SELLER TERMS AND CONDITIONS

 

HPX SELLER TERMS & CONDITIONS

This HPX Seller Terms and Conditions Agreement (“Agreement”) provides the Standard Terms and Conditions for HPX (“Terms and Conditions”) that control Seller access to and use of any HPX Platforms. This agreement constitutes an agreement between Seller, or the business Seller represents, and HPX. By selecting “I Agree” below, registering for or using any HPX Platforms, Seller agrees to be bound by the terms of this agreement, subject to change only by HPX in the manner set out below.

Any Person, Seller, Applicant, or business represented by any Person, Seller, or Applicant that seeks to, or does, sell goods or services (“Products”) on any HPX Platform must accept the terms of this Agreement. All terms are subject to change only by HPX, and no Seller has any right to alter or amend them at any time. Absent an express, written and signed agreement to the contrary, this Agreement constitutes the terms and conditions agreed to by any Person, Seller, or Applicant, using, or applying to use, any HPX platform for the purposes of distributing Products.

By clicking “I agree” below, registering to use, applying to use, or using any HPX Platform Seller represents that they are aware of and agree to all DISCLAIMERS OF WARRANTIES listed herein at Section 

I. Definitions

The following definitions apply to the terms as used in this Agreement:

(i) “HPX” refers to Health Products Xchange LLC. 

(ii) “Seller” or “Sellers” means any person or any business represented by any person, and any Affiliates of the person or business represented by the person, offering Product(s) or applying to offer Product(s) for sale or donating Product(s) on any HPX platform. Seller, as used in this agreement, includes all Applicants.

(iii) “Applicant”  or “Applicants” is defined as any person, or any business represented by any person, applying to offer Product(s) on any HPX platform. An Applicant is deemed a Seller under this Agreement. 

(iv) “Buyer” or “Buyers” means any Person, entity, or group that uses any HPX Platform for the purposes of purchasing or receiving Product(s) from a Seller. Buyer includes all persons, entities, or groups procuring or purchasing products, attempting to procure or purchase products, or browsing Product(s) on HPX Platforms for potential procurement or purchase. Buyer is not limited to persons, entities, or groups who have completed a purchase, and includes any users browsing any HPX Platforms for purposes such as purchasing Product(s), browsing Product(s), comparing Product(s) pricing, surveying Seller inventory, receiving Qualifying Donated Products, or any other similar purpose. 

(v) “Recall” means a method of removing or correcting products that are in violation of the Law, Regulations, or applicable standards issued by the Food and Drug Administration (“FDA”).

(vi) “Laws” means all applicable laws, regulations, legal requirements, and generally accepted industry standards and self-regulatory principles.

(vii) “Master Product Dictionary” means

(viii) “Product,” “Products” and “Product(s)” means any goods, services, or any other material offered by a Seller on any HPX Platforms in return for consideration from Buyer(s). 

(vii) “Product Content” means any content related to any Product(s) posted for sale on HPX Platforms. Product Content includes, but is not limited to, information regarding the Product(s) proper use or disposal, information detailing Product(s) features or content, or any other content that is related to the Product(s). 

(viii) “Exact Matched Items” means the product for sale or requested for purchase is the exact product listed in the Product Master Dictionary; including manufacturer, brand, Product Dictionary number, description, packaging and units of measure.

(ix) “HPX Platform(s)” refers to HPXconnect.com and any other websites, apps, or other internet-based based platform owned or operated by HPX or any of its Affiliates.

(x)  “HPX Transaction Fee” represents a specified percentage of the gross sales proceeds from all sales of Product(s) on any HPX Platform (excluding Qualifying Donated Products). The HPX Transaction Fee is exclusive of all freight, shipping or other handling charges incurred by Seller but includes all service and/or other charges from each Product sale through any HPX Platform.

(xi) “Cancel Rate” means the percentage of Buyers’ valid orders that Seller cancels due to lack of inventory or for any other reason. 

(xii) “Online Sales Channels” refers to electronic commerce channels allowing Sellers and Buyers to engage in transactions for goods of services directly via the internet without use of a web browser. 

(xiii) “Claims” means all claims, requests, accusations, allegations, assertions, complaints, petitions, demands, suits, actions, proceedings, causes of action, and judgments. 

(xiv) 

(xv) “Privacy and Security Requirements” refers to: (i) any legal obligations (federal, state, local, and international laws, rules and regulations, and governmental requirements) currently in effect and as that become effective during the term of this Agreement, relating in any way to the privacy, confidentiality, integrity, availability, or security of HPX Information; (ii) all industry standards concerning privacy, data protection, confidentiality, integrity, availability, or security of information, including without limitation, the Payment Card Industry Data Security Standard, and any other similar standards; (iii) all policies, statements, or notices that are provided to Seller in writing; and (iv) all additional controls required by HPX, including secure coding standards. 

(xvi) "Buyer Data" means any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Buyer for processing by or through Seller or HPX Platforms or Services, or (b) collected, downloaded or otherwise received by Seller or HPX Platforms or Services for Buyer pursuant to this Agreement or any Order or at the written request or instruction of Buyer. For the avoidance of doubt, Buyer Data includes all personally identifiable information provided by Buyer.

 

(xvii) “Seller Data” means any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Seller for processing by or through Buyer or HPX Platforms or Services, or (b) collected, downloaded or otherwise received by Buyer or HPX Platforms or Services for Seller pursuant to this Agreement or any Order or at the written request or instruction of Seller. For the avoidance of doubt, Seller Data includes all personally identifiable information provided by Buyer.

 

(xviii) “Derivative Data” means compilations of multiple Buyer or Seller datapoints, which HPX has taken reasonable steps to ensure no identification of any individual, entity, or any transactions can be identified. Derivative Data also includes all data, models, analyses, benchmarks, forecasts, and other information HPX develops, or has developed, based on Seller of Buyer Data, alone or in combination with the data source. 

 

(xix) “Intellectual Property Rights” or “IP Rights” means any and all HPX Platforms, secure code, object code, documentation (whether electronic, printed, or otherwise), working papers, non-client data, programs, diagrams, models, drawings, flow charts, and research (whether in tangible or intangible form or in written or machine-readable form), and all techniques, processes, inventions, knowledge, know-how, trade secrets (whether in tangible or intangible form or in written or machine-readable form), developed by HPX or any of its Affiliates or subsidiaries. 

(xx) “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. 

(xxi)  “Transaction Information” means all the activity related to buying or selling between members to conduct commerce. 

(xxii) “Less than case” means Product(s) being sold in a quantity less than that which makes up a standard case of such Product(s). 

(xxiii) “Qualified Donated Product(s)” means any Product(s) listed at zero cost or sale price.

II. Enrollment

Any Seller, or any business represented by any Seller must register with HPX before using any HPX Platform. Use of any HPX Platform is limited to parties lawfully permitted to enter into contracts under the applicable law. By clicking “I agree” below, registering to use, or using any HPX Platform, Seller represents that they are not incapacitated, and have full legal authority to enter into this Agreement. Any Seller registering with the HPX on behalf of any entity or business must have the requisite right, power, and authority to enter into this Agreement on behalf of the entity or business. By clicking “I agree” below, registering to use, or using any HPX Platform, Seller represents that Seller has full authority to enter this Agreement on behalf of the entity or business Seller purports to represent. By clicking “I agree” below, registering to access or use the HPX Platform, or by offering, or applying to offer, any Product(s) for sale on HPX, Seller agrees to be bound by all terms and conditions of this Agreement.  

III. Credentialed Seller

Seller has the opportunity to become a CREDENTIALED SELLER by fulfilling the following criteria:

  • Seller has been in continuous operation for at least 3 years

  • Seller has the capability to capture and document all chain of custody transactions associated with products listed on HPX.com and can provide that documentation within 2 business days upon request of HPX.com

  • Seller agrees to be subject to annual site visits by HPX.com to ensure compliance associated with requirements to be a Credentialed Seller.

  • Seller agrees to be subject to digital chain of custody audits on a monthly basis

  • Seller maintains a photo library of verified OEM items and have a receiving process that screens for non-compliant products

IV. HPX Reserves the Right to Alter or Amend the Terms and Conditions

HPX reserves the right to amend or alter these Terms and Conditions at any time in its sole discretion. Changes to the Agreement may be made without notice to Seller. HPX will generally post any such changes on the “My Profile” or “Terms and Conditions” subpages of HPXconnect.com or on any other HPX Platform. All changes will be effective immediately upon posting. The Seller is solely responsible for reviewing postings of any applicable changes and informing themselves of amendments or alterations to this Agreement. Only refraining from use of all HPX Platforms constitutes a rejection of the altered or amended terms to this Agreement. Seller should refer regularly to all HPX Platforms, and the “My Profile” and “Terms and Conditions” subpages of HPXconnect.com, as applicable, to review the current Agreement and to be sure that the items Seller offers can be offered via the applicable service or HPX Platform. SELLER’S CONTINUED USE OF THE HPX PLATFORMS AFTER HPX'S POSTING OF ANY CHANGES, AMENDMENTS, OR ALTERATIONS CONSTITUTES SELLER’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.

V.  Seller Agrees to Pay HPX Transaction Fees

Seller hereby agrees to pay the HPX Transaction Fee, equal to a percentage of the gross sales proceeds from all sales of Product(s) on any HPX Platform (excluding Qualifying Donated Products), as set forth …

VI. Prohibited Products and Removal of Listings

(a) Prohibited Products. Seller hereby agrees to refrain from listing, marketing, promoting, offering for sale, or selling any Product(s) through HPXconnect.com, or any HPX Platform, in violation of any term or provision of this Agreement. The Seller is solely responsible for reviewing the list of Prohibited Products set forth below.  The Prohibited Products list is subject to alteration or amendment at any time at the sole discretion of HPX. HPX has the sole discretion to remove listings it deems to be prohibited. HPX retains authority to prohibit any Product at any time, with or without reason.

The list of Prohibited Products includes, but is not limited to, the following:

  1. Recalled Products. Seller is prohibited from listing any Product under recall. It is the Sellers responsibility to verify that Products being listed are not under recall and to be fully informed of the the FDA recall lookup. Seller agrees to be solely responsible, in law and equity, for any damages resulting from Seller’s sale of recalled Products using any HPX Platform. 

 

  1. Defective Products. Seller is prohibited from listing, and must remove all listings containing, any Product(s) discovered to contain a defect or that may be subject to potential litigation or that are currently the subject to litigation.

 

  1. Non-Complying Products. All Product(s) offered by Seller on any HPX Platforms must comply with all relevant Laws and regulations, including FDA Requirements.

 

  1. Unauthentic, Used or Counterfeit Products. Seller may only sell Products through HPX Platforms that are new and authentic. Seller shall maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. Seller may not (and warrants and represents that Seller will not) list any Product(s) or Product-related content on any HPX Platform that is counterfeit, illegal, stolen, or fraudulent, or infringes any third party’s intellectual property rights (including any patent, copyright, trademark, service mark, trade dress, trade name, look, moral right, trade secret and any other intellectual property right), or that Seller otherwise does not have the right to sell or post. All information Seller provides about a Product must be accurate, current and complete and shall not be misleading, deceptive, or fraudulent in any manner whatsoever. 

Seller is solely responsible for ensuring Seller’s compliance with the list of prohibited Products. If Seller discovers they have listed or are selling a prohibited product, Seller must immediately halt the shipment of such Product(s), or de-list such Product(s). Failure to do so in a timely manner may result in Seller’s removal from any HPX Platforms. 

(b) Removal of Listings. HPX retains the right to cause the removal of any listings in its sole discretion in response to notices of alleged copyright infringement, trademark misappropriation, or other intellectual property claims. If HPX requests that Seller remove Product(s) or Product Content from the HPX Platforms, Seller must make commercially reasonable efforts to remove the Product(s) or Product Content within twenty-four (24) hours of such request such that the Product(s) and related Product Content no longer appear on any HPX Platforms. Seller agrees not to list or include such removed Product(s) or Product Content on any HPX Platforms at any time unless their inclusion is specifically and expressly authorized by HPX in writing. 

VII. Agreement to Abide by Law

Seller hereby represents and warrants it has complied with all applicable Laws, including, but not limited to, Laws related to marketing, packaging, consumer and product safety, product testing, labeling, pricing and packaging regarding any Product(s) Seller posts to any HPX platform. Seller is fully responsible for remaining informed of governing laws. By clicking “I agree” below, applying to use, or using any HPX platform, Seller agrees to fully abide by any applicable Law in all use of any HPX Platforms. Any liability resulting from the unlawful conduct of Seller is the sole responsibility of Seller. 

VIII. Seller’s Product Warranty

(a) Product Warranty. By clicking “I agree” below, registering to use, applying to use, or using any HPX platform, Seller agrees that all Products posted for purchase under this Agreement shall meet all of the following conditions and requirements:

  1. PRODUCT(S) MUST BE NEW AND AUTHENTIC; 

  2. Seller must maintain the require processes and procedures for assuring that Seller’s Product(s) are authentic per the requirements of Section VI subsection (b) of this Agreement, below; 

  3. Product(s) posted must be items in brand-new condition, as determined at the sole discretion of HPX, and must conform to manufacturer specifications; 

  4. Product(s) must bear their original label and be in their original packaging, as sold by the original manufacturer, without any evidence of label tampering or removal, and Product packaging must not be visibly damaged or compromised in any way;

  5. “Less than case” Product shipments must be packaged in new corrugated boxes with the appropriate dunnage to prevent damage;

  6. Product(s) must not be stolen, samples, domestic or foreign counterfeits or obtained from the manufacturer on the basis of false or fraudulent misrepresentations; 

  7. Product(s) must include packaging with verbiage in English, and must not be marked as restricted for sale outside the United States; 

  8. Product(s) effective expiration dates shall be at least three (3) months after their sale on any HPX platform; 

  9. Product(s) must be in Seller’s immediate possession and must be available for immediate shipment when offered for sale when posted on any HPX Platforms; 

  10. Product(s) and Sellers must comply with all applicable Federal, State and local laws, regulations, statutes, codes, acts, ordinances, orders, judgments, decrees, injunctions, rules, permits, licenses, authorizations, directions and requirements, which now or during the term hereof are applicable to Seller governing the storage, handling, transporting and sale of Product(s) offered using any HPX Platforms; 

  11. Product(s) must not have been illegally imported or re-imported into the United States; 

  12. and Product(s) must be identical to Product(s) available through normal distribution channels in the United States. 

(b) Requirements for Assuring Authenticity. In order to ensure that all Products sold on any HPX Platforms are authentic, the Seller is required to maintain physical documentation (either on paper, or electronically) detailing the chain of custody for all transactions the Product(s) underwent prior to Seller taking possession of such Product(s) dating back to either the original manufacturer of record or an authorized distributor of the manufacturer of record. The required documentation includes, but is not limited to, purchase invoices for each transfer of ownership, packing lists for shipment, and any additional information requested by HPX. The physical documentation must contain all of the following:

(i) Manufacturing Product Dictionary number;

(ii) lot number;

(iii) all locations the Product(s) have been shipped from, including names and addresses;

(iv) all previous custodial ownership, including names and addresses;

(v) all destination the Product(s) have been shipped to, including names and addresses;

(vi) the quantity of Product(s) shipped in each transaction that occurred prior to Seller taking possession of the Product(s);

(vi) all invoice numbers and dates; and

(vii) all shipping numbers and dates.

IX. Seller’s Product Handling 

(a) Ordinary Products. Seller shall fully comply with the following procedures. By clicking “I agree” below, registering to use, applying to use, or using any HPX platform, Seller agrees to terms for product handling set forth herein. 

The Seller Shall:

(i)  pay all freight charges associated with delivery of the Product(s) by Seller to Buyer (except for Qualifying Donated Product(s)); 

 (ii)  make all transactions through HPX Platforms. No sales, transfers, exchanges, purchases or transactions of any kind may take place directly between Seller and any individual Buyer (excluding on-site pickup of Qualifying Donated Product(s); 

(iii)  fully comply with all relevant provisions of the Prescription Drug Marketing Act, as amended;

(iv)  provide to HPX upon request and with reasonable notice, true and correct copies of all permits, licenses, and other instruments that are required by law or provide evidence that Seller is duly authorized and permitted to do business in accordance with all applicable governments, departments, commissions, boards, courts, authorities, agencies, officials and officers; and 

(v) Provide HPX with reasonable notice of all insurance policies purchased or renewed by Seller and of any updates to any of Seller’s insurance policies or renewals. 

(b) Qualified Donated Products. All freight charges associated with Qualifying Donated Product(s) from Seller to Buyer are solely the responsibility of the Buyer, unless Seller expressly agrees in writing to assume the responsibility. If Seller expressly agrees in writing to cover Buyer’s freight charges for Qualifying Donated Product(s), the Seller shall be fully responsible for all freight associate with the transaction.  Qualifying Donated Product(s) may be picked up on-site by the Buyer. 

X. Chain of Title

Seller warrants to HPX that it knows with reasonable certainty the complete history of any Product(s) sold using any HPX platform dating back to the original manufacturer. Seller agrees to provide HPX with documentation identifying each sale of any Product(s) that has previously occurred in detail sufficient to establish the chain of title of the product from the original manufacturer as requested by HPX. HPX reserves the right to request information on any Product(s) history at any time, with or without reason. Seller hereby agrees to provide such information regarding the chain of title or custody at the request of HPX or any of its Affiliates. Seller hereby agrees to take all commercially reasonable efforts to ensure Seller is accurately tracking and recording the chain of title for all Product(s) sold on HPX Platforms. 

XI. HPX’s Audit Rights

Seller shall keep accurate and complete books, records and accounts related to all transactions on HPX Platforms. Seller hereby grants HPX, or its duly authorized representative(s), the right to, upon no less than five (5) business days prior written notice, conduct full and independent audits and investigations of all Seller’s information, books, records and accounts reasonably required for HPX to confirm Seller’s compliance with the terms of this Agreement and applicable law, including but not limited to verification of Product authenticity and Product chain of title or custody.  Seller grants HPX the above audit rights for the Term of this Agreement and an additional two years following its termination or expiration. 

XII. Product Identification and HPX Master Product Dictionary

All Product(s) posted on HPXconnect.com or any other HPX Platforms must be matched to the HPX Master Product Dictionary to ensure there is a single instance of how the same Product(s) is identified across all Sellers. Only HPX Master Product Dictionary Product representations, descriptors and attributions will be used to represent or post Product(s) on HPX Platforms. The Seller hereby agrees that any postings on any HPX Platforms must match items in the HPX Master Product Dictionary. 

Sellers may match Products to the HPX Master Product Dictionary in either of the following two ways:

  1. Sellers can manually search for individual products on the HPX Master Product Dictionary that match the items they would like to post utilizing the search functionality on HPXconnect.com. Once a product is found it can be selected for posting.

  2. Sellers can upload a list of products utilizing the templates and file formats that are acceptable to use found on the HPX Platforms. Once Products are uploaded, HPX will search for matching products to quickly identify exact matches in the HPX Master Product Dictionary.  In cases where there is not an exact match, the search functionality may suggest like products that are described similarly. Seller can select an item for posting from the suggested like product only if it is an exact match to the product they are attempting to post.

Only Exact Matched Items are permitted to be posted on HPX.  If an exact match cannot be found in the Master Product Dictionary, then a product review request may be sent by the Seller to HPX. The HPX Product Approval Administrator will then review the Product(s) and determine if they may be approved and added to the Master Product Dictionary. If an item is added to the HPX Master Product Dictionary at the Seller’s request, the Seller will be notified when they are permitted to offer the Product(s) for sale. If the Product(s) are not matched to the Master Product Dictionary or approved by the HPX Product Approval Administrator, the product is prohibited from being posted on any HPX Platforms. 

It is the sole responsibility of Seller to verify the accuracy of the product match or representations prior to posting products on HPX. Products purchased based off inaccurate product representations or incorrect product matching are strictly the responsibility of Seller. Seller agrees to be held fully responsible for any claims arising from failure of their products to constitute Exact Matched Items. 

XIII. Seller Agrees to Abide by Inventory Accuracy Guidelines

Seller agrees to use commercially reasonable efforts to provide an updated inventory quantity every day on all HPX Platforms for those Products where inventory levels have changed since the previous inventory update.  Seller will update inventory quantities at a minimum of once per week to ensure accuracy of quantities presented to Buyers on all HPX Platforms. Seller will maintain inventory to fulfill Customer Orders that result in a Cancel Rate (excluding Customer requested cancellations) of 1.5% or less. Seller is subject to removal from all HPX Platforms at the sole discretion of HPX for failure to maintain such a Cancel Rate. 

XIV. Purchase and Order Processing, Fulfillment, and Shipping 

(a) Order Process. All transactions are between the Seller and the Buyer, and the Seller will be the seller of record. Buyers will place orders (“Orders”) using the HPX Platforms checkout system and HPX will collect all proceeds from such transactions on Seller’s behalf. Seller hereby authorizes HPX, as the Seller’s authorized agent, to accept payment from Buyers for remittance to Seller for the Product(s) sold. When a Buyer pays HPX, it shall be construed as if the Buyer is paying Seller. When a Buyer places an Order using an HPX Platform, the Order is transmitted to Seller. Seller then has the option to accept the order as received, to provisionally modify the Order’s quantity or contents subject to Buyer’s approval, or to reject the Order. Once Seller elects one of these options and notifies HPX, the Buyer will receive an email from HPX notifying them of the Order’s status (accepted, modified, or cancelled). If the Seller has accepted the Order at a lower or different quantity than the Buyer originally placed, the Buyer will have the option to accept or reject the Order. If Buyer has ordered multiple Products from Seller, and Seller can accept the Order for only some of the Product(s), Buyer will have the option to cancel or accept the modified Order. If Buyer fails to respond to email notification regarding Seller’s modification of the Order within twenty-four (24) hours, such failure shall constitute an acceptance of the modified Order. 

(b) Order Confirmation. HPX will electronically transmit Order information to Seller that HPX determines is necessary to fulfill each Order (the “Transaction Information”). Seller should aim to confirm Seller’s receipt of the Transaction Information within two (2) hours of receiving it. Seller is required to respond within twenty-four (24) hours (excluding weekends) confirming the receipt of the Transaction Information.  If Seller does not have the inventory on-hand to completely fulfill the entire Order, Seller shall respond to the Transaction Information by confirming there is not enough inventory on hand to completely fill the Order. Seller must also provide an updated inventory on-hand for the Order and Product(s) which will be communicated to the Buyer by HPX.  If an Order cannot be completely filled, Seller may accept the Order at a lower quantity or with fewer Product(s). The Buyer will then be notified by email and have the option to accept or reject the modified Order, and retains full discretion over whether to accept a modified Order proposed by Seller.   In no case shall the Seller ship any amount of Product(s) that is less than what has been ordered by the Buyer unless the Buyer has accepted the modified Order or failed to timely respond to notification of the modification. 

(c)Order Fulfillment. Once HPX has confirmed an Order to Seller, Seller will be responsible for the full expense and liability required for the fulfillment of the Order, including packaging and shipping products. The Seller agrees to take on sole responsibility of ensuring that the Product packaging complies with HPX requirements for shipments as stated in this Agreement or any HPX shipping guidelines.  If for any reason the Seller cannot fill the entire Order after confirming an Order, Buyer will be promptly notified and the order will be modified / cancelled as appropriate.

 

Title and risk of loss and/or damage to the Ordered Product(s) remains with Seller until delivery to the Buyer.  HPX or HPXconnect.com will not have title to, or be deemed the legal owner of, any Product(s) at any time.  Seller is prohibited from substituting other items for the ordered Product(s) and from including any marketing, promotional materials or any other solicitations with the Ordered Product(s) shipped to Buyer(s). For Buyer Orders that are “Overdue”, HPX, in its sole discretion, may cancel that Order.  An “Overdue” order is defined as being more than five (5) business days beyond the Shipping delivery date provided to the Buyer at time of order confirmation. If such cancellation transpires, then HPX has no duty to compensate Seller for such cancelled Orders.  Seller is solely responsible to manage, monitor and oversee all Orders and confirm all shipments are executed in a timely manner.  

(d) Shipping Options and Process. Seller is responsible for properly specifying shipping options for all Product(s) listed for sale on HPX Platforms. Seller will provide HPX with the shipping, handling and any other charges for each Product required by HPX, separate from the purchase price. Seller will not ship any Product(s) to any region where the sale of such product violates applicable law or any of Seller’s or HPX’s Policies. Seller will be responsible for shipping all Product(s) purchased by Buyers in accordance within the time frame advertised or the processing time specified for such Product(s) by HPX.

 

(e) Shipping Charges. Seller maintains responsibility for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Products, late shipments or mis-delivery. If Seller cannot complete the shipment of any Order within the timeframe specified by Buyer in the Order, Seller shall provide HPX with email notification of such delay and any other relevant information requested by HPX. Seller is solely liable for all costs related to any duplicate or inaccurate shipments based upon Seller retransmission of Order files through any HPX Tool. Seller shall send a shipment confirmation notice to HPX following the shipment of an Order. Packaging for Products may not contain any retailer marketing materials that are not included as standard marketing materials with all of Seller’s Product shipments. Seller hereby agrees to refrain from contacting Buyer directly and communicate with Buyer only indirectly via HPX. 

(f) Burden for Non-Performance of Shipping Obligations. Seller is solely responsible for all liability arising from non-performance, non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment of an Order, other than an incorrect address listed bu Buyer on HPXconnect.com.  The Seller hereby agrees HPX shall not be held liable in manner whatsoever for any damages resulting from issues arising from the delivery of an Order. 

XV. Failure to Deliver or Misdelivery—Buyer Assurance & Responsibility; Seller and HPX Responsibilities

(a) Buyer Assurance. The Buyer is never responsible for payment prior to delivery of the Product(s) ordered in good condition. If issues arise in delivery, including, but not limited to, Product(s) not conforming to the applicable or advertised standards, shipping of damaged or incorrect products, shipping incomplete orders, or delivery delayed beyond three (3) days of the outside window, Buyer retains the right to withhold payment and cancel the Order at Buyer’s sole discretion, provided Buyer properly files a Claim with HPX (see below). Any payments withheld for issues in delivery are solely the burden of the Seller. 

(b) Buyer Responsibility. Reporting of any failure of delivery, misdelivery (delivery of wrong Product(s) or less Product(s) than Buyer ordered), late delivery, or any other similarly shipping related issues is the responsibility of the Buyer. If the Buyer does not receive the correct Order in full, the Buyer must notify HPX within forty-eight (48) hours, by making a Claim. Buyer may then be required by HPX to submit documentation proving failure of delivery, misdelivery, or similar shipping issues. Such documentation may include, but is not limited to requests for pictures, requests for documents, phone interviews, and package tracking information. 

(c) Seller Responsibility. If a Buyer files a claim for non-delivery, misdelivery, or similar shipping issues, the Seller is sole bearer of any financial loss resulting from such a claim such as Buyer’s withholding payment, or money refunded to buyer. It is the sole responsibility of the Seller to ensure complete and satisfactory delivery of complete Orders. 

XV. Cancellations, Returns and Refunds 

  1. Cancellations - Buyer retains the right to cancel an Order only until such time as Buyer sends a final confirmation of an Order to Seller via HPXconnect.com.  

  2. Returns & Refunds - Upon receipt notification from HPX, Buyer must notify HPX within 72 hours if  Buyer claims the Seller has sent the wrong Product(s), the Product(s) are damaged, the Product is non-conforming or defective, or the Product(s) are Prohibited Products as defined in this Agreement.  If such a claim is filed by Buyer and HPX deems a mis-delivery has occurred an appropriate credit will be issued to the Buyer.  Seller retains the rights to ask for products in dispute to be:  destroyed, donated, or returned. 

(c) Refunds. HPX will provide any applicable refunds to the Buyer via the Buyer’s original payment method (e.g., credit or debit card) if possible. 

XVI. Establishment of Buyer Payment Mechanism; Credit Authorizations

To use an HPX Platform, Buyer must provide HPX with an acceptable form of payment as well as valid bank account information for a bank account or bank accounts acceptable by HPX (conditions for acceptance may be modified or discontinued by us at any time without notice). Buyer will only allow authorized users of the account(s) to transact commerce.  Buyer authorizes HPX (and will provide HPX documentation evidencing Buyer authorization upon HPX’s request, including any updated information) to obtain credit reports about Buyer from time to time, to obtain credit authorizations from the issuer of Buyer’s credit source, and to charge Buyer’s accounts for any sums payable by Buyer to HPX (for Product purchases, reimbursement or otherwise). 

As a security measure, HPX may, but is not required to, impose transaction limits on some or all Buyers 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. HPX will not be liable to Buyer: (i) if HPX does not proceed with a transaction or that would exceed any limit established by HPX for a security reason, or (ii) if HPX permits a customer to withdraw from a transaction because an HPX Platform becomes unavailable after a transaction is commenced.

XVIII. HPX’s Payments to Seller

HPX will remit to Seller the total amount it collects from the sale of Seller’s Product(s), less the Transaction Fee and any handling, freight or shipping costs paid by HPX resulting from Seller’s use of any HPX Platforms. Remittance to Seller will be made upon HPX’s having received notice from Buyer that the Product(s) have been delivered in full, on time, and in satisfactory condition and upon HPX reconciling incurred freight expenses. The HPX Transaction Fee is equal to a percentage of the gross sales proceeds from all sales of Product(s) on any HPX Platform (excluding Qualifying Donated Products).

At HPX’s option, all payments to Seller’s bank account will be remitted through an Automated Clearing House system. If HPX concludes that the Seller’s actions in connection with this Agreement result in customer disputes, chargebacks or other claims, then HPX may, in its sole discretion, withhold any payments to be made or that are otherwise due to Seller under this Agreement until the completion of an investigation regarding Seller actions in connection with this Agreement or the sale of any Products on any HPX Platforms is fully resolved. 

If the Buyer claims the Seller has sent the wrong Product(s), the Product(s) are damaged, the Product is non-conforming or defective, or the Product(s) are Prohibited Products as defined in this Agreement, the Buyer will not be charged until satisfactory resolution is reached, to be determined by HPX in its sole discretion. Sellers are responsible for Orders containing the wrong Product(s), damaged Product(s), non-conforming or defective Products, or any non-performance or other mistake or act in connection with the fulfillment of Orders, except to the extent caused by: (a) credit card fraud for which HPX is responsible or (b) our failure to make available to Seller Order Information as it was received by HPX.  

 

For any amounts that we determine Seller owes HPX, HPX may (a) charge Seller Credit Card or any other payment instrument Seller provide to us; (b) offset any amounts that are payable by Seller to us (in reimbursement or otherwise) against any payments we may make to Seller or amounts we may owe Seller; (c) invoice Seller for amounts due to us, in which case Seller will pay the invoiced amounts upon receipt; (d) reverse any credits to Seller Bank Account; or (e) collect payment or reimbursement from Seller by any other lawful means. If we determine that Seller 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 Seller. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in United States dollars, and all payments contemplated by this Agreement will be made in United States dollars

 

XIX. Tax Matters and Policies

(a) Responsibility for Collecting Taxes. Seller acknowledges and agrees that HPX utilizes a third-party service provider(s) (“Providers”) to automatically calculate, collect, and/or remit taxes on Seller’s behalf according to applicable law.  While Providers will use reasonable efforts to ensure that the tax data is current and accurate, Seller acknowledges and agrees that HPX and its Providers do not provide tax advice, and that Seller is solely responsible for determining the applicability and accuracy of any tax data. As a condition of receiving the tax data, Seller agrees to fully and forever waive any Claims against HPX and the Providers arising from Seller’s use of or reliance on such tax data. Seller agrees to comply with all applicable tax policies. All fees and payments payable by Seller to HPX 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 Seller or Buyer will be responsible for paying HPX any of Seller’s or Buyer’s Taxes imposed on such fees and any deduction or withholding required on any payment.  

(b) Payment of Taxes.  Seller is the taxpayer and hereby agrees to comply with all applicable tax Law. Seller shall be solely liable for any tax liabilities, including, without limitation, any penalties or interest. All references to “tax” or “taxes” in this Agreement shall mean all taxes and fees, including without limitation, sales, use and surcharge taxes and all related ancillary taxes and fees, including, without limitation, electronic waste recycling fees. 

(c) Tax Reporting. HPX will provide monthly reporting to Seller of all taxes, if any, collected by HPX on behalf of Seller which shall include the total sale amount, zip code, total tax collected and the combined rate for that zip code. Seller shall promptly notify HPX in writing (which shall be no later than one (1) business day after Seller has knowledge or belief of any incorrectly collected taxes) if it believes HPX has incorrectly collected any taxes. –Says you need to check if you can do this. 

 (d) Tax Must Not Be Included in Purchase Price. Seller shall not include any applicable taxes in the listed purchase price on HPX Platforms. All applicable taxes should be collected and/or paid by Seller or Buyer separate from the Product(s) purchase price. Not sure if this is right.

(e) Nexus. If any governmental authority determines that sales, use or other taxes are owed by HPX or Seller on sales of Products through any HPX Platform, or that Seller has nexus in a state or local jurisdiction, or is otherwise responsible for the collection and remittance or reporting of taxes (and all related penalties and interest) related to the sale of any Products, whether or not as a result of any action or inaction by HPX, Seller (i) agrees that Seller shall solely be responsible for payment of such taxes (and all related penalties and interest) and/or reporting of such taxes, if applicable, (ii) agrees that HPX shall have no liability to Seller or any governmental authority for such taxes or penalties, and (iii) will not seek any reimbursement from HPX for such taxes and related penalties. 

(f) Seller Indemnification in Tax Claims. Seller will indemnify and hold harmless HPX and its Affiliates and their respective officers, directors, employees and agents for any claims, liabilities, losses, fines, costs and expenses (including reasonable attorneys’ fees) arising out of or related to any ruling by any governmental authority that HPX or Retailer has a tax remittance or reporting obligation in any State on account of sales of Products through the HPX Site, whether or not due to any action or inaction by HPX. 

(g) Reimbursement. Seller shall be solely responsible and liable for reimbursing Buyers if HPX calculated tax on the date of purchase, and then on the date the Product is shipped and/or the Buyer is billed, there was no tax applicable to the sale (e.g. if the date of shipment and billing falls on a tax holiday where there is no tax for the sale).

XX. Risk of Fraud

Though HPX will bear the risk of credit card fraud only when occurring in connection with Orders in instances not involving delivery to an address different than that contained in the Transaction Information, Seller will bear all other risk of fraud or loss and all costs related thereto. For all credit card chargebacks for which Seller bears the risk, HPX will offset such chargeback amounts against amounts otherwise owed to Seller or send Seller an invoice. If HPX sends Seller an invoice for the amounts, Seller must pay such invoice within thirty (30) days of receipt. However, notwithstanding the foregoing, HPX will not bear the risk of credit card fraud in connection with any Product that is not shipped by Seller to the shipping address specified in the Transaction Information provided by HPX, and Seller will be responsible for all costs related to such credit card fraud under these circumstances. 

This section deals with the risk of credit card fraud. Review it and make sure those are the terms you want. 

XXI. Pricing Data 

Seller must post all listings on HPX Platform in United States dollars. Seller’s pricing data must be accurate and current at all times. It is solely the responsible of the Seller to update changes in price or inventory. Seller must update any pricing changes and is solely responsible to the Buyer for losses resulting from improper listings of price or inventory. Seller hereby agrees to abide by all applicable Laws and regulations concerning the pricing of its Products. HPX reserves the right to remove any listing deemed to inaccurately portray price or inventory, or violate any relevant pricing regulations. 



XXII. Seller Must Maintain Liability Insurance

Seller, at its own expense, shall maintain insurance throughout the Term of this Agreement as follows: (a) Commercial General Liability.  Commercial General Liability insurance covering product liability and completed operations, bodily injury, death, property damage, personal injury, broad form property damage and contractual liability with limits not less than $2,000,000 per occurrence and $5,000,000 aggregate; and (b) Products Liability. Products Liability not less than $2,000,000 limit per occurrence and $5,000,000 aggregate. Seller shall name HPX as an additional insured on Seller’s insurance policies containing the required coverage. Within thirty (30) days after execution of this Agreement, and promptly following HPX’s request thereafter, Seller shall provide to HPX an insurance certificate indicating the foregoing coverage, issued by an insurance company that is duly licensed and has a minimum A.M. Best rating of A-VII or higher. Seller shall provide HPX with at least thirty (30) days prior written notice of any cancellation, non-renewal, termination or material modification in the insurance policies that cause a failure to meet the minimum insurance requirements.  Seller will provide an updated insurance certificate thirty (30) days prior to the expiration date of the policy initially provided to HPX.  Failure to provide an updated insurance certificate prior to expiration will result in a delisting of all products posted by Seller and a suspension of Seller’s ability to transact business on HPX Platforms until the necessary actions have been taken to provide the updated insurance information. 

 

Further, Seller’s policies shall contain primary and noncontributory wording relating to HPX’s insurance policies, Seller’s policy must (1) name HPX and its affiliates and subsidiaries as additional insureds for the coverage set forth above and (2) furnish certificates of insurance each year no later than the expiration date of the policy term in a form reasonably acceptable to HPX, evidencing that such insurance is in effect and otherwise Seller’s insurance policies upon reasonable request

XXIII. Seller Agrees to Notify HPX of All Investigation or Litigation

Seller shall notify HPX immediately in the event that Seller becomes involved in, or is the subject of, a governmental investigation or becomes involved in litigation regarding any product diversion practices. Seller is further obligated to notify HPX immediately in the event that Seller has knowledge that any entity in its chain of distribution has become involved in, or is the subject of, a governmental investigation or becomes involves in litigation regarding any product diversion practices. Such notification shall be given to HPX immediately upon Seller’s obtaining knowledge of such involvement in governmental investigation or litigation regarding any product diversion practices. 

XXIV. Indemnification

Seller agrees to release, indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) Seller’s actual or alleged breach of any obligations in this Agreement; (b) any of Seller’s alternative sales channels other than HPX Platforms, Seller’s Products (including their offer, sale, performance, and fulfillment), Seller’s promotional materials and Product Content, 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) Seller’s personnel (including any act or omission of Seller’s personnel or any Claim brought or directed by Seller’s personnel); or (d) Seller’s Taxes. Seller must retain counsel in a manner reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect HPX, HPX may take control of the defense at its expense. Seller may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior express, written consent.

XXV. DISCLAIMER OF WARRANTIES, GENERAL RELEASE, LIMITATION OF LIABILITY, LIMITATION ON CONSEQUENTIAL DAMAGES, AND MONETARY CAP FOR DAMAGES

(A) HPX DISCLAIMS ALL WARRANTIES EXPRESS AND IMPLIED

HPX, INCLUDING ALL ITS SITES AND SERVICES, CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE HPX PLATFORMS, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE HPX PLATFORMS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF 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 HPX PLATFORMS 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) HPX IS RELEASED FROM ALL CLAIMS BETWEEN BUYER AND BUYER; BUYER AND SELLER; AND SELLER AND SELLER

BECAUSE HPX IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE BUYERS AND/OR SELLERS, EACH BUYER AND/OR SELLER FULLY RELEASES HPX (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.

(C) LIMITATION OF LIABILITY

HPX WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LAW, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER OR OTHERWISE) TO SELLER OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY SELLER OR SELLER’S 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 HPX HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, HPX’S 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 SELLER TO HPX IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.

(D) NO CONSEQUENTIAL DAMAGES. 

IN NO EVENT SHALL HPX OR ITS AFFILIATES BE LIABLE TO SELLER OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA, (B) EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (C) FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER HPX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

(E) MONETARY DAMAGES CAP 

IN NO EVENT SHALL HPX’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO SELLER OR ANY THIRD PARTY FOR ANY CLAIMS, COSTS, LOSSES, DAMAGES (INCLUDING ANY INDIRECT, SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES), JUDGMENTS, FINES, PENALTIES, PENALTIES, INTEREST, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF ANY INVESTIGATION, DEFENSE, AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY SELLER TO HPX PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. 

(F) SURVIVAL OF LIMITATIONS 

THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

XXVII. Confidentiality and Security

(a) Confidential Information or Transaction Information. During the course of Seller’s use of HPX Platform, Seller may receive information relating to HPX, including but not limited to, HPX Transaction Information, that is not known to the general public ("Confidential Information"). Seller agrees that: (a) all Confidential Information will remain the exclusive property of HPX; (b) Seller will use Confidential Information only as is reasonably necessary for your participation in the HPX Platforms; (c) Seller will not otherwise disclose Confidential Information to any other Person, Seller, or Company except as required by law; (d) Seller must make all reasonable efforts to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) Seller shall retain Confidential Information only for so long as its use is necessary for participation in the HPX Platforms or to fulfill Seller statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as it is no longer required for the fulfillment of statutory obligations. Seller shall not issue any press release or make any public statement related to the HPX Platforms, or use HPX’s name, likeness, trademarks, or logo, in any way (including in promotional material) without our advance expressed, written permission, and Seller may not misrepresent or embellish the relationship between us in any way. The foregoing sentence does not restrict Seller’s right to share Confidential Information with a governmental entity that has jurisdiction over Seller, provided that Seller limits the disclosure to the minimum necessary and explicitly indicates the confidential nature of the shared information to the governmental entity. Seller acknowledges that it is solely responsible for the confidentiality and security of HPX Transaction Information in its possession, custody, or control, or for which Seller is otherwise responsible. 

(b) Security and Certification. Seller shall comply will all applicable Privacy and Security Requirements, either stated in this Agreement or communicated separately at any point in the future to Seller. Seller is responsible for staying informed of any updates to Privacy and Security Requirements and should monitor postings to HPX Platforms regularly to assure compliance. Seller shall maintain a level of security certification or assessment consistent with the best practices conducted by a qualified third-party reasonably acceptable to HPX. Such certifications shall be provided to HPX upon its request. 

Seller shall treat as confidential, and may not disclose to any third party, any information or communication from, on behalf of, or with HPX regarding Seller’s compliance with this Agreement. Any information marked “Highly Sensitive” or “Sensitive” or defined as “Confidential” by the Agreement, or information that Seller should reasonably believe to be confidential. 

XXVIII. Force Majeure

HPX is not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond its reasonable control.

XXIX. Relationship of Parties

Subject to the Transaction Processing Service Terms (if the Elected Country for a Service is the United States), Seller and HPX are independent contractors, and nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between Seller and HPX. Seller has no authority to make or accept any offers or representations on behalf of HPX. This Agreement does not create an exclusive relationship between Seller and HPX. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of HPX, the Seller, and Buyers. As between Seller and HPX, Seller agrees to be solely responsible for all obligations associated with the use of any third-party service or feature that Seller permits HPX to use on Seller’s behalf, including compliance with any applicable terms of use. Seller may not make any statement, whether on Seller’s site or otherwise, that contradicts anything in this Section.

XXX. Seller’s Use of Transaction Information; Customer Data

(a) Ownership of Transaction Information. HPX owns (and Seller hereby assigns to HPX) all Transaction Information and all other information relating to Orders or Products, including but not limited to information that is entered into any HPX Platform, information that is created as a result of a transaction, and ratings and reviews provided by Buyers. All such information is subject to the HPX Privacy Policy, this Agreement, and any additional privacy guidelines posted by HPX. The Seller retains no rights, aside from those herein above, to any Transaction Information provided to Seller by HPX.  Seller and Buyer hereby grant HPX a worldwide, perpetual, irrevocable, and royalty-free license to use any and all Transaction Information for the purposes of preparing Aggregated Data.

(b) Seller’s Use of Transaction Information. Seller agrees not to, and to cause Seller’s Affiliates not to, directly or indirectly do any of the following: (a) disclose any HPX Transaction Information (except that Seller may disclose that information only to the extent necessary for Seller to perform Seller’s obligations under this Agreement. Seller must use reasonable diligence to ensure that every recipient uses the Transaction Information only for that purpose and complies with the restrictions applicable to Seller related to that information); (b) use any HPX Transaction Information for any marketing or promotional purposes whatsoever,  or for conducting customer surveys, or otherwise in any way inconsistent with HPX’s or Seller’s privacy policies or applicable Law; (c) contact a Person or Buyer that has ordered Seller’s Product(s) with the intent to collect any amount in connection therewith or to influence that Person or Buyer to make an alternative or additional transactions; (d) disparage HPX or its Affiliates, or HPX’s respective products or services or any Buyer; (e) target communications of any kind on the basis of the intended recipient being an HPX Platform user; or (f) use any information about HPX Buyers gained through the HPX Platforms to directly solicit such HPX Buyers through any other sales channels.. In addition, Seller may only use tools and methods that HPX designates to communicate with HPX Platform users regarding Seller’s Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Orders for Seller’s Products. The terms of this Section do not prevent Seller from using other information that Seller may acquire without reference to HPX Transaction Information for any purpose, even if that information is identical to HPX Transaction Information, provided that Seller does not target communications on the basis of the intended recipient being an HPX Platform user. Seller hereby agrees to only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of this Agreement, the HPX Privacy Policy and any other applicable Privacy Policies (including the Seller Site Privacy Policy), and applicable Law. 

(c) HPX Rights to Buyer and Seller Data and Derivative Data. Buyer and Seller grant HPX a worldwide, perpetual, irrevocable, royalty-free license to use Buyer and Seller Data to perform and improve any and all HPX Platforms provided by HPX, its Affiliates, its subsidiaries, or any other Person authorized to act on HPX’s behalf. HPX also retains a worldwide, perpetual, irrevocable, royalty-free license to use Buyer and Seller Data for the preparation of use of Derivative Data. HPX further owns, and will own, all right, title and interest in and to all Intellectual Property, whether now existing or hereafter arising, embodied in or associated with Derivative Data, excluding Transaction Information, Product data, and Seller’s Marks.

(d) Buyer and Seller Data. Buyer Data always remains owned and is the property of the Buyer. Seller Data shall always remain owned by and is the property of Seller. Buyer or Seller Data that pertains to actual Products and their respective attributes and has (i) been de-identified to its source; (ii) had all PHI removed according to HIPAA standards; and (iii) has been merged  into the Vendor Large Data Array will become Seller Data. Subject to this Agreement which alone addresses ownership of Transaction Information and Product Data, as between Seller or Buyer and HPX, User will own all Buyer Data. HPX is under no obligation to inquire regarding the ownership of such data or about the User’s right to dispose of such data. HPX is not responsible for any misuse of data by User. 

XXXI. Suggestions and Other Information.

If Seller or any of Seller’s Affiliates elects to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to HPX in connection with or related to any HPX Platform or Services (including any related Technology), HPX will be permitted 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 HPX’s systems and Buyers, and to ensure the integrity and operation of HPX’s business and systems, HPX may access and disclose any information HPX considers necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. If HPX make suggestions on using the Services, Seller is responsible for any actions Seller takes based on HPX’s suggestions. HPX is not responsible for any liability that arises between Seller and a provider of Services, whether or not such provider of Services were recommended by HPX. 

XXXII. Password Security

Any password we provide to Seller shall be used only during the specified Term to access HPX Platforms to use the Services, to electronically accept Orders, and to review Seller’s completed transactions. Seller is solely responsible for maintaining the security of Seller’s password. Seller may not disclose Seller’s password to any third party (other than third parties authorized by Seller to use Seller’s account in accordance with this Agreement) and is solely responsible for any use of or action taken under Seller’s password. If Seller’s password is compromised, Seller must immediately change Seller’s password. 

 

XXXIII. Prohibition on Exporting

Seller shall 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.

XXXIV. Term and Termination or Suspension of Agreement; Survival 

HPX reserves the right to terminate this Agreement at any time in its sole discretion without notice to Seller on the HPX Platform or otherwise. 

The term of this Agreement begins on the date Seller completes registration for use of any HPX Platform and continues until terminated by HPX or Seller as provided below. Seller may at any time terminate Seller’s use of any HPX Platforms immediately on notice to HPX via mail, email, or similar means. HPX may terminate Seller’s use of any HPX Platforms or may terminate this Agreement for any reason at any time in its sole discretion. HPX may suspend or terminate Seller use of any HPX Platforms effective immediately if HPX determines that (a) Seller has materially breached the Agreement and failed to cure within seven (7) days of a cure notice unless Seller’s breach exposes HPX to liability toward a third party, in which case HPX may reduce, or waive, the aforementioned cure period at our reasonable discretion; (b) Seller’s account has been, or HPX’s controls identify that Seller’s account may be used for deceptive, fraudulent, or illegal activity; or (c) Seller’s use of the HPX Platforms has harmed, or HPX identifies that it might harm, other sellers, buyers, or any interest of HPX. HPX will promptly notify Seller 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 Seller to circumvent HPX’s safeguards. On termination of this Agreement, all related rights and obligations under this Agreement immediately terminate, except that (d) Seller will remain responsible for performing all of Seller’s obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination.

XXXV. Choice of Law; Forum Selection Clauses

(a) Choice of Law. This Agreement is governed by and will be construed in accordance with the laws of the Commonwealth of Delaware without regard to its or any other State’s principles of conflicts of law. 

(b) Appropriate Forum. Seller agrees to exclusive jurisdiction of the federal district court located in Richmond, Virginia at 701 E Broad St. and waives any jurisdictional, venue or inconvenient forum (forum non conveniens) objections to such courts. Ask a real lawyer about this, but since this is a federal court, they should be able to adequately apply Delaware law while allowing you to defend any cases here (or somewhere else if you want) with your own lawyers. Usually you are allowed to choose to have one state’s laws apply in the courts of another state so you can do this, but your lawyer will no better as to whether or not its something you should do. 

XXXVI. Severability

In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions. 

XXXVII. Ratings and Reviews 

Seller hereby agrees that HPX may use mechanisms that rate or review, or allow Buyers to rate or review, Seller Products and Seller performance as a Seller and HPX may make these ratings publicly available. HPX is not liable whatsoever to Seller for the content or accuracy of any ratings or reviews. Seller will have no ownership interest in, or license to use, any rating or reviews posted on the HPX Platforms.

Any ratings or reviews posted on any HPX Platforms are subject to removal at the sole discretion of HPX. The Seller retains no rights in any ratings and/or reviews posted on HPX Platforms. HPX may remove ratings and reviews that are deemed to be false, misleading, inaccurate or for any other reason determined by HPX to warrant removal. 

XXXVIII. Standards Governing Seller’s Services and Responsiveness; Adjustments

Sellers shall strive to meet the following service levels: 

(a) Seller will maintain an On-Time Ship Standard of at least 99%. 

 

(b) Seller will accurately ship the correct Product(s) to the correct Buyer at a rate of no less than 99.5% of all Products shipped. 

(c) Seller will maintain inventory to fulfill Customer Orders that result in a Cancel Rate (excluding Customer requested cancellations) of 1.5% or less; 

(d) Returns due to damaged or defective Products shall not exceed 3% of Sales Proceeds for Products sold on the HPX Platforms. 

(e) Ninety-day Seller ratings shall, on average, remain above a seller rating of 90% positive. 

(f) The number of customer service complaints received by HPX shall not exceed 0.5% of Orders. 

 

 (l) Ninety percent (90%) of emails received from Buyers shall be answered by Seller within twenty-four (24) hours of receipt. 

(m) HPX may, at its discretion, work with a Seller to remedy any failure of a service level or performance issue under this Agreement; provided, however, that no waiver by HPX of any provision of this Agreement may be deemed to constitute a waiver of any provision of this Agreement, whether or not similar, nor may the waiver constitute a continuing waiver by HPX unless otherwise expressly so provided in writing. 

This is the section where you guys say things are repetitive and need review. That’s because I have not edited this part at all from what was posted in the original document since it needed to be changed drastically to apply to you. I just now went through and took out terms that are repetitive but can’t really do anything else with it until you determine what exact terms will apply. 

XXXIX. Arbitration Agreement

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. HPX and Seller both consent that any dispute with HPX or any of its Affiliates or any Claim relating in any way to this Agreement or Seller’s use of any HPX Platforms will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) Seller may assert claims in a small claims court that is a Governing Court if Seller’s claims qualify and (ii) Seller or HPX may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving their respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. No judge or jury presides over 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 Seller may begin an arbitration proceeding, Seller must send a letter requesting arbitration and describing Seller’s Claim to HPX’s registered agent, CSC Services of Nevada, Inc., 112 N Curry Street, Carson City, NV 89703. 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. Seller may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location. HPX and Seller each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. HPX and Seller each waive any right to a jury trial if, for any reason, a court proceeding is commenced. –Need to talk to real lawyer about what exactly to put here. You very likely want an arbitration clause, but he will know more about how to craft it the right way, I just know most major companies have them and that they are almost always enforced and arbitration is much more favorable and less costly. 

XL. Entire Agreement

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.

XLI. Assignment

Seller may not assign this Agreement, by operation of law or otherwise, without the prior express, written consent of HPX. Any attempt to assign or otherwise transfer in violation of this section is void; provided, however, that upon notice to HPX, Seller may assign or transfer this Agreement, in whole or in part, to any of Seller’s Affiliates so long as Seller remains fully liable for Seller’s obligations that arose prior to the effective date of the assignment or transfer under this Agreement. Seller agrees that HPX may assign or transfer its rights and/or obligations under this Agreement: (a) in connection with a merger, consolidation, acquisition or sale of all or substantially all of HPX’s 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 HPX 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/assignees. HPX may perform any of its obligations or exercise any of its rights under this Agreement through one or more of its Affiliates. HPX retains the right to immediately halt any of Seller’s Transactions, prevent or restrict access to any HPX Platforms or take any other action restricting access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by applicable policies. Because HPX is not Seller’s 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), HPX will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction related to this Agreement or the use of any HPX Platforms.

XLII.  Seller’s Licensing Maintenance

The Seller agrees to at all times maintain the proper licensing for listing products for sale on any HPX Platform. The Seller agrees to be held solely responsible for any damages resulting from Seller’s failure to maintain proper licenses. It is the sole responsibility of the Seller to stay updated and informed on any new licensing Laws or regulations and to be in compliance with such Laws or regulations. Failure of the Seller to comply with proper licensing protocols is grounds for dismissal from HPX Platforms. Seller hereby agree to indemnify and hold harmless HPX and any of its Affiliates for any damages resulting from any licensing issues that may arise from Seller’s use of HPX platforms. The Seller agrees to notify HPX of any and all changes in its licensing agreements pertaining to any Product(s) sold by Seller on any HPX Platform. 

Listing of non-licensed or improperly licensed Product(s) by Seller is strictly prohibited and may result in Seller’s removal from HPX Platforms. 

 

XLIII. Confidentiality of the Seller

Seller hereby agrees not to reveal their identity to, make contact with or market to Buyers that have purchased Products from the Seller who are not part of the Seller’s private network. Seller agrees that packaging, purchase documentation or anything physically exchanged by Seller to Buyer will exclude all identifying references including, but not limited to, the Seller’s identity, Trademarks and identifying logos, and Seller’s contact or similar information. Seller agrees they will not directly contact, market or promote Products of Services to Buyers who have purchased from Seller on any HPX Platform outside of their private network. Seller agrees that, if contacted by a Buyer that has purchased a Product(s) from Seller on any HPX Platforms seeking or requesting to purchase directly from Seller, Seller will refuse to sell to such Buyer directly, and instead agrees to sell to them using an HPX Platform. In the event that Seller becomes aware of a Buyer or another Seller violating the terms of this Agreement, including a Buyer requesting to purchase directly from the Seller, the Seller shall immediately report the violation to HPX. 

 

XLIV. Third-Party Obligations of Seller

Any dealings or contracts Seller has with any third-party are between only the Seller and that third-party, and HPX is not a party, and is not liable under such dealings, agreements or contracts. Seller represents and warrants that its use of HPX Platforms does not violate any obligations (including, but not limited to, contractual or fiduciary duties) to any third-parties. 

 

XLV. Intellectual Property Rights to HPX Platforms

HPX retains title and all other ownership and proprietary rights in and to its Intellectual Property (“IP”) Rights and any and all derivative works based on IP Rights. The ownership and IP Rights include any and all rights in and to patents, trademarks, copyrights, and trade secret rights. The IP Rights are not “work made for hire” within the meaning of U.S. Copyright Act 17 U.S.C. § 101. Seller and Buyer shall not copy or reproduce all or any part of the IP Rights, whether electronically, mechanically, or otherwise, in any form including, but not limited to, the copying of data, presentation, style, or organization. 

 

XLVI. Seller’s Obligation to Verify Identity or Records Upon Request

HPX may at any time require Seller to provide any financial, business or personal information HPX requests to verify Seller’s identity. Seller hereby authorizes HPX to obtain from time to time consumer credit reports to establish or update your account in our records in the event of a dispute relating to this Agreement or Seller’s use of HPX Products. Seller agrees to notify HPX promptly upon any changes to such information. 

XLVIII. Miscellaneous 

(a) Responsibility for Affiliates and Agents. Seller is responsible for any actions taken by Seller’s Affiliates, agents, or other third parties on Seller’s behalf in connection with or related to this Agreement. 

 (b) Assignment. Seller may not assign this Agreement or any of Seller’s rights or obligations hereunder without HPX’s prior express, written consent. 

(c) Publicity. Seller shall not use the name, likeness, logo, trademarks or trade names of HPX or any of its Affiliates or otherwise, directly or indirectly, refer to HPX of any of its Affiliates in any publicity release, promotional material, customer or partner list, advertising, marketing or business-generating effort, whether written or oral, without the prior express, written consent of HPX. 

(d) Representations. 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 Seller is 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.