MARKETPLACE SELLER AGREEMENT
Updated: October 01, 2020
Your rights to participate are subject to approval by Kula Village as provided below. Please read the terms carefully. By clicking on “I accept”, you will indicate your agreement with them. All references to “we”, “us”, “our”, “this website” or “this site” shall mean Kula Village and this website, kulavillage.com. If you are not acting on behalf of yourself as an individual, then “you” means your company or organization. Your acceptance represents that you have the authority to bind your entity to these terms, in which case “you” or “your” shall refer to your entity. If you do not agree with these terms, or if you do not have the authority to bind your entity, then we are unwilling to authorize participation in the Kula Village platform.
The Site is operated by Gaia Global LLC, which reserves the right to make changes to this marketplace seller agreement at any time. Changes to this marketplace seller agreement are effective when the changes are posted to the Site and maybe notified to you. Continuing to sell items in our marketplace will constitute your agreement to the new marketplace seller agreement. It is your responsibility to review the changes and decide if you want to continue to use our marketplace. You agree to our making inquiries to verify your identity and to determine the good standing of you personally and your business. You agree that we may (i) obtain your credit report for our review of your application to participate in the Kula Village Platform, and (ii) that we may share or report your personal and credit information to third parties.
- “Kula Village Platform” means the online service at kulavillage.com that permits Sellers to offer their Products for sale to the public through the service which (i) is accessible directly via the Internet, and (ii) that will process transactions for an on behalf of Sellers in exchange for commissions and transaction processing fees in accordance with this Agreement. Kula Village provides an online service that allows third party sellers to sell their products to buyers. Kula Village does not act as the agent for either buyers or sellers. Our service provides a platform for these transactions to take place.
- “Product” means any product which is allowed to be sold on this platform.
- “Seller” means an individual person or entity that is registered and authorized to participate in the Kula Village Platform for purposes of offering their Products for sale to the public.
- “Remittance Amount” means gross revenues from the Sale of a Seller’s Product to an end-user customer via the Kula Village Platform, less Selling Fees retained by us in accordance with this Agreement and payment gateway fees as applicable.
- “Return Policy” means the return policy specified by a Seller in the Seller’s account settings on each product for the return of Products purchased via the Kula Village Platform.
- “Sale” of a Product for purposes of payment of a Remittance Amount to a Seller means: (i) the initiation of a purchase transaction via the Kula Village Platform for a Product listed by you on the Kula Village Platform, and (ii) payment in full for the purchased Product and receipt by the Kula Village Platform of the gross sales proceeds.
- “Selling Fees” means the fee calculated as follows: a mutually agreed upon percentage of gross sales of a Product listed on the Kula Village Platform.
MODIFICATION OF AGREEMENT
We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible on this page and by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. If any modification is unacceptable to you, you may discuss concerns with the site owner before deciding to terminate this agreement. Your continued use of this site following our posting of an amended agreement or providing you notice of a modification will constitute binding acceptance.
Listing items for sale in the Kula Village Marketplace is limited to parties that can lawfully enter into a contract. To list items for sale you must supply your name, address, phone number, email address, bank account info for payment and agree to the marketplace agreement. We request bank account information primarily for identity and security reasons. By providing a bank account you are also authorizing us to charge it to settle your account if the amount due exceeds your available balance. Please note that the bank account you have identified must be valid for you to be paid for your sales. If for any reason it is invalid at the time we try to disburse funds to you, your disbursement will be delayed until you update the information.
We do not allow minors (persons under 18 years of age) to buy or sell on the Platform. Additional eligibility requirements for participation in the Kula Village Platform are determined in our sole discretion. Registration is required for you to participate in the Kula Village Platform. You agree (i) to provide current, complete, and accurate information about you in your profile as prompted by our online registration form (“Registration Data”), and (ii) to maintain and update your Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide your Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate your participation in the Kula Village Platform. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
You must complete the Site registration process to create an account with a username and password (the “Account”) in order to make full use of selling on the marketplace. You may not share your password with anyone except authorized employees. You must always provide accurate, current and complete information, and you must update such information in a timely manner to maintain its accuracy and completeness. Any use of the Site through your Account will be deemed as being used by you. Kula Village is entitled to rely on the contact and other information that is supplied to us through your Account. Your Account is non-transferable and non-assignable.
Kula Village requires you to provide timely support to the customers of our marketplace, please make sure that all communications are kept within our online platform. All messages should ideally be replied to within 24hrs. Please resolve all customer issues related to the Kula Village marketplace within 48hrs if possible. You are also required to notify Kula Village when you change the status of an order. Changes in status could include but are not limited to: canceling an order, refunding an order or alerting a customer about a missing item from their order. When you mark an item as shipped, an automatic email will be sent to the customer alerting them of the status change. Do not contact customers directly unless replying to a question, alerting them of an order status update or responding to a complaint.
LIMITED LICENSE GRANT TO SELLER
Restrictions. Subject to the terms and conditions hereof and only for the term hereof, we hereby grant to you a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, limited right and license (i) to participate as a Seller in the Kula Village Platform, and (ii) to display and offer your Products for sale to the public via the Kula Village Platform. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY POTENTIAL INCOME YOU MAY MAKE.
- We may use tracking methodologies for tracking usage data on the Kula Village Platform and other related analytics, including without limitation, cookies, pixels, web beacons, and other tags. You are not authorized to alter, modify, obscure, or disable any of the tracking methodologies.
- The terms of this Agreement are confidential, and you agree to not disclose the terms described herein to any party (other than your employees, parent companies, and shareholders on a need-to-know basis only after undertaking reasonable precautions to preserve the confidentiality of the information made available to such individuals). The terms contained herein are confidential between us and not known to the general public outside of this Agreement. Accordingly, any breach of this confidentiality provision by you shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to us for which there will be no adequate remedy at law. In the event of such breach, we will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
If either party breaches any material provision of this Agreement and fails to cure the breach within 15 days after receipt of written notice from the non-breaching party specifying the breach, then the non-breaching party may terminate this Agreement upon written notice to the breaching party, which right of termination shall be in addition to, and not in lieu of, all other rights and remedies the non-breaching party may have against the breaching party under this Agreement, at law or in equity. The prevailing party in any legal proceeding based upon this Agreement shall be entitled to reasonable attorneys’ fees and court costs, in addition to any other recoveries allowed by law.
- This Agreement does not establish you as our agent or representative for any other purpose other than those purposes expressly provided herein. You are not authorized to accept orders or to enter into contracts or to create any obligation in our name, or to transact any business on behalf of us.
- The relationship of Kula Village and you is of a third party vendor and shall not be that of employer and employee, franchisor and franchisee, joint venturers, or partners. No up-front payment of any fee or equivalent charge is required of you by us as a condition to enter into this Agreement.
- We have the right in our sole discretion to terminate your account with us if your account has been inactive for at least 6 consecutive months while there was no use of your account for transactions.
Sellers cannot list or sell items that: infringe upon intellectual property rights or are illegal, fake, counterfeit, or stolen. Items listed for sale must be listed on the correct item page and an accurate description of the products description must be given. The accounts of sellers may be limited in a matter that allows them to make a certain amount of transactions within a given time at the sole discretion of Kula Village. Marketplace transactions must take place between two different individuals, organizations or entities. Kula Village reserves the right to refuse service to anyone at any time for any reason.
Kula Village determines which products to offer for sale in the marketplace. Products may be added or removed at any time without notice. Changes to the item detail pages of a product can also take place without notice. The way listings appear in the marketplace may change without notice to users of the marketplace. Please note that if you are listing presale items, you should be following your publisher or distributor’s restrictions and regulations when using our Marketplace.
Sellers are required to sell items at the price they listed to customers that meet the seller’s terms. By listing an item in our marketplace you agree that you have the right to sell the item, the item is in your possession and that your description provided in your listing is complete and accurate. Sellers are not allowed to drop ship or sell items they do not physically possess. Sellers are required to ship an order by the provided ship date and follow the above-mentioned shipping guidelines. Failure to ship by the provided date or follow the shipping guidelines may be grounds for termination of your Account.
For all items sold through its marketplace, Kula Village charges a fee based on a percentage of the sale price, as set forth under this document. The seller of an item is responsible for paying this fee. This fee will be automatically deducted from the earnings you receive from a sale. Kula Village may send you an alternative fee structure for a limited period of time, like during a promotional period, and such fees will be applicable for the said duration of that document. Fees in this document are subject to change with prior notice to you. The fee in effect on the date of sale of the item shall govern the transaction, unless otherwise agreed upon and notified by the site owner.
Stripe Processing Fee
Marketplace Selling Fees
By listing an item for sale in our marketplace, you agree to pay the applicable fees and any collection costs related to non-payment of fees. All fees are payable upon demand via your bank account. By listing an item for sale on the Site, you authorize Kula Village to debit your bank account for amounts due.
- You shall immediately notify us if you become aware of or suspect any unauthorized access to or use of Customer Data in your possession, and you shall cooperate with us in the investigation of such breach and the mitigation of any damages. You will bear all associated expenses incurred by us to comply with applicable laws (including without limitation, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in your possession or control. Upon termination or expiration of this Agreement, you shall, as directed by us, destroy or return to us all the Customer Data in your possession and in the possession of any third-party; however, we will provide you with a record of your basic customer transaction information for up to the past year upon your request and in compliance with applicable law.
- You grant to us a non-exclusive, worldwide, royalty free, fully-paid, perpetual, irrevocable, transferable and sub-licensable right and license to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (i) your business name, name, image, likeness, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text, menu items, and any other content provided, specified, recommended, directed, authorized or approved by you for use with the Kula Village Platform (collectively, “Seller IP”); and (ii) any third-party’s business name, name, image, likeness, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text, menu items, and any other content provided, specified, recommended, directed, authorized or approved by you for use with the Kula Village Platform (collectively, “Third-Party IP”), in all media or formats now known or hereafter developed. Our use of the Seller IP and Third-Party IP is within our sole discretion.
- Upon request from you, we may share the Seller IP, Third-Party IP, and certain Customer Data with third parties at your direction and to the extent we are legally allowed to share it; provided, however, you agree that such use will be governed by your agreements with those third parties, and further that we are not responsible for the use of such data by such third parties. If we share such information with third parties at your request, you agree to indemnify, defend, protect and hold us and our affiliates harmless from and against any and all third-party damages, losses, claims and expenses, including but not limited to governmental penalties and reasonable attorneys’ fees, which may be asserted against or incurred by us or any affiliate arising out of or resulting from the sharing, use or ownership of such data.
- You agree that you will not upload, submit or post any Seller IP, Third-Party IP or Customer Data to the Kula Village Platform unless you have the required authorization.
- You acknowledge and agree that any information you transmit through Kula Village Platform may be read or intercepted by others, even if such information is encrypted, and that we are neither responsible nor liable for any such interception, or for any resulting loss or damage.
- The Kula Village Platform, its contents, Usage Data, Customer Data, and any Products or services provided or sold directly by us are our sole and exclusive property, and are protected by the copyright and other intellectual property laws (collectively, the “Kula Village IP”). To the extent such rights do not vest in us by virtue of this Agreement, you hereby irrevocably assign to us all right, title, and interest in and to Kula Village IP. Any unauthorized reproduction, modification, distribution, transmission, republication, display or performance of the Kula Village IP is strictly prohibited. You agree that nothing on or in the Kula Village Platform shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any copyrighted property displayed on or in the Kula Village IP without the prior written permission of the copyright owner.
- No license is granted herein for use of our tradename or trademarks, whether registered or unregistered, including without limitation, any of our logos, trade dress graphics, page headers, or icons; however, during the term of this Agreement, you are authorized to use any materials provided by us such as banner advertisement links, button links, and/or a text links which may incorporate our tradename or trademarks, but only in the form provided by us, and only for purposes of indicating us as the source of origin. All other trademarks and other indicia or origin that may appear on the Kula Village Platform (i) are owned by third parties and not owned by us, (ii) are the property of their respective third-party owners, and (iii) are subject to the ownership and use rights of their respective third-party owners. No rights are granted by implication, estoppel or otherwise for you to use any trademarks or indicia of origin of any third parties.
- You must keep any customer information you receive confidential and secure. In general, you should not share your Kula Village login information with anyone other than authorized employees. Any employees or individuals who have access to your Kula Village account must also keep login and buyer information secure. If you store buyer information anywhere outside of the Kula Village Seller Portal, you must store that information securely where unauthorized individuals cannot access the information. You are not permitted to use buyer information for the purpose of marketing, and this includes names, email addresses, billing information, shipping address, social profiles and any other customer information that you obtain from us.
- We reserve all rights not expressly granted to you in the limited license granted to you by this Agreement.
Sellers are responsible for shipping their sold items to buyers. By selling on Kula Village, you are agreeing to:
- Provide an accurate shipping cost and time on your listing
- Ship items to the buyer as per the name and address provided by them on the order. All orders made through Kulavillage.com must be shipped through the mail to buyers unless they are an In-Store Pickup order or a virtual product. No attempts to meet in-person to transact should be attempted.
- Ship promptly after they are sold. That means within 5 days of receiving the order, unless specified otherwise on the listing or if it has been individually discussed and agreed upon by the buyer.
- Comply with all local and international shipping regulations
- Mark the order as complete once you ship it
As part of the Seller Agreement you are contracted to adhere to, it is your responsibility to deliver the items contained within an order to the Buyer and you waive your ability to win any disputes if the customer says the package did not arrive due to not having Delivery Confirmation or Tracking. The Seller waives the ability to win any disputes if the customer says the package did not arrive should they choose not to follow the above-mentioned guidelines.
Kula Village has negotiated rates with a third-party shipping consolidator. If you choose to be part of that program, you adhere to additional terms & conditions as applicable in that agreement.
For all of your products you will accept and process returns, refunds and adjustments in accordance with this marketplace seller agreement and the seller policy that reflects on the return policy published on the Site at the time of the applicable order, and we may inform customers that these policies apply to your products. Customers are not subject to restocking or refund processing fees when a Seller applies a refund. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to buyers in connection with Kula Village marketplace purchases, using functionality we enable for your account, and will route all such payments through Kula Village. We will provide any such payments to the buyers (which may be in the same payment form originally used to purchase your product), and you will reimburse us for all amounts so paid. We may offset such payments against any amounts to be remitted or paid by Kula Village to seller under this marketplace agreement or seek reimbursement from seller via any of the means authorized under this marketplace agreement. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable returns policy and as required by law, and in no case later than thirty (30) days after the obligation arises.
YOUR PROMOTIONS AND RESTRICTIONS
- All ad copy, artwork, and branding for your promotions on the Kula Village Platform are subject to our prior review and approval, which will not be unreasonably withheld or delayed. Our right of prior approval shall not be construed to assume any responsibility for your compliance with all applicable laws, which is your sole responsibility.
- The following are not authorized for your promotions via the Kula Village Platform: (i) tool bars, banner networks, news groups, chat rooms, forums, message boards, adware, pop-up/pop-under technologies, plug-ins, spyware, adware, and (ii) devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods.
- You are not authorized to use advertisements or marketing materials that feature or utilize pornography, racially or ethnically discriminatory, political issues, software pirating or hacking, hate-mongering, gambling, pyramid schemes, multi-level (MLM), franchise, or business opportunities as regulated by the FTC Biz Op Rule, or otherwise use objectionable or illegal content.
- You acknowledge that you are solely responsible for your costs and expenses associated with your promotion of Products through the Kula Village Platform, including without limitation costs associated with advertising, mailing, marketing materials, and your website operations. Your financial responsibility applies regardless of whether your promotions result in sales or not.
- We do not provide legal advice or review your promotions for legal compliance, or for any purpose. You are solely responsible for the content of your promotions. You agree that you will not promote Products with any illegal material or means, including without limitation, infringement of another’s intellectual property rights such as copyrights, trade secrets, trademarks, trade dress, rights of publicity and privacy, moral rights, and rights of attribution. You agree that you will not engage in promotions that are defamatory regarding other persons, products, or services.
- We strongly recommend that you seek legal counsel to advise you regarding your promotions via the Kula Village Platform. You agree that your promotions will incorporate Truth in Advertising Principles, and will not incorporate any marketing or advertising methods or claims that are false, misleading, or otherwise in violation of any applicable law or regulation, including without limitation, the Federal Trade Commission Act and regulations promulgated and enforced by the Federal Trade Commission (“FTC”), the Federal Communications Commission (“FCC”), consumer protection laws of any State in the United States, or any other regulatory body whether federal or state. In addition, you agree you will not participate in promotions that do not comply with the CAN-SPAM Act, the Telephone Consumer Protection Act (“TCPA”) and any applicable state laws regarding anti-spam, text messages and/or Do-Not-Call Registries.
- You agree that you will not suggest that you are representing us or this website in any way, or that you are endorsed by us or this website.
- You are authorized to use search engine optimization and online advertising in your marketing efforts; provided, however, you are not authorized to purchase or register, any keywords, search terms or other identifiers that include any principal words in our or any Seller’s tradename, domain name, or any of our trademarks or logos, or any variation thereof (“Proprietary Terms”) for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service.
PAYMENTS, PRODUCT DISPLAY, SHIPPING, REMITTANCE AMOUNT, TAXES AND REFUNDS
- We will display your Products and promotional messages on the Kula Village Platform in accordance with our published policies. You agree to provide us with an accurate description of each Product including: product name, description, price, photos, shipping & return policies
- You agree to ship sold Product items to the purchaser within five (5) calendar days of the date of the applicable purchase transaction via Kula Village Platform.
- For each completed Sale of your Product transacted through the Kula Village Platform, we will reserve the gross sales proceeds until: (i) all payments for the Product have been processed by the Kula Village Platform and paid in full, and (ii) any Product return period stipulated in your Return Policy has expired, at which time we will retain the Selling Fee and pay the Remittance Amount to you in accordance with our then-current monthly payment schedule.
- Kula Village may run promotions which would be notified to you at least 10 days in advance. The terms of these promotions would be separately discussed and agreed upon between the platform and the seller. It is optional for you to be included in these promotions.
- For Product returns requested by the end-user customer within the Product return period stipulated in your Return Policy, upon receipt of written notice from you of satisfactory receipt of the returned item, we shall refund promptly all sales proceeds to the end-user customer, less any applicable restocking fee stipulated in your Return Policy which we will promptly remit to you in accordance with our then-current monthly payment schedule.
- You are solely responsible for satisfactory receipt of all Product returns.
- We expect you to offer a price match guarantee to the buyers. As a seller, you agree to honor a price that is available on any other platform, when presented by the buyer with adequate proof.
- You are solely responsible for all taxes levied on Sales transactions, including without limitation all applicable sales taxes. You shall register for sales and use tax collection purposes with all applicable governmental agencies. You are solely responsible for ensuring that all taxes and related charges incident to any sale of your Products are paid timely and in full. We assume no responsibility for any taxes and related charges. Kula Village may provide tools that allow a seller to charge sales tax on transactions, but Kula Village will not be held responsible for the collection or lack of collection of any taxes due to the use of these tools. Kula Village is not responsible for determining when tax should be charged.
- To receive funds, you will need to create a free account at Stripe or connect your existing Stripe Account. You must provide them valid US bank account information. Payments will be made in U.S. Dollars
- As a security measure, Kula Village may, but is not required to, impose transaction limits on some or all sellers relating to the value of any transaction, disbursement or adjustment, the cumulative value of all transactions, disbursements or adjustments during a period of time, or the number of transactions per day or other period of time. Kula Village will not be liable to seller: (i) if we do not proceed with a transaction, disbursement or adjustment that would exceed any limit established by us for a security reason, or (ii) if we permit a buyer to withdraw from a transaction because of issues involving the Account.
- If Kula Village reasonably concludes based on information available to us that seller’s actions and/or performance in connection with the Site may result in buyer disputes, chargebacks or other claims, then we may, in our sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to you in connection with this marketplace agreement for the shorter of: (a) a period of 90 days following the initial date of suspension; or (b) completion of any investigation(s) regarding any seller actions and/or performance in connection with this marketplace agreement. We will not be liable to seller if we act in accordance with the provisions of this Section.
- The seller is responsible for disputes (also known as a chargeback) and any funds are withdrawn from their balance, not Kula Village. Stripe charges $15.00 (in the US) dispute fee. Such fees are payable to Kula Village within ten (10) business days.
The seller can terminate participation in our marketplace at any time by written notice to Kula Village. Kula Village reserves the right to terminate a user’s participation in the marketplace at any time for any reason at its sole discretion, with or without notice to user. Kula Village reserves the right to monitor user accounts to determine if policies or laws are being broken. Kula Village reserves the right to remove or edit any content supplied by users. Any illegal or fraudulent activity may be reported to law enforcement or other third parties. Upon termination, seller must pay Kula Village any fees that were incurred prior to the effective date of termination, and any pending transactions will be canceled.
Kula Village reserves the right, upon termination, to offset against any payments to be made to seller, an amount determined by Kula Village to be adequate to cover chargebacks, refunds, adjustments or other amounts paid to buyers in connection with marketplace purchases from seller’s account for a prospective three-month period. At the end of such three-month period following termination, Kula Village will disburse to seller any amount not used to offset chargebacks, refunds, adjustments or such other amounts paid to buyers, or seek reimbursement from seller via any of the means authorized in this marketplace agreement for any additional amount required to offset chargebacks, refunds, adjustments or other amounts paid to buyers, as applicable.
Neither Kula Village nor any of its suppliers make any warranty of any kind, express or implied to you. Kula Village provides the Kula Village platform “as-is” and with all faults. Kula Village and its suppliers specifically disclaim the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, system integration, and data accuracy. There is no warranty or guarantee that the operation of this site, the Kula Village platform and/or services provided by this site will be uninterrupted, error-free, or virus-free, or that this site, the Kula Village platform and/or services will meet any particular criteria of performance, quality, accuracy, purpose, or need. Further, you acknowledge and agree that the internet is a network of private and public networks, that Kula Village has no control over the internet, and that this site is not liable for the discontinuance of operation of any portion of the internet or possible regulation of the internet which might restrict or prohibit the operation of this site, the Kula Village platform and its services. We make no warranty that you will make money or not lose any money in connection with your participation in the Kula Village platform. This disclaimer of warranty constitutes an essential part of this agreement. Participation in the Kula Village platform is not authorized hereunder except under this disclaimer.
RISK OF LOSS
Kula Village may refuse service to anyone for any reason. Kula Village may earn interest or other compensation from the balances in our bank accounts that result from the timing difference between our being paid by a buyer and our bank account being debited to pay out credits to a seller. Kula Village will bear the risk of credit card fraud (i.e. Fraudulent purchase arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with a payment transaction through our marketplace, and the seller will bear all other risk of fraud or loss that are not fulfilled strictly in accordance with the order information and shipping information that we provide you. Kula Village reserves the right to seek reimbursement from the seller if we, in our sole discretion, decide to reimburse the buyer, provide a refund to the buyer if the seller cannot promptly deliver the goods, discover erroneous or duplicate transactions, or receive a chargeback from a buyer’s credit card issuer for the amount of the buyer’s purchase from the seller. Kula Village may obtain reimbursement of any amounts owed by the seller to Kula Village by deducting from future payments owed to the seller, reversing any credits to the Account, debiting the seller’s bank account, charging the seller’s credit card, or seeking such reimbursement from the seller by any other lawful means. You authorize us to use any or all of the foregoing methods to seek reimbursement, including the debiting of your credit card or checking account.
OUR MONITORING RIGHT
No Right to Control. You agree that we may monitor your marketing methods, procedures, and communications. Our rights to monitor do not imply, and should not be construed to grant, rights for us to control your marketing and promotional activities. We have no right or authority to control, nor will we exercise any purported right to control, your marketing and promotional activities.
CONSENT TO RELEASE OF INFORMATION
You agree that we may provide information about you and your relationship with us (i) to any governmental or regulatory agency that is investigating your marketing methods, procedures, or communications, and (ii) to any private person or organization which we believe may have a good faith claim based on your marketing promotions, methods, procedures, or communications.
Communications Decency Act Notice. This site is a provider of “interactive computer services” under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
INDEMNITY/LIMITATION OF LIABILITY
You will defend, indemnify and hold harmless Kula Village and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this marketplace agreement; or (ii) your own website or other sales channels, the products you sell, any content you provide, the advertisement, offer, sale or return of any products you sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products you sell or content you provide, or the collection, payment or failure to collect or pay any taxes.
If Kula Village becomes aware of any fraud or breach of processes or data by Stripe or any other third party, we will immediately notify the sellers and ensure all necessary action is taken against the failing party.
KULA VILLAGE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS MARKETPLACE AGREEMENT, THE SITE, THE INABILITY TO USE THE SITE OR THE MARKETPLACE, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO VIA THE SITE.
You represent and warrant throughout the term of this Agreement that: (i) you have the right, power and authority to enter into this Agreement; (ii) you have legal title to all product items listed by you on the Kula Village platform; (iii) all Product items you list on the Kula Village Platform are authentic and are accurately by you; (iv) you have not altered the label or contents of any Products for any product you list on the Kula Village Platform; (v) you are registered for sales and use tax collection purposes in all states in which your Products will be provided; (vi) your marketing and sale of Products via the Kula Village Platform comply with all, and will not violate any, local, state or federal law, statute, rule, regulation, or order (“Laws”); (vii) you own all right, title and interest in the Seller IP and have the right to grant the licenses in the Seller IP and Third-Party IP; (viii) your advertising or promotion of your Products will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws; and (ix) the Seller IP and Third-Party IP do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third-party or any laws.
You agree to defend, indemnify and hold Kula Village, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including without limitation attorney’s fees and costs) arising out of or relating to any of the following: (i) any breach or alleged breach by you of this Agreement or the representations and warranties stated above; (ii) any claim for state sales or use tax obligations (“Taxes”) arising from the sale of your Products; (iii) any claim arising out of a violation of law and/or regulation; (iv) any claim regarding infringement of intellectual property rights, including without limitation infringement claims arising out of the Seller IP and Third-Party IP; or (v) any claim arising out of or relating to your Products, including without limitation, any claims for false advertising, Product defects, personal injury, death, or property damages. Without limiting the foregoing, you shall pay any monies owed to any party, as well as all attorney’s fees, related to any action against, or determinations against, us related to any action to pursue us for unpaid taxes.
Upon receipt of notice a claim or action for which we are entitled to indemnification, we will (i) promptly notify you in writing of the claim or action against which indemnification is sought under this Section; and (ii) provide you the opportunity to assume the entire defense and settlement of such claim or action at your cost and expense; provided, however, that we shall have the right to be represented separately by counsel of our own choosing at our own expense. No settlement may be consummated without our express written authorization, which shall not be unreasonably withheld or delayed.
This Section in no way limits our right to seek any other remedies available to us herein or under law to recover its costs and expenses for addressing such demands or claims.
Disclaimer of Incidental and Consequential Damages: EXCEPT FOR YOUR INDEMNITIES PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Liability Cap: In no event shall the aggregate liability of Kula Village and this site, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the lesser of: (i) total amount of Remittance paid to you during the thirty (30) day period preceding the claim, or (ii) $50.
Disclosure of Personal Information: You agree to hold any personal information that we may disclose regarding a referred transaction in strictest confidence and to use such information only for purposes of monitoring that specific transaction.
Email and Telephone/Text Messages: You hereby consent to our sending you periodic emails and pre-recorded phone messages and/or text messages to your designated phone number regarding the Kula Village Platform and the operation of this site.
TERM AND TERMINATION
- The term of this Agreement will begin upon our issuance of written notice of acceptance to you as a participant in the Kula Village Platform in accordance with this agreement and shall continue until terminated. Either you or we may terminate this Agreement at any time for convenience, with or without cause, by giving the non-terminating party thirty (30) days prior written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to this site and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you in connection with the Kula Village Platform.
- Notwithstanding anything to the contrary contained herein, if we terminate this Agreement due to our determination that (i) you have violated the material terms of this Agreement, or that (ii) your marketing practices appear to us to be in violation of FTC regulations, or any other law or regulation of any regulatory authority, you agree to forfeit any Remittance Amounts you may have earned under this Agreement.
- Notices: We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e-mail address on record in your Registration Data, or (iii) by written communication sent by first class mail or pre-paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: GAIA Global LLC dba Kula Village, 3905 Hedgcoxe Rd, # 251701 Plano, TX 75025, in either case, addressed to the attention of “Managing Member”. Notices will not be effective unless sent in accordance with the above requirements.
- Force Majeure: We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
- Arbitration: By agreeing to arbitration, you understand and agree that you are waiving your rights to maintain other resolution processes, such as a court action or administrative proceeding, to settle your disputes. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Frisco, Texas and may be conducted by telephone or online. The arbitrator shall apply the laws of Texas to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs up to $1000.00.
- Continuing Obligations: The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the confidential information and other intellectual property, and (v) the payment of taxes, duties, or any money hereunder.
Because Kula Village is not directly involved with transactions between buyers and sellers, you agree to release Kula Village from claims, demands and damages related to transaction disputes. If a dispute arises, buyers and sellers are expected to deal with each other to come to a resolution. At times, Kula Village Customer Service may step in to mediate disputes between Buyers and Sellers on our platform. During mediation, Kula Village Customer Service may apply full or partial refunds to resolve disagreements, any and all refunds are at the discretion of the Customer Service Team. The seller is responsible for disputes (also known as a chargeback) and any funds are withdrawn from their balance, not Kula Village. Stripe charges $15.00 (in the US) dispute fee. Such fees are payable to Kula Village within ten (10) business days.
Any claim against Kula Village in relation to our marketplace shall be adjudicated in a court in Denton County, Texas and you agree to exclusive jurisdiction of these courts. This agreement shall be governed by Texas law, without regard to conflict of laws principles thereof.
By agreeing to the marketplace seller agreement, you grant the royalty-free use of any content you submit to us. We may modify the said content as per our discretion. You represent that you own any content you submit to us or you have the right to distribute submitted content. You will be responsible for any violation of rights for unauthorized content.
This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.