software application or website that interfaces with MWS or MWS Materials.
“MWS Materials” means any software, data, text, audio, video, images, or other Content we make available in connection with MWS, including APIs, related documentation, software libraries, and other supporting materials, regardless of format.
“MWS Specifications” means any technical and operational specifications, security protocols and other documentation or policies provided or made available by us with respect to MWS or MWS Materials.
“MWS Transaction Information” means any information, data, or Content relating to any Merchant Account, to any customer, or to any transactions processed by or for the Pollen Contracting Party or any of its Affiliate Companies or on any website.
“Personal Information” means all personally identifiable information relating to Merchants and customers and other third parties including, but not limited to, name, address, e-mail address, phone number, survey responses, and purchases.
“Public Software” means any software, documentation, or other material that contains, or is derived (in whole or in part) from, any software, documentation, or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including but not limited to software, documentation, or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) the GNU General Public License (GPL); Lesser/Library GPL (LGPL), or Free Documentation License; (b) The Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
“Merchant” means any person or entity (including you, if applicable) that is participating in a service covered by this Agreement.
“Merchant Account” means the password protected account we make available to a Merchant in support of its participation in one or more Services covered by this Agreement.
“Staging Account” means a Merchant Account with status “in staging” that we make available to a third party service provider whom we allow to access our online portals and tools provided to Merchant for the purpose of integrating or enhancing a Merchants’ systems with the features or functionality made accessible by us through MWS or MWS Materials.
“Your Information” means the software, data, text, audio, video, images, or other Content that you use in connection with MWS or MWS Materials, that you cause to interface with MWS, or that you upload to MWS.