- We are Eshopoly Limited t/a Eshopoly.com and we own and operate this website, www.eshopoly.com (the ‘Site’). We are generally referred to throughout the Site as “We, Us or Our”.
- You are responsible for all access to the Site using your Internet connection, even if the access is by another person.
- We will use reasonable efforts to ensure that the Site is available at all times. However, we cannot guarantee that the Site or any individual function or feature of the Site will always be available and/or error free. In particular, the Site may be unavailable during periods when we are implementing upgrades to or carrying out essential maintenance on the Site.
- The intellectual property rights in the Site and all of the text, pictures, videos and other content made available on it are owned by us and our licensors. You may not print or otherwise make copies of any such content without our express prior permission.
- We provide the Site on an ‘as is’ basis and make no representations as to the quality, completeness or accuracy of any content made available on the Site. To the maximum extent permitted by law, we expressly exclude:
8.1. use the Site for any fraudulent or unlawful purpose;
8.2. use the Site to defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity;
8.3. impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site; or express or imply that we endorse any statement you make;
8.4. interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks;
8.5. transmit or otherwise make available in connection with the Site any virus, worm, Trojan horse or other computer code that is harmful or invasive or may or is intended to damage the operation of, or to monitor the use of, any hardware, software, or equipment;
8.6. reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site;
8.7. modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site. If you wish to programmatically interface with any part of the Site to create an interoperable program you must contact us and we may provide interface data subject to verification of your identity and other information;
8.8. remove any copyright, trade mark or other proprietary rights notice from the Site or materials originating from the Site;
8.9. frame or mirror any part of the Site without our express prior written consent;
8.10. create a database by systematically downloading and storing Site content;
8.11. use any manual or automatic device in any way to gather Site content or reproduce or circumvent the navigational structure or presentation of the Site without our express prior written consent. Notwithstanding the foregoing, we grant the operators of public online search engines limited permission to use search retrieval applications to reproduce materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of such materials solely in connection with each operator’s public online search service.
We reserve the right to revoke these exceptions either generally or in specific instances.
8.12. The Site may provide links to other websites and online resources. We are not responsible for and do not endorse such external sites or resources. Your use of third party websites and resources is at your own risk.
8.13 We may block any links to or from the Site. Additionally, we may provide tools to allow you to link to the Site directly from a third party site; if you do link to the Site (whether using such tools or otherwise), you agree that you will disable and remove any such link promptly upon our request.
9.0 Eshopoly is an ecommerce platform that allows persons to shop and provides tools and technology for merchants to set up an online store and sell products and services on their own website, marketplaces and more. While we believe the free and open exchange of ideas and products is a key tenet of commerce, there are some activities that are incompatible with Eshopoly’s mission.
For the purposes of this AUP, “Materials” means any photos, images, videos, graphics, written content, audio files, code, information, data or other content uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account.
The following activities are prohibited:
9.1 Child Exploitation: You may not offer goods or services, or post or upload Materials that exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner.
9.2 Harassment, Bullying, Defamation and Threats: You may not offer goods or services, or post or upload Materials, that harass, bully, defame or threaten a specific individual.
9.3 Hateful Content: You may not offer goods or services, or post or upload Materials, that condone or promote violence against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition or veteran status.
9.4 Illegal Activities: You may not offer goods or services, or post or upload Materials, that contravene or that facilitate or promote activities that contravene, the laws of the jurisdictions in which you operate or do business.
9.5 Intellectual Property: You may not offer goods or services, or post or upload Materials, that infringe on the copyright or trademarks of others.
9.6 Malicious and Deceptive Practices: You may not use the Services to transmit malware or host phishing pages. You may not perform activities or upload or distribute Materials that harm or disrupt the operation of the Services or other infrastructure of Eshopoly or others, including Eshopoly’s third party providers. You may not use the Services for deceptive commercial practices or any other illegal or deceptive activities.
9.7 Personal and Confidential Information: You may not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, confidential national ID numbers, or account passwords unless you have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.
9.8 Self-Harm: You may not offer goods or services, or post or upload Materials, that promote self-harm
9.9 Spam: You may not use the Services to transmit unsolicited commercial electronic messages.
9.10 Terrorist Organizations: You may not offer goods or services, or post or upload Materials, that imply or promote support or funding of, or membership in, a terrorist organization.
We may, at any time and without notice, remove any Materials, and suspend or terminate your Account or your access to the Services if you engage in activities that violate the letter or spirit of this AUP, including activities outside of your use of the Services.
Eshopoly has the right, but not the obligation, to monitor or investigate any Materials and your use of the Services at any time for compliance with this AUP and the Eshopoly Terms of Service, or any other agreement between you and Eshopoly governing your use of the Services (collectively, the “Terms”). Our determination of whether a violation of this AUP has occurred will be final and binding, and any action taken with respect to enforcing this AUP, including taking no action at all, will be at our sole discretion.
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
It is currently free to access and browse eshopoly.com or any other Services. However, you may choose to purchase products or access to additional services that we offer through the Services, and you alone will be responsible for paying the purchase price of any products or service you buy, in addition to any taxes and or shipping costs. Eshopoly may limit or cancel quantities of products or service purchased, and it reserves the right to refuse any order. In the event Eshopoly needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. Prices are subject to change at any time. Due to separate and applicable tax jurisdictions, your purchases may be subject to specific sales, custom or value-added taxes, and the shipping time and associated cost may increase accordingly.
Eshopoly reserves the right to require payment of fees for certain or all Services, in addition to the fees charged for the purchase of products or services. You shall pay all such fees, as described on the website in connection with such Services selected by you. Eshopoly reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
ESHOPOLY SELLER TERMS AND CONDITIONS
By registering to sell on the Eshopoly website and any related websites and applications owned or operated by or on behalf of the proprietors of Eshopoly ( “the Website”), you as an individual, or the company on behalf of which you are registering, (referred to herein as “Seller”) agree to be bound by these Eshopoly Seller Terms and Conditions (collectively, with any Attachments or Exhibits, “the Agreement”), which are by and between Eshopoly Limited trading as Eshopoly.com (together with its affiliates, “Eshopoly”) and Seller (each, a “Party” and collectively, the “Parties”). This Agreement is effective as of the date Seller registers for the Website via the Portal or otherwise accepts the Agreement (the “Effective Date”).
“Account” means Seller's Marketplace account, which is accessible through the Portal.
“Agreement” has the meaning given in the preamble.
“Applicable Law” means all legal rights and obligations of Jamaica and all other countries in which the Merchandise is produced, sold, or delivered.
“Confidential Information” has the meaning given in Section X.A.
“Confidential Personal Information” has the meaning given in Section X.C.
“Claims” has the meaning given it in Section IX.A.
“Effective Date” has the meaning given in the preamble.
“IP Rights” means all intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), confidential information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and «rental» rights and rights to remuneration;
“Liabilities” means all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys' fees) asserted in any claim, action, lawsuit or proceeding.
“Merchandise” means the goods, offers and services Seller markets and lists for sale to Users on the Websites.
“Merchandise Listings” means the offers created for display on the Websites related to the sale of the Merchandise.
“Personnel” means a Party's employees, agents, officers, directors, or others action on behalf of the Party.
“Portal” means the online interface by which Seller accesses its Eshopoly vendor account, uploads its Seller Content and Merchandise Listings, manages its User Orders, and other such activities related to this Agreement.
“Seller” has the meaning given in the preamble.
“Seller Content” means all images, videos, text, Merchandise descriptions, and Merchandise-related data uploaded by Seller to create its Merchandise Listings.
“Seller Marks” means all of Seller's domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.
“Seller Shipping and Delivery Policy” means the policy loaded by Seller into the Seller Portal, in compliance with the Terms of this Agreement.
“Seller Specifications” means all information related to order fulfillment, shipping times, and merchandise returns, as may be designated by Eshopoly, or by Seller, if applicable, via the Portal, and relating to Seller's Merchandise.
“Taxes” has the meaning given in Section II.B.3.
“User” means any user or customer accessing the Websites, or placing or receiving any order for Merchandise via the Websites.
“User Order” has the meaning given in Section II.C.1.
“Website” has the meaning given in the preamble.
- Websites Hosting and Maintenance. Eshopoly will provide Seller with access to the Website as a platform for Seller to post Merchandise Listings and facilitate the sale of Seller's Merchandise to Users. Eshopoly will be responsible for all operating functions of the Website. Eshopoly may, in its sole discretion, (i) ask Users to rate and/or provide comments regarding Merchandise and/or Seller's performance, using any metrics determined by Eshopoly in its sole discretion, and (ii) post any resulting ratings and/or comments on the Website for public display.
- User Orders and Payment.Eshopoly will process User Orders (as defined in Section II.C.1) and collect all amounts due from Users for Merchandise ordered from Seller through the Website. Eshopoly will remit such amounts, less any amounts owed to Eshopoly by Seller, by electronic funds transfer to the bank account identified by Seller in the Portal Within fifteen (15) days after the order has shipped. The minimum single payment disbursement to by Eshopoly to Seller is JMD$2500.00 and as such, sums less than this minimum threshold shall be held by Eshopoly on behalf of the Seller until such time as accrued funds held become equal to or greater than the aforementioned minimum disbursement threshold.
Seller hereby appoints Eshopoly as an agent of Seller for the sole and express purpose of receiving payments from Users for Seller's Merchandise sold on the Website. Seller acknowledges that, as between Seller and a User who purchases Merchandise from Seller, Eshopoly's receipt of funds from the User is deemed the receipt of funds by Seller.
- II) SELLER'S RESPONSIBILITIES.
- Enrollment; Account Activation. Seller will provide the information requested on the Portal during Account activation, and agrees to update such information promptly. Seller will not use or incorporate any Eshopoly Mark, in whole or in part, in Seller's account name or any other User-facing identification. Seller agrees to secure the password used to access its Account and not to disclose it to any third party (other than any authorized third-party service providers to Seller). Seller acknowledges and agrees to be strictly liable for all uses or actions occurring through the Seller's Account.
- Merchandise Listings. Seller will create Merchandise Listings via the Portal for all Merchandise it intends to sell on the Website. All Merchandise Listings will comply with any specifications and policies posted in the Portal, and such Merchandise Listings will not use or incorporate any Eshopoly Marks. Seller is responsible for promptly updating its Merchandise Listing(s) to ensure the Merchandise Listing and inventories are at all times accurate. Seller acknowledges that failure to abide by the terms of this Agreement may subject Seller to penalties and legal liability and that Eshopoly may reject, remove or censor any Merchandise Listing for any reason, in Eshopoly' sole discretion.
- Merchandise Pricing. Seller is responsible to establish prices for its Merchandise. Seller will enter pricing via the Portal, unless another method is approved in writing by Eshopoly. If Seller uploads or otherwise provides incorrect pricing information to a Merchandise Listing (a “Seller Pricing Error”), Eshopoly may, at Seller's expense, take any commercially reasonable action necessary to avoid and/or repair harm to Eshopoly due to the Seller Pricing Error. Such action may include requiring Seller to honor all Merchandise purchases occurring due to Seller Pricing Errors and compensating Users for any inconvenience caused by such errors. Seller will also reimburse Eshopoly for all costs Eshopoly incurs directly as a result of Seller Pricing Errors.
- Prohibited Merchandise. Unless otherwise expressly permitted in writing by Eshopoly, Seller will not promote, offer for sale, or provide Eshopoly with Merchandise Listings that (a) contain any Prohibited Merchandise, (b) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, attempting to scam or defraud a User into surrendering private and/or personal information); or (c) promote or engage in any other illegal activity.
- Permits and Licenses; Taxes. Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes and assessments which may be due for selling or offering of its Merchandise for sale on or through the Website. It is Seller's responsibility to determine when it has an obligation to collect and remit General Consumption Tax and any other applicable taxes (“Taxes”). Eshopoly will pay over the Taxes collected from the online purchaser directly to the Seller and Seller will be solely responsible for remitting the tax to the applicable taxing authority. Seller acknowledges and agrees that Eshopoly does not provide tax advice and that Seller is solely responsible for determining the applicability and accuracy of any tax data. Seller agrees to defend, indemnify and hold Eshopoly harmless from Liabilities arising from any tax or other obligation of the Seller.
- Shipping. Seller is ultimately responsible for all aspects of shipping, including providing adequate packaging, tagging, labeling and packing of the Merchandise in compliance with the Seller Specifications and Applicable Law. Seller authorizes Eshopoly to ship products on its behalf using a shipping service provider of Eshopoly’s choice.
- Process. When Seller receives notice of an order from a User (a “UserOrder”) at the e-mail address specified by Seller in the Portal, Seller will process and fulfill the User Order in compliance with the Seller Shipping and Delivery Policy. Seller will not substitute any item(s) for the Requested Merchandise. Title to and risk of loss of and/or damage to the Requested Merchandise will remain with Seller until delivery to the User. Eshopoly will not have title to or deemed the legal owner of, any Merchandise at any time under the terms of this Agreement. Seller may not include any marketing, promotional materials, or any other solicitations with the Requested Merchandise shipped to Users. In the absence of demonstrably gross negligence on the part of Eshopoly, Seller is fully liable for any loss or damage caused to any party as a result of an incorrect shipment.
- Overdue Orders. Eshopoly may cancel any User Order that fails for any reason to ship within the applicable shipping period indicated in the Seller Specifications, and Eshopoly will have no duty to compensate Seller for any such canceled orders. It is Seller's responsibility to monitor all orders and ensure all shipments are made within the timeframes indicated in the Seller Specifications.
- Delivery Errors, Non-conformities. Seller is responsible for any non-delivery, delivery error, mistake, theft or act in connection with the fulfillment and delivery of its Merchandise.
- User Service Issues. Seller will resolve all User service issues arising from, or in connection with Seller's promotion, sale, order fulfillment and/or delivery of Merchandise. Eshopoly will direct Users who contact it with service issues related to Merchandise sold pursuant to this Agreement to contact Seller via the contact information Seller has provided in the Portal. If Seller fails to respond to User service issues, or requests from Eshopoly related to same, Eshopoly may take any actions necessary to ensure compliance, up to and including suspending Seller's access to their Account. In the event that Eshopoly believes in its sole discretion that a transaction represents fraudulent activity, Eshopoly may, but is not obligated to, prohibit the transaction. Eshopoly will not be liable to Seller for any such action results in or prevents a User from completing an order or causes a User to cancel an order.
- Chargebacks. If Eshopoly notifies Seller of a User chargeback or chargebacks received due to non-delivery, or other dispute related to Seller's transactions, Seller must present Eshopoly with all information requested in the chargeback notification within five (5) business days of receiving notice. If Seller fails to comply with Eshopoly' request, Seller will reimburse Eshopoly for the User chargeback(s) in accordance with the settlement and payment terms herein. Notwithstanding the other provisions of this paragraph, Seller will not be responsible for chargebacks due to (a) theft and/or unauthorized use of a third party's credit card information for which Eshopoly is responsible (except to the extent such theft and/or unauthorized use is attributable to Seller), and (b) non-delivery due to Eshopoly's failure to send the order information to Seller.
- Seller Marketing; Restrictions; Prohibition on use of User Information. Seller (or any of its affiliates or related parties) may not directly or indirectly disclose or use any User information or other transaction information, except as necessary to fulfill its fulfillment and customer service obligations under this Agreement. Seller may not use any User information for any of its own marketing or promotional activities. To the extent Seller obtains User information outside of its relationship with Eshopoly or the Website, the terms of this section will not prevent Sellers from using such User information, provided that Seller may not explicitly target Users on the basis of their purchases or presence on the Website.
- Refunds; Returned Merchandise. Seller will submit a return policy (the “Seller Return Policy”) using the form provided on the Portal. The Seller Return Policy must (i) apply to all Merchandise, (ii) outline the process for Users to return the Merchandise directly to Seller, and (iii) be at least as accommodating to User returns as the Eshopoly Return Policy. Seller agrees to honor all User returns in accordance with the Seller Return Policy published at the time of the User's purchase of Merchandise.
- Recalled Merchandise; Defective Merchandise. Seller will immediately notify Eshopoly of any recalls affecting the Merchandise it has listed on Eshopoly Marketplace. Notwithstanding the foregoing Seller is responsible for all defective or recalled Merchandise, including any costs associated with recalls of its Merchandise, all liability related to its Merchandise (regardless of whether such Merchandise is defective), and will bear all costs associated in notifying Users and handling such recalls of its Merchandise.
III) FEES AND COMMISSIONS.
- Fees & Commissions. Seller will pay fees and/or commissions to Eshopoly according to the Commission Rate Schedule available in the Portal, which is subject to change. Any revised Commission rates are effective as of the date posted. Seller agrees that failure to pay fees due hereunder may result in a breach of this Agreement, removal of Merchandise Listings and/or suspension of access to the Portal.
- Right of Recoupment and Set-off. Eshopoly and Seller acknowledge and agree that Eshopoly has the right to recoup or set-off any payments owed to Seller by the amount of any fees, commission payments, Seller obligations owed according to the defense and indemnity terms herein, and any other monetary obligations owing by Seller to Eshopoly. Any remaining outstanding funds due to Eshopoly after recoupment or set-off will be paid by Seller promptly upon demand by Eshopoly. Eshopoly may obtain reimbursement of any amounts owed by Seller to Eshopoly by deducting from future payments owed to Seller, reversing any credits to Seller's account, charging Seller's credit card, or seeking such reimbursement from Seller by any other lawful means. Seller hereby authorizes Eshopoly to use any or all of the foregoing methods to seek reimbursement, including the debiting of Seller credit card or bank account.
- IV) INTELLECTUAL PROPERTY.
- Grant of License by Eshopoly. Eshopoly hereby grants to Seller a non-exclusive, revocable, non-transferable license to promote and sell Merchandise on or through the Website to Users, subject to the terms of this Agreement.
- Grant of License by Seller. Seller hereby grants to Eshopoly a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, display, distribute, perform, re-format, create derivative works of or otherwise commercially or non-commercially exploit in any manner the Seller Content and Merchandise Listings with the right to sublicense such rights through multiple tiers; provided however that Eshopoly will not alter any Seller Marks from the forms provided by Seller except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further than nothing in this Agreement will restrict Eshopoly' right to use the Seller Content to the extent such use is allowable without a license from Seller under Applicable Law.
- Intellectual Property Rights. All right, title and interest in and to the Website, and all data collected or stored in connection with the Website and any other Eshopoly websites, any of their affiliates' websites, and any other service or website associated with the foregoing, including mobile sites or microsites, and all IP Rights associated with any of the foregoing, will at all times remain the exclusive property of Eshopoly, and except as expressly provided herein, nothing will be construed as conferring on Seller any license to Eshopoly' IP Rights, whether by estoppel, implication or otherwise. If Seller is deemed to have any ownership interest or rights in any of the foregoing, or any part thereof, then Seller will assign, and Seller does hereby assign, all of such ownership interest and rights to Eshopoly, including all Seller IP Rights therein. All rights not expressly granted herein are reserved to Eshopoly.
- Ownership of Content. Eshopoly and Seller each agree and acknowledge that, as between Eshopoly and Seller, Seller owns all Seller Content and Seller Marks, subject to the License granted herein.
- V) TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date, and will continue in effect until such time as revised by Eshopoly or terminated by either Party in accordance with the notice and termination requirements set forth below (the “Term”).
- Termination. Seller may terminate this Agreement at any time upon two (5) business days' notice to Eshopoly, in which case Seller will process and fulfill all open orders until the termination is effective. Eshopoly may terminate this Agreement (i) at any time upon notice to Seller; or (ii) if Eshopoly determines in its discretion that Seller has breached any term of this Agreement, immediately, including the right to cancel all open User orders for the Merchandise, and to remove all of Seller's Merchandise Listings from the Website.
- Survival. Any termination of this Agreement will be without prejudice to the rights of either Party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. Any obligations of the Parties relating to limitations on liability, confidentiality, and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or User services obligation in connection with the sale of Merchandise hereunder, will survive termination of this Agreement.
- VI) REPRESENTATIONS AND WARRANTIES.
- Mutual. Each Party represents and warrants that: it has the authority to enter into the Agreement and to perform the acts required of it; and the execution of this Agreement by each Party, and the performance by such Party of its obligations and duties, does not and will not violate any other agreement to which such Party is otherwise bound.
- Seller. Seller further represents and warrants that:
- The Seller Listings and all information and Seller Content provided to Eshopoly is accurate, complete, current, and is not misleading or deceptive in any manner;
- The publication, reproduction, display, modification, distribution or transmission of Seller Content or a Merchandise Listing does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights (b) contain defamatory or discriminatory content, (c) constitute an invasion of a party's rights of privacy or publicity; and/or (d) reflect unfavorably on Eshopoly, the Website and/or other Sellers on the Website;
- Seller will at all times fully comply with Applicable Law, including applicable privacy laws;
- Seller will include in Merchandise Listings all disclosures associated with the Merchandise as required by Applicable Law;
- All Merchandise sold pursuant to this Agreement is not subject to any health, safety or product quality recall;
- Seller will perform all of its obligations hereunder in a professional and commercially reasonable manner, in accordance with generally accepted industry standards;
- Seller will maintain at a minimum such product liability insurance coverage limits, general liability, vehicle, and worker's compensation coverage limits as required by Applicable Law to operate its business;
- All information or data uploaded or transmitted by or on behalf of Seller to the Portal, Websites, or any other Eshopoly website, application, or system, or to a User is free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Portal, Websites, any other Eshopoly website, application, or system. Seller will not use the Website to violate the security of, or gain unauthorized access to, any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes to use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Website, collect any information about other Users (including usernames and/or email addresses); or to reformat or frame any portion of the Website), or use the Website and/or any other Seller Content, intentionally or unintentionally, to violate any Applicable Law.
VII) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ESHOPOLY MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE WEBSITE, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE WEBSITE ARE PROVIDED BY ESHOPOLY ON AN "AS IS" AND “AS AVAILABLE” BASIS AND SELLER'S USE OF THE WEBSITE IS SOLELY AT SELLER'S OWN RISK. ESHOPOLY DOES NOT WARRANT THAT SELLER'S USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES ESHOPOLY MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITE, OR THE SALE OF ANY MERCHANDISE ITEMS BY SELLER TO USERS THEREON, OR ANY SERVICES PROVIDED BY ESHOPOLY TO SELLER IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT ANY MERCHANDISE LISTING OR ANY RESULTS SELLER MAY OBTAIN UNDER THIS AGREEMENT. THE FUNCTIONALITY PROVIDED BY THE WEBSITE OR ESHOPOLY, OR ITS DESIGNEES' SERVERS IS NOT AN ARCHIVE; SELLER IS SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING SELLER CONTENT PROVIDED TO ESHOPOLY.
VIII) LIMITATION OF LIABILITY. IN NO EVENT WILL ESHOPOLY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS), EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ESHOPOLY' LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) BE GREATER THAN THE LESSER OF (I) JMD$10,000 OR (II) THE TOTAL FEES PAID BY SELLER TO ESHOPOLY IN THE THIRTY (30) DAYS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIM AROSE.
- IX) DEFENSE AND INDEMNIFICATION.
- Obligation. Seller will defend, and indemnify and hold harmless the Eshopoly Parties from and against all third-party Liabilities, whether actual or alleged (even though such allegations may be false, fraudulent or groundless), arising out of or relating to any of the following (collectively, the “Claims”): (i) infringement, misuse, dilution, misappropriation, or other violation of any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights; (ii) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any latent or patent defect in Merchandise, including improper manufacture, construction, assembly, installation, repair, display, packaging, service or design of Merchandise, failure of Merchandise to comply with any specification or samples or with any express or implied warranties of Seller, or any claim of strict liability in tort relating to Merchandise; (iii) any violation by Seller (or its affiliates, or their respective Personnel of each of them) in the manufacture, construction, assembly, installation, repair, display, packaging, possession, service, design, use, delivery or sale of Merchandise (“Production or Sale”) of any Applicable Law of Jamaica, or any other country in which the Production or Sale of Merchandise took place; (iv) the publication of Seller Content and product information Seller supplies to Eshopoly to display in Merchandise Listings; (v) the packaging, tagging, labeling, packing, shipping, delivery and invoicing of Merchandise; (vi) failure to warn or to provide adequate warnings or instructions in the use, assembly, service or installation of Merchandise; (vii) the packaging, labeling or advertising claims made by Seller; (viii) the display, assembly or installation of Merchandise, (ix) the assertion by a third party of a security interest, right of replevin, or other legal interest created by a factoring or other credit arrangement in any amount due Seller under a vendor agreement; (x) a breach of any of the Seller's representations and warranties contained herein; or (x) Taxes or the collection, payment or failure to collect or pay Taxes. Notwithstanding the provisions of this Paragraph, Seller will not be liable for damage to third parties to the extent such damage was solely and proximately caused by the negligence or willful misconduct of any Indemnified Party.
- Process. In performing its obligations under Section IX.A, Seller will retain counsel satisfactory to Eshopoly and will, from time to time, provide reports, consult with Eshopoly' Personnel in conducting the defense of the Claims and otherwise cooperate fully with the reasonable requests of Eshopoly; provided that only with respect to claims arising under Section IX.A.(i) above, Eshopoly may, at its election and at any time, take control of the defense and investigation of said Claims and employ attorneys and other consultants, investigators and experts of its own choice to manage and defend any such Claims at the cost and expense of Seller. In any case in which Seller's indemnity obligation set forth in Section IX.A is not enforceable under Applicable Law and in which any Indemnified Party and Seller are found to be liable to a third party with respect to Merchandise, then Eshopoly and Seller will each contribute to the payment of any judgment awarded in favor of such third party in proportion to the comparative degree of culpability of the Indemnified Parties and Seller.
- Independent Obligation. The obligations of Seller to defend, indemnify, and hold harmless the Indemnified Parties under this Agreement are independent of each other and any other obligation of the Parties herein.
- Settlement. Seller may settle, without Eshopoly' consent, Claims if the only obligation under such settlement is the payment of monies by Seller and such settlement provides for a full release of Seller and the Indemnified Parties. All other settlements, including any that would create obligations of (or restrictions upon) the Indemnified Parties or restrictions upon the sale (or disposition) of the Merchandise, will require Eshopoly' prior written consent.
- X) CONFIDENTIALITY.
- Definition and Obligations. “Confidential Information” means any and all technical or business data or information furnished, in whatever form or medium, by Eshopoly regardless of whether marked or identified as “Confidential”, including Confidential Personal Information (as defined below), the terms of this Agreement, and the operations and technology to be utilized in connection with the Portal and Websites. Seller agrees to: (i) treat as confidential, and preserve the confidentiality of all Confidential Information and not disclose it to any third party; (ii) use the Confidential Information solely for the purposes of this Agreement, and (iii) not copy such Confidential Information unless authorized by Eshopoly.
- Treatment of Confidential Information. The obligations with respect to Confidential Information will not apply to any information that: (i) is already in Seller's possession, as shown by documentation and without obligation of confidentiality; (ii) without action or fault on Seller's part, is or becomes publicly available; or (iii) Seller has obtained from a third person without breach by such third person of an obligation of confidence. The seller must promptly return or destroy all Confidential Information at Eshopoly' request.
- Confidential Personal Information.In addition to the obligations related to Confidential Information, additional obligations apply to Confidential Personal Information. All information related to Users, including names, addresses, telephone numbers, account numbers, and demographic, financial and transaction information is “Confidential Personal Information.” Seller will not duplicate or incorporate the Confidential Personal Information into its own records or databases. Seller will restrict disclosure of Confidential Personal Information to its employees who have a need to know such information to perform under this Agreement. Seller is liable for any unauthorized disclosure or use of Confidential Personal Information by any of its employees. Except as necessary to fulfill its Customer Service obligations herein, Seller will not disclose the Confidential Personal Information to any third party, including any affiliate or subsidiary of Seller, permitted subcontractor, or other representatives without the prior written consent of Eshopoly. Unless otherwise prohibited by law, Seller will: (i) immediately notify Eshopoly of any legal process served on Seller for the purpose of obtaining Confidential Personal Information; and (ii) permit Eshopoly adequate time to exercise its legal options to prohibit or limit such disclosure. Seller will notify Eshopoly promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Personal Information and agrees to indemnify and hold Eshopoly harmless for such loss, unauthorized disclosure or unauthorized use of Confidential Personal Information, including attorneys' fees.
- No Publicity.Without limiting the foregoing, Seller will not disclose the existence or terms of this Agreement or any other information regarding Seller's sale of Merchandise on the Website, in any advertising, promotional or sales activity, publicity release, or other public communication without Eshopoly' prior written consent and approval in each instance. Eshopoly has the right to review and approve any press release, marketing materials or related content that mentions Eshopoly.
- XI) MISCELLANEOUS.
- Use of Subcontractors. Seller may use subcontractors in its performance under this Agreement, provided that (i) Seller's subcontractors will be required to adhere to the terms of the Agreement and (ii) Seller will be fully responsible for the acts and omissions of its subcontractors. Eshopoly may require Seller to cease use of any subcontractor for any reason, and may immediately suspend Seller's account, or terminate this Agreement in the event Seller refuses to comply with any such request from Eshopoly.
- Force Majeure. Neither Party will be liable to the other for any failure to perform its obligations under this Agreement to the extent such failure is due to war, riots, embargoes, strikes or other concerted acts of workers, casualties, accidents or other causes to the extent that such failure and the consequences thereof are reasonably beyond the control and without the fault or negligence of the Party claiming excuse.
- Invalidity; Waiver. No finding that any part of this Agreement is invalid will affect the remaining portions of this Agreement. Seller may not assign or transfer any of its rights or obligations under this Agreement without written consent from Eshopoly. Any such attempted assignment or transfer will be void, and Eshopoly may immediately terminate this Agreement and Seller's access to the Portal without liability. The waiver by any Party of a breach of any provision of this Agreement by the other Party, will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor will any delay or omission by either Party to exercise or enforce any right or remedy hereunder operate as a waiver of any right or remedy.
- Unless otherwise noted in the Agreement, Eshopoly will provide notices to Seller at the address, email address, or fax number provided by Seller to Eshopoly at the time of enrollment.
- Seller must send all notices to Eshopoly through the Portal.
- Governing Law. This Agreement will be construed and enforced in accordance with the laws of Jamaica. Seller and Eshopoly agree that the Jamaican Courts are the proper and exclusive venue for any dispute concerning this Agreement, and hereby consent to such court's personal and subject matter jurisdiction thereof.
- Relationship of Parties. The Parties to this Agreement are independent contractors, and no other relationship will be implied from this Agreement. Nothing contained in or done pursuant to this Agreement will be construed as creating a partnership, agency, or joint venture, and neither Party will become bound by any representation, statement, or act of the other Party. Seller is responsible for all expenses necessary to fulfill its obligations under this Agreement.
Eshopoly may modify this AUP at any time by posting a revised version at https://www.eshopoly.com/aup. By continuing to use the Services or access your Account after a revised version of the AUP has been posted, you agree to comply with the latest version of the AUP. In the event of a conflict between the AUP and the Terms, this AUP will take precedence, but only to the extent required to resolve such conflict. Capitalized terms used but not defined in this AUP shall have the meanings set forth in the Terms.
If you feel that a user of the Services has violated this AUP, please contact us