Terms of Service
Welcome to Liberwave, a peer to peer textbook sales platform.
THIS AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND LIBERWAVE. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY FOR EACH COUNTRY FOR WHICH YOU REGISTER OR ELECT TO USE A SERVICE (IN EACH CASE, THE “ELECTED COUNTRY”).
As used in this Agreement, “we,” “us,” and“Liberwave” means Liberwave or any of its applicable Affiliates, and “you” means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement.
To begin the enrollment process, you must complete the registration process. Registration is very simple, we only need enough information to identify you. Registering via Facebook is completely acceptable. Our contact information is available in the app and on www.liberwave.com. We may at any time cease providing any or all of the Services at our sole discretion and without notice.
2. Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described on www.liberwave.com. You are responsible for all of your expenses in connection with this Agreement. To use Liberwave to actually buy/sell textbooks, you must provide us with valid payment processing information. These available forms are listed in the app. You will use only a name you are authorized to use in connection with Liberwave and will update all of the information you provide to us in connection with Liberwave as necessary to ensure that it at all times remains accurate, complete and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information) and to charge Your Credit Card or debit Your Bank Account or utilize any of the other money transfer options for any sums payable by you to us (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
For any amounts you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency. If we discover erroneous or duplicate transactions, then we reserve the right to seek reimbursement from you by deducting from future payments owed to you, charging Your Credit Card, or seeking such reimbursement from you by any other lawful means.
IF WE DETERMINE THAT YOUR ACTIONS OR PERFORMANCE MAY RESULT IN RETURNS, CHARGEBACKS, CLAIMS, DISPUTES, OR OTHER RISKS, THEN WE MAY IN OUR SOLE DISCRETION WITHHOLD ANY PAYMENTS TO YOU UNTIL THE COMPLETION OF ANY RELATED INVESTIGATION. IF WE DETERMINE THAT YOUR ACCOUNT HAS BEEN USED TO ENGAGE IN DECEPTIVE, FRAUDULENT, OR ILLEGAL ACTIVITY, THEN WE MAY IN OUR SOLE DISCRETION PERMANENTLY WITHHOLD ANY PAYMENTS.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because a Liberwave Service is unavailable following the commencement of a transaction.
3. Term and Termination.
The term of this Agreement will start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the “Term”). We may terminate or suspend this Agreement or any service for any reason at any time by notice to you. You may terminate this Agreement or any service or the Promotion Site for any reason at any time by the means then specified by Liberwave. Termination or suspension of a service will not terminate or suspend any other service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 2, 3, 4, 5, 6, 7, 8, 9, 11, 14, 15, 16 and 18 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our Affiliates; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks; provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Liberwave or its Affiliates is at all times accurate and complete; (d) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement; and (e) you will not abuse the App, including through publication of pornographic materials or any other inappropriate content.
You release us and agree to 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, medical bills, damages for mental anguish, consequential damages or any other damages that might be awarded by a court of law in any jurisdiction) (each, a “Claim”) arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of the sales you make via Liberwave or otherwise, Your Products (including their offer, sale, performance and fulfillment), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death or property damage related thereto; (c) Your Personnel (including any act or omission of Your Personnel or any Claim brought or directed by Your Personnel); or (d) Your Taxes. 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. Liberwave does not guarantee your safety during the actual textbook exchange, as such, you release Liberwave from any liability for your safety and well being while in the process of exchanging textbooks or otherwise using the app.
7. Disclaimer & General Release.
- THE LIBERWAVE APP, SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, YOU USE THE LIBERWAVE APP, SITES, AND SERVICES 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 LIBERWAVE APPS, SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
- BECAUSE LIBERWAVE IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES LIBERWAVE (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.
8. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF LIBERWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO LIBERWAVE IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during each month over any period of three (3) consecutive months, or otherwise if requested by us, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term for each applicable Elected Country commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming Liberwave and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage.
10. Tax Matters.
As between the parties, you will be responsible for the collection, reporting and payment of any and all of Your Taxes, except to the extent Liberwave expressly agrees to receive taxes or other transaction-based charges in connection with tax calculation services made available by Liberwave and used by you. You agree to and will comply with all state and federal tax rules. All fees payable by you to Liberwave under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, and you will be responsible for paying Liberwave any of Your Taxes imposed on such fees.
During the course of your use of Liberwave, you may receive information relating to us or to Liberwave, including but not limited to Liberwave Transaction Information, that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain Liberwave’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the marketplace; (c) you will not otherwise disclose Confidential Information to any other Person; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
12. Force Majeure.
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
13. Relationship of Parties.
14. Use of Liberwave Transaction Information.
You will not, and will cause your Affiliates not to, directly or indirectly: (a) disclose any Liberwave Transaction Information (except that you may disclose that information solely as necessary for you to perform your obligations under this Agreement if you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information); (b) use any Liberwave Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law; (c) contact a Person that has ordered Your Product with the intent to collect any amounts in connection therewith or to influence that Person to make an alternative transaction; (d) disparage us, our Affiliates, or any of their or our respective products or services or any customer; or (e) target communications of any kind on the basis of the intended recipient being an Liberwave user. In addition, you may only use tools and methods that we designate to communicate with Liberwave users regarding Your Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Your Products. The terms of this Section 14 do not prevent you from using other information that you acquire without reference to Liberwave Transaction Information for any purpose, even if that information is identical to Liberwave Transaction Information, provided that you do not target communications on the basis of the intended recipient being a Liberwave Site user.
15. Suggestions and Other Information.
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any Liberwave App, Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history and posted content.
We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on liberwave.com or within the app, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. Changes to Program Policies may be made without notice to you. You should refer regularly to www.liberwave.com to review the current Agreement (including the Service Terms and Program Policies) and to be sure that the items you offer can be offered via Liberwave. YOUR CONTINUED USE OF LIBERWAVE AFTER LIBERWAVE’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
17. Password Security.
Any password we provide to you may be used only during the Term to access Liberwave (or other tools we provide) to use the Services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
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. Liberwave and you both consent that any dispute with Liberwave or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or we may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. If for any reason a claim proceeds in court rather than in arbitration Liberwave and you each waive any right to a jury trial.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
We have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of Liberwave, including by redesigning, modifying, removing, or restricting access to any of them.
Because Liberwave is not your agent (except for the limited purpose set out in the Transaction Processing Service Terms), or the customer’s agent for any purpose, Liberwave will not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any transaction. If Liberwave does offer assistance in resolving disputes, you agree that Liberwave does not incur any liability for its action and shall remain an otherwise indemnified third party at all times.
We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates. We may also communicate with you electronically and in other media, and you consent to such communications regardless of any “E-mail Preferences” You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to Liberwave to the contact information specified at www.liberwave.com
This Agreement incorporates and you accept the applicable Service Terms and Program Policies, which Liberwave may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. We may make available translations to this Agreement and the applicable Service Terms and Program Policies, but the English version will control. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
- YOUR SAFETY
Using this App while operating a motor vehicle, or a segway, or a hoverboard, or while riding a horse or at any other time in which you should not be distracted is a violation of this Agreement. Further, meeting up in places that are not well lit or public with other people around is also a violation of this Agreement. You agree to hold harmless Liberwave for any resulting injuries, physical or mental, or any other damages that might result from unsafe behavior in connection with the App. Further, you agree to hold harmlessve for ANY damages or physical or mental injury you sustain in connection to use of the App Liberwa.
As used in this Agreement, the following terms have the following meanings:
“Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
“Liberwave Associated Properties” means any website or other online point of presence, mobile application, service or feature, through which Liberwave products or services are available, or are otherwsie syndicated, offered, merchandised, advertised or described.
“Liberwave Contracting Party” means Xolero, LLC.
“Liberwave Transaction Information” means, collectively, Order Information and any other data or information acquired by you or your Affiliates from Liberwave, its Affiliates, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement, or the parties’ performance under this Agreement.
“Content” means copyrightable works under applicable Law.
“Governing Courts” means the applicable one of the following:
- the state or Federal court in Travis County, Texas
“Governing Laws” means the applicable one of the following:
- the laws of the State of Texas, United States together with the Federal Arbitration Act and other applicable federal law (if the Elected Country is Canada, Mexico or the United States),
“Insurance Limits” means the applicable one of the following:
- One Million U.S. Dollars ($1,000,000)
“Insurance Threshold” means the applicable one of the following:
- Ten Thousand U.S. Dollars ($10,000)
“Intellectual Property Right” means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
“Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or in the future in effect, of any governmental authority (e.g. on a federal, state, or provincial level, as applicable) of competent jurisdiction.
“Local Currency” means the applicable one of the following:
- U.S. Dollars (if the Elected Country is the United States),
- Canadian Dollars (if the Elected Country is Canada),
- Mexican Pesos (if the Elected Country is Mexico),
“Optional Coverage Plans” means warranties, extended service plans and related offerings, in each case as determined by us, that you offer.
“Order Information” means, with respect to any of Your Products ordered through a Liberwave, the order information and shipping information that we provide or make available to you.
“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other cognizable entity, whether or not having distinct legal existence.
“Program Policies” means all terms, conditions, policies, guidelines, rules and other information on the applicable Liberwave Site
“Sales Proceeds” means the gross proceeds from any of Your Transactions, including all shipping and handling, gift wrap and other charges, and including taxes and customs duties to the extent specified in the applicable Tax Policies.
“Service” means each of the following services: Selling or buying textbooks via Liberwave and any associated transactions or information provision and the Transaction Processing Services, together in each case with any related services and materials we make available.
“Service Terms” means the service terms applicable to each Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms.
“Technology” means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology or other functional item.
“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia or any other source or business identifier, protected or protectable under any Laws.
“Your Materials” means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Liberwave or its Affiliates.
“Your Personnel” means any third party warranting, administering or otherwise involved in the offer, sale, performance or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
“Your Product” means any product or service (including Optional Coverage Plans) that: (a) you offer through Liberwave; (b) is made available for advertising by you through the Liberwave; or (c) is fulfilled or otherwise processed through Liberwave.
“Your Sales Channels” means all sales channels and other means through which you or any of your Affiliates offers products or services, other than physical stores.
“Your Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption and other taxes, regulatory fees, levies (specifically including environmental levies) or charges and duties assessed, incurred or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange.
“Your Trademarks” means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
“Your Transaction” means any sale of Your Product(s) through Liberwave
******Selling on Liberwave******
The Selling on Liberwave Service (“Selling on Liberwave”) is a Service that allows you to offer certain products and services directly on Liberwave.
These Selling on Liberwave Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on Liberwave. BY REGISTERING FOR OR USING THE Selling on Liberwave SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THESE Selling on Liberwave SERVICE TERMS.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide in the format we require accurate and complete Required Product Information for each product or service that you offer through Liberwave and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on Liberwave comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under our applicable Program Policies), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on Liberwave; or provide any URL Marks for use, or request that any URL Marks be used, on Liberwave.
S-1.2 Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on Liberwave, and conduct merchandising and promote Your Products as permitted by us. We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Liberwave may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through Liberwave. We will also receive all Sales Proceeds on your behalf for each of these transactions and will have exclusive rights to do so, and will remit them to you in accordance with these Selling on Liberwave Service Terms.
S-1.3 Shipping and Handling Charges. For Your Products ordered by customers on or through Liberwave that are not fulfilled by direct delivery, you will determine the shipping and handling charges subject to our Program Policies and standard functionality. When we determine the shipping and handling charges, you will accept them as payment in full for your shipping and handling.
S-1.4 Credit Card Fraud. We will bear the risk of credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with Your Transactions except in connection with Seller-Fulfilled Products that are not fulfilled strictly in accordance with the Order Information and Shipment Information. You will bear all other risk of fraud or loss. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of Your Transactions. You will stop or cancel orders of Your Products if we ask you to do so. If you have already transferred Your Products to a carrier or shipper when we ask you to stop or cancel an order, you will use commercially reasonable efforts to stop or cancel delivery of that order. You will refund any customer (in accordance with Section S-2.2) that has been charged for an order that we stop or cancel.
S-2 Sale and Fulfillment; Refunds and Returns.
S-2.1 Sale and Fulfillment. You will: (a) source, offer, sell and fulfill your Seller-Fulfilled Products, and source and, offer and sell your Liberwave Products, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on Liberwave at the time of the order and be solely responsible for and bear all risk for those activities; (b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and ship each of Your Products on or before its Expected Ship Date; (c) retrieve Order Information at least once each business day; (d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on Liberwave at the time of the applicable order or as may be required under this Agreement; (e) fulfill Your Products throughout the Elected Country (except to the extent prohibited by Law or this Agreement); (f) provide to Liberwave information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions; (h) ensure that you are the seller of each of Your Products; (i) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (j) identify yourself as the seller of each of Your Products on all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product; and (k) except as expressly permitted by this Agreement, not send customers emails confirming orders or fulfillment of Your Products.
S-2.2 Cancellations, Returns and Refunds. For all of Your Products you will accept and process cancellations, returns, refunds and adjustments in accordance with this Agreement Except as otherwise described in the Program Policies, you will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using functionality we enable for your account. This functionality may be modified or discontinued by us at any time without notice. You will route all payments to customers in connection with Your Transactions through Liberwave. We will provide those payments to the customer (which may be in the same payment form originally used to purchase Your Product or as otherwise determined by us), and you will reimburse us for all amounts we pay. You will promptly provide refunds and adjustments that you are obligated to provide as required by Law, and in no case later than thirty (30) days after the obligation arises.
S-3 Problems with Your Products.
S-3.1 Delivery Errors and Nonconformities; Recalls. You are solely responsible for any non-performance, non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by: (a) credit card fraud for which we are responsible under Section S-1.4; or (b) our failure to make available to you Order Information as it was received by us or resulting from address verification. You are also responsible for any non-conformity or defect in, or any public or private recall of, any of Your Products or other products provided in connection with Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls of Your Products or other products provided in connection with Your Products.
S-3.2 A-to-z Guarantee and Chargebacks. If we inform you that we have received a claim, chargeback or other dispute, concerning one of Your Transactions, you will deliver to us in a format and manner we specify: (a) proof of fulfillment of Your Product(s) (as applicable); (b) the applicable Liberwave order identification number; (c) a description of Your Product(s) (as applicable); and (d) any terms provided by you or us and displayed on Liberwave at the time of the transaction in question. If you fail to comply with the prior sentence, or if the claim, chargeback, or dispute is not caused by: (i) credit card fraud for which we are responsible under Section S-1.4; or (ii) our failure to make your Order Information available as the same was received by us or resulting from address verification, then you will promptly reimburse us for the amount of the customer purchase (including the Purchase Price, all associated shipping and handling charges and all taxes, but excluding any associated Referral Fees retained and not subject to refund by Liberwave) and all associated credit card association, bank or other payment processing, re-presentment and/or penalty fees associated with the original purchase and any chargeback or refund, in each case to the extent paid or payable by us or our Affiliates.
S-4 Parity with Your Sales Channels.
Subject to this Section S-4, you are free to determine which of Your Products you wish to offer on Liberwave. You will maintain parity between the products you offer through Your Sales Channels and the products you list on Liberwave by ensuring that : (a) the Purchase Price and every other term of offer or sale of Your Product (including associated shipping and handling charges, Shipment Information, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable cancellation, return and refund policies) is at least as favorable to Liberwave Site users as the most favorable terms upon which a product is offered or sold via Your Sales Channels (excluding consideration of Excluded Offers); (b) customer service for Your Products is at least as responsive and available and offers at least the same level of support as the most favorable customer services offered in connection with any of Your Sales Channels (this requirement does not apply to customer service for payment-related issues on Your Transactions, which we will provide); and (c) the Content, product and service information and other information under Section S-1.1 regarding Your Products that you provide to us is of at least the same level of quality as the highest quality information displayed or used in Your Sales Channels. If you become aware of any non-compliance with (a) above, you will promptly compensate adversely affected customers by making appropriate refunds to them in accordance with Section S-2.2.
You will pay us according to the rates and terms found at www.liberwave.com
S-6 Remittance of Sales Proceeds & Refunds.
Except as otherwise stated in this Agreement, we will remit to you on a bi-weekly (14 day) (or at our option, more frequent) basis, which may vary for each Elected Country, any Sales Proceeds received by us or our Affiliates but not previously remitted to you as of the date that is two (2) business days prior to the date of remittance (the “Remittance Calculation Date”) (which you will accept as payment in full for Your Transactions), less any fees due to Liberwave for use of our services and/or platform. When you either initially provide or later change Your Bank Account information, the Remittance Calculation Date may be deferred by up to 14 days. You will not have the ability to initiate or cause payments to be remitted to you. If you refund money to a customer in connection with one of Your Transactions, and the refund is routed through us (or our Affiliate), on the next available Remittance Calculation Date we will refund to you the amount of any fees collected by Liberwave for the transaction.
S-7 Control of Liberwave.
We have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Liberwave Sites, including by redesigning, modifying, removing or restricting access to any of them, and by suspending, prohibiting or removing any listing.
S-8 Effect of Termination.
Upon termination of these Selling on Liberwave Service Terms in connection with Liberwave, all rights and obligations of the Parties under these Selling on Liberwave Service Terms with regard to Liberwave will be extinguished, except that the rights and obligations of the Parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
Selling on Liberwave Definitions
“Liberwave Refund Policies” means the return and refund policies published on Liberwave and applicable to products and services offered via that Liberwave Site.
“Excluded Offer” means any discount, rebate, promotional offer, or other term of offer and/or sale that you: (a) have attempted to make available through Liberwave but that we do not honor or support (but only until such time as we honor or support the same on Liberwave); or (b) make available solely to Third Parties that either (i) purchase products solely for resale and who are not end users of such products (i.e., wholesale purchasers)
“Expected Ship Date” means, with respect to any of Your Products, either: (a) the end of the shipping availability period (which begins as of the date on which the relevant order is placed by the customer), or the shipping availability date, as applicable, specified by you in the relevant inventory/product data feed for Your Product; or (b) if you do not specify shipping availability information in such inventory/product data feed or that Your Product is in a product category that Liberwave designates as requiring shipment within two (2) business days, two (2) business days after the date on which the relevant order is placed by the customer.
“Media Product” means any book, magazine or other publication, sound recording, video recording, software product, computer game, videogame, or other media product in any format, including any related subscription, offered through an Liberwave Site.
“Purchase Price” means the total amount payable or paid for Your Product (including taxes and shipping and handling charges).
“Remittance Calculation Date” is defined in Section S-6.
“Required Product Information” means, with respect to each of Your Products in connection with Liberwave, the following (except to the extent expressly not required under the applicable Program Policies): (a) description, including as applicable, location-specific availability and options, scheduling guidelines and service cancellation policies; (b) SKU and UPC/EAN/JAN numbers, and other identifying information as Liberwave may reasonably request; (c) information regarding in-stock status and availability, shipping limitations or requirements, and Shipment Information (in each case, in accordance with any categorizations prescribed by Liberwave from time to time); (d) categorization within each Liberwave product category and browse structure as prescribed by Liberwave from time to time; (e) digitized image that accurately depicts only Your Product, complies with all Liberwave image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) shipping and handling charge (in accordance with our standard functionality); (h) any text, disclaimers, warnings, notices, labels, warranties or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or sale of Your Product; (i) any vendor requirements, restocking fees or other terms and conditions applicable to such product that a customer should be aware of prior to purchasing the product; (j) brand; (k) model; (l) product dimensions; (m) weight; (n) a delimited list of technical specifications; (o) SKU and UPC/EAN/JAN numbers (and other identifying information as we may reasonably request) for accessories related to Your Product that is available in our catalog; (p) the state or country Your Product ships from; and (q) any other information reasonably requested by us (e.g., the condition of used or refurbished products).
“Seller-Fulfilled Products” means any of Your Products.
“Shipment Information” means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
“Street Date” means the date(s), if any, specified by the manufacturer, distributor and/or licensor of a product as the date before which specified information regarding such product (e.g., title of a book) should not be disclosed publicly, or such product should not be delivered or otherwise made available to customers.
“URL Marks” means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com).
“Your Transaction” is defined in the General Terms of this Agreement; however, as used in these Selling on Liberwave Service Terms, it means any and all such transactions through Selling on Liberwave only.
******Transaction Processing Service Terms******
BY REGISTERING FOR OR USING ANY LIBERWAVE SERVICE FOR WHICH THE ELECTED COUNTRY IS THE UNITED STATES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THESE TRANSACTION PROCESSING SERVICE TERMS FOR THAT SERVICE.
P-1 Payments Processing Agency Appointment
You authorize Xolero LLC (“Xolero”) to act as your agent for purposes of processing payments, refunds and adjustments for Your Transactions, receiving and holding Sales Proceeds on your behalf, remitting Sales Proceeds to Your Bank Account, charging your Credit Card, and paying Xolero, Liberwave and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with Liberwave Affiliates. Xolero provides the services described in these Transaction Processing Service Terms and the related services described in Sections S-1.4, S-2.2, S-6, W-3.2, W-3.3, W-3.4, W-6.3.2, W-6.3.3, W-7.5, and F-8.3 of the Agreement (collectively, the “Transaction Processing Services”). You further authorize Xolero to use Stripe to process transactions and share any applicable data or information with Stripe to enable transaction processing.
When a buyer instructs us to pay you, you agree that the buyer authorizes and orders us to commit the buyer’s payment (less any applicable fees or other amounts we may collect under this Agreement) to you. You agree that buyers satisfy their obligations to you for Your Transactions when we receive the Sales Proceeds. We will remit funds to you in accordance with this Agreement.
Xolero will remit funds to you in accordance with Sections S-6 and W-6.3.2 of the Agreement and these Transaction Processing Service Terms. Xolero’s obligation to remit funds collected by it on your behalf is limited to funds that have actually been received by Xolero less amounts owed to Liberwave, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. Without limiting Liberwave’s rights to collect any amounts you owe, including as described in Section 2 of the General Terms of this Agreement, Xolero’s receipt of Sales Proceeds discharges your obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds equal or exceed the fees and other amounts you owe and the Sales Proceeds are applied to the payment of those fees and amounts.
P-3 Your Funds
Your Sales Proceeds will be held in an account with Xolero (a “Seller Account”) and will represent an unsecured claim against Xolero. Your Sales Proceeds are not insured by the Federal Deposit Insurance Corporation. Prior to disbursing funds to you, Xolero may combine Sales Proceeds held with the funds of other users of the Services, invest them, or use them for other purposes permitted by applicable Laws. You will not receive interest or any other earnings on any Sale Proceeds. To the extent required by applicable Laws, Xolero will not use any funds held on your behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds. Sales Proceeds” means the gross proceeds from any of Your Transactions, including all shipping and handling, gift wrap and other charges, but excluding any taxes separately stated and charged. “Your Transaction” means any sale of your items through Liberwave.
We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or in the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change.
P-5 Dormant Accounts
If there is no activity (as determined by us) in connection with your Seller Account for the period of time set forth in applicable unclaimed property laws and we hold Sales Proceeds on your behalf, we will notify you by means designated by us and provide you the option of keeping your Seller Account open and maintaining the Sales Proceeds in your Seller Account. If you do not respond to our notice(s) within the time period we specify, we will send the Sales Proceeds in your Seller Account to your state of residency, as determined by us based on the information in your Seller Account. If we are unable to determine your state of residency or your Seller Account is associated with a foreign country, your funds may be sent to the State of Texas.
Note: Based on your agreement with Liberwave, other or additional terms may apply.