For good and valuable consideration, receipt of which is hereby acknowledged, Nineteenth Amendment and Brand, intending to be legally bound hereby, agree to the following:
- “Design Submission” means any and all of the following provided by Brand to Nineteenth Amendment: sample patterns; prototypes; mock-ups; pictures; samples; technical drawings; artistic drawings; photographs; sources of fabrication; technical specifications; and written descriptions of design themes, brand, or of any of the other preceding items or information submitted to Nineteenth Amendment. Nineteenth Amendment is not liable for any digital assets or physical products submitted to Nineteenth Amendment. As between Nineteenth Amendment and Brand, all rights, title, and ownership of each Design Submission is and remains with Brand. Nineteenth Amendment may, at its sole discretion, reject any Design Submission if (a) Brand does not provide all types of Design Submissions or (b) one or more of the Design Submissions provided by Brand is not, as determined by Nineteenth Amendment, in accordance with Nineteenth Amendment’s guidelines, whether using optional marketplace or just producing on Platform.
- Nineteenth Amendment’s services are available only to, and may only be used by, individuals who are 18 years and older and who can form binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. Nineteenth Amendment may, in its sole discretion, (a) refuse to offer access to or use of the Platform to any person or entity at any time and (b) change the Platform eligibility criteria at any time. The preceding sentence is void where prohibited by law, and Brand's right to access the Platform is revoked in such jurisdictions. Individuals between the ages of 13 and 18 must use Nineteenth Amendment's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In such cases, the adult is the user and is responsible for all of individual's activities on behalf of Brand related to this Agreement. People under the age of 13 are not permitted to use Nineteenth Amendment’s services.
- You will need to set up an account to use the posting features of the Platform. You may not use a third party’s account without permission. When you are setting up your account, you must give us accurate and complete information. This means that you cannot set up an account using a name or contact information that is not yours, and you must provide accurate and current information on all registration forms that are part of the Platform.
- Accounts are not transferable, so you may not transfer your account to someone else. You are solely responsible for, and have complete responsibility for, your account and everything that happens on your account. If you share your account with other people, then the person whose billing information is on the account is ultimately responsible for all activity. If you find out that someone is using your account without your permission, you will promptly let us know. We are not liable for any damages or losses caused by someone using your account with or without your permission. However, if we or anyone else suffer any damage due to the unauthorized use of your account, you may be liable. We may terminate your account at any time for any or no reason.
The following terms are related to your responsibilities concerning manufacturers:
- Except in the case of Brand's on Concierge Plan, Brand is solely responsible for the manufacturing of all products offered for sale through Brand's account on Nineteenth Amendment’s Platform and Marketplace. Brand is solely responsible for providing legally required proper care, content, and labeling tags and receipts for all of Brand products sold on the Platform, and Brand is responsible for providing these tags to its manufacturer.
Brands who choose to sell through Nineteenth Amendment Marketplace must work with a U.S.-based
manufacturing partner for all orders.
- If Brand uses manufacturers provided through the Platform to manufacture its products, Brand must use the Platform for all manufacturing communication and transactions with respect to such products.
- If Brand selling through the Nineteenth Amendment Marketplace is not using a manufacturer provided through the Platform, the U.S.-based manufacturers that Brand uses must be approved and vetted by Nineteenth Amendment in advance. We ask you to share information on your use of outside manufacturing because transparency is important to us and our community. Failure to comply may result in the suspension of Brand's account.
- Regardless of whether Brand uses a Platform-provided manufacturer or another manufacturer, the relationship between Brand and the manufacturer is independent of Nineteenth Amendment, and Nineteenth Amendment isn’t part of that agreement or transaction. Brand is solely responsible for paying the manufacturers for all work commissioned to such manufacturer, and Brand will pay the manufacturers promptly upon receipt of the manufacturer’s invoice. Nineteenth Amendment will not be responsible for any losses you may suffer in connection with the manufacturing of your products.
- Nineteenth Amendment may charge (a) fees for Brand's use of Nineteenth Amendment’s Platform and (b) transaction fees for user purchases or wholesale orders on the Platform. When you list an item on the Platform, you will have an opportunity to review and accept the fees that you will be charged as a commission for selling that item. Nineteenth Amendment’s Fees and Billing Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees and Billing Policy and to any fees for Nineteenth Amendment's services are effective immediately after Nineteenth Amendment posts the changes on the Platform. Brand will be deemed to have accepted such changes by continuing to use the Platform. Nineteenth Amendment may also choose to make temporary changes to the Fees and Billing Policy and to the fees for Nineteenth Amendment’s services for promotional events, and such changes are effective when Nineteenth Amendment posts the promotional event on the Platform. Nineteenth Amendment may, at its sole discretion, change some or all of its services at any time. If Nineteenth Amendment introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD).
- You are responsible for paying all fees and applicable taxes associated with Brand's proceeds from using the Platform. We provide plans for automatic bill payment as outlined in the Fees and Billing Policy. Nineteenth Amendment will automatically withdraw the amount due for the current month’s fees and charges. You must pay the amount due in full within 15 days after the invoice, or your account will be past due and subject to cancellation. If you request to put your account on hold, it is treated as a cancellation. To reactivate a cancelled account, you must pay a $50 reactivation fee to Nineteenth Amendment. Collections launched on Nineteenth Amendment and/or Brand account will be taken down at the sole discretion of Nineteenth Amendment if past due.
- Brand is responsible for shipping products sold through their account within the 7 days past their estimated time to produce as indicated by Brand on the platform. At the time of shipment, Brand or its representative must input the shipping provider and the tracking number for each shipment. If Brand does not produce and fulfill sales within 6 weeks after receiving payment, Brand's access to the Platform may be revoked and Nineteenth Amendment may charge and invoice brand for the full cost of unfulfilled sales.
- Brand is responsible for all of its products returned within 2 weeks after customer receipt of said products. If Brand's product(s) are returned by the Shopper to Nineteenth Amendment, Nineteenth Amendment will refund the Shopper in full for their purchase and invoice the Brand for the refunded sale plus shipping costs. Brand must pay upon receipt of the invoice for returns. Once payment has been made by brand for the invoice in full, Nineteenth Amendment will ship the returned product(s) to Brand. If full payment of invoice is not made upon receipt, Nineteenth Amendment may revoke Brand's access to the Platform and retain rights to resell Brand's returned product(s) and retain all profit for returned product(s) sold.
- We reserve the right, in our sole discretion, to seek reimbursement from Brand in any of the following circumstances: (a) we provide a refund to a customer because Brand did not promptly deliver the product(s), (b) we discover erroneous or duplicate transactions related to Brand's account, (c) we receive a chargeback from Brand's credit card issuer or a reversal of payment for the amount of a customer’s purchase from a Brand, or (d) Brand does not act in accordance with this Agreement or any of Nineteenth Amendment’s policies.
- Brand represents and warrants that (a) Brand is the sole and original designer and creator of each Design Submission, (b) Brand has not and shall not incorporate into any Design Submission any material from any other person for which the Brand does not have the necessary rights to do so, (c) each Design Submission will not actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract, or tort right of any person, and (d) Brand is legally able and entitled under the laws of Brand's jurisdiction to enter into this Agreement and to grant Nineteenth Amendment the rights described in this Agreement.
- With respect to Nineteenth Amendment, you are an independent contractor and entity, and you will not be entitled to any Nineteenth Amendment employee benefits of any nature. You will also be solely responsible for all unemployment or disability insurance payments and all social security, income tax, or other withholdings, deductions, or payments that are required by federal, state, or local law with respect to any sums paid to you hereunder.
- You irrevocably grant to Nineteenth Amendment the right and license to use your name, Brand trademarks, Brand name and logo, likeness, and biographical data solely for advertising and promotion related to the sale of items and in any derivative work thereof. This right and license is non-exclusive, worldwide, and royalty-free and includes the right to sublicense. Nineteenth Amendment will use commercially reasonable efforts to comply with all reasonable trademark usage and branding guidelines provided by the Brand.
- Except as otherwise indicated, the Platform and its contents (including, but not limited to, the text, photographs, information, software, graphics, images, sound, and animation) are owned by Nineteenth Amendment and are protected by domestic and international copyright, trademark, and other intellectual property laws. All copyrightable text and graphics, the selection, arrangement, and presentation of all materials (including information in the public domain), and the overall design of this Platform are copyrighted 2016-2019 by Nineteenth Amendment, all rights reserved. The name “Nineteenth Amendment”® and the other marks, phrases, logos, and designs of Nineteenth Amendment that we use in connection with our services are trademarks of Nineteenth Amendment. During the term of this Agreement, Nineteenth Amendment hereby grants to Brand a nonexclusive, royalty-free, limited license to use and display Nineteenth Amendment trademarks solely for the purpose of advertising and promoting Nineteenth Amendment’s sale of items on the Platform in compliance with the terms and conditions of this Agreement. We also hereby give you permission to print materials from the Platform for the sole purposes of viewing, reading, and retaining for reference the materials for non-commercial use. Brand acknowledges Nineteenth Amendment’s exclusive ownership of Nineteenth Amendment’s intellectual property and that use of any of the Nineteenth Amendment’s intellectual property by Brand, including any resulting goodwill, shall inure to the sole benefit of Nineteenth Amendment. Brand shall not do or suffer to be done any act or thing inconsistent with such ownership and shall not acquire or claim or assist third parties in acquiring or claiming any title in or to any of Nineteenth Amendment’s intellectual property, including by virtue of this Agreement or through Brand's use of the Nineteenth Amendment trademarks. Any other copying, distribution, retransmission, or modification of information or materials on the Platform, whether in electronic or other form, without our express prior written permission is strictly prohibited. You will not disassemble, decompile, reverse engineer, or otherwise modify the material on the Platform. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable laws. In addition, Brand hereby covenants that it shall not directly or indirectly undertake any action that in any manner might question, contest, challenge, infringe or impair the validity, enforceability, scope of rights or title of Nineteenth Amendment in any of Nineteenth Amendment’s intellectual property at any time during the term of this Agreement and thereafter. This paragraph will survive termination of this Agreement.
- Nineteenth Amendment may assign this Agreement or any of its rights and obligations hereunder to any third party, but Brand may only assign this Agreement or any of its rights or obligations hereunder upon Nineteenth Amendment’s prior written consent. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the parties and their successors and assigns.
- Brand will indemnify, save, and hold harmless Nineteenth Amendment from and against any loss, liability, damage, and cost that Nineteenth Amendment may incur, now and forever, arising out of or related to (a) Brand's breach of this Agreement or (b) any services or information provided by Nineteenth Amendment that came from Brand. This paragraph will survive any termination of this Agreement.
- To the fullest extent permitted by law, neither Nineteenth Amendment nor our officers, directors, shareholders, employees, contractors, or volunteers shall be liable to you for any lost profits or revenues, or for any consequential, incidental, indirect, special, or punitive damages, arising out of or in connection with Nineteenth Amendment’s services or this Agreement. In no event shall Nineteenth Amendment’s aggregate liability for any damages exceed the greater of one hundred US Dollars (US$100) or the amount you paid Nineteenth Amendment in the then-preceding twelve months. Some jurisdictions do not allow limitations on incidental or consequential damages, so the above limitations may not apply to you. This paragraph will survive termination of this Agreement.
- You irrevocably release Nineteenth Amendment from any claims, demands, and damages arising out of disputes with other users or parties except to the extent caused by such user’s or party’s gross negligence or willfulness. This paragraph will survive termination of this Agreement.
- This Agreement and all aspects of the relationship between the parties shall be construed and enforced in accordance with and governed by the internal laws of the State of New York and the United States of America, without regard to its conflicts of law provisions. Except as provided in the next paragraph, the parties irrevocably submit to the exclusive jurisdiction and venue of the federal and state courts locate in or with jurisdiction over New York County, New York, for the resolution of any disputes related to this Agreement. The parties hereby waive any defenses to such jurisdiction and venue, including inconvenient forum. This paragraph will survive termination of this Agreement.
- Any dispute or claim arising from or relating to this Agreement shall be finally settled by arbitration, using the English language, administered by the American Arbitration Association (the “AAA”) in New York County, New York, under the AAA’s Commercial Arbitration Rules then in effect (those rules are deemed to be incorporated by reference into this paragraph). The arbitration will be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration will take place on an individual basis: class arbitrations and class actions are not permitted and are hereby waived by you. You and Nineteenth Amendment are each waiving the right to trial by jury or to participate in a class action. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief pending a final decision by the arbitrator.
- This Agreement will remain in force until terminated by either party by written notice to the other party. After termination, Nineteenth Amendment will continue to have the right to sell off or otherwise dispose of any items in inventory at the time of termination, and Brand will continue to have the right to receive payment for any such items sold. This Agreement will continue after termination with respect to such post-termination actions.
- During the term of this Agreement and for 5 years thereafter (the “Restricted Period”), Brand will not, directly or by assisting others (other than in connection with carrying out the purposes of this Agreement), solicit, attempt to solicit, or engage in any business from any of Nineteenth Amendment’s vendors, retailers, or other such third parties for the purpose of receiving products or services that Brand could otherwise have obtained through the Platform.
- Internal Revenue Service regulations require that we file a Form 1099-K to report unadjusted annual gross sales information for Brands located in the United States that meet both of the following thresholds in a calendar year: (a) more than USD$20,000 in gross sales by the Brand, and (b) more than 200 transactions by the Brand. To assist with our compliance with these regulations, Brand will provide taxpayer identification information to Nineteenth Amendment once Brand approaches 150 transactions in a calendar year, regardless of sales volume, aggregated across all of Brand's shops on the Platform.
- The above preamble and recitals are incorporated herein by reference and form a substantive part of this Agreement.
Updated as of March 1, 2019.
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