Dealer Terms and Conditions
GENERAL TERMS AND CONDITIONS
The Design Life Network, LLC and designlifenetwork.com. (“D-Life”) is in the business of providing a web-based marketplace and listing service for furniture, collectibles, art, photographs, jewelry and similar products as well as other types of sales (“Services”) on D-Life’s website at www.designlifenetwork.com (or any other website that D-Life may designate) (collectively, the “Site”). D-Life’s provision of Services to you (“you” and “Client”) is subject to the terms and conditions set forth herein and those terms set forth in the Enrollment Application.
1. D-Life reserves the right, in its sole discretion, to alter any advertising banner, item, data, pricing, and/or images appearing on the storefront or Product Sale D-Life created for you (“Storefront”) or Site received from you in order to accommodate ongoing formatting and technology requirements of the Site or to facilitate promotion, pricing or auction related activities. D-Life also reserves the right to place your items on D-Life’s blog, in D-Life’s advertising, and other venues it sees fit.
2. Notwithstanding the foregoing, it is acknowledged and agreed that the accuracy of all data and images provided by you are solely your responsibility, and you hereby confirm that neither D-Life nor any of D-Life’s officers, directors, employees or agents shall have any responsibility for reviewing, approving or otherwise commenting on the content thereof. All items you offer on the Storefront are goods offered solely by you, and are not the responsibility of D-Life, it being understood and agreed that D-Life is offering only website storage, presentation and related services to you. Accordingly, D-Life will not be required to provide any services in connection with any sales or other transactions between you and your customers. You acknowledge and agree that your use of the Services is at your sole risk, and that D-Life is not responsible for any order, account configuration or other data that may reside on the Site, it being understood that the temporary storage thereof on the Site is strictly for your convenience. You assume full responsibility for maintaining and safeguarding all of your inventory, sales, order and other data.
3. You acknowledge and agree that all D-Life web pages, software, formatting, designs, media, photographs, video, configurations and data, other than such materials that you provide to D-Life hereunder, are the intellectual property of D-Life, and that facilities used in providing the Services hereunder are assets of D-Life and/or its suppliers. You agree to make no use of any of the foregoing except as provided herein or otherwise permitted by D-Life in writing. You acknowledge and agree that “D-Life.com” is a registered trademark of D-Life.
4. You acknowledge and agree that the Site is not a “secure communications medium” as defined in the Electronic Communications Privacy Act and that neither you nor any of your customers may have any expectation of privacy in respect to any content on the Site.
5. D-Life MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER TO YOU OR ANY OTHER PERSON REGARDING THE SERVICES. THE SERVICES ARE PROVIDED BY D-Life “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
6. By executing the Enrollment Application, you represent, warrant and covenant to D-Life as follows:
(a) That you have the absolute and unencumbered right and power to;
(b) That none of such images or information, or the posting thereof on the Storefront or Product Sale, infringes or will infringe upon any third party’s rights, will give rise to any obligation on the part of D-Life or you to pay fees, royalties, commissions or any other amounts to any other person or entity, or is otherwise unlawful;
(c) That none of the information contained in the Storefront or Product Sale will contain any untrue statement or omit to state a material fact necessary to make the statements therein not misleading;
(d) That you will be solely responsible for the prompt payment, as and when due, of all sales and other taxes and fees attributable to your activities in connection with the items or business referenced on the Storefront or Product Sale.
7. You will defend, indemnify and hold harmless D-Life, its officers, directors, employees and agents from and against any and all losses, damages, liabilities and claims, and all fees, costs and expenses of any kind related thereto (including, without limitation, reasonable attorneys’ fees) arising out of, based upon or resulting from your breach of any of your representations, warranties, covenants or agreements hereunder, and any claim of any third party alleging infringement of any copyright, trademark, patent, trade secret, right of privacy, right of publicity, unfair competition, false advertising, libel, or any other statutory or common law proprietary or civil right.
8. D-Life’s liability under these Terms and Conditions and the applicable Plan or otherwise arising out of any mistakes, accidents, delays, negligence or defects in connection with the Services, shall be subject to the limitations set forth below. In no event shall D-Life be liable hereunder to you or to any other third party under any contract, warranty, negligence, strict liability or other theory for any indirect, consequential, incidental, reliance, special, or punitive damages, or for any lost profits, lost revenues, or lost savings of any kind arising hereunder, whether or not D-Life or you was advised of the possibility of such damages and whether or not such damages were foreseeable. In no event shall D-Life be liable to you for any amount in excess of the aggregate amount of fees you paid to D-Life hereunder. For purposes of this section, the term “D-Life” shall be deemed to include D-Life, its affiliates, parent, shareholders, directors, officers and employees and any entity assisting D-Life in the performance of Services.
9. These General Terms and Conditions are subject to change in D-Life’s sole discretion; provided, however, that the version of these General Terms and Conditions in effect on the date you execute the Enrollment Application shall be the version of these Terms and Conditions that govern D-Life’s provision of the Services to you.
10. The parties are independent contractors and nothing contained herein shall be deemed to create such a relationship. Nothing contained in these General Terms and Conditions or the applicable Plan shall be deemed to allow either party to create or assume any obligations on behalf of the other party. No waiver by either party of any conditions or breach by the other of any term or covenant contained in these General Terms and Conditions or the applicable Plan, whether by conduct or otherwise, in any one or more instances shall be deemed or construed as a continuing or further waiver of any other condition, or of the breach of any other term or covenant. Moreover, the failure of either party to exercise any right hereunder shall not bar the later exercise thereof. No changes or modifications or waivers are to be made to the General Terms and Conditions and/or the applicable Plan unless evidenced in writing and signed by both parties. If any provision of these General Terms and Conditions or the applicable Plan is held to be invalid or unenforceable, for any reason, such invalidity or unenforceability shall not affect any other term or provision between D-Life and you. These General Terms and Conditions and the Plan shall be construed, interpreted, and applied in accordance with and governed by the laws of the State of New York, without giving effect to the conflict of law provisions thereof, and, together, they constitute the full and complete understanding and agreement of the parties with respect to the subject matter hereof, and supersede all prior understandings and agreements. You agree that your submission of an Enrollment Application to D-Life shall be interpreted as you having read, understood and accepted these General Terms and Conditions and the applicable Plan as governing the relationship between D-Life and you.
11. Creation and Maintenance of Storefront or Product Sale
(a) D-Life will create a Client storefront (“Storefront”) or Product Sale on the Site and after (i) you provide D-Life with a signed copy of the Enrollment Application. The Storefront or Product Sale may include a link to your proprietary web site. Items will be posted to the Storefront or Product Sale generally within seven (7) business days after such items are uploaded to D-Life.
(b) From time to time, D-Life may desire to engage in the additional promotion of items, and you hereby grant D-Life the right to do the same without requiring us to notify you thereof.
(c) D-Life will generally provide graphic design editing services to all main images without additional charge. There are no limitations on changes to any text postings, but image postings will be subject to the General Terms and Conditions.
12. Fees, Commission & Payment.
In consideration of the Services to be performed by D-Life hereunder, you agree: to pay D-Life the Fees and Commission set forth in the Enrollment Form. All payments must be received by D-Life by electronic payment no later than the last business day of each month. If D-Life does not receive payment by such date, D-Life shall be entitled to suspend access to your Storefront and/or Product Sale and remove your items from the site until such time as you are current in your payments to D-Life.
(a) The agreement for Services shall commence on the date of execution of the Enrollment Application and shall continue for the period set forth in the Enrollment Application (the “Initial Term”). Services may be terminated at any time by either party upon at least thirty (30) days prior written notice to the other party. If D-Life has not received notice of termination from you 30 days prior to the last day of the Initial Term, D-Life may continue providing Services to you on a month-to-month basis.
(b) In the event of termination, D-Life shall not refund any fees to you and you shall be responsible for the remaining balance of the Monthly Fee or Commissions; provided, however, that you shall not be responsible for the remaining balance of the Annual Fee if D-Life terminates the Services without cause before expiration of the Initial Term.