MERCHANT TERMS AND CONDITIONS
THESE MERCHANT TERMS AND CONDITIONS, together with any Purchase Orders (defined in Section 1 below) issued by Sezzle Holdings V, LLC (“Ruumur”), located at 251 N 1st Ave, Minneapolis, MN 55401, and all Merchant Policies (defined in Section 2 below) and such other written policies and specifications as Ruumur may provide from time to time (collectively, the “Agreement”), shall govern and control all matters arising from or relating to Ruumur’s relationship with any person or entity (each a “Merchant”) who may offer for sale or sell any goods or services (“Goods”) to Ruumur. Ruumur and Merchant are each referred to in this Agreement individually as a “party” and together as the “parties”.
BY REGISTERING FOR OR USING RUUMUR’S MERCHANT SITE (DEFINED IN SECTION 2 BELOW), ACCEPTING A PURCHASE ORDER FROM RUUMUR, OR SHIPPING GOODS PURSUANT TO A RUUMUR PURCHASE ORDER, MERCHANT ACCEPTS AND AGREES TO ALL TERMS AND CONDITIONS OF THE AGREEMENT. ANY PERSON OR ENTITY WHO REGISTERS FOR OR ACCESSES RUUMUR’S SITE ON MERCHANT’S BEHALF HEREBY REPRESENTS AND WARRANTS THAT THEY ARE EXPRESSLY AUTHORIZED TO BIND MERCHANT TO THIS AGREEMENT.
1. RUUMUR OBLIGATIONS.
a) Ruumur may purchase Goods from Merchant and provide related services necessary to offer the Goods for sale (the “Offer”). All aspects of the Offer or any other sale of the Goods to end customers, including but not limited to pricing, shall be within Ruumur’s exclusive control. Any purchase of Goods by Ruumur will be made by displaying in the Ruumur portal provided to Merchant describing the specific Goods, quantities and pricing intended for purchase (each, a “Purchase Order”). The Merchant will accept the Purchase Order(s), either individually or in bulk, and such acceptance shall act as the acceptance of the terms hereunder. No other additional or conflicting terms contained on any other communication from a Merchant shall have any effect and the Purchase Order is explicitly conditioned on the terms hereunder.
b) Ruumur is not obligated to purchase any Goods from Merchant unless and until Ruumur issues a Purchase Order to Merchant. Nothing in the Agreement or otherwise obligates Ruumur to any minimum purchase or future purchase of any Goods from Merchant.
c) Ruumur shall provide a Website to receive and accept orders for Goods, notify such orders to the Merchant and provide a platform for Merchant to upload all relevant Product information for the sale of the Goods by via Ruumur’s Website. Each order placed with the Merchant shall constitute a binding obligation on the Merchant to supply the Goods to the relevant Customer in accordance with the terms of the order and this Agreement;
d) Ruumur shall be entitled to amend the background, positioning, image order or otherwise crop or amend the images to be used on Ruumur’s Website.
2. MERCHANT OBLIGATIONS.
a) Inventory. Merchant will hold a sufficient quantity of the Goods identified on Ruumur’s website (“Merchant Site”) or otherwise communicated to Ruumur by Merchant, as required to ship all Goods immediately upon receipt of a Purchase Order from Ruumur. Merchant shall not post a quantity of Goods for sale to the Merchant Site or otherwise approve a quantity of Goods for sale unless it has an equivalent quantity of goods in its possession, in the same style and stock keeping unit (“SKU”) as the goods posted to the Merchant Site or otherwise communicated to Ruumur.
b) Shipment of Goods. Timely delivery of the Goods is of the essence. For any Goods that the Merchant is drop shipping, Merchant shall provide shipment notification and tracking information to Ruumur at time of shipment. If Merchant does not timely ship the Goods, unless otherwise agreed to in writing by Ruumur, and in addition to all other remedies available under this Agreement or applicable law, Ruumur may cancel the Purchase Order and has no obligation to Merchant to pay for the cancelled Goods or any of Merchant’s costs associated therewith. Ruumur reserves the right to charge a late shipment fee equivalent of up to ten percent of the order value for Goods shipped later than 2 business days after the acceptance of the Purchase Order by Merchant.
c) Packaging and Shipping. Goods shall be packed and secured in such a manner as to reach the destination in good condition under normal conditions of transport.
d) Excess or Substitute Items. Merchant will fulfill and ship only those Goods in the quantities specified on each Purchase Order. Unless agreed to in writing by Merchant and Ruumur, no additional or substitute items will be shipped. Ruumur may, in its sole discretion, return or dispose of at Merchant’s expense any additional or substitute items that are shipped by Merchant without Ruumur’s prior express written consent.
e) Ruumur Product Reviews. Merchant shall not, directly or indirectly, make or cause to be made any reviews of its Goods on Ruumur’s website or Ruumur social media sites.
f) Publicity. Merchant will not issue a press release or publicity relating to Ruumur, this Agreement, or any Merchant events without Ruumur’s prior written consent. Additionally, Merchant will not list Ruumur or use Ruumur’s name, logo, or other intellectual property in any brochures, advertisements, client lists, or other promotional materials without Ruumur’s prior written consent. Notwithstanding the foregoing, if Merchant currently has an event live on Ruumur, Merchant may promote that event, reference Ruumur (without use of Ruumur’s logo or other intellectual property), and provide a link to the event on its social channels, subject to the other terms of this Agreement.
g) Merchant Policies. Merchant agrees to, is bound by, and will follow all terms, policies, and other specifications that may be published by Ruumur and made available to Merchant through the Merchant Site (collectively, “Merchant Policies”). Merchant acknowledges and agrees that Ruumur may revise the Merchant Policies (including by posting new policies) from time to time at Ruumur’s sole discretion. Any revisions to the Merchant Policies will become effective thirty (30) days after such revisions are posted to the Merchant Site unless a different effective date is provided in the revised policy. If any revision to the Merchant Policies is unacceptable to Merchant, Merchant’s sole recourse and remedy is to terminate the Agreement as provided herein.
h) Customer/Shopper Support. Merchant agrees to provide the necessary support to resolve any disputes with an end customer. Time is of the essence in providing this support. Merchant is liable for any acts or omissions related to its support which result in a liability being created for Merchant.
i) Merchant agrees, represents and warrants that the Goods are authentic, genuine and not in violation of any third party’s intellectual property. In the event that any of the Goods are deemed by Ruumur to not be in compliance with this clause, Ruumur may, in addition to its other legal remedies, require that Merchant accept the return of the Goods at Merchant’s sole cost and expense.
3. TITLE AND RISK OF LOSS.
Title to the Goods shall not transfer to Ruumur until the Goods are received and accepted by the designated customer. Notwithstanding any agreement by Ruumur to pay freight or other transportation charges, the risk of loss or damage to Goods in transit shall be borne by Merchant. Merchant will insure the Goods against all risks of loss prior to delivery and promptly pursue all shipping carrier claims relating to loss or damage occurring while the Goods are in transit.
4. INVOICING AND PAYMENT.
Unless different payment terms have been approved and documented in a writing signed by Ruumur, Ruumur will pay Merchant all undisputed amounts for Goods sold to Ruumur within sixty (60) days after title to the Goods has transferred to Ruumur or Ruumur’s receipt of an invoice from Merchant, whichever is later. Merchant will also provide Ruumur with any requested tax information, including Forms W-9 or W- 8BEN. During the term of this Agreement and for one year after its termination, Ruumur may request and Merchant will provide copies of records reasonably necessary to verify any transactions or activities related to this Agreement. If Merchant does not respond within a reasonable period after receiving a records request, Ruumur may deduct any amount reasonably believed to be due from amounts Ruumur pays to Merchant. Merchant acknowledges and agrees that Ruumur is a reseller of the Goods and is not subject to any sales tax on its purchase of Goods from the Merchant. Ruumur shall upon request provide to the Merchant the appropriate documentation establishing the sales tax exempt status of its purchases.
5. CHARGEBACK POLICY.
Merchant acknowledges that each item ordered through a Purchase Order represents a Ruumur customer order. If Merchant is unable to fulfill a Purchase Order completely or unable to ship items within the agreed upon shipping timeframe, Ruumur may issue a chargeback to Merchant, in addition to any other remedy identified in this Agreement or otherwise available to Ruumur.
6. TERM AND TERMINATION.
a) Term. This Agreement shall commence on the date accepted by Merchant sign-up (“Effective Date”) and, unless otherwise agreed upon in writing, shall continue for one (1) year from the Effective Date (“Initial Term”). This Agreement shall renew automatically for additional one (1) year periods (each a “Renewal Term”) following the expiration of the Initial Term and any subsequent Renewal Term unless i) either party has provided thirty (30) days’ advance written notice to the other party of its intent not to renew; or ii) as otherwise stated in a writing signed by the parties. The combination of the Initial Term and any Renewal Term shall be the “Term”.
b) Termination. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party. Either Party may terminate for cause in the event of any one or more of the following events: (a) a Party fails to make a payment of any amount due and payable pursuant to this Agreement and such failure remains unremedied for a period of fifteen (15) Business Days after the non defaulting Party gives written notice thereof; (b) such Party fails to perform, satisfy or comply with any material obligation, condition, covenant or other provision contained in this Agreement and such failure remains unremedied for a period of thirty (30) days after the other Party gives written notice thereof specifying the nature of such failure in reasonable detail or immediately where such a cure can not be effectuated in a timely manner or there is continued risk to Ruumur; (c) any representation or warranty by such Party contained in this Agreement fails to be true and correct in any material respect as of the date when made or at any time during the Term; (d) a Bankruptcy of the other party, liquidation or insolvency event; and/or (e) there are excessive chargebacks or losses due to acts or omissions of the Merchant.
7. LICENSE.
Merchant represents and warrants that it owns and is authorized (whether by license or otherwise) to promote, market, and sell the Goods to Ruumur for advertising and resale to Ruumur’s customers. Merchant hereby grants to Ruumur and Ruumur’s Affiliates a perpetual, irrevocable, worldwide, non-exclusive, royalty free right and license to (a) adapt, display, use, copy, distribute, perform, transmit, broadcast, and create derivative works of all trademarks, trade names, service marks, logos, copyrighted materials, product information, warranties, warnings required by law to be disclosed in any sale or advertisement of the Goods, and other information, advertising, or content supplied or made available by Merchant relating to the Goods (including any blog posts, social media, email communications, and media) in connection with the Offer or Ruumur’s sale of the Goods, and (b) sublicense any of the foregoing rights to third parties in connection with Ruumur’s programs and services, the Offer, or Ruumur’s sale of the Goods (for example, to advertise the Goods). Except for the rights and license granted herein, Merchant retains all proprietary rights in and to all of its intellectual property. Ruumur retains all proprietary rights in and to (a) all of Ruumur’s intellectual property, including its name and all derivatives thereof, trademarks, logos, and all business information of any kind that is generated by or accessible through Ruumur’s desktop and mobile websites and mobile applications (collectively, “Site”) and the Merchant Site, (b) any services provided by Ruumur hereunder (including all software, source codes, modifications, updates and enhancements thereof or any other aspect of its systems related to the Site, the Merchant Site or other business operations of Ruumur), and (c) all original content and photographic images created by Ruumur for the purpose of offering Merchant’s Goods for sale. No implied licenses are granted herein.
8. REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION.
a) Mutual Representations and Warranties. Each party represents and warrants that (i) it has full power and authority to enter into this Agreement; and (ii) its entrance into and performance of this Agreement does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party, or by which it is bound.
b) Merchant’s Representations and Warranties. Merchant further represents and warrants that:
(i) all Goods delivered (A) are identical in appearance and equal in quality to the product images submitted to Ruumur; (B) are free from defects in design, material, construction and workmanship; (C) are fit for the particular purpose for which such Goods ordinarily are used; (D) present no risk of damage to property or injury, harm or illness to any person when used for their intended purpose; (E) do not infringe upon the intellectual property rights of any third party; (F) do not infringe on any person’s right of privacy or publicity; and (G) comply with all other requirements in this Agreement;
(ii) Merchant (A) owns, or is an authorized licensee of the owner of, all brands, trademarks, patents, designs, copyrighted images or other intellectual property depicted on or represented by the Goods; (B) has obtained appropriate model and property releases and is authorized to grant the rights and license set forth in Section 8 for any content or images it provides to Ruumur; (C) has granted Ruumur sufficient rights through Section 8 to permit Ruumur’s promotion and resale of the Goods without infringing upon the intellectual property or other rights of any third party; and (D) will promptly address, defend, and attempt to resolve in good faith any allegations of infringement asserted against Ruumur relating to the Offer or Ruumur’s sale of the Goods;
(iii) Merchant agrees that it and the Goods comply with all applicable laws and regulations including, but not limited to, regulations around anti-corruption, anti-bribery, consumer protection, export, data protection, data security, prohibition of modern slavery/human trafficking and equal opportunity. Failure to comply with this section shall be a material breach of this agreement; and
(iv) Ruumur’s customers have the right to rely on these warranties and representations and enforce the same as against Merchant.
c) Indemnification. Merchant agrees to defend, indemnify and hold Ruumur, our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of Ruumur, our parent, or our Affiliates, harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of Merchant's breach of this Agreement (including, without limitation, breach of any representation made or warranty given by Merchant herein), Merchant's improper use of the Ruumur
Services, and/or Merchant's violation of any law or the rights of a third party. Notwithstanding anything to the contrary contained herein, this Section shall survive the termination or expiration of this Agreement
d) MERCHANT’S RECALL OBLIGATIONS. In the event all or any portion of the Goods are under investigation for potential recall, recalled voluntarily, or recalled by order or at the direction of any government entity, Merchant shall immediately notify Ruumur’s compliance team and cooperate fully with Ruumur and the government entity, if applicable, to expeditiously complete such recall. Merchant is solely liable for any and all obligations, liabilities, damages, costs, expenses, and notifications related to or arising from any such recall of the Goods. Merchant shall immediately reimburse Ruumur for all such obligations, liabilities, damages, costs, or other expenses incurred by Ruumur related to any recall of the Goods, as well as all additional costs incurred by Ruumur to refund customer purchases and recall the Goods, including costs of destruction, transportation, demurrage, inspection, handling, repacking, commissions, insurance, and taxes, as well as all actual damages to Ruumur.
9. INSURANCE.
Merchant shall obtain and maintain, at its expense, policies of commercial general liability insurance, including products liability covering liabilities of sufficient coverage relating to the Goods. The insurance shall include a broad form Merchant’s endorsement naming Ruumur as an additional insured party and a waiver of subrogation in favor of Ruumur.
10. REMEDIES.
At Ruumur’s sole discretion and without prejudice to any other right or remedy, in the event of Merchant’s failure to perform, anticipatory breach, or breach of representation, warranty, or any other obligation under this Agreement, Ruumur may:
a) Reject in whole or part, demand replacement of, dispose of, or return for full reimbursement, refund and/or credit, any Goods;
b) Charge to Merchant all costs and expenses incurred by Ruumur for Goods returned or disposed of by Ruumur because of any defect in, or non-conformity of the Goods;
c) Cancel or suspend Ruumur’s performance (in whole or in part) under the applicable Purchase Order or any other Purchase Order; and
d) Charge, deduct, or withhold payment from, or offset against any monetary obligations to Merchant under any Purchase Order, all refunds, credits, return costs, chargebacks, expenses, costs (including legal fees), penalties, damages (including Ruumur’s lost profits on completed sales that are cancelled due to Merchant’s failure to perform or breach) and other monetary obligations owed by Merchant to Ruumur or its Affiliates. Any installment payment or advance made by Ruumur to Merchant in respect to any Purchase Order or this Agreement or any other agreement while any of Merchant’s monetary obligations are outstanding shall be deemed to be an overpayment and shall be subject to recoupment and/or set off by Ruumur. Without limiting the foregoing, Ruumur shall have the right, at all times, to deduct any Merchant’s monetary obligations from any amounts owed to Merchant by Ruumur, and to pay only the net sum due, if any. Ruumur may further exercise this right to offset when any third-party asserts a lien or security interest over Merchant’s assets in Ruumur’s possession pursuant to Article 9-406 of the Uniform Commercial Code.
11. LIMITATION OF LIABILITY.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR IN ANY PURCHASE ORDER, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES HEREUNDER FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. RUUMUR SHALL NOT BE LIABLE FOR THE CONTENTS OF ANY OFFER OR THE SUCCESS OF ANY OFFER. NEITHER PARTY WARRANTS AGAINST AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER SIMILAR INJURY, DAMAGE OR DISRUPTION OF ANY KIND. EXCEPT FOR MERCHANT’S OBLIGATIONS UNDER SECTIONS 8, 9 AND 12 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES’ RELATIONSHIP, OR THE BUSINESS BETWEEN THEM, INCLUDING LOSS OF PROFITS, LOSS, OF REVENUE, OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. RUUMUR’S MAXIMUM AGGREGATE LIABILITY TO MERCHANT FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY RUUMUR TO MERCHANT UNDER ALL ACCEPTED PURCHASE ORDERS DURING THE SIX (6) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.
12. CONFIDENTIALITY.
Each party agrees to protect the other party’s Confidential Information, using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. The receiving party may use and copy the Confidential Information only to the extent necessary for the performance of its obligations under the Agreement. The receiving party agrees not to disclose Confidential Information to any person except those Affiliates and representatives who need to know such information in connection with the performance of the Agreement. The receiving party shall be responsible for any violation of the terms of this Section by its representatives or Affiliates and shall promptly notify the disclosing party of any unauthorized use or disclosure of Confidential Information of which the receiving party becomes aware. The receiving party may disclose Confidential Information to the extent required by law, or with the prior written consent of the disclosing party. Ruumur is entitled to disclose Confidential Information to its subcontractors, external advisors and Affiliates, provided that such parties are subject to confidentiality obligations at least as protective as those set forth in this section. In the event of legally required disclosure, the receiving party shall make reasonable efforts to give the disclosing party notice of such requirement prior to disclosure so that the disclosing party may seek a protective order or other appropriate remedy to prevent or limit the scope of disclosure.
13. MISCELLANEOUS.
a) Choice of Law. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods or any laws implementing such Convention in any jurisdiction where the Goods are sold, the application of which are expressly disclaimed. This Agreement, and all matters arising from or relating to the parties’ relationship or performance under this Agreement, shall be governed by and interpreted according to applicable U.S. federal law and the laws of the State of Minnesota, without reference to any applicable choice of law rules.
b) Dispute Resolution and Class Action Waiver.
(i) Agreement to Arbitrate. Merchant and Ruumur each agree that any and all disputes or claims that have arisen or may arise between Merchant and Ruumur, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court, except that Merchant may assert claims in small claims court, if Merchant's claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
(ii) Prohibition of Class and Representative Actions and Non-Individualized Relief. MERCHANT AND RUUMUR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH MERCHANT AND RUUMUR AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER RUUMUR USERS.
(iii) Arbitration Procedures. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of this Merchant Agreement as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of subsection (13.3.1) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
(iv) The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Ruumur should be sent to Ruumur, Inc., Attn: Legal Department, Re: Notice of Dispute, 251 N 1st Ave. #200, Minneapolis, MN 55401. Ruumur will send any Notice to Merchant to the physical address we have on file associated with Merchant's Ruumur Account; it is Merchant's responsibility to keep Merchant's physical address up to date. All information called for in the Notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought. If Merchant and Ruumur are unable to resolve the claims described in the Notice within 30 Days after the Notice is sent, Merchant or Ruumur may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The arbitration shall be held in the county in which Merchant resides or at another mutually agreed location. If the value of the relief sought is $10,000 or less, Merchant or Ruumur may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Merchant and Ruumur subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, Merchant and/or Ruumur may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by Merchant or Ruumur shall not be disclosed to the arbitrator(s).
(v) The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different Ruumur Users, but is/are bound by rulings in prior arbitrations involving the same Ruumur User to the extent required by applicable law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(vi) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules unless otherwise stated in this Agreement to Arbitrate. At Merchant's request, Ruumur will pay as much of the filing, administration, and arbitrator fees as the arbitrator(s) deem necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator(s) determine the claim(s) Merchant asserts in the arbitration to be frivolous, Merchant agrees to reimburse Ruumur for all fees associated with the arbitration paid by Ruumur on Merchant's behalf that Merchant otherwise would be obligated to pay under the AAA's rules.
(vii) Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in this Merchant Agreement to the contrary, Merchant and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Ruumur prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between Merchant and Ruumur. We will notify Merchant of amendments to this Agreement to Arbitrate by posting the amended terms on www.Ruumur.com at least 30 days before the effective date of the amendments and by providing notice through email. If Merchant does not agree to these amended terms, Merchant may close Merchant's account within the 30 day period, and Merchant will not be bound by the amended terms.
c) Affiliates. An “Affiliate” of a party means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such party. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a party, whether through the ownership of voting securities, by contract or otherwise.
d) Notices. Notice to Ruumur must be sent by postal mail to: Ruumur, Attention: Ruumur Legal Notices, PO Box 3320, Minneapolis, MN 55403.
e) Assignment. Merchant may not transfer or assign any rights or obligations Merchant has under this Agreement without Ruumur’s prior written consent. Ruumur reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
f) Force Majeure. If a party is unable to perform or is delayed in performing, in whole or in part, its obligations under this Agreement, as a direct result of a Force Majeure Event affecting such Party, then that Party shall promptly notify the other Party of the Force Majeure Event with reasonably full particulars and timing of such event. Such Party also shall promptly notify the other Party when the Force Majeure Event terminates or no longer adversely affects its ability to perform under this Agreement. The obligations of the Party giving notice, so far as they are affected by the Force Majeure Event, shall be suspended during, but not longer than, the continuance of the Force Majeure Event, and any failure to perform or adhere to any obligation or covenant hereunder shall not constitute a Termination Event, Ruumur Termination Event, or Merchant Termination Event, as applicable.
g) Waiver. Our failure to act with respect to a breach by Merchant or others does not waive our right to act with respect to subsequent or similar breaches.
h) Independent Contractors. The relationship between the parties hereunder is that of independent contractors and nothing herein will be deemed to create a joint venture, partnership, or agency relationship between the parties for any purpose.
i) Severability. Unless stated otherwise in this Agreement, if any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be illegal, invalid or unenforceable, in whole or in part,, such provision or part thereof shall be severed from this agreement,, and the remaining provisions or parts thereof shall continue in full force and effect, without amendment.
j) Construction. For purposes of this Agreement, the terms “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation.”
k) Interpretation. Any uncertainty or ambiguity in this Agreement shall not be construed against Ruumur as the author or drafter of this Agreement. Any rule of construction that requires any ambiguities to be interpreted against the drafter shall not be employed in the interpretation of this Agreement, including any document drafted or delivered in connection with the transactions contemplated by this Agreement.
l) Entire Agreement. This Agreement, along with any applicable policies and agreements on the Legal Agreements page on the Ruumur Website, sets forth the entire understanding between Merchant and Ruumur with respect to the Ruumur Services. Sections which by their nature should survive will survive the termination of this Agreement. Unless stated otherwise in this Agreement, if any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced.
m) Modifications. Ruumur may modify this Agreement (including the Merchant Policies) from time to time in its sole discretion. Unless otherwise provided herein, or unless a different effective date is otherwise provided with any such modification, all modifications will take effect fifteen (15) days after the modified Agreement (or policy) has been posted to the Merchant Site. Ruumur will also make reasonable efforts to provide at least fifteen (15) days’ advance notice of the effectiveness of any modifications by sending an email notification to the email addresses associated with Merchant’s account, by providing written notification on the Ruumur Merchant blog, or by similar means. Notwithstanding the foregoing, however, Ruumur reserves the right to modify the Agreement at any time with immediate effect for legal, regulatory, security, fraud and abuse prevention, or safety reasons, or to restrict activities Ruumur deems unsafe, inappropriate, or offensive. Merchant’s use of the Merchant Site, acceptance of a Purchase Order from Ruumur, or shipment of Goods pursuant to a Purchase Order after the effective date of any modification to the Agreement constitutes Merchant’s acceptance of that modified Agreement. IF ANY MODIFICATION IS UNACCEPTABLE TO MERCHANT, MERCHANT’S ONLY RECOURSE AND REMEDY IS TO TERMINATE THE AGREEMENT AS PROVIDED HEREIN.
Except as set forth above, this Agreement, and any Purchase Order issued pursuant to this Agreement, may not be amended or modified except by a writing signed by both parties.
Each party to this Agreement (a) has reviewed the Agreement; (b) fully understands the rights and obligations created by this Agreement; (c) attests and agrees that it has had a reasonable opportunity to review this Agreement and to have counsel of their choosing review this Agreement (at its own expense); and (d) voluntarily enters into this Agreement, accepting and agreeing to all of its terms and conditions.
