Last updated: July 29, 2019
These Inxeption Merchant Community Terms, including the Order Form and any applicable Service Terms referenced below (together, the “Agreement”) composes the terms and conditions governing Inxeption Corporation (“Inxeption,” “we” or “us”) and you (“Merchant”) regarding your use of the Inxeption Platform. By agreeing to an Order Form, either by clicking to accept, signing an Order Form, you agree, on behalf of the Merchant entity designated in the Order Form (“Merchant” or “you”) to the terms of this Agreement, subject to acceptance by Inxeption. In the event of any conflict among the terms of this Agreement, the Order Form will supersede, then the Service Terms, and last, these terms and conditions.
To use the Inxeption Platform, you must complete the store set-up process, including providing profiles for one or more Merchant Products and configuring the appearance of your Merchant store. Inxeption will provide a reasonable amount of technical assistance to you in the set-up process, as further described in the Merchant Set-Up Process Service Terms. Set-up fees indicated in the Order Form are in consideration of this assistance.
During the Term, Inxeption will provide you access to the Inxeption Platform. Inxeption will also provide you with reasonable assistance to use the Inxeption Platform and to update your Merchant profile or Merchant Product profiles, as further described in the Merchant Support Process Service Terms. Subscription fees indicated in the Order Form are in consideration of this process and access to the Inxeption Platform.
You will determine which Merchant Products for which you wish to use the Inxeption Platform, by creating Merchant Product profiles on the Inxeption Platform. Inxeption may, in its discretion, require you to remove any Merchant Product, including where the sale of the Merchant Product is illegal or subject to regulatory limitations that would make its sale over the Inxeption Platform unlawful, where the Merchant Product yields unusually high return rates or Customer complaints, or where the sale of the Merchant Product may otherwise subject Inxeption to liability. You must keep all information regarding each of your Merchant Products up to date, by correcting or updating its product profile in the Inxeption Platform. It is your responsibility to provide any warning labels or other communications required by law to be presented to Customers for sale of the Merchant Products.
You, and not Inxeption, will, in your sole discretion, set prices for the Merchant Products. Inxeption may, via the Inxeption Platform, make recommendations for sales prices to help you increase sales, but you may follow such recommendations or not in your discretion. Sales of any Merchant Products via the Inxeption Platform will take place directly between Merchant and the Customer. You, and not Inxeption, will be the merchant of record. The Inxeption Platform contains functionality to help you calculate sales taxes, but you are responsible for paying all sales taxes arising from sale of Merchant Products, unless you designate Inxeption to pay such taxes for you under the Services Description. All warranties, conditions and guarantees regarding the Products will be your responsibility, and not that of Inxeption, and will extend only from Merchant to the Customer directly. Any request for refund by a Customer will be handled by you, and not Inxeption. You may set refund and return policies in your discretion, but you must follow those policies for all sales via the Inxeption Platform. Refunds will not entitle you to reimbursement from any shipping, tax, payment processing or other fees payable to Inxeption in connection with the sale. Inxeption may, in its sole discretion, elect to issue refunds. All sales via the Inxeption Platform will be in the U.S. only.
All Fees payable to Inxeption are due and payable as indicated in the Order Form or in the Services Description, or if not indicated therein, no later than 30 days after delivery of Inxeption’s invoice to you. Unless otherwise indicated in the Order Form, you must provide valid credit card information for all payments of Fees. All amounts payable under this Agreement, and all prices, will be quoted and paid in US dollars only. Except as otherwise indicated in the Order Form, Fees will be expressed as a percentage of GMV. Inxeption may modify the fees in this order form on 24 hours notice.
Inxeption will collect the amounts due from Customers for Merchant Products sold via the Inxeption Platform, retain the difference between amounts collected and Fees owed by you, and pay the difference to you. Unless otherwise indicated in the Order Form, you must provide and update valid ACH bank transfer information to receive such amounts. Inxeption may withhold a reasonable reserve from amounts due to you in the event your sales result in excessive chargebacks or refunds, according to Inxeption’s policy generally applied to its Merchants. Inxeption will retire any outstanding reserved amounts once per calendar year, or at the end of the Term, whichever is first.
The term of this Agreement will start when you agree to this Agreement, and continue until terminated by us or you as provided in this Agreement, or until the expiration of all Order Forms, whichever is later (the “Term”). If a particular term is specified in an Order Form, the Order Form will renew for like terms (other than initial set-up fees) unless either you or Inxeption provide notice of intention not to renew, prior to the expiration of the then-current term. Unless otherwise set forth in the Order Form, you may terminate this Agreement or any Order Form for any reason at any time by submitting a termination request on the Inxeption Platform; however, no such termination will entitle you to a refund of any fees. Inxeption may terminate this Agreement if you breach its terms and do not cure such breach within 30 days of notice by Inxeption, or if no sales of Merchant Products occur for a period of six months or more. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 10, 11, and 16 will survive termination.
Inxeption may amend any of these terms and conditions at any time and at its sole discretion, provided only that (a) such changes apply generally to Inxeption Merchants, (b), no such change constitutes a material reduction of functionality of the Inxeption Platform, and (c) notice of changes to this Agreement is provided at least 30 days prior to their effective date. Your continued use of the Inxeption Platform after updated terms are effective will constitute your acceptance of any updated terms.
Setting up your Merchant account or Merchant Product profiles, or using the Inxeption Platform, may require you to provide material such as photos, videos, logos, company or contact information, documentation, user manuals or product descriptions (“Merchant Materials”). You grant Inxeption a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, or otherwise exploit such materials. You represent that you have the right to grant this license.
Each of Merchant and Inxeption represent and warrant that: (a) it is duly organized, validly existing and in good standing under the laws of the locality in which its business is registered; (b) it has all requisite right, power, and authority to enter into this Agreement, and to perform its obligations in this Agreement; (c) it is not subject to sanctions or designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the US Government (such as the U.S. Department of the Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders List and the U.S. Department of Commerce’s Entity List), or other applicable government authority; and (d) it will abide by all applicable laws and regulations in its performance of this Agreement.
You will indemnify Inxeption, 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 Merchant Products (including their offer, sale, delivery, and fulfillment), Merchant 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 and any taxes payable by you. Inxeption will give you reasonable notice of any Claim and allow you control of the defense of the Claim. Inxeption may participate in that defense at its own expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, unless the settlement releases us of all liability and requires us to pay no amounts and make no admissions. You must at all times maintain sufficient insurance from a reputable insurer, with reasonable and customary limits for the nature of your products, and sufficient to cover any and all claims of any kind or nature for damage to property or personal injury, including death, made by anyone, that may arise from activities performed or facilitated by this Agreement. Upon Inxeption’s request, you will provide proof of such insurance.
THE INXEPTION PLATFORM AND MERCHANT PRODUCTS ARE PROVIDED “AS-IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, INXEPTION AND MERCHANT DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING SAME, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
INXEPTION WILL NOT BE LIABLE FOR COST OF COVER, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF INXEPTION HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. INXEPTION’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS DURING THE PRIOR 12 MONTH PERIOD PAID BY YOU TO INXEPTION.
During the course of your use of the Services, you may provide us with information relating to your company or unreleased Merchant Products that is confidential (“Merchant Confidential Information”). Merchant Confidential Information excludes any information provided via the Inxeption Platform Merchant account for display to customers or users. Merchant Confidential Information includes Fees payable to or from you under this Agreement. Inxeption will use Merchant Confidential Information only as is reasonably necessary to provide the Inxeption Platform, and we will not disclose it to any third party, except as we may be required to do by law.
During the course of your use of the Services, we may provide you with information relating to pricing, Fees, or other information generated by the Inxeption Platform (“Inxeption Confidential Information”). Inxeption Confidential Information includes Fees payable to or from you under this Agreement. You will use Inxeption Confidential Information only as is reasonably necessary to use the Inxeption Platform, and you will not disclose it to any third party, except as you may be required to do by law.
If you provide any suggestions, or ideas for improvements, for the Inxeption Platform, we will be free to use such information. If we provide you with suggestions for your Merchant Materials or Merchant Products, you will be free to use such information.
Inxeption will not be liable for any delay or failure to provide the Inxeption Platform under this Agreement for reasons beyond its reasonable control. Merchant and Inxeption are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. There are no third party beneficiaries under this Agreement. This Agreement will be governed by the laws of the State of California, without reference to its conflict of laws rules, and will not be governed by the Convention on Contracts for the International Sale of Goods. Inxeption and Merchant both consent that any dispute or claim relating in any way to this Agreement or your use of the Inxeption Platform will be resolved by binding arbitration as described in this paragraph, rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Any arbitration will be conducted in San Francisco, California, before one arbitrator according to the rules of JAMS. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent except to a party that succeeds to all or substantially all of your assets as a result of a merger, acquisition or asset sale, but not to any direct or indirect competitor of Inxeption. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. Inxeption may perform any of its obligations or exercise any of our rights under this Agreement through one or more of its Affiliates. Failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of the right to enforce such provision or any other provision of this Agreement subsequently. Any notice provided by Inxeption under this Agreement may be provided via a notice to the administrator for your account via the Inxeption Platform. Any notice provided by Inxeption to you will be provided to firstname.lastname@example.org. This Agreement incorporates and you accept the Service Terms applicable to any services you elect. 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 you are located or domiciled in 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.) 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: