1.1. Modern Trading Technologies, Inc. and its subsidiaries (collectively, “P2Pseller”, “we”, or “us”) provides its Service (as defined below) to you through its website located at p2pseller.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
1.2. P2Pseller may change this TOS from time to time. If we change this TOS or the Fee Schedule we will provide prior notice either by emailing the email address associated with your account or by posting a notice on the Site. The TOS and Fee Schedule, as applicable, will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to the TOS, Policies or Fee Schedule is not acceptable to you, your only remedy is stop using the Services and send a cancellation email to email@example.com.
1.3. In order to access certain features of our Service you will be required to register with the Site. As part of the registration process, you will provide an email address and password for your account (“Account”).
2. Description of Service
2.1. The “Service” includes (a) the Site, (b) Fulfillment Services (as defined below) and (c) all software data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS. “Fulfillment Services” include services relating to your products (the “Products”), and the shipment and tracking of orders for such Products initiated by your customers who purchase such Products through your sales systems, including:
Automated fulfillment of orders
Administration and monitoring by you via an administrative Internet portal
Processing of returned shipments
3. General Conditions / Access and Use of the Service
3.1. Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to P2Pseller. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices P2Pseller provides you or publishes in connection with the Service, and you shall promptly notify P2Pseller if you learn of a security breach related to the Service. You agree not to access the Service by any means other than through the interface that is provided by P2Pseller for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of P2Pseller or any third party is granted to you in connection with the Service.
3.2. You are solely responsible for all data, information, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You agree to cooperate with and provide reasonable assistance to P2Pseller in promoting and advertising the Services.
3.3. You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. P2Pseller reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Service, you hereby do and shall grant P2Pseller a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. P2Pseller has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that P2Pseller may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. To the extent you provide any suggestions, enhancement requests, feedback, recommendations or other input relating to the Service (“Feedback”), you hereby grant P2Pseller the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
3.4. Notwithstanding anything to the contrary, P2Pseller shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Your Content and data derived therefrom), and P2Pseller will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other P2Pseller offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
3.5. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to P2Pseller third party vendors and hosting partners to provide the necessary delivery, storage, fulfillment, hardware, software, networking, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. P2Pseller will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.6. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in P2Pseller published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
3.7. The failure of P2Pseller to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and P2Pseller, even though it is electronic and is not physically signed by you and P2Pseller, and it governs your use of the Service.
3.8. P2Pseller reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on P2Pseller website and in other communication with existing or potential P2Pseller customers. To decline P2Pseller this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
3.9. Subject to the terms hereof, P2Pseller may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
4.1. To the extent the Service or any portion thereof is made available for any fee, you will be required to pay all fees and any additional shipping expenses set forth in our Fee Schedule and provide P2Pseller information regarding your credit card or a bank account number (for bank to bank transfer with ACH). You represent and warrant to P2Pseller that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. Approximately every two weeks, P2Pseller will post an invoice of the fees and charges to your account and/or otherwise make it available to you. You can elect to pay with a credit card or through ACH. Credit card or ACH declines may incur additional charges and/or lead to suspension or termination of Service. Full payment for invoices issued must be received by P2Pseller thirty (30) days after P2Pseller posting of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on P2Pseller net income. If you dispute any charges you must let P2Pseller know within thirty (30) days after the date that P2Pseller invoices you. We reserve the right to change P2Pseller prices. If P2Pseller does change prices, P2Pseller will provide notice of the updated Fee Schedule on the Site or in email to you, at P2Pseller option, at least 30 days before the change is to take effect. At any time, P2Pseller reserves the right to require a deposit for your Account to cover any fees, shipping expenses or other costs, and P2Pseller may increase or decrease the required deposit amount in its sole discretion.
4.2. There is a base cost to receive inventory into the warehouses (“Receiving Cost”). In the event that there are additional costs associated with non-standard receiving (as determined in P2Pseller sole discretion) (“Additional Costs”), Additional Costs shall be in addition to the Receiving Costs and you hereby agree to pay such Additional Costs. While not specifically called out in our pricing, Receiving Costs are generally included with our standard per item outbound handling piece fees, but Additional Costs are not included. P2Pseller, at its sole discretion, may require a Receiving Cost deposit to cover inventory arriving to or in the warehouse.
5. Representations and Warranties
5.1. You represent and warrant to P2Pseller that (i) you have full power and authority to enter into this TOS; (ii) you own all of Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow P2Pseller to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and P2Pseller exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
6.1. You have the right to terminate your account at any time by sending a cancellation request to email@example.com. Subject to earlier termination as provided below, P2Pseller may terminate your Account and this TOS at any time in its sole discretion by providing notice to the administrative email address associated with your Account. P2Pseller reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by P2Pseller upon any termination of your account in its sole discretion. However, all accrued rights to payment and the terms of Section 5-14 shall survive termination of this TOS.
7. Disclaimer of Warranties
7.1. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by P2Pseller or by third-party providers, or because of other causes beyond our reasonable control. THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND P2PSELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT P2PSELLER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM P2PSELLER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
7.2. P2Pseller is not the importer of record for Products stored at or by P2Pseller. P2Pseller shall not be held liable for complying with your instructions regarding the Service. You acknowledge that P2Pseller does not inspect Products nor does P2Pseller take responsibility for the business decisions that you make and implement through the Service. For purposes of clarity, P2Pseller is not the Merchant of Record for any Products. P2Pseller is not responsible for Products that are damaged during the pick and pack process or for breakage of items during transit that has been picked and packed by P2Pseller.
8. Limitation of Liability
8.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL P2PSELLER BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
8.2. P2PSELLER LIABILITY REFERRED TO IN THIS SECTION 9.2 SHALL BE YOUR EXCLUSIVE REMEDY AGAINST FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING P2PSELLER TO LOSS, DAMAGE, AND/OR DESTRUCTION OF PRODUCTS, UNLESS YOU PROVE BY AFFIRMATIVE EVIDENCE THAT P2PSELLER CONVERTED THE PRODUCTS TO ITS OWN USE. YOU WAIVE ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW. IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION OF PRODUCTS (“INVENTORY LOSS”) FOR WHICH P2PSELLER IS LEGALLY LIABLE, YOU AGREE THAT P2PSELLER LIABILITY SHALL BE LIMITED TO $.30 PER POUND FOR SUCH LOST, DAMAGED, AND/OR DESTROYED PRODUCTS. IN NO EVENT WILL P2PSELLER BE LIABLE FOR ANY LOST SALES REVENUE FROM INVENTORY LOSS. P2PSELLER MAXIMUM LIABILITY FOR INVENTORY LOSS WILL BE LIMITED TO 3% OF THE TOTAL PRODUCT VALUE (AS DEFINED BELOW) OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER.
8.3. Handling physical products could result in loss or damage of Products. We maintain high standards, however occasionally facilities experience concealed shortages, product damages, mislabeled, miss-picked Products and/or cross-shipments. P2Pseller maintains merchant friendly receiving and product labeling requirements. You agree that P2Pseller will have a 1.5% shrink allowance based on the value of your account’s Products known to be in the facility based on the total Product value as determined in P2Pseller sole reasonable discretion measured on an annual basis (“Product Value”) and subject to Limitations of Liability in this Section 9. Explainable, offsetting Product adjustments based on miss-marked Products or receiving Product errors will not be deemed a Product shrinkage event or lost Products.
8.4. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, P2PSELLER LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.1. You shall defend, indemnify, and hold harmless P2Pseller from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. P2Pseller shall provide notice to you of any such claim, suit or demand. P2Pseller reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting P2Pseller defense of such matter.
10. U.S. Government Matters
10.1. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
11.1. You may not assign this TOS without the prior written consent of P2Pseller, but P2Pseller may assign or transfer this TOS, in whole or in part, without restriction.
12.1. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS, together with any Policies and Fee Schedule, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind P2Pseller in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13. Governing Law
13.1. This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by P2Pseller in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
15.1. P2Pseller will not be liable for any default or delay in the performance of any of its obligations under this TOS if and to the extent such default or delay is caused, directly or indirectly, by an event outside of P2Pseller reasonable control, including: (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing. Without limiting the foregoing, P2Pseller failure to perform, or delay in performing, its responsibilities under this TOS will be excused if and to the extent that the cause of such non-performance or delay is: (i) the failure of you or your personnel to materially perform their obligations under this TOS; (ii) any act performed or omitted by P2Pseller or P2Pseller personnel at the request of you; (iii) any act performed by you or your personnel to the extent that such act was not otherwise agreed to by the parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of P2Pseller systems.