TOOLOTS

MERCHANT AGREEMENT

Toolots, Inc. (“We” and “Us”) offers a service (the “Merchant Services”) on www.Toolots.com (the “Site”) which allows merchants (“You”) to offer your products (“Your Products”) for sale to buyers who purchase products on the Site (“Customers”).  The Merchant Services are subject to this Merchant Agreement (“Agreement”). BY REGISTERING FOR OR USING THE MERCHANT SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE THIS AGREEMENT, the User Agreement, Terms of Use, Privacy Policy, and other terms and conditions published by Toolots.  If you are participating in the Toolots Consignment Program, you also agree to be bound to the Consignment Agreement.  

 1.  Account Registration.  To use the Merchant Services, you must create an account with us pursuant to our User Agreement – Terms of Service.  Use of the Merchant Services is limited to parties that can lawfully enter into and form contracts under applicable law. We may at any time cease providing any or all of the Merchant Services to all merchants or any merchant at our sole discretion and without notice.

 2.  Term and Termination.  This Agreement commences on the date you register for an account on the Site or use the Merchant Services, whichever occurs first, and continues until terminated by us or you (the "Term").   You may terminate this Agreement at any time as to Your Products which have not been sold and/or or are in pending order status.   We may terminate or suspend this Agreement, the Site, or the Merchant Services for any reason at any time and upon termination, we may elect, in our sole discretion and at your cost and transit risk, to return Your Products to you, or to require you to pick-up Your Products, as set forth below.  For any of Your Products that have not been sold, we shall nonetheless be entitled to payment for storage and other applicable charges as set forth in our Fee Schedule.

1. a.  Account Closure. We will require three business days to close your account.  Prior to the closure of your account, you are required to fulfill all outstanding Customer orders.  Toolots will remit any payments due to you within thirty (30) days of the account closing date, net of any fees and charges that you owe to Toolots pursuant to this Agreement and our Fee Schedule.  
2. b.  Removal of Product.  Upon termination of this Agreement by either you or us, you are required to remove Your Products within ten (10) days of the date your account has been closed, provided that we may elect to retain a quantity of Your Products to fulfill any outstanding orders for Your Products.  All shipping costs to return Your Products to you will be at your sole cost and expense.  You agree that unless we have otherwise agreed in writing to an alternate arrangement with you, all of Your Products which you fail to pick-up within the time set forth herein, have been abandoned by you. We may, in our sole discretion, dispose of abandoned products, including without limitation by sale, destruction or other means selected by us.  If we elect to resell your abandoned product, you agree that we may use your trademarks, copyrights and logos for the advertising, promotion and sale of Your Products.  You agree that Toolots will have no liability, duty or obligation to you for our disposal of products abandoned by you and your obligation to indemnify us pursuant to this Agreement shall not be terminated or affected by your abandonment of Your Products or by the means we select to dispose of such abandoned products.   
3. c.  Storage Fees.  Toolots may charge you storage fees for Your Products that are not removed after the ten (10) day period set forth above until such time that we have disposed of Your Products.  We may also charge you fees and surcharges to dispose of any products that you fail to remove.  
4. d.  Effect of Termination.  Upon termination of your merchant account, all of your rights and obligations with regard to such account, the Merchant Services and the Site will be extinguished, except that your rights and obligations with respect to the Toolots Property (as defined in Section 3 below), Indemnification and Release, Confidentiality, Compensation, your Representations, our Limitation of Liabilities and Disclaimers, all provisions that by their nature are intended to survive the Term, and your transactions occurring during the Term, will survive the termination or expiration of the Term.

 3.  Licenses.  

1. a.  Merchant License to Toolots.  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 logos, trademarks, copyrights, and other intellectual property such as images of Your Products (collectively “Your Materials”), for the purpose of listing and promoting Your Products, and to sublicense the foregoing rights to our affiliates.  We will not alter any of Your Materials except to resize for presentation and will comply with your removal requests as to specific uses of Your Materials.  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 under applicable law. You grant us permission to link to your website for purposes of listing and promoting Your Products.
2. b.  Toolots License to Merchant. Subject to this Agreement, we grant you a limited, revocable, non-sublicenseable, non-assignable, non-exclusive and royalty-free license to: (a) access and use the Merchant Services; (b) install, copy, and use any materials we may provide you (“Toolots Materials”), solely in conjunction with your access to and use of the Merchant Services; and (c) use the Toolots trademark solely in conjunction with your use of the Merchant Services (i.e. to inform Customers your product is available for sale on the Site).  You may not alter the Toolots trademark, or any other Toolots copyrighted materials, under any circumstances.  

1. i.   Limitations on License. You may not and may not authorize any other party to do the following to or with the Merchant Services or any Toolots Materials: (a) reverse engineer, decompile, or disassemble them; (b) modify or create derivative works based upon them in whole or in part; (c) distribute copies of them; (d) remove any proprietary notices or labels on them; (e) use any software in any manner that requires, pursuant to the license applicable to such software, that the Merchant Services or any Toolots Materials be disclosed, licensed, distributed or otherwise made available to anyone; or (f) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to them. In addition to any other rights or remedies that we may have, any use in violation of this section will immediately terminate your right to use the Merchant Services, all Toolots Materials, Toolots’s trademark, Toolots’s technology, and the Site (collectively the “Toolots Property”).
2. ii.   Ownership; Reservation of Rights. You acknowledge and agree that we (or our licensors, as applicable) own all right, title and interest in and to the Toolots Property, except by the limited license provided above, you do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in or to the Toolots Property. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by us, by implication, estoppels or otherwise.  You will immediately cease from using any Toolots Property if your account is terminated for any reason.

 4.  Representations.  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; (b) you have all right, power and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses and authorizations in this Agreement, including the legal right to sell or resell Your Products; (c) any information provided or made available by you or your affiliates to Toolots is at all times accurate and complete; and (d) that the sale or resale of Your Products do not infringe upon the rights of any third parties, including without limitation, any third-party intellectual property and patent rights.

1. a.  Compliance with Law. You represent for yourself and on behalf of your affiliates, agents and suppliers (collectively the “Merchant Parties”) that the Merchant Parties will at all times comply with all applicable laws.  You further represent and warrant that (a) all of Your Products and their packaging comply and will comply with all applicable marking and labeling requirements required by law; (b) none of Your Products are or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (c) you and all of your subcontractors, agents and suppliers involved in producing or delivering Your Products will strictly adhere to all applicable laws of the countries where Your Products are produced or delivered, regarding the operation of their facilities and their business and labor practices, including without limitation working conditions, wages, hours and minimum ages of workers; (d) you will not, unless we otherwise agree, redirect any Customers or prospective Customers from the Site to any other sales channel, and will not use the Merchant Services for any purpose other than the offer or sale of Your Products as contemplated in this Agreement; (e) materials and information provided by you to us and our Customers, Your Products and your offer and subsequent sale of any of the same complies with all applicable laws (including all marking and labeling requirements) and do not contain any defamatory, obscene or sexually explicit materials; (f) you will ensure that your transactions are made at no less than fair value under the antidumping laws of the United States and will otherwise comply with the antidumping laws of the United States, its territories and of all other countries where Your Products are produced, delivered, or intended to be sold; (g) in connection with the Merchant Services and Site, unless otherwise agreed upon by Toolots, you will not separately ask for or require any Customers or prospective Customers to provide any credit card, debit card, bank account, or other information related to a payment method.
2. b.  Authorizations.  Merchant Parties shall maintain all the licenses, permissions, authorizations, consents and permits that they need to carry out their obligations under this Agreement. You shall comply with all export and import laws of all countries involved in the sale or resale of Your Products. You assume all responsibility for shipments of Your Products requiring any government import clearance. We are not responsible for any duties, penalties, or holding of Your Products imposed by any governmental authority.

 5.  Limitations, Suspension, and Termination of Merchant Accounts. IF WE DETERMINE THAT YOUR ACTIONS OR PERFORMANCE MAY RESULT IN ANY CONSUMER RISK, RETURNS, CHARGEBACKS, CLAIMS, DISPUTES, OR OTHER ISSUES, THEN WE MAY IN OUR SOLE DISCRETION, SUSPEND OR TERMINATE YOUR ACCOUNT OR 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 TERMINATE YOUR ACCOUNT AND PERMANENTLY WITHHOLD ANY PAYMENTS.  In our sole discretion, we may, but are not required to, impose transaction limits on any transactions facilitated through the Site, including without limitation the value or number of transactions occurring during any period of time.  You agree we will not be liable to you if we do not proceed with a transaction or disbursement that would exceed any limit established by us, or if we permit a Customer to withdraw from a transaction because our Site or Service becomes unavailable for any reason.

 6.  Indemnification. 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) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) the offering, sale, performance and fulfillment of orders for any of Your Products; (c) any actual or alleged infringement of any third party intellectual property rights resulting from the sale or resale of Your Products, and (d)  any personal injury, death or property damage related to your Products.  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.

 7.  Insurance.  You shall, at its own expense, maintain and carry in full force and effect at least the following types and amounts of insurance coverage (a) commercial general liability with limits no less than US$1,000,000 for each occurrence and US$3,000,000 in the aggregate, including bodily injury and property damage, goods in transit, and advertising liability, which policy will include contractual liability coverage insuring your activities.  You shall ensure that all insurance policies required (a)  are issued by insurance companies with a Best’s Rating of no less than A-VII;  (b)  provide that such insurance carriers give us at least 30 days’ prior Notice of cancellation or non-renewal of policy coverage, provided that, prior to such cancellation, You have new insurance policies in place that meet the requirements of this Section; (c)  provide that such insurance be primary insurance and any similar insurance in your name and for your benefit  shall be excess and non-contributory; (d)  name Toolots  our assigns, as additional insureds; and (e)  waive any right of subrogation of the insurers against us.  You shall provide us with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 7.

 8.  Disclaimer & General Release.  THE SITE AND SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE TO YOU ARE PROVIDED "AS-IS" AND YOU AGREE THAT YOUR USE OF THE SITE AND THE SERVICES ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE 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 PROVIDED BY THE SITE OR 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. WE ARE NOT RESPONSIBLE FOR ANY DAMAGES THAT MAY ARISE BETWEEN YOU AND ANY OTHER TOOLOTS USER, INCLUDING CUSTOMERS OF YOUR PRODUCTS OR SKILLED TECHNICIANS ENGAGED BY CUSTOMERS TO REPAIR OR MAINTAIN YOUR PRODUCTS. WE WILL NOT SETTLE DISPUTES BETWEEN TOOLOT USERS, INCLUDING MERCHANTS, CUSTOMERS, OR SKILLED TECHNICIANS.  IF A DISPUTE ARISES BETWEEN TOOLOT USERS, EACH USER RELEASES TOOLOTS (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.

 9.  Limitation of Liability.  WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT) FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF WE HAVE 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 TOOLOTS IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.

 10.  Tax Matters.  You will be responsible for the collection, reporting, and payment of any and all of your taxes, except to the extent we expressly agree in writing or are required by law to receive taxes or other transaction-based charges in connection with tax calculation services made available by us used by you. All fees payable by you to Toolots are exclusive of any applicable taxes, and you will be responsible for paying Toolots taxes for services, if any, imposed on such fees.

 11.  Confidentiality.  During the course of your use of the Merchant Services, you may receive information relating to us or to the Merchant Services, including but not limited to information about the transaction between you and Toolots, and Toolots’s goods and services, confidential information, related third-party confidential information, and other sensitive or proprietary information that is not known to the general public, whether orally or in written, electronic, or other form, and whether or not marked, designated, or otherwise identified as "confidential"  Confidential Information, (the “Confidential Information"). You agree that: (a) all Confidential Information will remain Toolots' exclusive property; (b) you will not otherwise disclose Confidential Information to any third party, except as reasonably necessary for your participation in the Merchant Services; and (c) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.  Except to state that Your Products are sold on Toolots, you may not issue any press release or make any public statement related to the Merchant Services, or use Toolots’s 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.  Upon Toolots's request, you shall promptly return all documents and other materials received from Toolots. Toolots shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by you on a non-confidential basis from a third party.

 12.  Sale of Your Products.

1. a.  Product Listings and Orders.  You will provide in the format we require accurate and complete product information for Your Products (the “Product Information”) and promptly update that information as necessary to ensure that your Product Information is at all times accurate and complete.  You agree that it may take approximately five (5) business days from the date of your notice to us of changes to your Product Information, including pricing adjustments, for us to implement such changes. You are responsible for maintaining accurate inventory information for your product at all times, including when you products are consigned to us or otherwise stored in our warehouse facilities. We will enable you to list your Product and we may perform any other functions, features, advertising, or programs on or in connection with the Site, including products featured on the Site, in our sole discretion. We will provide order information to you for each order of your product in a format and via any mode of communication that we select in our sole discretion.
2. b.  Sales Proceeds. We will have the exclusive right to receive all sales proceeds on your behalf for the sale of Your Products made through the Site and will such proceeds to you in accordance with this Agreement.   We will provide Customers with the ability to pay for orders of Your Product on the Site via credit card, debit card, Paypal, check, money order, wire transfer and any other financing arrangement we, in our sole discretion, may offer.  We are not responsible for any Customer’s selection of method of payment or any Customer’s failure to pay, including any returned check or insufficient account balances.  Payments due to you will be paid thirty (30) days from the date of receipt of payment from the Customer, net any applicable fees and charges due from your account to us, including without limitation fees charged to your account pursuant to our published fee schedule (“Fee Schedule”), which we may modify from time to time, customer returns and other credit adjustments, and fees and charges applicable to your account.  You will be subject to our then-current Fee Schedule and are responsible for reviewing the Fee Schedule prior to offering Your Product on the Site.  By posting Your Product on the Site, you represent that you have accepted our Fee Schedule.  Merchants participating in our Fulfillment will not be charged service fees described in the Fee Schedule.  Merchants participating in our Consignment Program and 3PL Hybrid Program will be subject to applicable fees, including without limitation warehousing and storage charges, as set forth in the Fee Schedule.
3. c.  Product Ratings.  We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller.  Such ratings shall be publically posted and we are not responsible for any feedback from any Customer or third-party ratings or comments on any product or any merchant on its Site.
4. d.  Cancellation of Orders.   You may not cancel or revoke orders placed by Customers, excepting defective or recalled products and excepting instances of complete destruction or loss of Your Products not within your control.  We have the right, but not the obligation, to terminate your account in the event that your cancel or revoke Customer orders in violation of this provision, and may direct Customers to you to address any Customer concerns or complaints regarding the termination of their order by you.
5. e.  Shipping.  You will have the option to ship Your Products using our logistics services, including our selected carrier, or you may elect to make shipping arrangements directly with the Customer and select your own carrier.  There is no service fee for either option; provided that we will determine the shipping costs whether you elect to use our carrier or select another carrier.  We may consult with you regarding appropriate shipping rates to be charged to Customers of Your Product.  We are not responsible for the action of any shipping carrier, whether selected by you or us, or loss or damage to Your Products in transit to us or to the Customer.  If you select your own carrier, you agree to provide us with tracking information (in a format acceptable to us) on the same day that you ship Your Product, and shipping status updates and any other information regarding the shipment of Your Product that we may request.  We reserve the right to amend shipping prices at any time and without notice to you.
6. f.  Order and Payment Processing. We will process all payments, refunds and adjustments for your transactions. Our name will appear on the Customer's credit card statement (which may also display, at our option, your name).  We will determine the time at which we process payments, refunds and adjustments for your transactions in our sole discretion. However, you are always the seller of record. We may withhold for investigation, or refuse to process, any of your transactions. We are not required to accept any particular form of order or payment for Your Product, or honor or accept any discounts, coupons, gift certificates, or other offers or incentives made available by you. We may in our sole discretion withhold for investigation or to refuse to process any transaction involving Your Products or any other products or services on or through the Site. We may use the services of one or more third party, processors or financial institutions in connection with processing your orders.
7. g.  Fraud and Order Stops/Cancellations. We will bear the risk of credit card fraud (i.e. fraudulent purchases 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 any order fulfilled directly by you or any order that does not comply strictly with this Agreement or any other published policy of Toolots, and you will bear all other risk of fraud or loss. You will promptly inform us of any changes to the product mix of Your Products or any pattern of fraudulent or other improper activities with respect to any of your product(s) that has resulted or may result in a higher incidence of fraud or other impropriety associated with transactions involving it (or them) than other similar products. You will stop or cancel orders of Your Products if we so direct (and if the Customer has already been charged, you will execute the refunds for these orders) and will provide to us telephone and email contact information for a designated contact available during business hours whom we can contact regarding fraud, order stops and cancellations and similar concerns, who will cooperate with us and who has access and ability promptly to cancel or stop orders from being shipped.  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. We may restrict destinations to which you may ship Your Products sold on or through the Site.  You will refund any Customer that has been charged for an order that we stop or cancel.
8. h.  Sale and Fulfillment; Refunds and Returns.  Except where the duties below are expressly to be performed by Toolots subject to this Agreement or the Consignment Program, you are solely responsible to: (a) source, offer, sell and fulfill and ship orders same day as orders are received; (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 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 the Site at the time of the applicable order or as may be required under this Agreement; (e) provide us with current 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; (f) ensure that you are the seller of each of Your Products; (g) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (h) 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 (i) except as expressly permitted by this Agreement, not send Customers emails or other communications confirming orders or fulfillment of Your Products.
9. i.  Cancellations, Returns and Refunds. Except where the duties below are expressly to be performed by Toolots subject to this Agreement or the Consignment Program, you will accept and process cancellations, returns, refunds, and adjustments in accordance with this Agreement and Toolots’s Refund Policy.  Toolots may inform Customers that these policies apply to Your Products. Toolots will accept and process cancellations, returns, refunds and adjustments in accordance with the agreement for all products fulfilled by Toolots. Specifically for products not fulfilled by Toolots, 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 Toolots.  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. For all of Your Products that are fulfilled by Toolots, the Toolots Refund Policy for the applicable Toolots Site published at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable Toolots Refund Policy.
10. j.  Problems with Your Products.  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; (b) our failure to make available to you order information as it was received by us or resulting from address verification; or (c) except where non-delivery or misdelivery are the expressly the responsibility of Toolots subject to this Agreement or the Consignment Program.  You are also responsible for any nonconformity or defect in, or any public or private recall of, any of Your Products or other products or component 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.
11. k.  Parity with Your Sales Channels.  You are solely responsible to determine which of Your Products you wish to offer on the Site. You will maintain pricing, quality, and terms of sale parity between the products you offer through your sales channels and the products you list on the Site; provided that we may include the compensation due to us under this Agreement in offering Your Product to Customers on the Site.  Terms of sales, including shipping terms, rebates, guarantees, etc. offered by you to Toolots’s Customers must be at least as favorable as the most favorable terms upon which a product is offered or sold through your sales channels (excluding consideration of Excluded Offers).  You must provide Customer service for Your Products sold on the Site which 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. You will promptly notify and compensate any Toolots Customer who is adversely affected by any noncompliance with this provision by making appropriate refunds to them.
12. l.  Product Pricing and Customer Charges.  You agree to notify us of any pricing changes and any miscellaneous Customer fees and charges (such as crating fees).  We may require approximately five (5) business days to implement such changes.  We are not responsible for pricing changes or additional Customer fees prior to receipt of our notice of such changes from you.
13. m.  Compensation. In exchange for the Merchant Service provided by Toolots to you, we will include fees and commissions earned on the sale of Your Products on the Site into the price of Your Product as offered to Customers, which will be determined in our sole discretion.  Product pricing on the Site are subject to change at any time and without notice to you.  Fees and commissions will be as published in our Fee Schedule. We reserve the right to negotiate additional charges for any Merchant Services that are not a part of this Agreement or the Fee Schedule.  Our compensation will be deducted from amounts due to you as set forth in Section 12(b) above.

 13.  Control of the Site.  We at all times have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Site, including by redesigning, modifying, removing or restricting access to any of them, and by suspending, prohibiting or removing any listing.  Product sizing information appearing on the Site may be presented by us as approximations only.  If you require that exact sizes are featured on the Site for Your Products, please contact Customer Service.  We have the right to determine the use of any Toolots trademark and copyrights, and any messaging or notice on the Site, for example, we will control how our role in processing orders and payments is explained to the Customer. The Site may include any additional functionalities we determine in our sole discretion, to provide to Customers, merchants and other users of the Site, subject to any terms we may require. Should we allow or require you to include any Toolots trademarks or copyrights or Customer messaging, you will do so strictly in accordance with instructions we provide to you. We may but are not obligated to update the Site at any time and make no representations or warranties that any content appearing on the Site is updated or current.  

 14.  Customer Service.  We will be solely responsible for all customer service issues relating to payment, credit card processing, debiting or crediting.   For Customer service inquiries about the use, operation, functionality, or other information about Your Product, we will either consult with you about the Customer service issue, or direct the Customer to you.  For Your Products where Toolots has agreed to provide additional customer service related use, operation, functionality or other information about Your Product, you agree to provide us with all information, including manuals, product specifications, and other information necessary to train our customer service team, product managers, and product engineers to be able to provide our Customers with pre- and post-sales support.  If Toolots will not be providing such additional customer service for Your Products, you will be solely responsible for all customer service issues relating to Your Products (including rebates, item information, availability, technical support, functionality and warranty), your product order fulfillment and shipping and handling, your product order cancellation by you or any Customer, returns, refunds and adjustments, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us.

 15.  Data and Communications. We, together with you, will co-own all Customer account and transaction information regarding the sale of Your Products that is accessible to you via our platform during the Term of this Agreement (“Confidential Sales Data”). Neither you nor we will need to pay any royalties or account to the other in connection with your or our use of the Confidential Sales Data. You and your affiliates will comply with all laws, including any law related to the use of this type of information and comply with any applicable policies posted on the Site regarding use of this Confidential Sales Data. We are not liable for protection or privacy of electronic mail or other information transferred through the internet or any other network you or your Customers may utilize, including without limitation in connection with the provision of the Merchant Services or the backup of any of your files or data.

 16.  Force Majeure.  Toolots is not liable or responsible for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Toolots. 

 17.  Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, fiduciary relationship between the parties, or other exclusive relationship, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  Because Toolots is not your agent, or the Customer’s agent for any purpose, Toolots will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.

 18.  Suggestions and Other Information.  If any Merchant Parties make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Site or Service, 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 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, traffic information, usage history and posted content, subject to our Privacy Policy.

 19.  Modification.  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 the Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes will be posted for at least 30 days prior to the effective date and may be made without notice to you, except in an emergency situation in which case such notices will become effective immediately upon posting. You should refer regularly User Agreement – Terms of Service, Terms of Use, Privacy Policy, and other terms and conditions published by Toolots. We also have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Site and the Merchant Services, including by redesigning, modifying, removing, or restricting access to any of them.  YOUR CONTINUED USE OF THE MERCHANT SERVICES AND THE SITE AFTER TOOLOTS' POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.

 20.  General Provisions.

1. a.  Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California (“Governing Laws”) without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. 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.
2. b.  Arbitration of Disputes.  You consent that any dispute with Toolots or claim relating in any way to this Agreement or your use of the Merchant Services will be resolved by binding arbitration as described in this paragraph and in the User Agreement, rather than in court, except that (i) you may assert claims in a small claims court in Los Angeles County, CA if your claims qualify and (ii) you or we may bring suit in California 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. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: 16300 Shoemaker Ave. Cerritos, CA 90703. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Toolots and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, Toolots and you each waive any right to a jury trial. Any arbitration.  Any legal suit, action or proceeding arising out of or relating to this Agreement not subject to arbitration shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Los Angeles and County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
3. c.  Assignment and Delegation.  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.
4. d.  Waiver.  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.
5. e.  Notices.  We will send all notices and other communications regarding this Agreement to you at the email addresses you designated for notifications and updates in your program application or by any other means then specified by Toolots, including the Product Manager assigned to your account. We may also communicate with you electronically and in other media, and you consent to such communications regardless of any "E-mail Preferences" (or similar preferences or requests) you may have indicated on the applicable Toolots Site page or link, or by any other means. You are responsible for keeping your contact information with us current and accurate (see Privacy Policy).  
6. f.  Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
7. g.  Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction/Arbitration and Survival.
8. h.  Amendment and Modification. Any term or provision specific or applicable only to a single merchant shall not be binding except by prior written agreement of Toolots and such merchant.