Mediafiche BUYER AND SELLER Agreement

These Mediafiche Buyer and Seller Agreement (the "Agreement") is between Mediafiche Services LLC (“Mediafiche,” “we,” “us,” or “our”) and the Buyer or Seller entity registering for a Mediafiche Account (“Customer”, “you” or “your”). 

 

1.0 PURPOSE OF AGREEMENT. 

 

This Agreement governs your access to, use of, and transactions made through Mediafiche. “Mediafiche” enables registered Mediafiche customers to purchase products and services for Mediafiche purposes and to access and use a set of features, services, software, and applications specifically intended for Mediafiche customers. We may make available to you, through Mediafiche, certain services or products that are subject to additional terms and conditions, and if you use such services or purchase such advertising, those terms and conditions (the “Feature Terms”) will also apply to you. Advertising opportunities made available through Mediafiche may be designed for, and only appropriate for, specialized uses; accordingly, you may only use them as intended by, and in compliance with all instructions provided by, the publisher. Finally, certain policies accessible through Mediafiche apply to your and your users’ use of and access to Mediafiche. These “Policies” include the Mediafiche Pricing Policy and the Mediafiche Privacy Policy. This Agreement incorporates by reference the Feature Terms and the Policies.

 

2.0 ELIGIBILITY; ACCOUNT SECURITY.

 

By creating a Mediafiche Account, you represent that (i) the individual acting on behalf of the Customer has the authority to bind the Customer, (ii) the Customer has all requisite right, power, and authority to enter into, perform its obligations under, and grant the rights and authorizations in the Agreement, and (iii) the Customer is an Eligible Entity. “Eligible Entities” include all types of Mediafichees (for example, LLCs, LLPs, corporations, partnerships, sole proprietorships, and PLLCs), all types of governmental entities (federal, state, local, and quasi-governmental entities), and all types of non-profit organizations (including 501(c) organizations, 527 organizations, and similar tax-exempt organizations). Individual consumers should use Mediafiche.com. Upon completion of your registration, a Mediafiche account will be created for your organization. You may authorize others to create a “User Account” associated with your Mediafiche Account. You are responsible for all activities that occur under your Mediafiche Account and any associated User Accounts, and must ensure that your Users comply with this Agreement. You are responsible for maintaining the security of the passwords associated with your Mediafiche Account and User Accounts; if you believe an unauthorized person has access to your Mediafiche Account, or an associated User Account, you must contact us immediately and change any compromised passwords.

 

3.0 DISCLAIMER. 

 

UNLESS OTHERWISE SPECIFIED IN WRITING, ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES MADE AVAILABLE TO YOU BY MEDIAFICHE ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MEDIAFICHE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO SUCH INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, AND UNLESS OTHERWISE SPECIFIED IN WRITING, MEDIAFICHE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS IT SELLS AND THE SERVICES AND INFORMATION IT PROVIDES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

 

 

4.0 INDEMNIFICATION. 

 

You will defend, indemnify, and hold harmless Mediafiche and its affiliates, and their respective directors, officers, employees, representatives, contractors, and agents, from and against any loss, damage, judgment, settlement, expense, interest, and any other liability (including reasonable attorneys' fees and costs) related to or arising out of any third party allegation, claim, lawsuit, or proceeding (a "Claim") to the extent such Claim is based on: (a) any breach of the Agreement, (b) any unlawful, improper or negligent use by anyone of any product sold or service provided to you under the Agreement, (c) any dispute between you and your Users, or (d) your gross negligence or willful misconduct. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.

 

5.0 LIMITATIONS OF LIABILITY.

 

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL MEDIAFICHE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, THAT RESULT FROM YOUR PURCHASE OF ANY PRODUCTS OR USE OF ANY SERVICES, EVEN IF MEDIAFICHE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, MEDIAFICHE'S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT OR SERVICE THAT GIVES RISE TO THE LIABILITY.

 

6.0 CUSTOMER INFORMATION, PRIVACY, CONFIDENTIALITY. 

 

6.1 Customer Information. We require you to provide information about you and your Users to access and use Mediafiche, and you may need to provide supplemental information to use or purchase some Mediafiche products or services. You will ensure that all information that you provide to us is at all times accurate and complete. We may share information you provide (for example, your organization’s name, addresses, Taxpayer Identification Number) with others in your organization and third parties to confirm the accuracy of such information and your eligibility to use Mediafiche or certain services (for example, to confirm you hold a valid license, certification, or credential where required). To enable us to improve our services, including by making available additional product selection or Mediafiche pricing, we may share specific order information about the products or services you purchase through your Mediafiche Account with the suppliers who provide such products or services. For example, for certain transactions, Mediafiche may share your organization’s name or credentials, shipping address, shipment date, quantity or other relevant information. 

 

6.2 Privacy. Except as disclosed in this Agreement, our use of your information is governed by the terms of the Mediafiche Privacy Policy. Please review the Privacy Policy to understand our practices with respect to your information. Please note that all information about Users and User Accounts associated with a Mediafiche Account may be shared with your organization.

 

6.3 Confidentiality. In connection with your use of Mediafiche, we may share with you information which is identified as confidential or that should reasonably be considered confidential (“Confidential Information”). You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You may use Confidential Information only in connection with your use of Mediafiche. You will not disclose Confidential Information during the term of this Agreement or at any time during the 5-year period following the termination of the Agreement, unless required by law. This applies to all Confidential Information in your possession, regardless of when or where you receive it.

 

 

7.0 GOVERNING LAW, DISPUTES, GOVERNMENTAL ENTITIES.

 

7.1 Governing Law. The laws of the State of Georgia, without reference to conflict of law rules, as well as the Federal Arbitration Act and federal arbitration law govern the Agreement and any dispute that might arise between you and us that pertains to Mediafiche or this Agreement. The United Nations Convention for the International Sale of Goods does not apply to the Agreement.

 

7.2 Disputes. Any dispute or claim relating in any way to Mediafiche or this Agreement will be resolved by binding arbitration. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages). You may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. We and you 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 we each waive any right to a jury trial. We and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

7.3 Public Sector Entities. If you are a public sector entity and precluded by law from agreeing to any of the provisions of Section 8 as set forth above, then any disputes with you will be governed by the substantive laws of the sovereign under whose laws you were formed and the venue for any such dispute will be the venue required by the laws of such sovereign. Similarly, if the laws of such sovereign would result in other provisions in this Agreement being deemed unlawful, void or for any reason unenforceable against you, those provisions will not apply to you and will be deemed severable from this Agreement. All other provisions in the Agreement remain in full force and effect.

 

8.0 THIRD-PARTY OFFERINGS.

 

Parties other than Mediafiche operate stores, provide services or software, or sell product lines through Mediafiche. In addition, we provide links to the sites of affiliated companies and certain other Mediafichees. If you purchase any of the products or services offered by these Mediafichees or individuals, you are purchasing directly from those third parties, not from Mediafiche. We are not responsible for examining or evaluating, and we do not warrant, the offerings of any of these Mediafichees or individuals (including the content of their sites). Mediafiche does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.

 

9.0 SELLING POLICIES AND SELLER CODE OF CONDUCT

 

All sellers are expected to adhere to the following policies when listing products on Mediafiche. Seller offenses and prohibited content can result in suspension of your Mediafiche account.

 

9.1 Seller Code of Conduct. This policy requires that sellers act fairly and honestly on Mediafiche to ensure a safe buying and selling experience. All sellers must:

 

• Provide accurate information to Mediafiche and our customers at all times 
• Act fairly and not misuse Mediafiche’s features or services 
• Not attempt to damage or abuse another Seller, their listings or ratings 
• Not attempt to influence customers’ ratings, feedback, and reviews 
• Not send unsolicited or inappropriate communications 
• Not contact customers except through Buyer-Seller Messaging 
• Not attempt to circumvent the Mediafiche sales process 
• Not operate more than one selling account on Mediafiche without a legitimate business need 

 

Violating the Code of Conduct or any other Mediafiche policies may result in actions against your account, such as cancellation of listings, suspension or forfeiture of payments, and removal of selling privileges. More details about these policies are below.

 

 

9.2 Accurate Information. You must provide accurate information to Mediafiche and our customers, and update the information if it changes. For example, this means that you must use a business name that accurately identifies your business and list your products in the correct category.

 

9.3 Acting Fairly. You must act fairly and lawfully and may not misuse any service provided by Mediafiche. Examples of unfair activities include:

 

• Providing misleading or inappropriate information to Mediafiche or our customers, such as by creating multiple detail pages for the same product or posting offensive product images 
• Manipulating sales rank (such as by accepting fake orders or orders that you have paid for) or making claims about sales rank in product titles or descriptions 
• Attempting to increase the price of a product after an order is confirmed 
• Artificially inflating web traffic (using bots or paying for clicks, for example) 
• Attempting to damage another Seller, their listings or ratings 
• Allowing other people to act on your behalf in a way that violates Mediafiche’s policies or your agreement with Mediafiche

 

9.4 Ratings, Feedback, and Reviews. You may not attempt to influence or inflate customers’ ratings, feedback, and reviews. You may request feedback and reviews from your own customers in a neutral manner, but may not:

 

• Pay for or offer an incentive (such as coupons or free products) in exchange for providing or removing feedback or reviews 
• Ask customers to write only positive reviews or ask them to remove or change a review 
• Solicit reviews only from customers who had a positive experience 
• Review your own products or a competitors’ products 

 

9.5 Communications. You may not send unsolicited or inappropriate messages. All communications to customers must be sent through Buyer-Seller Messaging and be necessary for fulfilling the order or providing customer services. Marketing communications are prohibited.

 

9.6 Customer Information. If you receive customer information such as addresses or phone numbers to fulfill orders, you may use that information only to fulfill orders and must delete it after the order has been processed. You may not use customer information to contact customers (except through Buyer-Seller Messaging) or share it with any third-party.

 

9.7 Circumventing the Sales Process. You may not attempt to circumvent the Mediafiche sales process or divert Mediafiche customers to another website. This means that you may not provide links or messages that prompt users to visit any external website or complete a transaction elsewhere. 

 

9.8 Multiple Selling Accounts on Mediafiche. You may only maintain one Seller Central account for each region in which you sell unless you have a legitimate business need to open a second account and all of your accounts are in good standing. If any of your accounts are not in good standing, we may deactivate all of your selling accounts until all accounts are in good standing. Examples of a legitimate business justification include:

 

• You own multiple brands and maintain separate businesses for each 
• You manufacture products for two distinct and separate companies 
• You are recruited for an Mediafiche program that requires separate accounts 

 

9.9 Filing Infringement Notices as an Agent or Brand Protection Agency. Mediafiche understands that many brands may choose to have brand protection agencies or agents report intellectual property infringement on their behalf and accepts submissions from authorized agents. However, Mediafiche does not permit individuals with active selling accounts to file infringement notices as an agent of a brand when the filing of those notices could benefit their own selling account (through removing competing listings, for example). Any sellers filing notices as an agent to benefit their own status as a seller may have their selling account terminated.

 

 

 

10.0 MODIFICATIONS. 

 

We may, at any time in our discretion, change the Agreement by posting such a change on Mediafiche or by notifying your account administrators. YOUR CONTINUED USE OF MEDIAFICHE AFTER WE CHANGE THE AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES, YOU MAY CANCEL YOUR MEDIAFICHE ACCOUNT OR REFRAIN FROM USING THE MEDIAFICHE SERVICES IMPLICATED BY SUCH CHANGES.

 

11.0 ENTIRE AGREEMENT. 

 

The Agreement constitutes the exclusive and complete agreement between us and you. We will not be bound by any term, condition, obligation, or other provision which is different from or in addition to the provisions of the Agreement or which may be in any order, receipt, acceptance, confirmation, correspondence or other document, including informational forms we complete, sign or otherwise provide to you for your convenience.

 

12.0 TERM; TERMINATION. 

 

This Agreement takes effect when you create a Mediafiche Account and continues in effect until you or we terminate it. We may terminate the Agreement by providing notice to your administrators. We reserve the right, in our sole discretion, and with or without notice unless required by applicable law, to refuse service; remove or edit content; modify, suspend or discontinue the availability of any features, products, or services; terminate your right to use some or all of the Mediafiche services; and/or cancel orders. Mediafiche may choose to charge, modify, or stop charging a fee for any service in its sole discretion. You may terminate the Agreement by giving us notice and closing your Mediafiche Account and each User Account. Upon termination, all rights and obligations under the Agreement automatically terminate except for rights of action occurring prior to termination, payment obligations, and Sections 1, 4, 5, 6, 7.3, 8, 10, 11, 12, 14, 15.

 

13.0 COPYRIGHTS; TRADEMARKS; PATENTS. 

 

Use of Mediafiche does not give you the right to frame, use or reproduce any of our copyrighted material, trademarks, service marks, or other proprietary rights or material, or to use any of our patents, except as expressly permitted in writing by Mediafiche. Please see the Mediafiche Frequently Asked Questions (FAQs)  for further detail on Mediafiche owned or licensed copyrights, trademarks, patents, as well as how to address concerns about the use of your intellectual property rights by third parties.

 

14.0 LICENSE; SOFTWARE. 

 

The following Mediafiche Software Terms and License apply to your access and use of Mediafiche and all features and software (including any updates or upgrades to the software) and any related documentation we make available to you in connection with Mediafiche (the “Mediafiche Software”). Subject to your compliance with the Agreement and your payment of any applicable fees, Mediafiche or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use Mediafiche and Mediafiche Software. You may not use data mining, robots, or similar data gathering and extraction tools in connection with Mediafiche, nor may you download or copy Mediafiche information, including any collection of product listings, descriptions, reviews, or prices without our consent or for the benefit of another merchant. The following terms apply to your use of Mediafiche Software. 

 

14.1. Use of the Mediafiche Software. You may use Mediafiche Software solely for purposes of enabling you to use Mediafiche, as permitted by the Agreement. You may not incorporate any portion of the Mediafiche Software into other programs or compile any portion of it in combination with other programs, or otherwise reproduce, duplicate, copy (except to exercise rights granted in this section), modify, exploit, create derivative works of, distribute, sell, resell, assign any rights to, or license the Mediafiche Software in whole or in part (including any features of Mediafiche). All software used in Mediafiche is the property of Mediafiche or its software suppliers and is protected by U.S. and international copyright Laws. You may not make any derivative use of Mediafiche without the express written consent of Mediafiche. 

 

14.2. Use of Third Party Services. When you use the Mediafiche Software, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile software provider. Your use of these third party services may be subject to the separate policies, terms of use, and fees of these third parties.

 

14.3. No Reverse Engineering. You may not reverse engineer, decompile or disassemble, tamper with, or bypass any security associated with the Mediafiche Software, whether in whole or in part.

 

14.4. Updates. We may offer automatic or manual updates to the Mediafiche Software at any time and without notice to you.

 

14.5. Government End Users. If you are a U.S. Government end user, we are licensing the Mediafiche Software to you as a "Commercial Off-the-Shelf Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Mediafiche Software are the same as the rights we grant to all others under this Agreement.

 

14.6. Reserved Rights, Termination. All rights not expressly granted to you in the Agreement are reserved and retained by Mediafiche or its licensors, suppliers, publishers, rights holders, or other content providers. The licenses granted by Mediafiche terminate if you do not comply with the Agreement.

 

14.7. Conflicts. In the event of any conflict between the Agreement and any other Mediafiche or third-party terms applicable to any portion of Mediafiche Software, such as open-source license terms or specific product feature restrictions that are conveyed to you in the feature experience, such other terms will control as to that portion of the Mediafiche Software and to the extent of the conflict.

 

15.0 MISCELLANEOUS. 

 

15.1. Suggestions. If you make any suggestions about Mediafiche or the features (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.

 

15.2. Assignment. Except in connection with a reorganization, merger, sale, or transfer of substantially all of your assets (in which cases you must promptly provide written notice following assignment), you may not assign the Agreement without our prior written consent. Subject to that restriction, the Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and permitted assigns. 

 

15.3. Severability. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.

 

15.4. Waiver. Our failure to enforce your strict performance of any provisions of this Agreement will not constitute a waiver of our right to enforce such provisions or any other provision of this Agreement subsequently.

 

15.5. Conflicts. In the event of any conflict between the Agreement and the Policies, the Agreement will prevail. In the event of any conflict between the Agreement and the Feature Terms, the applicable Feature Terms will control. 

 

15.6. Construction. The word "including" will be interpreted without limitation when used in this Agreement.

 

 

15.7. Notices. You consent to receive communications from us electronically, including through e-mails, text messages, in-app push notices, notices and messages posted on Mediafiche or in our Message Center and other communications made available to you on a desktop or mobile device. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You may retain copies of all of these communications for your records. We may also send you notices at the address provided when registering your Mediafiche Account, which you agree is a proper and valid address for any legal or contractual purpose. If you are sending Mediafiche a legal or contractual notice, you must comply with our notice procedures available here. 

 

Last Updated: August 21, 2020