Please agree to our vendor agreement before creating
your vendor profile and adding items to our store!
AGREEMENT by and between Englishtrunkshowco.com., ("Englishtrunkshowco.com")
a retail store and online presence with a business address of 8 Washington
St., Nantucket, Massachusetts, 02554 and Merchant for services in
connection with The Englishtrunkshowco.com.
Englishtrunkshowco.com owns and maintains The Englishtrunkshowco.com, a site on that portion
of the Internet known as the World Wide Web accessible to the public
with a URL of http://www.Englishtrunkshowco.com.com (the "Site"). The Site,
serves as a marketplace from which independent Merchants in antiques
and/or collectibles may provide information in an interactive format
about commercially available items.
Englishtrunkshowco.com provides their web site which allow independent
Merchants to display their products and enable Englishtrunkshowco.com
to accept payments on merchants' behalf.
Merchant sells antiques and/or collectibles to the public and wishes
to make information about its collection available to those who access
the Englishtrunkshowco.com Web Site and to retrieve orders and credit card information
(an "online order") from those customers.
Englishtrunkshowco.com and Merchant agree as follows:
1. Englishtrunkshowco.com' Responsibilities
1.1 Englishtrunkshowco.com will allow Merchant the use of its online
presence. Merchant shall retain ownership of all content,
graphics and other copyrightable
material, and all related copyright and other intellectual
property rights, that Merchant provides to Englishtrunkshowco.com specifically
for purposes displaying their product.. Englishtrunkshowco.com will
retain ownership of all other content, graphics and other copyrightable
material, and all related
copyright and other intellectual property rights, that it uses in the
display of Merchant’s products. The specific
graphic embodiment of images supplied by Merchant and processed by Englishtrunkshowco.com
is the sole intellectual property of Englishtrunkshowco.com. Englishtrunkshowco.com
hereby grants to Merchant, subject to the terms and conditions of this
license to use the content, graphics and other copyrightable materials
owned by Englishtrunkshowco.com in connection with Merchant’s display.
1.2 Englishtrunkshowco.com shall have the right, but not the obligation, to review
all content and reject or remove any content which it, in its sole discretion,
deems offensive, unlawful, or inappropriate, does not think consistent
with technical standards, or about which it has received any complaint.
Englishtrunkshowco.com shall have no obligation to notify Merchant of its removal of
any content. Englishtrunkshowco.com shall have no liability to Merchant solely by reason
of its removal of any content.
1.3 Englishtrunkshowco.com will receive and store information received from Merchant's
customers who access Merchant's pages, wish to place an order with Merchant,
or otherwise contact Merchant ("online order message"). Upon
receipt of an online order message, Englishtrunkshowco.com or an agent
acting on behalf of Englishtrunkshowco.com will promptly notify Merchant
of order. Englishtrunkshowco.com shall have
no obligation to store any online order message or to transmit any online
order message more than once.
1.4 English Trunk Show Co. grants to merchant the right to use the publication
resources (including but not limited to the mailing list software, the
bulletin board and the internal bulletin boards) for the express purpose
of advertising products for sale on English Trunk Show Co. . Use of these
utilities to promote other websites or to publish material that in any
manner that violates
and may result in termination of Merchant's services.
2. Merchant's Responsibilities
2.1 Merchant will be responsible for creating, editing, updating and
otherwise managing the their products on Englishtrunkshowco.com
2.2 Merchant hereby grants to Englishtrunkshowco.com a non-exclusive,
worldwide, royalty-free license to use, store, market, license, distribute,
transmit, and display
Merchant's products on the Site and all related sites established by
2.3 Merchant will be solely responsible for filling all orders for goods
and services described, pictured, offered or provided through
the Englishtrunkshowco.com shopping cart system. This also includes product
warranty and similar claims that may be made with respect to any such
goods and services.
2.4 Merchant will respond promptly and professionally to all questions,
comments, complaints and other reasonable requests regarding its web
pages or the goods and services offered through them. If Englishtrunkshowco.com
requests, Merchant will cooperate and assist Englishtrunkshowco.com in
promptly answering such
inquiries. If Merchant fails to respond in a manner that Englishtrunkshowco.com
considers to be timely, Englishtrunkshowco.com may assess additional
service fees to cover the
cost addressing these inquiries. Merchant shall establish and maintain
a return policy that permits its customers to return, for full refund,
any goods ordered through Merchant at any time and
for any reason during a period of not less than seven (7) days after
the customer’s receipt of such goods.
2.5 Merchant will be solely responsible and liable for collection and
payment of any or all taxes, including, but not limited to, sales and
use taxes, duties and similar charges, relating to the sale of goods
and services through its web pages.
2.6 Merchant shall indemnify, defend and hold harmless Englishtrunkshowco.com and
each of its officers, directors, employees and agents from and against
all product warranty and similar claims that may be made with respect
to any such goods and services and all claims arising from or relating
to Merchant’s retrieval, processing and filling of all such orders
for goods and services.
3.1 Royalty on Sales Revenues. Merchant shall pay Englishtrunkshowco.com
a royalty equal to ten percent (10%) of all revenues received by Merchant
the sale of that merchants' goods or services ordered as a results of
accessing EnglishTrunkShowCo.com, whether the order is placed by email,
regular mail, or other
means. This commission rate is fixed for 10 years.
3.2 Payment Schedule.
3.2.1 Web Page Set up, Storage, Maintenance, and Other Services. Merchant
will be able to add, delete or place orders on hold through this system.
Merchant agrees to be responsible for entering (as needed), reviewing,
approving and processing all online orders through the Englishtrunkshowco.com
order management system. These include orders received by telephone,
messenger, mail or email that result from contact through the site as
well as orders placed online by customers. Failure to observe this contract
provision will result in the application of penalties to be determined
by Englishtrunkshowco.com, up to and including the termination of service
without further notice. Englishtrunkshowco.com reserves the right to
verify transaction by contacting
customers who purchase merchandise from our dealers at any time.
OPTION: Vendor can specify payment before shipment and this must be adhered to by Englishtrunkshowco.com. On (or about) the last business day of each month, Englishtrunkshowco.com
will prepare and send Merchant an electronic invoice via email for the
Fee which is based on the sales activity as recordedt from Merchant's
shop at Englishtrunkshowco.com.com. Merchant has until the 10th of each
month to review the invoice for the preceding month. After ten (10) days,
the month is
considered closed and further changes require the specific approval of
Englishtrunkshowco.com mana by the Englishtrunkshowco.com
shopping cart system, and any other sales which resulgement.
Merchant must provide a credit card number to keep on file to cover
payment of the monthly commissions. At the end of the ten day period,
the credit card will be charged for the balance whether or not Merchant
has completed the review. Merchant specifically acknowledges that Merchant’s
acceptance of the invoice shall not be a condition precedent to Englishtrunkshowco.com’s
authorization to charge the credit card.
A late fee of $4.60 +2% of past due balance will be applied on the 11th
of the month.
3.2.2 Royalties on Sales. Merchant shall
pay Englishtrunkshowco.com all royalties payable on sales revenues (Section 3.2 above)
within ten (10) days after the end of the month in which the Merchant
collects the revenues and
provide Englishtrunkshowco.com with each such payment a written report which
1. identifies the transactions giving rise to such royalty payments,
2. specifies the amount of the revenues against which the royalty is
3. provides a clear calculation of the amount of the royalty.
4. An invoice sent to Merchant will be generated by Englishtrunkshowco.com
or an agent of Englishtrunkshowco.com for payment of commissions, at
the discretion of Englishtrunkshowco.com.
Merchant shall maintain complete, accurate, and clear books and records
of all sales with respect to which royalties are payable under this Agreement.
Englishtrunkshowco.com shall have the right to inspect and copy all such
books and records, either personally or through a representative. Englishtrunkshowco.com
give Merchant at least fifteen (15) business days notice of the inspection.
If any inspection discloses that Merchant has not paid Englishtrunkshowco.com
all of the royalties payable under this Agreement, Englishtrunkshowco.com
shall notify Merchant
of such underpayment and may charge theamount of the unpaid royalties
plus a fine for underreporting to a valid credit card account provided
by Merchant immediately after delivery of such notice. Merchant specifically
agrees that Merchant’s acceptance of the notice shall not be a
condition precedent to Englishtrunkshowco.com’s authorization to
charge the credit card.
3..3 Interest. If it is determined, as a result of any inspection or
otherwise, that the actual amount of the royalties paid by Merchant
is less than the amount of the royalties payable by Merchant, then
Merchant shall, in addition to paying such unpaid royalties plus any
fines, pay to Englishtrunkshowco.com interest, at the rate equal to
the lesser of twelve percent (12%) per annum and the maximum lawful
rate, on the
amount of the unpaid royalties from the date that the royalty was due
and payable to the date of payment. Englishtrunkshowco.com may charge
the amount of any interest payable by Merchant to a valid credit card
provided by Merchant. Merchant specifically agrees that Merchant’s
acceptance of the interest determination shall not be a condition precedent
to Englishtrunkshowco.com’s authorization to charge the credit
3.3.4 Arbitration. All disputes concerning the determination of any
amounts payable under this Agreement shall be subject to expedited arbitration
outside of the American Arbitration Association ("AAA") before
an attorney or expert who is knowledge-able and experiencedin matters
similar to the transactions contemplated in this Agreement and who is
selected by mutual agreement of the parties. A party shall commence arbitration
by delivering written notice to the other party. If the parties fail
to agree on an attorney or expert as arbitrator within thirty (30) days
after the date on which the notice of commencement of arbitration is
delivered, arbitration shall be by the AAA, subject to the rules of the
AAA then in effect. Judgment upon the award rendered in any arbitration
may be entered in any court having jurisdiction of the matter.
4. Representations and Warranties
4.1 Authority. Merchant represents and warrants to Englishtrunkshowco.com
that (i) it has all necessary rights and authority to enter into this
and to perform its obligationsunder this Agreement, and (ii) nothing
contained in this Agreement nor Merchant’s performance of any of
its obligations under this Agreement will place Merchant in breach of
any other contract or obligation.
5. Limitations on Liability, Disclaimers, Indemnification
5.1 No Consequential
Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, ORPUNITIVE DAMAGES
OR FOR ANY LOST OR IMPUTED PROFITS AS A RESULT OF ANY ACT OR OMISSION
UNDER THIS AGREEMENT OR OF THE TERMINATION OF THIS AGREEMENT, WHETHER
FOR BREACH OF WARRANTY OR OTHERWISE, WHETHER LIABILITY IS ASSERTED
IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY)
AND IRRESPECTIVE OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT
THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.5.2 No Additional
Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
MERCHANT ACKNOWLEDGES AND AGREES THAT (A) Englishtrunkshowco.com MAY ENCOUNTER TECHNICAL
OR OTHER DIFFICULTIES WHICH MAY HINDER ITS PERFORMANCE OF SERVICES UNDER
THIS AGREEMENT OR RESULT IN THE INTERRUPTION OF THE OPERATION OF THE
SITE, (B) Englishtrunkshowco.com MAKES NO REPRESENTATION OR WARRANTY THAT MERCHANT’S
USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR AS TO THE RESULTS
THAT WILL BE OBTAINED FROM MERCHANT’S USE OF THE SITE, AND (C)
Englishtrunkshowco.com DOES NOT AND CANNOT GUARANTY THE SECURITY OF ANY TRANSMISSIONS
TO OR FROM MERCHANT OR ANY OF ITS CUSTOMERS.
5.3 Indemnity. Merchant shall defend, indemnify, save and hold harmless
Englishtrunkshowco.com and each of its officers, directors, employees, agents, affiliates,
distributors and franchisees from any and all third party claims, demands,
liabilities, costs and expenses (including, but not limited to, reasonable
attorneys' fees incurred in investigating, defending and settling any
such claim) resulting from Merchant’s breach of or failure to perform
any of its obligations under this Agreement or from the inaccuracy of
any representation or warranty provided by Merchant under this Agreement.
5.4 Claims. Upon the assertion of any claim or the commencement of any
suit or proceeding against Englishtrunkshowco.com by a third party for
which Englishtrunkshowco.com may seek indemnification from Merchant under
this Agreement, Englishtrunkshowco.com
shall promptly notify Merchant of such claim and shall give Merchant
reasonable opportunity to defend and/or settle the claim at its own expense
and with counsel of its own selection. Any delay by Englishtrunkshowco.com
in notifying Merchant of such claim shall not limit in any way Merchant’s
indemnification obligation unless such delay materially and adversely
ability to defend against such claim. Englishtrunkshowco.com shall (i)
cooperate with Merchant in the defense of any claim, (ii) at all times
have the right
fully to participate in such defense of the claim at its own expense,
and (iii) not be obligated, against its consent, to participate in any
settlement which it reasonably believes would have an adverse effect
on its business or property rights. Englishtrunkshowco.com shall not
settle any claim for which its seeks indemnification from Merchant without
the prior written
consent of Merchant, which consent shall not be unreasonably withheld.
6. Independent Contractors.
6.1 Independent Contractors. Performance by the parties under this Agreement
shall be as independent contractors. Nothing contained in this Agreement
or done in pursuance of this Agreement shall constitute the parties'
entering upon a joint venture or partner-ship, or shall constitute either
party the agent for the other party for any purpose or in any sense whatsoever,
or to create any fiduciary or any other extra obligations.
7. Term and Termination
7.1 Term of Agreement. The term of this agreement varies depending on
the service plan selected by Merchant.
7.2 Effect of Termination. The termination of this Agreement by either
party shall not constitute or be deemed to constitute the waiver or release
by such party of any right or claim such party may have against the other
party by reason of actions or omissions occurring on or before the effective
date of termination. Englishtrunkshowco.com may, at any time within thirty
(30) days after the date of termination, charge Merchant’s credit
card for any amounts described in Section 3 above. Merchant shall pay
all amounts described in Section 3 above and payable for the period through
the date of termination within ten (10) days after the date of termination
of this Agreement.
7.3 Survival. The rights and obligations of each party under Sections
and hereof will survive the expiration or any termination of this Agreement.
8. General Provisions
8.1 Notices. Any notice required to be sent by either party under this
Agreement may be sent by personal delivery, by registered or certified
mail, postage pre-paid, or by email, facsimile or other form of electronic
transmission, to the respective addresses or facsimile numbers of the
parties, or to such other address which may hereinafter be designated
in writing. Any notice shall be deemed to have been delivered when served,
if personally served, three (3) business days after mailing, if mailed,
and one (1) business day after transmission, if sent by email, facsimile
or other form of electronic transmission.
8.2 Breach and Revocation In the event that English Trunk Show Co. may at any time believe
that the Service is being utilized for unlawful purposes by the Customer
or in contravention of the terms and provisions of this Agreement, English Trunk Show Co. may unilaterally and immediately discontinue such Service to the Customer
without liability. Without limitation, this provision will include obscene
content, Bulk and Unsolicited Commercial Email (UCE), failure to pay,
failure to respond promptly to a customer on an order related-issue and
trademark or copyright infringement.
8.3 Security Interest in Customer's Data, Hosting Account and Domain
Name Registration The parties agree that this Agreement shall serve as
a Security Agreement. Customer agrees that English Trunk Show Co. and/or its subsidiaries
shall have a security interest in and the right in its sole discretion
to suspend, cancel, transfer or modify Customer’s data, web hosting
account and domain name registration in the event that Customer fails
to pay the total amount when it is due or when Customer otherwise breaches
this Agreement (including the various policies identified herein as being
incorporated by reference) and does not cure such breach within five
(5) days of oral or written notice by English Trunk Show Co. .
8.4 Default, Acceleration and Waiver of Notice Should Customer otherwise
breach this Agreement (including the Billing or Acceptable Use Policies),
English Trunk Show Co. may, after first giving Customer ten (10) days written notice (for
purposes of this Agreement, email addressed to the email address that
Customer provides on its billing information constitutes written notice),
declare the Customer in default without any further notice. Further,
in the event of default, English Trunk Show Co. may act as Customer’s Attorney-in-Fact
to execute any actions or proceeding it deems appropriate in connection
with this Agreement, including, but not limited to, selling or otherwise
disclosing Customer data and/or the domain name registration.
8.5 Force Majuere. Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations or attempts
to cure any breach are delayed or prevented by reason of any act of God,
fire, natural disaster, accident, riots, acts of government, shortage
of materials or supplies, or any other cause beyond the reasonable control
of such party; provided, that the party interfered gives the other party
written notice thereof within ten (10) working days of any such event
8.6 No Waiver. The failure of either party to insist upon or enforce
strict performance by the other Party of any provision of this Agreement
or to exercise any right under this Agreement shall not be construed
as a waiver or relinquishment to any extent of such Party's right to
assert or rely upon any such provision or right in that or any other
instance; rather the same shall be and remain in full force and effect.
8.7 Entire Agreement. This Agreement is the entire agreement, and replaces
any and all prior agreements of the parties for the services covered
here. No change, amendment or modification of any provision of this Agreement
shall be valid unless in writing signed by both parties.
8.8 Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction
over the parties to this Agreement, such provision shall be deemed to
be restated to reflect as nearly as possible the original intentions
of the Parties in accordance with applicable law, and the remainder of
this Agreement shall remain in full force and effect.
8.9 Interpretation. Each party to this Agreement has been represented
by independent legal counsel. Therefore, the normal rule of construction
that an agreement shall be interpreted against the drafting party shall
not apply. All pronouns and any variation thereof shall be deemed to
refer to the masculine, feminine, or neuter and to the singular or plural
as the identity of the person or persons may require for property interpretation
of this Agreement.
8.10 Applicable Law; Jurisdiction. This Agreement shall be interpreted,
construed and enforced in all respects in accordance with the laws of
the State of Delaware except for its conflicts of laws principles. Each
party irrevocably consents to the exclusive jurisdiction of the courts
of the State of Delaware and the federal courts situated in the State
of Delaware, in connection with any action to enforce the provisions
of this Agreement, to recover damages or other relief for breach or default
under this Agreement, or otherwise arising under or by reason of this