Seller Terms & Conditions
This Seller Terms & Conditions Agreement (“Seller Agreement”) contains the terms and conditions that govern Seller’s access and use of the selling services provided by Ship My Plants LLC (“SMP”) through its e-commerce website www.shipmyplants.com (the “Site”). Seller must accept and agree to the terms and conditions of this Seller Agreement, which includes all Seller Policies, as a condition to accessing and using the Site and selling services provided by SMP through its e-commerce marketplace. BY ACCESSING AND USING THE SITE AND SERVICES PROVIDED BY SMP, SELLER HEREBY AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS SELLER AGREEMENT AND ALL SELLER POLICIES AND GUIDELINES OF THE SITE AND IN CONNECTION WITH SMP’S SERVICES ARE INCORPORATED BY REFERENCE HEREIN.
“Seller Policies” means all terms, conditions, policies, guidelines, rules, and other information on the Site that you must also comply with.
Seller acknowledges and agrees that SMP reserves the right to modify, amend, supplement, or change any of the terms and conditions contained in this Seller Agreement or any Seller Policies or guidelines governing the Site or services provided by SMP, at any time and in its sole discretion. All modifications, amendments, addendums, or changes (collectively “Amendments”) shall take effect upon such Amendments being posted to the Site. Seller is responsible for monitoring the Site for posted Amendments, reviewing, and informing itself of any posted Amendments, and complying with all posted Amendments. Without limiting or conditioning the effectiveness of any posted Amendments to the Site, a notice of Amendments to this Seller Agreement will be posted on the Site for thirty (30) days. Any Amendments to Seller Policies and guidelines may be posted without notice. Seller’s continued use of a SMP service or the Site after SMP’s posting of any Amendments will constitute Seller’s acknowledgement and acceptance of such posted Amendments. If Seller objects to any posted Amendments, Seller shall cease all access and use of the Site and selling services provided by SMP and close its account. If Seller reopens its closed account or creates a new account, Seller agrees to be bound by the current version of the Seller Agreement in effect at the time of reopening the account.
The term "Service" or “service” for purposes of this Seller Agreement means each of the following services: Selling on the Site, utilizing SMP’s licensed intellectual property, including without limitation SMP’s provided plant database and photographs, transaction processing services, and any other related services SMP makes available.
Any reference to “you” herein means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its affiliates.
“Seller” means any person or entity (including you, if applicable) that is participating in a service covered by this Seller Agreement.
“Product” means any product or service (including and optional warranties or coverage plans) that you: (a) have offered through selling on the Site; (b) have made available for advertising through the Site or other SMP services; or (c) have fulfilled or otherwise tendered fulfillment to buyers.
“Seller Materials” means all your technology, trademarks, copyrights (including copyrightable works under applicable law and content protected by database rights under applicable law), intellectual property, content, your product information, data, materials, and other items or information provided or made available by you or your affiliates to SMP or its affiliates in connection with the sale of your Products on the Site.
"Seller Policies" means all terms, conditions, policies, guidelines, rules, and other information on the Site, including without limitation Seller Shipping Policies and Seller Return Policies.
Jump to a Section
- Eligibility; Account Registration
- Account Maintenance; Assignment
- License Granted to SMP
- Service Fee Payments; Receipt of Sales Proceeds
- Seller Fees
- Sales/Use Taxes
- Seller Order Fulfillment Performance
- Representations and Warranties
- General Release
- Limitation of Liability
- Governing Law; Arbitration
- Agreement to Arbitrate
- Seller Policies
- Successors and Assigns
- Entire Agreement; Severability
1. Eligibility; Account Registration
Use of the Site and Services is limited to sellers that can lawfully enter into and form binding contracts. You must be 18 years of age or older to use SMP’s Services. To use the Services, you must register for a seller’s account. As part of the registration process, you must provide your real legal name (or your business' legal name), address, phone number, e-mail address, valid credit card information, and all other information that SMP may request or require to register. Seller represents and warrants to SMP that all the information you provide is true and accurate in all respects.
2. Account Maintenance; Assignment
You're responsible for your account. You’re solely responsible for any activity on your account. If you’re sharing an account with other people, then the person whose financial information is on the account will ultimately be responsible for all activity. If you’re registering as a business entity, you personally guarantee, represent, and warrant that you have the authority to agree to the terms and conditions of this Seller Agreement on behalf of the business. You shall not have the right or the power to transfer or assign your account or any part thereof, without first obtaining the prior written consent of SMP. You are obligated to promptly update your account information at all times. Any transfer or assignment, or attempted transfer or assignment, without the prior written consent of SMP shall be void.
SMP provides an online platform and marketplace for third-party sellers and buyers to negotiate and complete transactions via its Site. All Site sale transactions are exclusively between sellers and buyers, and SMP shall have no direct involvement or responsibility in such actual sale transactions. You hereby acknowledge that you are an independent contractor of SMP, and this Seller Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and SMP for any purpose. You shall have no authority, and shall not hold yourself out as having authority, to bind SMP, and further you shall not make any agreements or representations on SMP’s behalf without SMP’s prior express written consent. You may not issue any press release or make any public statement related to the Site or Services, or use SMP’s name, trademarks, or logo, in any way (including in promotional material) without SMP’s advance written permission, or misrepresent or embellish the relationship between SMP and you in any way.
4. Products & Sale Materials
You hereby acknowledge and agree that you are solely responsible for your Products and your Sale Materials offered for sale and used in selling on the Site. As a Seller, you may list any Product on the Site that comports with SMP’s Seller Product Policies and is otherwise not a prohibited item as determined by SMP from time to time. In addition, you shall be prohibited at all times and without exception from listing or publishing any item, content, link, information, or posting any related material that (i) infringes any third-party intellectual property rights or other proprietary rights; (ii) constitutes slander, libel or is otherwise defamatory; (iii) is fraudulently misrepresented; or (iv) illegal, misappropriated, stolen, or counterfeited. The Seller is solely responsible for accurately describing and depicting its Products. Seller expressly acknowledges and agrees that its use of the Site and the Services is at Seller’s own risk. SMP makes no claims to your Products and Sale Materials, which includes anything you post using our Services (like store names, profile pictures, listing photos, listing descriptions, reviews, comments, videos, usernames, etc.).
5. License Granted to SMP
By entering into this Seller Agreement and posting your Seller Materials, you grant SMP a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, modify, reproduce, distribute, store, and prepare derivative works of Seller Materials. This allows SMP to provide the Services and to promote SMP, the Site and SMP e-commerce marketplace, Seller’s shop and business on the Site, and the Services in general, in any formats and through any channels, including across any SMP Services, our partners, or third-party website or advertising medium. You agree not to assert any moral rights or rights of publicity against SMP for using your Sales Materials. You hereby acknowledge and agree that SMP has a legitimate interest in using your Sales Materials, in accordance with the scope of this license, to the extent your Sales Materials contains any personal information.
This License shall be limited to SMP and its affiliates' use of your Sales Materials in connection with the Site and the Services; provided, however, that SMP will not materially or substantially alter any of your trademarks from the form provided by you and will reasonably comply with your removal requests as to specific uses of such trademarks. Notwithstanding anything to the contrary contained in this Seller Agreement, SMP’s right to use your Sales Materials without your consent shall not be prohibited, limited, or impaired to the extent that such use is permissible without a license from you or your affiliates under applicable law. You represent and warrant that you own or otherwise control all of the rights to the Sales Materials displayed in your listings (including storefronts), and that the use of such materials by SMP and its affiliates will not infringe upon or violate the rights of any third party.
Sellers also acknowledge they are not permitted to use any images from SMP's website for use in any way other than within the Ship My Plants platform nor is SMP responsible for sellers use of unauthorized or copyrighted images.
6. Service Fee Payments; Receipt of Sales Proceeds
You are responsible for all of your expenses in connection with this Seller Agreement. To use and sell Products on the Site or through SMP Services, you must provide SMP with valid credit card information from a credit card or credit cards acceptable by SMP as well as valid bank account information for a bank account or bank accounts acceptable by SMP. You shall further maintain such valid credit card and valid bank account information with SMP at all times. You will use only a name or entity name that you are authorized to use in connection with selling your Products on the Site or through SMP Services and will update all of the information you provide to SMP as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize SMP (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to SMP (in reimbursement or otherwise). All payments to you will be remitted to your bank account through a banking network or by other means as determined by SMP.
7. Seller Fees
As a Seller, SMP will charge you for the use of SMP’s Services (“Seller Fees”). SMP may modify, amend, or supplement the Seller Fees from time to time by posting any such modification, amendment, or supplement to Seller Fees on the Site fifteen (15) days in advance; provided that no advance notice shall be required for a reduction of Seller Fees. Seller Fees include a “Seller Transaction Fee” and “Seller Subscription Fee”, as defined below respectively. You hereby irrevocably authorize SMP to collect and pay any fees or other amounts due by Seller to SMP in relation to your use of the Site and SMP Services for the sale of your Product(s) on the Site, in accordance with the applicable fees charged by SMP as provided in this Seller Agreement from time to time. As a Seller, you are liable for fees arising out of all sales made using some or all of SMP’s Services or Site, even if sales terms are finalized or payment is made outside of the Site or SMP Services. Specifically, if you provide or reference your contact information to a buyer or ask a buyer for their contact information in the context of buying or selling outside of the Site or SMP Services, you may be liable to pay a Transaction Fee applicable to the sale of such Product, regardless if the Product is actually sold, given your usage of the Site and SMP Services for the introduction to a buyer.
Seller Transaction Fee: Seller will be charged a Transaction Fee of 10% on the total amount of Sales Proceeds from each sale Seller makes through the Site or SMP Service. “Sale Proceeds” means the gross proceeds from any sale of your Product(s) through the Site or SMP Services, which such gross proceeds include the total Product purchase price payable or paid for your Product by the buyer, any handling charges, the shipping service the buyer selects, sales tax, and any other applicable fees charged to the buyer.
Seller Subscription Fee: As a Seller, you may choose between Quarterly & Annually Paid subscription. You will be charged a Seller Subscription Fee calculated as follows:
- Green Thumb - Up to 25 Listings
$45 Quarterly - $15/Month Breakdown - 60¢/Listing
$150 Annually - $12.50/Month Breakdown - 50¢/Listing
($30 Savings/2 Months Free!)
- Green Guru - Up to 50 Listings
$90 Quarterly - $30/Month Breakdown - 60¢/Listing
$300 Annually - $25/Month Breakdown - 50¢/Listing
($60 Savings/2 Months Free!)
- Green Giant - Up to 100 Listings
$180 Quarterly - $60/Month Breakdown - 60¢/Listing
$600 Annually - $50/Month Breakdown - 50¢/Listing
($120 Savings/2 Months Free!)
- Green God - Up to 400 Listings
$1200 Annually - $100/Month Breakdown - 25¢/Listing
(Green God Seller Subscription only available Annually to select users.)
The Seller Subscription Fee shall be non-refundable and payable in advance on the first day of each month if paid monthly.
Except as otherwise stated in this Seller Agreement, SMP will remit to you your available payout balance on a bi- weekly (14 day) basis, which shall be calculated on the date that is two (2) business days prior to the date of payout (the "Payout Calculation Date"). For each payout, your available balance is equal to any Sales Proceeds received by SMP but not previously paid to you as of the applicable Payout Calculation Date (which you will accept as payment in full for your sale of your Product(s) through the Site or SMP Services), less: (i) the applicable Transaction Fee; (ii) the Seller Subscription Fees; and (iii) any other applicable fees described or provided for in this Seller Agreement (including any applicable Seller Policies). SMP uses Stripe - learn more here.
9. Sales/Use Taxes
You hereby acknowledge and agree that as a service to our sellers, SMP is using a third party sales tax software to properly calculate, charge, remit and file the correct sales tax to the appropriate taxing authority. You agree to indemnify and hold harmless SMP from any liability, loss, or claims arising out of this paragraph. All fees payable by you to SMP under this Seller Agreement or applicable Seller Policies are exclusive of any applicable taxes.
10. Seller Order Fulfillment Performance
Sellers that ship and sell on the Site are responsible for speedy and efficient packing and shipping. We as a platform strongly suggest that orders be boxed and labeled within 48 business hours of receipt of orders to ensure a quality user experience for our customers. This helps keep SMP’s mission of speedy shipping intact. Sellers are all subject to a 5 star customer rating system that is visible to all potential customers. In order to keep a high rating, we strongly suggest shipping orders as quickly as possible. You further agree to abide by SMP’s Seller Shipping Policy, which is made part hereof and incorporated by reference herein.
The term of this Seller Agreement shall commence on the date of your completed account registration and continue until terminated by SMP or you as provided in this Seller Agreement. SMP may terminate or suspend this Seller Agreement for any reason at any time by notice to you. You may terminate this Seller Agreement for any reason at any time by the means then specified by SMP. Upon termination, all rights and obligations of the parties under this Seller Agreement will terminate, except that Sections 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, will survive termination. Any terms that expressly survive according to the applicable terms and provisions stated in this Seller Agreement or in Seller Policies will also survive termination. Upon termination, Seller must pay to SMP any outstanding fees that were incurred prior to the effective date of the termination, and any pending Seller transactions shall be canceled.
12. Representations and Warranties
You represent and warrant to us that: (i) if you are a business, you are duly organized, validly existing and in good standing under the laws of the state in which your business is registered and that you are registering as a Seller within such state; (ii) you have all requisite right, power, and authority to enter into this Seller Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Seller Agreement; (iii) any information provided or made available by you or your affiliates to SMP or its affiliates is at all times accurate and complete; and (iv) you and all of your subcontractors, agents, and suppliers will comply with all applicable laws in your performance of your obligations and exercise of your rights under this Seller Agreement.
To the fullest extent permitted by law, you hereby agree to and shall defend, indemnify and hold harmless SMP, including its respective managers, officers, employees, representatives, and agents, from any and all claims, demands, causes of action, suits, proceedings, debts, liens, obligations, liabilities, damages, losses, judgments, orders, penalties, fines, settlements, costs, and expenses (including attorneys' fees and related costs) (collectively “Claims”) arising from and related to (i) any breach of your representations and warranties or any other part or obligations of this Seller Agreement; (ii) any claim that your use of Seller Materials, intellectual property, or other content infringes or misappropriates any intellectual property right of a third party; (iii) any claim arising out of SMP’s display of your Seller Materials; (iv) your sales channels other than the Site or SMP Services; (v) your Products (including their offer, sale, performance, and fulfillment); (vi) the acts or omissions of your employees, representatives, agents, contractors, subcontractors, or other affiliated third parties warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of your Products; or (vii) your taxes and obligations associated therewith. In carrying out your defense obligations herein, you will use counsel reasonably satisfactory to SMP to defend each indemnified Claim. If SMP reasonably believes that you lack the capacity, whether financially, competently, legally, or otherwise, to defend SMP pursuant to this Section, SMP may defend itself in which you shall be responsible for the reasonable costs, legal fees, and expenses incurred by SMP in its defense pursuant to this Section. You may not consent to the entry of any judgment or enter into any settlement of a Claim without SMP’s prior written consent, which may not be unreasonably withheld.
THE SITE AND SMP’s SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS" AND YOUR USE THEREOF SHALL BE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SMP (i) MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE OR SMP’S SERVICES; (ii) DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT; (iii) DISCLAIMS IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) DISCLAIMS ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT. SMP DOES NOT WARRANT THAT ITS SITE’S FUNCTIONS 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.
15. General Release
To the fullest extent permitted by law, you, and your customers, buyers, and other parties participating in Seller’s sale transactions, hereby irrevocably and unconditionally release SMP and all principals, employees, agents, or affiliates acting through, under, or in concert with SMP, from all Claims (and hereby further waives all Claims), whether known or unknown, presently existing now or in the future, arising from, based upon, related to, or in any way connected with the Site and Services or arising from any dispute between you, Seller, and any buyers or other participants in any Seller’s sale transactions, unless such damages were directly and solely caused by the willful misconduct of SMP.
16. Limitation of Liability
IN NO EVENT WILL SMP BE LIABLE TO YOU, OR YOUR AGENTS AND AFFILIATES, FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, RECOUPMENT OF ANY INVESTMENT, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THE SITE OR SERVICES, THIS SELLER AGREEMENT, OR ITS TERMINATION, REGARDLESS OF THE FORM OF ACTION (INCLUDING NEGLIGENCE, WARRANTY, AND STRICT LIABILITY IN TORT) AND IRRESPECTIVE OF WHETHER SMP HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. The aggregate liability of SMP arising by reason of or in connection with this Seller Agreement, shall not in any event exceed at any time the total amounts during the prior six-month period paid by you to SMP in connection with the particular service giving rise to the claim.
During the term of this Seller Agreement, you may receive information or have access to and become acquainted with trade secrets, proprietary information and confidential information belonging to SMP and its affiliates relating to SMP or to the Site or Services that are not generally known to the public, including, but not limited to, information concerning business plans, financial statements, operating practices and methods, marketing technology, contracts, customer lists, and other business documents and information provided pursuant to this Seller Agreement that SMP treats as confidential ("Confidential Information"). You agree that: (i) all Confidential Information will remain SMP’s exclusive property; (ii) you will use Confidential Information only as is reasonably necessary for your access and use of the Site and SMP Services; (iii) you shall not disclose or permit access to Confidential Information other than as expressly authorized in this Seller Agreement or by SMP; and (iv) you will take all reasonable measures to protect the Confidential Information against any unauthorized use or disclosure.
18. Governing Law; Arbitration
This Seller Agreement and the rights and obligations of the parties under it shall be governed by and interpreted in accordance with the laws of the State of Indiana (without regard to principles of conflicts of law). If the Agreement to Arbitrate provided below is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Arbitration Agreement of Section 19 or as a result of a decision by the arbitrator or a court order, you agree that any claim, lawsuit, action, or dispute between you and SMP will be resolved exclusively by the applicable state or federal court located in Lake County, Indiana (“Governing Court”). You and SMP hereby agree to submit to the exclusive personal jurisdiction of the courts located within Lake County, Indiana for the purpose of litigating all such claims, lawsuits, actions, or disputes that are not subject to arbitration. If for any reason a claim proceeds in court rather than in arbitration, SMP and you each waive any right to a jury trial.
19. Agreement to Arbitrate
A. Arbitration. You and SMP each agree that any and all disputes or claims between you and SMP, or any affiliate, arising out of or related to this Seller Agreement (including any previous versions), or arising out of your use of and sales of Products on the Site, shall be submitted to and resolved exclusively through binding arbitration in accordance with the terms and procedures of this Section; except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or SMP may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving SMP’s respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. By agreeing to arbitrate, you are waiving the right to have your claim heard and tried by a judge and/or jury and are further waiving your right to an appeal of an arbitration award. The 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 Seller Agreement as a court would.
The Federal Arbitration Act ("FAA"), and to the extent not inconsistent with the FAA, the laws of the State of Indiana, without regard to principles of conflict of laws, governs the interpretation and enforcement of this Agreement to Arbitrate. Arbitration shall be administered by the American Arbitration Association (the “AAA”) under its rules then in effect applicable to disputes between an online marketplace or platform and an individual user or subscriber, or otherwise applicable to this Seller Agreement (the "AAA Rules") (those rules are deemed to be incorporated by reference into this Section) unless otherwise required by law. Arbitration, including threshold questions of arbitrability of any specific dispute, 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. The arbitrator shall apply the terms of the Seller Agreement as a court would. All issues are for the arbitrator to decide, except those issues relating to arbitrability of disputes, the scope or enforceability of this Agreement to Arbitrate Section, or the interpretation of Section19(B) below shall be for a court of competent jurisdiction to decide.
B. Class Action Waiver; Individualized Relief. You and SMP further agree that the arbitration of any disputes pursuant to this Seller Agreement shall be conducted in their individual capacities only and not as a class action or other representative action. You and SMP expressly waive their respective rights to file a class action or seek relief on a class basis. By entering into and agreeing to the terms of this Seller Agreement, you acknowledge and understand you and SMP are each waiving the right to trial by jury in addition to the waiver of the right to participate in a class action lawsuit. 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 or mediator. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect other users or sellers. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court as provided below subject to your and SMP’s right to appeal the court's decision. All other claims will be arbitrated.
C. Arbitration Procedure. The arbitration will be administered by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules and the AAA's Commercial Arbitration Rules, as applicable and as modified by this Agreement to Arbitrate. Absent agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. The AAA's rules are available at www.adr.org and www.icdr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the Governing Court shall select the administrator.
A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute ("Notice"). The Notice to SMP must be sent to SMP’s registered agent’s address. SMP will send any Notice to you to the physical address we have on file associated with your SMP account; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and provide a detailed description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account. If you and SMP are unable to resolve the claims described in a valid Notice within 30 days after SMP receives that Notice, you or SMP may initiate arbitration proceedings. The party initiating the arbitration must mail a copy of the completed petition to arbitrate, or similar form, to the opposing party. In the event SMP initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your SMP account. Any settlement offer made by you or SMP shall not be disclosed to the arbitrator.
The arbitrator will decide the substance of all claims in accordance with Indiana law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users and sellers, but is bound by rulings in prior arbitrations involving the same user or seller to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
D. Forum. The arbitration hearing shall be held in Lake County, Indiana, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $15,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator's discretion to require an in-person, telephonic, or virtual hearing, if the circumstances warrant. In cases where an in- person hearing is held, you and/or SMP may attend by telephone or video unless the arbitrator requires otherwise.
E. Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. Each party shall bear their own respective costs of arbitration. Notwithstanding the foregoing, if the arbitrator determines the claim(s) you assert in the arbitration against SMP to be frivolous or brought for an improper purpose, SMP shall be entitled to an award for all fees, costs, expenses, and reasonable attorney fees incurred the defense of such arbitration.
F. Severability; Amendments. With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If SMP amends this Agreement to Arbitrate Section after the date you last accepted the terms of this Seller Agreement, those changes will not apply to any claims filed in a legal proceeding against SMP prior to the date the changes became effective. SMP will post notice of any such amendment to this Agreement to Arbitrate Section on the Site at least 30 days prior to the date the amendment will become effective. If you do not agree to the modified terms of the Agreement to Arbitrate Section, you may cease all access and use of the Site and selling services provided by SMP and close your account. If you reopen your closed account or create a new account, you agree to be bound by the current version of the Agreement to Arbitrate Section in effect at the time that you reopen your account.
If you or any of your affiliates provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any SMP Site or Service (including any related Technology), 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 cooperate with governmental requests, 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, IP addresses and traffic information, usage history, and posted content.
22. Seller Policies
This Seller Agreement incorporates, and you hereby accept and agree to be bound by, the rules, regulations, and terms contained in the Seller Policies, which SMP may modify from time to time as provided herein.
23. Successors and Assigns
This Seller Agreement, and all Seller Policies, shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Seller Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
25. Entire Agreement; Severability
This Seller Agreement, including Seller Policies, represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings. If any provision of this Seller Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions.