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All of the Content on this website is subject to copyright, trademark, service mark, trade dress and other intellectual property rights or licenses held by Davis-Bailey, LLC. Your use of the trademarks, service marks, trade dress and copyrighted material displayed on this website is strictly prohibited. You may download, print and store selected portions of the Content, provided you (1) only use these copies of the Content for your own personal, non-commercial use, (2) do not copy or post the Content on any network computer or broadcast the Content in any media, and (3) do not modify or alter the Content in any way, or delete or change any copyright or trademark notice. No right, title or interest in any downloaded materials is transferred to you as a result of any such downloading. Davis-Bailey, LLC. reserves complete title and full intellectual property rights in any Content you download from this Web site. Except as noted above, you may not copy, download, reproduce, modify, publish, distribute, transmit, transfer or create derivative works from the Content. One or more patents may apply to this Web site.
Marketplace Terms & Conditions
Please take a few minutes to review Davis-Bailey Marketplace Terms and Conditions. These Terms and Conditions apply to your access and use of the Web Site and our mobile applications. Your use of our Web Site or our mobile application constitutes your agreement to follow these Terms and Conditions and to be bound by them.
These Terms and Conditions May Change.
Davis-Bailey, LLC. reserves the right to update or modify these Terms and Conditions at any time without prior notice. For this reason, we encourage you to review these Terms and Conditions whenever you purchase products from us or use our Web Site.
Davis-Bailey Business Solutions Agreement
Welcome to Davis-Bailey Business Solutions, a suite of optional services for sellers including: DB Marketplace, Davis-Bailey Web Services, and Davis-Bailey Advertising.
THIS DAVIS-BAILEY BUSINESS SOLUTIONS AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND DAVIS-BAILEY BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY FOR EACH COUNTRY FOR WHICH YOU REGISTER OR ELECT TO USE A SERVICE (IN EACH CASE, THE “ELECTED COUNTRY”).
As used in this Agreement, “we,” “us,” and “Davis-Bailey” means the applicable Davis-Bailey Contracting Party and any of its applicable Affiliates, and “you” means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement. If there is any conflict between these General Terms and the applicable Service Terms and Program Policies, the General Terms will govern and the applicable Service Terms will prevail over the Program Policies.
To begin the enrollment process, you must complete the application to start the registration process for one or more of the Services. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law (for example, the Elected Country may not allow minors to use the Services). As part of the application, you must provide us with your (or your business’) legal name, address, phone number and e-mail address, as well as any other information we may request. Any personal data you provide to us will be handled in accordance with Davis-Bailey Privacy Notice.
- Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described in the applicable Service Terms and Program Policies. You are responsible for all of your expenses in connection with this Agreement. To use a Service, you must provide us with valid credit card information from a credit card or credit cards acceptable by Davis-Bailey (“Your Credit Card”) as well as valid bank account information for a bank account or bank accounts acceptable by Davis-Bailey (conditions for acceptance may be modified or discontinued by us at any time without notice) (“Your Bank Account”). You will use only a name you are authorized to use in connection with a Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Davis-Bailey or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Davis-Bailey or third parties persist. For any amounts that we determine you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Davis-Bailey or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because a Davis-Bailey Site or Service is unavailable following the commencement of a transaction.
- Term and Termination.
The term of this Agreement will start on the date of your completed registration for use of a Service and continue until terminated by us or you as provided below. You may at any time terminate your use of any Service immediately on notice to us via Seller Central, email, the Contact Us form, or similar means. We may terminate your use of any Services or terminate this Agreement for convenience with 30 days’ advance notice. We may suspend or terminate your use of any Services immediately if we determine that (a) you have materially breached the Agreement and failed to cure within 7 days of a cure notice unless your breach exposes us to liability toward a third party, in which case we are entitled to reduce, or waive, the aforementioned cure period at our reasonable discretion; (b) your account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity; or (c) your use of the Services has harmed, or our controls identify that it might harm, other sellers, customers, or Davis-Bailey’s legitimate interests. We will promptly notify you of any such termination or suspension via email or similar means indicating the reason and any options to appeal, except where we have reason to believe that providing this information will hinder the investigation or prevention of deceptive, fraudulent, or illegal activity, or will enable you to circumvent our safeguards. On termination of this Agreement, all related rights and obligations under this Agreement immediately terminate, except that (d) you will remain responsible for performing all of your obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination, and (e) Sections 2, 3, 4, 5, 6, 7, 8, 9, 11, 14, 15, and 18 of these General Terms survive.
You grant us a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative intellectual property rights to use any and all of Your Materials for the Services or other Davis-Bailey product or service, and to sublicense the foregoing rights to our Affiliates and operators of Davis-Bailey Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Materials; provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
Each party represents and warrants that: (a) if it is a business, it is duly organized, validly existing and in good standing under the Laws of the country in which the business is registered and that you are registering for the Service(s) within such country; (b) it has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by one party to the other party or its Affiliates is at all times accurate and complete; (d) it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) it will comply with all applicable Laws in performance of its obligations and exercise of its rights under this Agreement.
6.1 Your indemnification obligations. You will defend, indemnify, and hold harmless Davis-Bailey LLC. and our officers, directors, employees, and agents, against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to (a) your non-compliance with applicable Laws; (b) Your Products, including the offer, sale, fulfillment (except to the extent attributable to the FBA service), refund, cancellation, return, or adjustments thereof, Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto; (c) Your Taxes and duties or the collection, payment, or failure to collect or pay Your Taxes or duties, or the failure to meet tax registration obligations or duties; or (d) actual or alleged breach of any representations you have made.
6.2 Davis-Bailey indemnification obligations. Davis-Bailey will defend, indemnify, and hold harmless you and your officers, directors, employees, and agents against any third-party Claim arising from or related to: (a) Davis-Bailey’s non-compliance with applicable Laws.
6.3 Process. If any indemnified Claim might adversely affect us, we may, to the extent permitted by applicable Law, voluntarily intervene in the proceedings at our expense. No party may consent to the entry of any judgment or enter into any settlement of an indemnified Claim without the prior written consent of the other party, which may not be unreasonably withheld; except that a party may settle any claim that is exclusively directed at and exclusively affects that party.
- Disclaimer & General Release.
a. THE DAVIS-BAILEY SITE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, YOU USE THE DAVIS-BAILEY SITES AND SERVICES AT YOUR OWN RISK. EXCEPT THOSE SET FORTH IN SECTION 5 ABOVE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DAVIS-BAILEY SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
b. BECAUSE DAVIS-BAILEY IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES DAVIS-BAILEY (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN SUCH CASE A CHARGEBACK DISPUTE OCCURS, DAVIS-BAILEY WILL PROMPTLY CHARGE BACK THE AMOUNT PAID TO THE SELLER PLUS APPLICABLE FEES. DAVIS-BAILEY WILL SUPPLY INFORMATION FOR DISPUTE TO THE SELLER AND IF THE DISPUTE IS OVERTURN, DAVIS-BAILEY WILL REFUND THE AMOUNT BACK TO SELLER LESS APPLICABLE FEES.
- Limitation of Liability.
We WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF DAVIS-BAILEY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO DAVIS-BAILEY IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during each month over any period of three (3) consecutive months, or otherwise if requested by us, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term for each applicable Elected Country commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming Davis-Bailey and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage to the following address: c/o Davis-Bailey P.O. Box 991, LaBelle, Fl 33975, Attn: Risk Management.
- Tax Matters.
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that (i) Davis-Bailey automatically calculates, collects, or remits taxes on your behalf according to applicable law; or (ii) Davis-Baiely expressly agrees to receive taxes or other transaction-based charges on your behalf in connection with tax calculation services made available by Davis-Baiely and used by you. You agree to and will comply with the Tax Policies. All fees and payments payable by you to Davis-Bailey under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and you will be responsible for paying Davis-Bailey any of Your Taxes imposed on such fees and any deduction or withholding required on any payment. In addition, should taxes become payable to Davis-Bailey on transactions resulting from your products in addition to what was withheld and remitted, you will be responsible for the full amount.
- Confidentiality and Personal Data.
During the course of your use of the Services, you may receive Confidential Information. You agree that for the term of the Agreement and 5 years after termination: (a) all Confidential Information will remain Davis-Bailey’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other Person except as required to comply with the Law; (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) you will retain Confidential Information only for so long as its use is necessary for participation in the Services or to fulfill your statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfillment of statutory obligations. The foregoing sentence does not restrict your right to share Confidential Information with a governmental entity that has jurisdiction over you, provided that you limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way. You may only use the “Available at Davis-Bailey” badge as defined and you may not use our name, trademarks, or logos in any way (including in promotional material) not covered by the Trademark Usage Guidelines without our advance written permission.
Generally, you may not use customer personal data in any way inconsistent with applicable Law. You must keep customer personal data confidential at all times (the above 5 years’ term limit does not apply to customer personal data).
- Force Majeure.
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
- Relationship of Parties.
- Suggestions and Other Information.
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any Davis-Bailey Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. If we make suggestions on using the Services, you are responsible for any actions you take based on our suggestions.
15.1. We will provide at least 15 days’ advance notice in accordance with Section 18 for changes to the Agreement.
15.2 However, we may change or modify the Agreement at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the Services (where this does not materially adversely affect your use of the Services); or (c) to restrict products or activities that we deem unsafe, inappropriate, or offensive. We will notify you about any change or modification in accordance with Section 18. We reserve the right to define what is unsafe, inappropriate, or offensive at our sole discretion and it will not be up for debate and by agreeing to these terms and conditions, you forfeit the right to object. Any public objection for the same will result in immediate termination of all affiliation with Davis-Bailey and could also result in liability to you for any businesses losses that result from your breach of this clause.
15.3 Your continued use of the Services after the effective date of any change to this Agreement in accordance with this Section 15 will constitute your acceptance of that change. If any change is unacceptable to you, you agree not to use the Services and to end the Agreement as described in Section 3.
- Password Security.
Any password we provide to you may be used only during the Term to access Davis-Bailey Marketplace (or other tools we provide, as applicable) to use the Services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
The Governing Laws will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. If the Elected Country is the United States, Canada, or Mexico, Davis-Bailey and you both consent that any dispute with Davis-Bailey or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or we may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Before you may begin an arbitration proceeding, you must send a letter requesting arbitration. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The expedited procedures of the AAA’s rules will apply only in cases seeking exclusively monetary relief under $50,000, and in such cases the hearing will be scheduled to take place within 90 days of the arbitrator’s appointment. Likewise, Davis-Bailey will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location. Davis-Bailey and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration Davis-Bailey and you each waive any right to a jury trial.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt to assign or otherwise transfer in violation of this section is void; provided, however, that upon notice to Davis-Bailey, you may assign or transfer this Agreement, in whole or in part, to any of your Affiliates as long as you remain liable for your obligations that arose prior to the effective date of the assignment or transfer under this Agreement. You agree that we may assign or transfer our rights and obligations under this Agreement: (a) in connection with a merger, consolidation, acquisition or sale of all or substantially all of our assets or similar transaction; or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Amazon as the party to this Agreement. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Davis-Bailey retains the right to immediately halt any of Your Transactions, prevent or restrict access to the Services or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by applicable Program Policies. Because Davis-Bailey is not your agent (except for the limited purpose set out in the Transaction Processing Service Terms (if the Elected Country for a Service is the United States)), or the customer’s agent for any purpose, Davis-Bailey will not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any transaction.
Davis-Bailey will provide notice to you under this Agreement by posting changes to Marketplace or to the applicable Davis-Bailey Services site to which the changes relate (such as the Developer Site accessible through your account), by sending you an email notification, or by similar means. You must send all notices and other communications relating to Davis-Bailey to our Selling Partner Support team via DB Marketplace, email, the Contact Us form, or similar means. We may also communicate with you electronically and in other media, and you consent to such communications. You may change your e-mail addresses and certain other information in DB Marketplace, as applicable. You will ensure that all of your information is up to date and accurate at all times.
If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. If the Elected Country is Canada, then it is the express wish of the parties that this Agreement and the applicable Service Terms and Program Policies have been drafted in English. (The following is a French translation of the preceding sentence: Si le pays de service est le Canada, les parties conviennent que la présente autorisation et tous les termes et conditions applicables s’y rattachant soient rédigés en anglais.) We may make available translations to this Agreement and the applicable Service Terms and Program Policies, but the English version will control. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
As used in this Agreement, the following terms have the following meanings:
“Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
“Davis-Bailey Associated Properties” means any website or other online point of presence, mobile application, service or feature, other than a Davis-Bailey Site, through which any Davis-Bailey Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised, or described.
“Davis-Bailey Contracting Party” means any agencies Davis-Bailey has contracted with to provide any or all services affiliated with any Davis-Bailey site or business service.
“Davis-Bailey Site” means, as applicable, the Davis-Bailey webpage site.
“Confidential Information” means information relating to us, to the Services, or Davis-Bailey customers that is not known to the general public including, but not limited to, any information identifying or unique to specific customers; reports, insights, and other information about the Services; data derived from the Services except for data (other than customer personal data) arising from the sale of your products comprising of products sold, prices, sales, volumes and time of the transaction; and technical or operational specifications relating to the Services. For the purposes of this Agreement, customer personal data constitutes Confidential Information at all times.
“Content” means copyrightable works under applicable Law and content protected by database rights under applicable Law.
“Excluded Products” means the items described as restricted products in DB Marketplace, any other applicable Program Policy, or any other information made available to you by Davis-Bailey. We reserve the right to exclude any products at our sole discretion.
“Governing Courts” means the applicable one of the following:
- the State or Federal court in Hendry County, Florida (if the Elected Country is Canada, Mexico, or the United States),
“Governing Laws” means the applicable one of the following:
- the laws of the State of Florida, United States together with the Federal Arbitration Act and other applicable federal law (if the Elected Country is Canada, Mexico, or the United States),
“Insurance Limits” means the applicable one of the following:
- One Million Canadian Dollars ($1,000,000) (if the Elected Country is Canada),
- Ten Million Mexican Pesos ($10,000,000) (if the Elected Country is Mexico),
- One Million U.S. Dollars ($1,000,000) (if the Elected Country is the United States).
“Insurance Threshold” means the applicable one of the following:
- Ten Thousand Canadian Dollars ($10,000) (if the Elected Country is Canada),
- One Hundred Thousand Mexican Pesos ($100,000) (if the Elected Country is Mexico),
- Ten Thousand U.S. Dollars ($10,000) (if the Elected Country is the United States).
“Intellectual Property Right” means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
“Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.
“Local Currency” means the applicable one of the following:
- U.S. Dollars (if the Elected Country is the United States),
- Canadian Dollars (if the Elected Country is Canada),
- Mexican Pesos (if the Elected Country is Mexico),
“Optional Coverage Plans” means warranties, extended service plans and related offerings, in each case as determined by us, that you offer.
“Order Information” means, with respect to any of Your Products ordered through a Davis-Bailey Site, the order information and shipping information that we provide or make available to you.
“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
“Program Policies” means all policies and program terms provided via Davis-Bailey site.
“Sales Proceeds” means the gross proceeds from any of Your Transactions, including (a) all shipping and handling, gift wrap and other charges; (b) taxes and customs duties to the extent specified in the applicable Tax Policies; and (c) in the case of invoiced orders, any amounts that customers fail to pay to us or our Affiliates on or before the applicable invoice due date.
“DB Marketplace” means the online portal and tools made available by Davis-Bailey to you, for your use in managing your orders, inventory, and presence on a particular Davis-Bailey Site or any other online point of presence from Davis-Bailey.
“Service” means each of the following services: Selling on Davis-Bailey, Davis-Bailey Advertising (including Davis-Bailey Sponsored Products), Davis-Bailey Web Services, and, together in each case with any related services and materials we make available.
“Service Terms” means the service terms applicable to each Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms.
“Technology” means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.
“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
“US Davis-Bailey Site” means that website, the primary home page of which is identified by the URL www.davis-bailey.com, and any successor or replacement of such website.
“Your Materials” means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Davis-Bailey or its Affiliates.
“Your Personnel” means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
“Your Product” means any product or service (including Optional Coverage Plans) that you: (a) have offered through the Selling on Davis-Bailey website; (b) have made available for advertising through the Davis-Bailey Advertising Service, or utilization of Davis-Bailey web services.
“Your Sales Channels” means all sales channels and other means through which you or any of your Affiliates offers products or services, other than physical stores.
“Your Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange.
“Your Trademarks” means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
“Your Transaction” means any sale of Your Product(s) through a Davis-Bailey Site.
DB Marketplace Service Terms
The DB Marketplace Service (“Selling on Davis-Bailey”) is a Service that allows you to offer certain products and services directly on Davis-Bailey Sites.
These DB Marketplace Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on Davis-Bailey. BY REGISTERING FOR OR USING THE SELLING ON DB MARKETPLACE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE DB MARKETPLACE SERVICE TERMS. NOTWITHSTANDING THE PREVIOUS SENTENCE, IF YOU HAVE ENTERED INTO A SEPARATE AGREEMENT THAT PERMITS YOU TO OFFER YOUR PRODUCTS THROUGH A PARTICULAR DAVIS-BAILEY SITE, THEN TO THE EXTENT THAT YOU CONTINUE TO LIST AND SELL YOUR PRODUCTS ON THAT SITE PURSUANT TO SUCH SEPARATE AGREEMENT, TRANSACTIONS OF YOUR PRODUCTS ON THAT DAVIS-BAILEY SITE AND ANY TAX SERVICES WE MAKE AVAILABLE UNDER THAT AGREEMENT ARE GOVERNED BY THE TERMS OF THAT AGREEMENT AND NOT BY THESE SELLING ON DB MARKETPLACE SERVICE TERMS.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide accurate and complete Required Product Information for each product or service that you offer through any Davis-Bailey Site and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on any Davis-Bailey Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on any Davis-Bailey Sites; or provide any URL Marks for use, or request that any URL Marks be used, on any Davis-Bailey Site. If you offer a product for sale on a Davis-Bailey Site that requires a warning under California Health & Safety Code Section 25249.6 (a “Proposition 65 Warning”) you (a) will provide us with such warning in the manner specified in our Program Policies, (b) agree that our display of a Proposition 65 Warning on a product detail page is confirmation of our receipt of that warning, and (c) will only revise or remove a Proposition 65 Warning for a product when the prior warning is no longer legally required. If you are required to hold a special or specific license to sell any item you seek to sell on Davis-Bailey site, you will provide such license if requested and certify that you can legally sell such item as agreeing to this agreement. As an example, Davis-Bailey is not responsible to hold any special licenses for to sell food items as the company selling the item is required to do so.
S-1.2 Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on a particular Davis-Bailey Site, and conduct merchandising and promote Your Products in accordance with the Agreement (including via the Davis-Bailey Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable Davis-Bailey Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Davis-Bailey may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the applicable Davis-Bailey Site. We will also receive all Sales Proceeds on your behalf for each of these transactions and will have exclusive rights to do so, and will remit them to you in accordance with these Selling on Davis-Bailey Service Terms. We may permit certain customers to place invoiced orders for Your Products, in which case remittance of Sales Proceeds may be delayed according to each customer’s invoicing terms. You will accept and fulfill invoiced orders in the same manner as you accept and fulfill non-invoiced orders, except as otherwise provided in this Agreement.
S-1.3 Shipping and Handling Charges. For Your Products ordered by customers on or through a Davis-Bailey Site you will determine the shipping and handling charges subject to our Program Policies and standard functionality (including any category-based shipping and handling charges we determine, such as for products offered by sellers on the Individual selling plan and BMVD Products generally). It is recommended to include shipping and handling in your product amount and offer free shipping or use the default flat rate shipping for ease of transaction when applicable.
S-1.4 Credit Card Fraud and Unpaid Invoices. You will bear the risk of (a) credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with Your Transactions, and (b) late payments or defaults by customers in connection with invoiced orders for Your Products, except, in each case, in connection with Seller-Fulfilled Products that are not fulfilled strictly in accordance with the Order Information and Shipment Information and (c) all other risk of fraud or loss, however Davis-Bailey utilizes the latest fraudulent prevention technology through our credit card processor and also utilizes additional anti-fraud technology for an additional layer of protection to minimize chargebacks and fraudulent charges. We will not be responsible for not accepting payment for an order if it does not pass our security criteria.
S-2 Sale and Fulfillment; Refunds and Returns.
S-2.1 Sale Services. Davis-Bailey Service Terms for each Davis-Bailey Site for which you decide to register or use the Selling on Davis-Bailey Marketplace Service, you will: (a) source, offer, sell and fulfill your Seller-Fulfilled Products, and source and, offer and sell your products, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on the applicable Davis-Bailey Site at the time of the order and be solely responsible for and bear all risk for those activities; (b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and ship each of Your Products on or before its Expected Ship Date; (c) retrieve Order Information at least once each business day; (d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on the applicable Davis-Bailey Site at the time of the applicable order or as may be required under this Agreement; (e) fulfill Your Products throughout the Elected Country (except to the extent prohibited by Law or this Agreement); (f) provide to Davis-Bailey information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions; (h) ensure that you are the seller of each of Your Products; (i) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (j) identify yourself as the seller of each of Your Products on all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product; and (k) not send customers emails confirming orders or fulfillment of Your Products directly. Information for shipping and tracking is to be put in the dashboard and or emailed back to customer service promptly for each order and it will send the customer the information accordingly.
S-2.2 Cancellations, Returns, and Refunds. The Davis-Bailey Refund Policies for the applicable Davis-Bailey Site will apply to Your Products. Subject to Section F-6, for any of Your Products and you will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with this Agreement and the Davis-Bailey Refund Policies for the applicable Davis-Bailey Site, using functionality we enable for your account. Without limiting your obligations, we may in our sole discretion accept, calculate, and process cancellations, returns, refunds, and adjustments for the benefit of customers. You will route any payments to customers in connection with Your Transactions through Davis-Bailey via our ability to debit your account or charge your credit card on file accordingly. We will make any payments to customers in the manner we determine, and you will reimburse us for all amounts we pay plus applicable fees and charges. You need to create your own refund and return policy on your dashboard. Davis-Bailey will charge $5.00 to process each refund that you request on each order.
S-3 Problems with Your Products.
S-3.1 Delivery Errors and Nonconformities; Recalls. You are responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by our failure to make available to you Order Information as it was received by us. You are also responsible for any non-conformity or defect in, any public or private recall of, or safety alert of any of Your Products or other products provided in connection with Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls, or safety alerts of Your Products or other products provided in connection with Your Products.
S-3.2 Chargebacks. If we inform you that we have received or initiated a claim from a chargeback from a product that you sold on a particular Davis-Bailey Site or other dispute from a sale, concerning one of Your Transactions, you will have 30 days to appeal the decision of the claim. If we find that a claim, chargeback, or dispute is your responsibility, you (a) will not take recourse against the customer, and (b) are responsible for reimbursing us in accordance with the Service Fee Payments section of this Agreement for the amount paid by the customer (including taxes and shipping and any other handling charges or fees, and all other fees and expenses associated with the original transaction (such as credit card, bank, payment processing, re-presentment, or penalty fees) and any related chargebacks or refunds, to the extent payable by us. Regardless, we will withhold, charge your credit card, or debit your account the amount of the chargeback plus any applicable fees until the matter is resolved.
You will pay us: (a) the applicable referral, listing, and commission fees; (b) any applicable Variable Closing Fee; (c) the non-refundable Selling on Davis-Bailey Subscription Fee in advance each month if applicable; and (d) any other applicable fees described in this Agreement (including any applicable Program Policies). “DB Marketplace Subscription Fee” means the fee specified as such on the Selling on Davis-Bailey Fee Schedule for the applicable Davis-Bailey Site at the time such fee is payable. With respect to each of Your Transactions: (i) “Sales Proceeds” has the meaning set out in this Agreement; (ii) “Variable Closing Fee” means the applicable fee, if any, as specified on the Variable Closing Fee Schedule for the applicable Davis-Bailey Site; and (iii) “Referral Fee” means the applicable fee based on the Sales Proceeds from Your Transaction through the applicable Amazon Site specified on the Selling on Davis-Bailey Fee Schedule for that Davis-Bailey Site at the time of Your Transaction, based on the categorization by Davis-Bailey of the type of product that is the subject of Your Transaction.
S-5 Remittance of Sales Proceeds & Refunds.
Except as otherwise stated in this Agreement, we will remit to you your available balance on a bi-weekly (14 day) (or at our option, more frequent) basis, which may vary for each Elected Country. For each remittance, your available balance is equal to any Sales Proceeds not previously remitted to you as of the applicable Remittance Calculation Date (which you will accept as payment in full for Your Transactions), less any: (a) the Referral Fees; (b) the applicable Variable Closing Fee; (c) any Selling on Davis-Bailey or DB Marketplace Subscription Fees; (d) any other applicable fees described in this Agreement (including any applicable Program Policies); (e) any amounts we require you to maintain in your account balance pursuant to this Agreement (including payments withheld pursuant to Section 2 of the General Terms, Section S-1.4, and applicable Program Policies); and (f) any taxes that Davis-Bailey automatically calculates, collects and remits to a tax authority according to applicable law, as specified in the Tax Policies if applicable.
We may establish a reserve on your account based on our assessment of risks to Davis-Bailey or third parties posed by your actions or performance, and we may modify the amount of the reserve from time to time at our sole discretion.
When you either initially provide or later change Your Bank Account information, the Remittance Calculation Date may be deferred by up to 14 days. If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us (or our Affiliate), we will refund the amount of product plus tax provided however you will be charged the Refund Administration Fee for each of Your Products refunded; We will remit any amounts to be refunded by us pursuant to this subsection from time to time together with the next remittance to be made by us to you. “Refund Administration Fee”means the applicable fee described on the Fee Schedule for the applicable Davis-Bailey Site.
Net Sales Proceeds from non-invoiced orders will be credited to your available balance when they are received by us or our Affiliates. Sales Proceeds from invoiced orders will be credited to your available balance.
S-6 Davis-Bailey Website Services.
Davis-Bailey has the right to determine, the design, content, functionality, availability and appropriateness of its websites, selection, and any product or listing on DB Marketplace, and all aspects of each Service, including your use of the same. Davis-Bailey may assign any of these rights or delegate any of its responsibilities.
S-7 Continuing Guarantees
Guarantees. We require the following continuing guarantees from you.
S-7.1 Pesticides. If any of Your Products is a “pesticide” being offered or sold in the United States or other product regulated under the US Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) or its implementing regulations, then you provide to us the following continuing guaranty that: (a) you are a resident of the United States; and (b) with respect to each such product, the pesticides and other FIFRA regulated products comprising each sale, shipment, or other delivery made previously or hereafter are: (i) lawfully registered with the US Environmental Protection Agency at the time of sale, shipment, or delivery, or fully qualified for a specific exemption from the FIFRA registration requirements at the time of sale, shipment, or delivery, (ii) compliant with all requirements of FIFRA and its implementing regulations at the time of sale, shipment, or delivery, and (iii) provided by you in the original, unbroken packaging.
Selling on Davis-Bailey Definitions
“Davis-Bailey Refund Policies” means the return and refund policies published on the applicable Davis-Bailey Site and applicable to products and services offered via that Davis-Bailey Site specifically. Each marketplace and product may have different policies and will be stated as such.
“BMVD” means any book, magazine or other publication, sound recording, video recording, and/or other media product in any format, including any subscription, in each case excluding any software product, computer game, and/or video game.
“Excluded Offer” means any discount, rebate, promotional offer, or other term of offer and/or sale that you: (a) have attempted to make available through a particular Davis-Bailey Site but that we do not honor or support (but only until such time as we honor or support the same on such Davis-Bailey Site); or (b) make available solely to third parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers), or (ii) if the Elected Country is Canada, Mexico, or the United States, have affirmatively elected and opted-in to participate in your or one of your Affiliates’ membership-based customer loyalty or customer incentive programs.
“Expected Ship Date” means, with respect to any of Your Products, either: (a) the end of the shipping availability period (which begins as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant inventory/product data feed for Your Product; or (b) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that Davis-Bailey designates as requiring shipment within two (2) business days, two (2) business days after the date on which the relevant order is placed by the customer.
“Media Product” means any book, magazine or other publication, sound recording, video recording, software product, computer game, videogame, or other media product in any format, including any related subscription, offered through a Davis-Bailey Site.
“Purchase Price” means the total amount payable or paid for Your Product (including taxes and shipping and handling charges only to the extent specified in the applicable Tax Policies).
“Remittance Calculation Date” is the date that is two (2) business days prior to the date of remittance (the “Remittance Calculation Date”).
“Required Product Information” means, with respect to each of Your Products in connection with a particular Davis-Bailey Site, the following (except to the extent expressly not required under the applicable Program Policies): (a) description, including as applicable, location-specific availability and options, scheduling guidelines and service cancellation policies; (b) SKU and UPC/EAN/JAN numbers, and other identifying information as Davis-Bailey may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed by Davis-Bailey from time to time); (d) categorization within each Davis-Bailey product category and browse structure as prescribed by Davis-Bailey from time to time; (e) digitized image that accurately depicts only Your Product, complies with all Davis-Bailey image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) shipping and handling charge (in accordance with our standard functionality); (h) any text, disclaimers, warnings, notices, labels, warranties, or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising, or sale of Your Product; (i) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers (and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products; and invoices and other documentation demonstrating the safety and authenticity of Your Products).
“Seller-Fulfilled Products” means any of Your Products that are not fulfilled using the Fulfillment by Davis-Bailey.
“Shipment Information” means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
“Street Date” means the date(s), if any, specified by the manufacturer, distributor, and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers.
“URL Marks” means any Trademark, or any other logo, name, phrase, identifier, or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com).
“Your Transaction” is defined in the General Terms of this Agreement; however, as used in these Selling on Davis-Bailey Service Terms, it means any and all such transactions through Selling on Davis-Bailey only.
P-1 Payments Processing Agency Appointment
For non-invoiced orders, you authorize Davis-Bailey, LLC. to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying Davis-Bailey and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with Davis-Bailey Affiliates. For invoiced orders, you authorize: (a) Davis-Bailey, LLC. to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, and receiving and holding Sales Proceeds on your behalf; and (b) Davis-Bailey, LLC. to act as your agent for purposes of remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying Davis-Bailey and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with Davis-Bailey. The applicable Davis-Bailey Payments Agents provide the services described in these Transaction Processing Service Terms and the related services described in Sections S-1.4, S-2.2, S-5, and F-8.3 of the Agreement (collectively, the “Transaction Processing Services”).
When a buyer instructs us to pay you, you agree that the buyer authorizes and orders us to commit the buyer’s payment (less any applicable fees or other amounts we may collect under this Agreement) to you. You agree that buyers satisfy their obligations to you for Your Transactions when we receive the Sales Proceeds. We will remit funds to you in accordance with this Agreement. If for any reason you can not fulfill the order, you will notify Davis-Bailey immediately so that we can refund the customer right away. You will be subject to the refund fee. If we have already made payment to you for an order that you notify us that you can not fulfill, we will debit your account and/or charge your credit card plus any fees accordingly. You will be responsible for the entire charge and/or hold a future payment to cover the transaction charges.
Subject to Section 2 of the General Terms of this Agreement, the applicable Davis-Bailey will remit funds to you in accordance with Section S-5 of the Agreement and these Transaction Processing Service Terms. Each applicable Davis-Bailey Payments Agent’s obligation to remit funds collected or received by it or otherwise credited to your available balance in connection with Your Transactions is limited to funds in your available balance that have become available in accordance with this Agreement less amounts owed to Davis-Bailey and any taxes that Davis-Bailey automatically calculates, collects and remits to a tax authority according to applicable law, as specified in the Tax Policies, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. Without limiting Davis-Bailey’s rights to collect any amounts you owe, the applicable Davis-Bailey’s Payments Agent’s receipt of Sales Proceeds or crediting of Sales Proceeds to your available balance discharges your obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds received or credited equal or exceed the fees and other amounts you owe and the Sales Proceeds are applied to the payment of those fees and amounts.
P-3 Your Funds
Your Sales Proceeds will be held in an account with the applicable Davis-Bailey payments Agent (a “Seller Account”) and will represent an unsecured claim against that Davis-Bailey Agent. Your Sales Proceeds are not insured by the Federal Deposit Insurance Corporation, nor do you have any right or entitlement to collect Sales Proceeds directly from any customer. Prior to disbursing funds to you, a Davis-Bailey Agent may combine Sales Proceeds held with the funds of other users of the Services, invest them, or use them for other purposes permitted by applicable Laws. You will not receive interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, a Davis-Bailey Agent will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds.
We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or in the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change. The Davis-Bailey Privacy notice applies to transactions processed by Davis-Bailey, LLC.
P-5 Dormant Accounts
If there is no activity (as determined by us) in connection with your Seller Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Seller Account open and maintaining the Sales Proceeds in your Seller Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds in your Seller Account to your state of residency, as determined by us based on the information in your Seller Account. If we are unable to determine your state of residency or your Seller Account is associated with a foreign country, your funds may be sent to the State of Delaware.