- Merchant Terms of Service and Agreement
- 1. ANM Is a Marketplace
- 2. Membership Eligibility
- 3. Fees and Payment
- 4. Appointment of ANM as Limited Payment Collection Agent
- 5. Listing and Selling
- 6. Prohibited, Questionable and Infringing Items and Activities
- 7. Content
- 8. Arbitration
- 9. WAIVER OF CLASS OR CONSOLIDATED ACTIONS:
- 10. ANM‘s Intellectual Property
- 11. Access and Interference
- 12. Restriction, Suspension, and Termination for Convenience
- 13. Breach
- 14. Warranty Disclaimer
- 15. Liability Limit
- 16. Indemnity
- 17. Insurance
- 18. Taxes; Legal Compliance
- 19. Customs Duty and Indirect Taxes
- 20. Severability
- 21. Survival
- 22. Export
- 23. Confidentiality
- 24. Use of ANM Transaction Information
- 25. Force Majeure
- 26. Relationship of Parties
- 27. Electronic Communications
- 28. Assignment
- 29. Choice of Law, Jurisdiction and Venue
- 30. Suggestions and Other Information
Important Note: This Merchant Terms of Service and Agreement applies to merchants who reside in the United States of America.
The version of this Merchant Terms of Service and Agreement in English is the definitive legal version. This Merchant Terms of Service and Agreement was updated on May 1, 2022, and is effective upon new users as of that date.
The above “Important Note” constitutes an integral part of this Merchant Terms of Service and Agreement.
Merchant Terms of Service and Agreement #
Please read this Merchant Terms of Service and Agreement (“terms of service” or “Terms”) carefully before using services, including, without limitation, the website at https:Anmmarketplace.com , the app offered under the name ANM Marketplace, and all other websites, apps, and services offered by or through us pursuant to this Agreement (as defined below) (collectively, the “Services”) offered by Diamond Bella Inc. (“ANM,” “we,” and “us”). Unless otherwise agreed to in writing by you and ANM, by registering for or otherwise using the Services in any manner, including but not limited to visiting or browsing the Services, you agree to be bound by and comply with these Terms, and all additional terms and conditions (“Additional Terms”) and policies and guidelines (“Policies”) referenced herein or published or made available by ANM, in each case to the extent such Additional Terms and Policies are applicable to your use of the Services or activities on the ANM platform, including, without limitation, the following provisions of these Terms: (a) receiving communications and conducting transactions electronically, (b) disclaimers of warranties, (c) damage and remedy exclusions and limitations, (d) binding arbitration, and (e) choice of California law.
The Additional Terms and Policies include, but are not limited to, the following.
- Merchant Policies (including all subsections incorporated therein)
- ANM Merchant Tax Policy
- Fees and Payments Policy
- Fulfillment By ANM Terms and Conditions
- ANM Local Participant Terms and Conditions
- ANM Parcel Terms and Conditions
All Additional Terms and Policies are hereby specifically incorporated herein by reference and the Terms, together with all Additional Terms and Policies, form the entire agreement between you and ANM (the “Agreement”) with respect to the subject matter hereof and supersede all prior agreements. To the extent that the Terms conflict with any other Additional Terms or Policies provided by or through us, the Additional Terms or Policies, respectively, shall control to the extent of the conflict. Any additional terms and conditions you may propose in any order confirmation or other documentation are rejected and shall have no effect unless expressly agreed to by us in a separate written agreement with you.
This Agreement sets forth the terms and conditions legally binding on you (“you” or “Merchant”) acting as a merchant or other business account user (including as a participant in our “ANM Local” program, as set forth in the ANM Local Participant Terms and Conditions, or as a wholesale purchaser or seller) of our website(s), applications (“apps”) and Services.
Please note that Sections 8 and 9 of the Terms contain an arbitration clause and class action waiver. By agreeing to the Agreement, you agree to resolve all Disputes (defined below) through binding individual arbitration, which means that you waive any right to have those Disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions. Please read Sections 8 and 9 carefully.
1. ANM Is a Marketplace #
You understand and agree that ANM is a marketplace and as such is not responsible or liable for any content, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, products, services, listings, links or information posted or provided by you, other merchants, or other third parties on or through ANM or any of the Services. You use the Services at your own risk. You will comply with these Terms and all Additional Terms and Policies applicable to any products or services you provide through or offer in connection with the Services.
To the fullest extent permitted by law, you and your Affiliates (defined below) waive claims related to, and agree that ANM and ANM’s Affiliates, including any of their officers, directors, employees, consultants or agents, are not responsible for, (a) any statements, guarantees, representations or warranties made by you or any third party through the Services, including with respect to any product, service or expected transactions, and including merchantability, fitness for any particular purposes or any other express or implied warranties; (b) implied warranties based on the transaction process, the performance of the contract, trading practices or course of dealing; or (c) any duties, responsibilities, rights, claims or tort reliefs, whether or not they are due to ANM’s or any of its Affiliates’ negligence. “Affiliate” shall mean, with respect to any person or entity, any other person or entity that directly or indirectly controls, is controlled by, or is under common control with that person or entity.
If you have a dispute with any third party over any product, service, offering or interaction over the Services, you agree not to make any claim of any kind or nature against ANM or its Affiliates with respect to such dispute, no matter whether any claims, requirements or compensation of damages are known, insured or released.
2. Membership Eligibility #
Age: ANM‘s Services are available only to, and may only be used by, individuals who are at least 18 years old and who can form legally binding contracts under Applicable Laws. You represent and warrant that (a) you are at least 18 years old, (b) you can form legally binding contracts under relevant Applicable Laws, and (c) all registration information you submit is accurate and truthful. ANM may refuse to offer access to or use of the Services to any person or entity or change its eligibility criteria at any time as provided herein. This provision is void where prohibited by Applicable Laws, and the right to access the Services is revoked in such jurisdictions.
Compliance: You agree to comply with all applicable laws, rules, regulations, ordinances, orders, licenses, permits, judgments, decisions, and other requirements, of any governmental authority, whether domestic, international, federal, state, local or provincial, and whether in effect now or in the future and as may be amended from time to time (“Applicable Laws”) including with respect to e-commerce, privacy, intellectual property, use of the Services, marketing, sale and provision of any products or services by you, representations, warranties and quality assurance of any products or services provided by you, online conduct and acceptable content. Except as set forth in Sections 18 and 19 herein, you are responsible for the calculation and collection of all applicable taxes.
Additional Terms and Policies: In addition, you represent, warrant, and covenant that you will comply with ANM‘s Additional Terms and Policies stated in these Terms or otherwise provided by ANM. You are required to review these Additional Terms and Policies so you understand your obligations to ANM and requirements for using the Services.
You represent, warrant, covenant, promise, and guarantee that during the period of registration and this Agreement: (a) you are legally established in accordance with Applicable Laws, validly existing, and in good operation; (b) you have all the necessary legal qualifications, rights, capabilities, and authorities to sign this Agreement, fulfill duties accordingly, and grant rights, licensing and authority required by this Agreement, and have the permissions, approvals and licenses required by your business and the sale of the items in all relevant countries; (c) you and your Affiliates will comply with all Applicable Laws to fulfill your rights and duties under this Agreement; (d) you are in full compliance with all Applicable Laws when offering or fulfilling any products or services for sale through, or relating to, the Services, including, without limitation, the countries where you ship from and the countries where you ship to; (e) you shall maintain such records as are necessary pursuant to such Applicable Laws and shall promptly on request make them available for inspection by any relevant authority that is entitled to inspect them; (f) you shall monitor any changes in the Applicable Laws which may impact the sale of the products or services through, or relating to, the Services; (g) you shall directly notify ANM by email and in writing of any investigation and potential claim that are instigated by any regulator in relation to any products or services offered through, or relating to, the Services; (h) you shall promptly remove any and all offerings of products and services from the Services whenever they infringe or otherwise violate any Applicable Laws, become otherwise prohibited in the relevant countries, or under the Merchant Policies (or any updated version of the Merchant Policies made available to you) (unless ANM has permitted eligible merchants the ability to sell restricted items in specific regions based on new or additional requirements being met); and (i) you and your financial institution(s) are not subject to Sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by any such party, including, but not limited to, the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its Member States, the United Kingdom, or other applicable government authority.
ANM may prohibit or restrict the items a merchant may list and offer on the ANM platform. ANM may permit eligible merchants to sell restricted items in specific regions provided that new or additional requirements determined by ANM are met.
ANM may also offer from time-to-time certain beta merchant programs in its discretion, which may include as many or as few merchants, and commence or expire, as ANM determines is appropriate for the beta merchant program.
Modifications to the Agreement:
Because relevant Applicable Laws, as well as the business environment, periodically change, ANM reserves the right to amend the Terms and the Additional Terms and Policies at any time, as set forth herein. In that instance, ANM will provide thirty (30) days’ advance notice of any such amendment if required by Applicable Laws to do so. The notice will be provided via electronic mail, the ANM Merchant Dashboard, the ANM Application Program Interface (“ANM API”), or other commercially reasonable means. Regarding any such amendment, you agree that the continuation of your use of the Services after receipt of the notice of such amendment, shall constitute your acknowledgement and acceptance of any and all such changes, and it shall also constitute adequate consideration to support such change(s), which shall automatically be incorporated into this Agreement as of the effective date stated in the amendment.
Unless otherwise permitted by Applicable Laws, you agree that any amendment will only apply to Disputes that arise after the effective date of such amendment unless you have expressly agreed to such amendment.
Prior to the effective date of such proposed amendment, you may opt out of any proposed amendment by sending a timely written notice of your decision to opt out to the following by email to Support@anmmarketplace.com. ANM reserves the right to cancel your account and terminate your access to the Services if you do not agree to any proposed amendment.
Password and Account Security: You are required to keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify ANM of any unauthorized use or access of your password or your account or any other breach of security of your account. You also agree that ANM cannot and will not be liable for any loss or damage arising from your failure to keep your password secure or any unauthorized access of or other breach of security of your account. You agree not to provide your username and password information in combination to any other party other than ANM without ANM’s express written permission. You further agree not to use the same username or password for your ANM account that you use for any other account on any other platform.
Account Information: You must keep your account information up to date and accurate at all times, including a valid name, address, phone number and email address. To sell items on ANM you must provide and maintain valid payment information such as a valid PayPal account. You authorize us (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, in limited circumstances, to charge your credit card or debit your bank account for any sums payable by you to us (in reimbursement or otherwise). You also agree to provide ANM any additional information or authorizations as may be necessary for ANM to provide the Services or for you to fulfill your obligations under this Agreement, including all applicable Additional Terms and Policies. All payments to you will be remitted to your bank account through a payment service provider you designate or by other means specified by us. Depending on the payment method you choose, you may be required to provide a valid United States tax identification number via Form W-9 or proof of residency outside the United States via Form W-8BEN/W-8BEN-E.
Account Transfer: You may not transfer or sell your ANM Merchant account, username, or associated payment provider or processor account to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Refuse Service: ANM reserves the right to cancel unconfirmed or inactive accounts or to refuse to offer the Services to you for any violation or suspected violation of this Agreement or Applicable Laws, with or without notice to you. We may also discontinue the Services or any part of the Services and delete all data or other information associated with your account (including any materials you may submit to us). We assume no liability for any information removed from the Services, and we reserve the right to permanently restrict access to the Services or your account. You agree that you do not have any rights in the Services and that we have no liability to you if the Services are discontinued or if you are no longer able to access the Services or any information that was previously made available to you on the Services.
Closing Your Account: You have the right to close your account. If you choose to close your account, please contact Support@anmmarketplace.com. You will then receive a confirmation once your account has been closed. If ANM is unable to close your account at this time, you also will receive an email detailing why your account cannot be closed and any additional steps or information that may be required from you before closing your account. The closure of your account does not preclude ANM from pursuing legal action against you for any violation or suspected violation of this Agreement (including any Additional Terms or Policies) or any Applicable Laws, or initiating collection of fees or other payments due to ANM.
3. Fees and Payment #
Fees: ANM will collect or receive fees, payments or other amounts from you, for your use of or access to the Services, as set forth in its Fees and Payments Policy or as otherwise communicated to you by ANM. Except as set forth in Sections 18 and 19 herein, you are responsible for paying all fees and applicable taxes associated with using and selling on ANM.
As a merchant, you also may incur fees through the use of various payment providers or processors. Any such payment provider or processor fees will be determined by any agreement you may have with a payment provider or processor, and ANM is not responsible for reviewing, advising on, or paying any such fees.
Payment: ANM will make payments to you, in connection with your use of the Services, as set forth in this Agreement and its Fees and Payments Policy or as otherwise communicated to you by ANM. You understand and agree that ANM’s obligation to pay you is expressly subject to the terms of and your compliance with this Agreement and is conditioned upon ANM’s successful receipt of funds from ANM users who purchase items through the Services.
In addition to the above, ANM may elect to delay the remittance and withhold the amounts payable to merchants, or any other payment due under this Agreement or its Fees and Payments Policy or as otherwise communicated to you by ANM, until such time as ANM receives valid confirmation of product delivery. Transactions for which ANM cannot confirm valid delivery may be ineligible for payment and may subject your account balance to temporary or permanent holds or account suspension.
In the event that ANM elects to remit an amount to you before the eligible payment date for such amount through a discretionary advance or advance made through your payment processor or provider (hereinafter, a “Discretionary Advance”), ANM may reduce your payment by the amount of the Discretionary Advance either immediately or as soon thereafter as ANM deems practicable.
Moreover, if ANM determines that your actions or performance may result in returns, chargebacks, claims, disputes, violations or suspected violations of this Agreement, or other risks to ANM or third parties, or reflect pending or otherwise unrecoupable balances, then ANM may withhold and/or set off or offset any payments to you for as long as ANM determines such conditions or any related risks to ANM or third parties persist. For any amounts that we determine you owe us, we may (a) charge your account or any payment instrument you provide to us; (b) set off or offset any amounts that are payable by you to us (in reimbursement, converting balances in your account to ANM, or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to you; or (e) collect payment or reimbursement from you by any other lawful means.
If we determine that your account has been used to engage in deceptive, fraudulent, or other illegal activity, or to violate this Agreement, then we may permanently withhold and/or set off or offset and retain any payments that otherwise may have been payable to you. In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations or suspected violations of this Agreement, or other risks to ANM or third parties. These amounts may be refundable or nonrefundable in the manner we determine, which may include converting balances in your account to ANM, and failure to comply with this Agreement, including any applicable Policies, may result in their forfeiture.
4. Appointment of ANM as Limited Payment Collection Agent #
You hereby appoint ANM as your payment collection agent, solely for the limited purpose of accepting funds from ANM users who purchase items through the Services.
You agree that ANM may honor any governmental or judicial order attaching, garnishing, or levying upon funds otherwise payable to you hereunder and that any payment to a governmental authority or a third party pursuant to a court order by ANM as required by such order shall relieve ANM of any obligation to pay such funds to you.
You further agree that ANM shall have no obligation to invest such funds for your account and that you shall not be entitled to any interest earned on such funds while such funds are in the possession of ANM.
ANM shall have the right to offset its obligation to pay you such funds to satisfy any obligation then owing by you to ANM. ANM shall otherwise have no interest in the funds that it holds for you as paying agent, and any liability for taxation or otherwise related to such funds shall be entirely yours.
ANM will disburse funds owed hereunder to you upon your written instruction and shall have the right to rely on such written instruction. Under no circumstance shall ANM be obligated to advance to you funds it does not hold as your paying agent.
ANM reserves the right to resign as your paying agent and cancel your account at any time.
5. Listing and Selling #
Listing Description: By listing any product or service on the Services, you warrant that you and all aspects of such product or service comply with this Agreement (including all Additional Terms and Policies), and other published policies, and relevant Applicable Laws. You also warrant that you may legally sell or provide such product or service in all locations that you list your product or service for sale. You are solely responsible for accurately describing your products and services and all terms of sale in your ANM shop. Your listings may only include content relevant to the sale of that product or service. All products and services must be listed in an appropriate category with appropriate tags. Each listing must truthfully, accurately and completely describe the product(s) or service(s) for sale in that listing. If the “in stock” quantity is more than one, all products in that listing must be identical. ANM does not have any responsibility for, or obligations related to, the descriptions of your products or services.
Shop Policies: ANM may permit you, in certain circumstances, to outline shop policies for your ANM shop. These policies may include, for example, shipping, returns, payment and selling policies. You must create reasonable policies in good faith and must abide at all times in compliance with such policies. You are prohibited from creating any policies that are deceptive or inaccurate. All shop policies must comply with ANM’s respective Additional Terms and Policies and all Applicable Laws. You are solely responsible for reviewing ANM’s Policies to ensure that your shop policies remain in compliance with ANM’s Policies and for ensuring that your shop policies remain in compliance with all Applicable Laws. You are responsible for enforcing your own shop policies. In the event of conflict between your shop policies and the Terms or any other ANM Additional Terms or Policies, the Terms or the appropriate ANM Additional Terms or Policies shall control as it relates to your use of the Services.
Binding Sale: All sales are binding. You agree to all applicable provisions related to sales as outlined in the Additional Terms and Policies. You are obligated to ship the applicable order in a prompt manner after a sale is made over the Services or you otherwise complete the transaction with the applicable buyer. The cost arising from not completing orders in time shall be undertaken by you.
Third Party Service Providers: To the extent you use any third party to assist or facilitate any portion of your use of the Services, including, without limitation, your listings, sales, fulfillment, system notifications or changes, customer support or other functions, you agree that you shall be responsible for and ANM shall not be liable for any acts, conduct, errors, omissions, losses, claims or other issues resulting from your use of such third party’s services.
Fee Avoidance: The price stated in each product or service listing description must be an accurate representation of the sale. You may charge reasonable shipping and handling fees to cover the costs for packaging and mailing products. You may not charge excessive shipping fees or otherwise avoid fees. You may not do anything intended to avoid or having the effect of avoiding any fees due to ANM, or otherwise intended to violate this Agreement, including, without limitation, altering a product’s or service’s price after a sale, misrepresenting the location of a product or service, using another merchant’s account without permission, or arranging a sale outside of the ANM platform to avoid paying fees to ANM.
Nonconformity, Defects, or Other Issues with Items: You understand and agree that ANM is not the seller of any product or service you list for sale, and that ANM has no control over and does not give any commitment relating to the existence, quality, safety, genuineness, legality, or any other aspect of such product or service, the truth or accuracy of any information or materials you provide to ANM or make available to ANM customers related to such product or service, the ability of a ANM customer to pay for the product or service, or whether the ANM customer may return or seek a refund or cancellation for such product or service, and you further understand and agree that ANM will have no liability related to your product or service. You are also responsible for any nonconformity or defect in, or any recall (public or private, voluntary or mandatory) of, as well as any other safety concerns related to, the products or services you list for sale. You will notify ANM as soon as you become aware of, or reasonably suspect, any nonconformity or defect in or safety concerns, or recall related to your products. If we determine that the performance of your obligations under this Agreement may result in returns, claims, disputes, or violations of this Agreement, or cause any other risks to us or third parties, then we may mitigate them, including by determining whether a customer will receive a refund, adjustment, or replacement for any of your products or services for as long as we determine any related risks to us or third parties persist. If you offer a product for sale through our Services that requires a warning under California Health & Safety Code Section 25249.6 (a “Proposition 65 Warning”) you (a) will provide in your listing such warning in the manner compliant with Applicable Laws, (b) agree that our display of a Proposition 65 Warning on a product detail page is confirmation of our receipt of that warning, and (c) will only revise or remove a Proposition 65 Warning for a product when the prior warning is no longer legally required.
No Transfer of Title: In no event shall title to any products transfer to ANM, even if ANM takes possession of a product in connection with any sale, product return, or disposition of abandoned products, including any products that are not retrieved by a customer for more than fifteen (15) days as set forth below.
Customer Support: ANM may provide you with a mode by which you may receive and respond to inquiries from ANM users, including questions about product issues, shipping, delivery, returns, and refunds. In such event, you understand and agree that ANM may establish certain service-level agreements (“SLAs”) related to your responses (e.g., timing to respond, types of permitted communications with customers, etc.), to which you will be required to adhere.
You further agree that ANM, in its sole discretion (and including in the event you do not respond in accordance with an SLA), also may, but is not obligated to, provide support to customers as a service to you, including with respect to complaint intake and answering questions about logistics (including shipping, delivery, returns, and refunds), without taking title to any products and provision of such support shall not, and shall not be deemed to, transfer title to ANM.
Disposition of Returned and Abandoned Products: Any products that are returned to or not retrieved from any local store, warehouse or other facility of ANM or any of its other merchants, agents or third party providers, including any customer product orders made as part of the ANM Local program as set forth in the ANM Local Participant Terms and Conditions (including but not limited to ANM Pickup, home delivery or curbside pickup) that are not retrieved for more than thirty (30) days after the product is delivered to the designated ANM Local location, shall be deemed abandoned. Upon such abandonment, ANM, directly or through its designee, shall have the right to take possession of and relist, sell, donate, recycle, destroy or otherwise dispose of any such abandoned products. Except as specifically set forth below with respect to any such abandoned products that are relisted or sold by ANM, title to each such disposed product will transfer to ANM or a third party it selects (such as a charity), at no cost to ANM or such third party, free and clear of any liens, claims, security interests or other encumbrances to the extent required to dispose of the product, and ANM shall have the right to retain any proceeds ANM may receive from such disposal and to withhold and/or set off or offset any payments to you for all costs incurred by ANM in connection with such disposal.
Should ANM relist or sell any such abandoned product, Merchant understands and agrees that, for any relisted or sold product: (a) ANM shall not, and in no way be deemed to, take legal title to such product, (b) should ANM then complete a subsequent sale of such product, Merchant will not receive any payment beyond any payment that Merchant had been eligible to receive and already received for such product, and (c) ANM may use the same product listing, Merchant identification, and any other information previously used by Merchant in connection with any re-listing or other disposition of any product for such product.
ANM DISCLAIMS ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR ARISING UNDER ANY APPLICABLE LAWS (WHETHER ARISING UNDER COMMON LAW, CIVIL LAW, STATUE OR OTHERWISE) RELATING TO ANY POSSESSION, STORAGE, SHIPMENT OR DISPOSAL OF YOUR PRODUCTS BY ANM, OUR AFFILIATES OR ANY OF OUR OR THEIR DESIGNEES, CONTRACTORS OR AGENTS.
Disposition of Products in Compliance with Legal Requirement: ANM, directly or through its designee, shall have the right to take possession and dispose of products to comply with any Applicable Laws or any order or other requirement of any court, arbitrator, or other governmental authority and to withhold and/or set off or offset any payments to you for all costs incurred by ANM in connection with such disposal. Such action shall not, and shall not be deemed to, transfer title to ANM.
Third Party Platforms: ANM has or may enter into relationships with third parties that support the marketing, sale, and fulfillment of any Merchant’s products and services through such third parties’ platforms and applications or channels of trade (“Third Party Platforms”), either as part of, or as a separate offering from, the Services. You acknowledge and agree that ANM may, and you hereby expressly authorize ANM to, market, promote, publish, display, offer for sale, sell, or fulfill your products and services through any Third Party Platform, whether as part of the Services or separate from the Services, whether concurrently with or in lieu of the Services, or whether you are required to create an account with any Third Party Platform.
Other: ANM generally strives for equal treatment of the ANM merchants. However, ANM might differentiate merchants for reasons including the following: (i) products offered by ANM merchants that participate in the paid ProductBoost service might be favored due to economic and commercial reasons; (ii) products offered by merchants with high ratings may be favored over those offered by merchants with lower ratings; (iii) products offered by merchants with low refund rates may be favored over those offered by merchants with higher refund rates; (iv) products offered by merchants in regions in close proximity to a ANM customer may be favored over products offered outside those regions; (v) products offered by ANM or its Affiliated companies might be favored for economic and commercial reasons; (vi) products whose merchants offer faster shipping options may be favored over products whose merchants offer slower shipping options; (vii) products whose merchants offer lower prices may be favored over merchants offering the same product for more; (viii) the length of relationship between ANM and its merchants; or (ix) the nature of the product sold or the volume of sales by the ANM merchant. Favored treatment may include scenarios such as higher position in rankings; increased direct or indirect remuneration to the merchant for use of the Services; or other merchandising support. ANM encourages its merchants to provide ANM customers with the fastest shipping options and lowest prices possible.
ANM product listings, including those resulting from user searches, are ranked according to various factors. These factors are determined solely by ANM, are designed to help ensure that ANM customers see the items that they might find most relevant, and, in addition to the foregoing bases for differentiating between merchants, may also consider a ANM customer’s prior engagement with ANM, a ANM customer’s prior orders and search history, the terms used in a ANM customer’s search query, ANM’s attempts to expand and understand the appeal or interest in new product categories or offerings, a ANM customer’s location, the ANM merchant’s rating, the historical revenue per impression of the product or service listing, the ANM merchant’s refund rate, whether a ANM merchant participates in the paid ProductBoost service (which participation might increase the ranking of a merchant’s listing), and the overall standing of the ANM merchant on the ANM platform.
You acknowledge and agree that, as part of the Services provided to you, ANM may use its algorithms, know-how, and other systems to set the final price of each item shown to a ANM customer. This final price may be lower, higher, or the same as the listing price you provide, and you acknowledge and agree that ANM may retain any amounts collected from ANM customers that exceed your or any other merchant’s listing price.
6. Prohibited, Questionable and Infringing Items and Activities #
You are solely responsible for your conduct and activities on or relating to the Services and any and all data, text, descriptions, pricing, information, usernames, graphics, images, photographs, profiles, audio, video, products, items, listings, links, names, trademarks, service marks, copyrights, and other content that you submit, post or display on the Services (collectively, “Content”).
Your Content, use of (or activity on) the Services, and products sold over the Services shall not:
- Be false, inaccurate, or misleading;
- Be obscene or contain unwarranted pornography, nudity, or adult material;
- Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
- Contain images that are not related to the product or service you are offering;
- Infringe upon, misappropriate, dilute or otherwise violate any third party’s copyright, patent, trademark, trade secret, or other intellectual property or proprietary rights or rights of publicity; such prohibited behavior includes (without limitation): (a) selling or displaying items portraying the likeness of a celebrity (including portraits, pictures, names, signatures, and autographs); (b) selling or displaying items bearing a third party brand or trademark that you are not authorized to display in such manner; or (c) selling any pirated video or recording;
- Involve the sale of items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) or any other regulator that has jurisdiction in the countries in which the items are offered as hazardous to consumers and therefore subject to a recall, including, but not limited to, the European Commission’s Directorate General for Justice and Consumers for European Union and the UK’s Chartered Trading Standards Institute;
- Be defamatory, libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including ANM staff or other merchants), or falsely state or otherwise misrepresent your affiliation with any person or entity, through, for example, the use of similar email address, nicknames, or creation of a false account(s), or any other method or device;
- Decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services;
- “Crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services through any means;
- Violate the security of any computer network, or crack any passwords or security encryption codes;
- Modify, adapt, or hack the Services or modify another website so as to falsely imply that it is associated with ANM;
- Post fraudulent, inaccurate, or misleading reviews of merchants or items (and instead shall always disclose all information a reasonable shopper would want to know about your review, including whether you were provided any compensation or other benefit to write your review);
- Attempt to manipulate the manner in which ANM categorizes, ranks or displays stores or listings with dishonest or unfair activities, including, without limitation, by accepting fraudulent orders, encouraging or engaging in provision of inauthentic or fake reviews, or by making material changes to a listing after it was published (e.g., to the item or its price);
- Solicit business for, direct sales to, or promote any website, service, or entity outside of the Services;
- Violate the privacy rights of, or contain personal information about, any individual; or
- Violate any Applicable Laws relating to export, import or trade control or the export, re-export, transfer, import, sale, or use of products or services sold under this Agreement (collectively, “Trade Control Laws”). Without limiting the foregoing, you shall not sell, transfer, export or re-export to, or otherwise provide products or services under this Agreement, directly or indirectly, (a) to any country (or national or government thereof), state, territory, or region, that is subject to sanctions measures issued or adopted from time to time by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (currently Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) or any other applicable sanctions, including the sanctions laws of any other country having jurisdiction (collectively, “Sanctions”); (b) to any person to whom delivery or provision of products or services is prohibited under Trade Control Laws or Sanctions, including, without limitation, to (i) any person or entity identified on the Denied Persons List as maintained by the U.S. Department of Commerce Bureau of Industry and Security or (ii) any person or entity identified on the list of Specially Designated Nationals and Blocked Persons as maintained by OFAC, or any other regulator that has jurisdiction in the countries in which the items are offered, including China, the European Union and the United Kingdom, or (c) for any end-use prohibited under Trade Control Laws or Sanctions, including, without limitation, for any missile, chemical weapons or nuclear end uses).
7. Content #
License: You hereby grant ANM a royalty-free, non-exclusive, worldwide, perpetual, sublicensable (through multiple tiers), irrevocable right and license to use, disclose, reproduce, perform, display, transfer and otherwise distribute, synchronize, broadcast, adapt, modify, excerpt, analyze, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner your Content in any medium or in any format and for any purpose, including, without limitation, for the advertising, marketing, or promotion of ANM, any Services or any future product or service, including on or through any Third Party Platform or any other third party service or social media platform, and to copy, publish, display, promote, market, offer for sale and sell your products and services through any Third Party Platform. For the sake of clarity, nothing in this Agreement will prevent or impair our right to use your Content without your consent to the extent that such use is allowable without a license from you or your Affiliates under Applicable Laws (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
Waiver: Without limiting the foregoing license, you hereby irrevocably waive any and all rights of privacy or publicity, or other rights of a similar nature in connection with the commercial exploitation of all and any portion of your Content, consistent with this Agreement. To the extent included in your Content, you hereby consent to the use of your name and any other names, trade names, fictitious names, trademarks and service marks, likenesses, performances, voices and identities (or that of any minor who you are responsible for) for any and all purposes in connection with ANM’s exercise of the license rights granted herein. You waive any right to inspect or approve any such use Content. You expressly release and hold harmless ANM, its Affiliates and its and their officers, agents, employees, customers, users, licensors, suppliers, and partners from any and all claims, demands and liabilities by reason of their exercise of such license rights. ANM may alter, modify or combine all or any portion of the Content with other works, and you hereby waive any claim that any version of the Content portrayed consistent with this Agreement constitutes a distortion, mutilation, or disparagement or contains unauthorized variations of the Content. You shall not have the right to approve or enjoin the use of the Content in accordance with this Agreement. ANM will have no obligation to use the Content and no obligation to pay you for any use of the Content in accordance with this Agreement. You understand that any use of the Content will be in reliance on the above consent and release.
Warranty: You represent, warrant and covenant that you are the sole and exclusive owner of all Content; that you have the right and authority to grant to us the foregoing Content license, consent and waiver and all other rights and licenses that you grant to us under this Agreement; and that our exercise of such rights and licenses do not and will not infringe or otherwise violate any copyright, trademark, right of publicity, or other intellectual property or proprietary right owned by you or any third party.
Reposting Content: You acknowledge and agree that by posting Content on ANM, it is possible for ANM or an outside website or a third party to repost that Content, whether through the Services, any Third Party Platform, or any other website or media.
Business Data, Personal Data: ANM collects and generates a variety of data in order to provide, market, and improve the Services, and to market your ANM Local store(s).
Business Data: ANM collects, generates, and stores a variety of data that is not personal data (“Business Data”). Business Data can include information about: merchants and their stores; merchant accounts; merchant activity, including fulfillment data (e.g., tracking data on packages), compliance with ANM Policies or participation in ANM programs such as ProductBoost or those related to fulfillment, and Content; user interest in products or Services described by listings, including purchases, as well as user satisfaction with products or services and the purchase experience (e.g., customer reviews and refunds); and Merchant services providers such as enterprise resource planning providers (“ERPs”) or payment services providers (“PSPs”).
ANM can access most Business Data and may permit its service providers to access certain Business Data to help provide the Services. ANM may share Business Data (including allowing access through technical means such as application programming interfaces (“APIs”) as instructed by a merchant, such as with merchant PSPs or ERPs. Merchants can access detailed information regarding their accounts, stores and activity by logging into their ANM accounts or their accounts with applicable service providers such as a carrier or PSP. Merchants can access data regarding the stores or listings of other Merchants by registering a user account and navigating to stores and listings of interest.
Protection of User Data: When you use the Services, such as when you fulfill a purchase, you may obtain personal data from or about a ANM user (“User Data”). Your use, disclosure, and protection of User Data shall comply with the Applicable Laws related to the privacy, security, use, transfer, collection or other processing of personal information, including, without limitation, Europe’s General Data Protection Regulation ((EU) 2016/679) (“GDPR”); the UK’s Data Protection Act 2018 (“DPA”) and the GDPR as it forms part of the laws of the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); the California Consumer Privacy Act (“CCPA”); Brazil’s Lei Geral de Proteção de Dados (“LGPD”); and Cybersecurity Law of the People’s Republic of China (collectively, “Privacy and Security Laws”). You are solely responsible for understanding and complying with your obligations under Privacy and Security Laws.
When processing personal data falling under the scope of the GDPR, the UK GDPR, and the DPA, we act as a data controller of any customer personal data collected via the Services. We comply with all the obligations related to any data controller pursuant to the GDPR, the UK GDPR, and the DPA. You are controllers of the customer personal data that are strictly necessary to fulfill orders and may not use any such customer personal data (including contact information) for any purpose other than fulfilling orders or providing customer service in connection with the Services. Generally, you may not use such data in any way inconsistent with Applicable Laws. You must keep customer personal data confidential at all times and comply with the obligations related to any data controller pursuant to the GDPR, the UK GDPR, and the DPA and any United Kingdom or European Union Member States laws.
Regardless of the origin of the User Data, unless you have a valid legal basis, such as consent from the individuals described by User Data as required by applicable Privacy and Security Laws, you shall solely use and disclose User Data in connection with the corresponding transaction with such user (e.g., shipping and fulfillment) or as necessary to meet your statutory legal requirements, such as tax and reporting requirements. You shall employ reasonable and appropriate measures to safeguard User Data from misuse, loss, destruction, or unauthorized access or use, and you are solely responsible for any failure to appropriately safeguard this information or any failures of the protections you have in place. You acknowledge and agree that if ANM determines that additional agreements are necessary for compliance with applicable Privacy and Security Laws, you will promptly review and accept such agreements or cease using the Services or applicable portions thereof, such as sales into the European Union or the United Kingdom.
Without limiting the foregoing, you shall not upload, access or use tracking technologies (such as browser cookies, web beacons or flash cookies) as part of any item listing.
ANM does not assume any responsibilities for disputes between you and your customers for using User Data without authorization or in violation of these Terms, Additional Terms, Policies or applicable Privacy and Security Laws. You are solely responsible for responding to any requests received by users to access or delete their personal information, or in response to any other similar right granted under applicable Privacy and Security Laws.
- Email address
- Payment method or financial account information
- Shipping address
- Phone number
- Geolocation data (including business name, street address (number and name), postal code, city, state, country, or latitude and longitude coordinates)
- Social network account credentials
- Sales information
- ANM identifications or usernames
8. Arbitration #
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH ANM AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND ANM UNDERSTAND AND AGREE THAT THIS ARBITRATION SECTION OPERATES AS A SEPARATE AND DISTINCT ARBITRATION AGREEMENT THAT IS SEVERABLE FROM THE REMAINDER OF THE TERMS OF THIS AGREEMENT AND IS ENFORCEABLE REGARDLESS OF THE ENFORCEABILITY OF ANY OTHER PROVISION OF THE AGREEMENT. CONSIDERATION FOR THIS PROVISION INCLUDES, WITHOUT LIMITATION, THE PARTIES’ MUTUAL AGREEMENT TO ARBITRATE CLAIMS. AS NOTED ABOVE, THIS AGREEMENT TO ARBITRATE SHALL SURVIVE ANY TERMINATION, CANCELLATION OR EXPIRATION OF THE AGREEMENT.
YOU AND ANM AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF ANM, TO ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH ANM, TO THE AGREEMENT, OR TO THE CONTENT OR USER SUBMISSION (PUBLIC, PERSONAL, OR LIMITED AUDIENCE) ON ANM SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, SUBJECT TO THE EXCEPTIONS BELOW.
You and ANM agree that this Arbitration Agreement affects interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this Arbitration Agreement and govern all questions as to whether a Dispute is subject to arbitration.
“Disputes” shall include, but are not limited to, any claims or controversies between you and ANM against each other related in any way to or arising in any way out of or from the Agreement, the Services, the Content, Submissions (public, personal, or limited audience), including, but not limited to, sales, payments, returns, refunds, cancellations, defects, policies (including violations or suspected violations thereof), fulfilment, privacy, advertising, or any communications between you and ANM, even if the claim arises after you or ANM has terminated the Services or a user account. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, Affiliates, or other representatives; or (b) that ANM brings against you. Disputes also include, but are not limited to, (i) claims in any way related to or arising out of any aspect of the relationship between you and ANM, whether based in contract, tort, statute, fraud, warranty, misrepresentation, advertising claims, or any other legal theory; (ii) claims that arose before the Agreement or out of prior Agreement(s) with ANM; (iii) claims that are subject to on-going litigation; or (iv) claims that arise after the termination of the Agreement.
Initial Dispute Resolution
Most Disputes can be resolved without resorting to arbitration. In the event of a Dispute, you and ANM each agree to first provide the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; (b) a statement of the specific relief sought; and (c) the contact information of the party giving it. A Notice of Dispute must be sent to: One Sansome Street, San Francisco, CA 94104 or emailed at Support@anmmarketplace.com. ANM will provide a Notice of Dispute to you via the email address associated with your ANM User ID, Merchant ID, or other information provided to ANM by you.
You and ANM agree to use their best efforts to resolve the Dispute through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or ANM may commence an arbitration proceeding.
Except as provided below, no party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter has been submitted and determined as provided here, and then only for the enforcement of such arbitration award. Notwithstanding this mediation and arbitration policy, either party may apply to a court of competent jurisdiction as necessary to enforce an arbitration award, or to seek a temporary restraining order or preliminary injunction to ensure that the relief sought in arbitration is not rendered ineffectual during the pendency of, or after the rendition of, a decision in any arbitration proceeding. The institution of any action shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive or enforcement relief to arbitration. Further, any party seeking to enforce an award of an arbitrator(s) shall submit the award under seal to maintain protections of confidential information, and you and ANM hereby agree and consent to the filing of such a submission, motion, or order under seal.
Notwithstanding the foregoing, Disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Services shall not be subject to arbitration, and the notice and good faith negotiation required by this Section shall not apply to those types of Disputes.
Binding Arbitration Process and Procedure
Except as provided herein, if we cannot resolve a Dispute informally: (1) if you reside in the United States, any Dispute will be resolved only by binding arbitration to be held in the county in which you reside or any other location agreed upon between you and ANM in writing; and (2) if you reside outside the United States, you understand and agree that arbitration shall be initiated in San Francisco, California. ANM and you further agree to submit to the personal jurisdiction of any state or federal court in San Francisco, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties agree to cooperate regarding the enforcement of any arbitration judgment rendered in accordance with this Agreement, including in connection with the enforcement of such judgment in any country outside the United States as applicable.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL.
Any arbitration will be filed with and administered by JAMS under its rules and procedures, which are available at the JAMS website at jamsadr.com. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Arbitration Agreement, the rules set forth in this Arbitration Agreement will govern.
Notwithstanding the rules of JAMS, the following will apply to all arbitration actions:
- The Arbitration Agreement and the arbitration will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. To the extent that there is a conflict between the FAA and California law, the FAA prevails.
- The arbitration will be conducted in English.
- The parties agree that time is of the essence.
- The Federal Rules of Evidence will apply in all cases.
- The parties will be entitled to bring motions under Rules 12 or 56 of the Federal Rules of Civil Procedure.
- The parties will be allotted equal time to present their respective cases, including cross-examinations.
In addition to the foregoing and notwithstanding the rules of JAMS, certain procedures will apply depending on the amount in controversy. For controversies and claims in which the amount in controversy is less than $1,000,000.00 (one million dollars), the following procedures will apply:
- The arbitration will occur within one hundred eighty (180) days from the date on which the arbitrator is appointed and will last no more than five (5) business days.
- There will be one arbitrator selected from the panel provided by JAMS, using the JAMS rules for arbitrator selection.
- The arbitrator(s) shall institute discovery consistent with the goals of arbitration, Discovery and disclosure of information will be conducted under the rules provided by JAMS to achieve the usual goals of arbitration, including cost effective and efficient resolution of disputes between parties, but in no event shall, the Parties be entitled to discovery rights greater than provided by the Federal Rules of Civil Procedure.
For controversies and claims in which the amount in controversy is equal to or exceeds $1,000,000.00, the following procedures will apply:
- There will be three (3) arbitrators selected from the panel provided by JAMS, using the JAMS rules for arbitrator selection.
- The parties will be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure.
- The parties will be entitled to appeal any arbitration award to an Appeal Panel under JAMS Optional Arbitration Appeal Procedures. The parties agree to and request oral argument for any appeal filed under the Optional Arbitration Appeal Procedures.
If ANM’s or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or ANM may choose to pursue a claim in small claims court with jurisdiction and venue over you if ANM otherwise qualifies for such small claims court and the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to still provide ANM with advance notice by email to Support@anmmarketplace.com
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, ANM will pay the additional cost. ANM shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be asserted or conducted for an improper purpose or frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorneys’ fees and expert witness costs unless ANM is specifically required to pay such fees under Applicable Laws.
This Agreement, including this Arbitration Agreement, does not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the Applicable Laws allow, seek relief against ANM on your behalf.
The parties agree and understand that maintaining confidentiality of Disputes and Dispute resolution is of the utmost importance, and agree that ANM has valuable trade secrets and proprietary and confidential information. The parties agree to take all necessary steps to protect from public disclosure such trade secrets and proprietary and confidential information.
Authority of Arbitrator
The arbitrator(s) has the authority to determine jurisdiction and arbitrability issues as a preliminary matter, except the arbitrator(s) shall not have the authority to determine whether the arbitration can proceed on behalf of or against a class. The arbitrator(s), and not any federal, state or local court or agency, shall have exclusive authority to resolve any Dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and ANM.
The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties.
The arbitrator(s) shall have the authority to grant motions dispositive of all or part of any claim or Dispute.
The arbitrator(s) shall have the authority to award monetary damages available to an individual under Applicable Laws, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement), except that the arbitrator(s) will have no authority to award punitive damages. Each party hereby waives any right to seek or recover punitive damages with respect to any Dispute resolved by arbitration, except where an applicable statute or other law allows for punitive damages.
The arbitrator(s) shall have the authority to grant any non-monetary remedy or relief available to an individual under Applicable Laws, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement).
The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the Applicable Laws. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial
YOU AND ANM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, except as specified herein. You and ANM are instead electing that all covered claims and Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified herein. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following by email to Support@anmmarketplace.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your ANM User ID (if any), ANM Merchant ID, the email address you used to set up your ANM account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you and ANM reserves the right to terminate the entirety of the Agreement. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
Parents, Subsidiaries, Affiliates
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or Affiliate of ANM, or any employee, officer, director, or investor of ANM, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to this Agreement (such as with respect to their validity or enforceability), the Services, any person’s access to or use of the Services, or the provision of Content, products, services, or technology on or through the Services.
Changes to This Arbitration Section
ANM reserves the right to amend the Arbitration Agreement. In that instance, ANM will provide thirty (30) days’ advance notice of any such amendment if required by law to do so. The notice will be provided via electronic mail, the ANM Merchant Dashboard, the ANM API, or other commercially reasonable means. With regard to any such amendment, you agree that the continuation of your use of the Services, after receipt of the notice of such amendment, shall constitute your acknowledgement and acceptance of any and all such changes, and it shall also constitute adequate consideration to support such change(s), which shall automatically be incorporated into this Arbitration Agreement as of the effective date stated in the amendment.
Unless otherwise permitted by Applicable Laws, you agree that any amendment will only apply to Disputes that arise after the effective date of such amendment unless you have expressly agreed to such amendment.
Prior to the effective date of such proposed amendment, you may opt out of any proposed amendment by sending a timely written notice of your decision to opt out to the following by email to Support@anmmarketplace.com. ANM may terminate the Agreement of any Merchant who does not agree to a proposed amendment to this Section 8.
Subject to Section 9, titled “Waiver of Class or Consolidated Actions,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Arbitration Agreement
This Arbitration Agreement will survive the termination or expiration of this Agreement or your relationship with ANM.
9. WAIVER OF CLASS OR CONSOLIDATED ACTIONS: #
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
ANM and you agree that any Dispute will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. ANM and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
The arbitrator(s) cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other ANM users, and cannot be used to decide other disputes with other users.
If any court or arbitrator(s) determines that the class/consolidated/representative action waiver set forth in this Section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and shall be litigated in federal court located in Arizona or in another forum as agreed upon between you and ANM in writing.
Notwithstanding anything to the contrary herein, the class action waiver set forth herein shall not apply to any claims made under the Private Attorneys General Act of 2004, California Labor Code § 2698 et se.
If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this Section, and the remainder of its provisions will be given full force and effect.
This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or Affiliate of ANM, or any employee, officer, director, or investor of ANM, and to any claims asserted by any of them against you, to the extent that any such claim is a Dispute.
This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services.
ANM may try to help you resolve disputes with third parties. ANM does so in ANM’s sole discretion, and ANM has no obligation to resolve disputes between you and other users or between you and outside parties. In the event that you have a dispute with one or more other users or other outside parties, you release ANM, its officers, employees, agents, and successors from any and all claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or our Services.
IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
If ANM has posted or provided a translation of the English language version of this Agreement, you agree that the translation is provided for convenience only and that the English language version will govern your uses of the Services or the Sites.
10. ANM‘s Intellectual Property #
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, user submissions, and so forth are protected by copyright or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in such Content you access through the Services and all Applicable Laws relating thereto, and you won’t access, use, copy, reproduce, modify, create derivative works from, translate, publish, broadcast, synchronize, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (a) without the prior written consent of the owner of that Content or (b) in a way that violates someone else’s (including ANM’s) rights.
11. Access and Interference #
Much of the information on ANM is updated on a real-time basis and is proprietary or is licensed to ANM by ANM‘s merchants or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access ANM for any purpose whatsoever, except to the extent expressly permitted by and in compliance with this Agreement, including the ANM API Terms of Service, without ANM‘s prior express written permission. Additionally, you agree that you will not:
- Take any action that imposes, or may impose, as determined by ANM, an unreasonable or disproportionately large load on ANM’s infrastructure; or
- Interfere or attempt to interfere with the proper worANMking of the Services or any activities conducted on the Services.
12. Restriction, Suspension, and Termination for Convenience #
We may restrict or suspend your use of any Services or restrict or suspend this Agreement. At the time of the restriction or suspension taking effect, we shall provide you with a statement of reasons (i.e., facts or circumstances leading to the restriction or suspension) for that decision. You shall act in a commercially reasonable manner, in accordance with Applicable Laws; as such, we may restrict or suspend without notice your use of any Services or restrict or suspend this Agreement in the event that we believe that you do not act in a commercially reasonable manner.
We may terminate your use of any Services or terminate this Agreement for convenience with thirty (30) days’ advance notice prior to the termination taking effect, with a statement of reasons (i.e., facts or circumstances leading to the termination) for that decision. This notice period shall not apply where we (a) are subject to Applicable Laws that require us to terminate the Agreement or the Services without respect to that notice period; (b) exercise a right of termination under an imperative reason pursuant to Applicable Laws; or (c) can demonstrate that you have breached the Agreement.
In the case of restriction, suspension, or termination for convenience, we shall give you the opportunity to clarify the facts and circumstances in the framework of the internal complaint-handling process as set forth in Section 8 of these Terms. However, you shall act in a commercially reasonable manner and in accordance with Applicable Laws; as such, we may restrict, suspend or terminate without notice your use of any Services or restrict, suspend or terminate this Agreement in the event that we believe that you do not act in a commercially reasonable manner.
13. Breach #
Without limiting any other remedies, ANM may, without notice, and without refunding any fees, (a) delay or immediately remove Content, (b) warn ANM’s community of your actions, (c) issue a warning to you, (d) restrict, suspend, freeze or terminate your selling privileges, (e) prohibit your access to the Services, (f) temporarily or indefinitely suspend or freeze your account privileges, (g) terminate or delete your account, (h) issue penalties against you, (i) cause payments to you to be withheld or forfeited, (j) take technical and legal steps to keep you off the Services, (k) permanently withhold and/or set off or offset and retain any payments that otherwise may have been payable to you, (l) issue refunds to customers, or (m) take any other actions as may be permitted by any Applicable Laws that ANM determines to be necessary and appropriate under the circumstances if: (i) you breach this Agreement (including, without limitation, any Additional Terms or Policies incorporated herein); (ii) ANM is unable to verify or authenticate any of your personal information or Content; (iii) ANM believes that you are acting inconsistently with the letter or spirit of ANM’s Policies, you have engaged in improper or fraudulent activity in connection with ANM, or your actions may cause legal liability or financial loss to ANM or other merchants using the Services; (iv) your account remains unconfirmed; (v) your account remains inactive for a period of one-hundred-eighty (180) days; (vi) ANM determines that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to substantially violate this Agreement (including any of our Additional Terms or Policies); (vii) ANM determines that the performance of your obligations under this Agreement may result in returns, claims, disputes, violations of this Agreement (including any of our Additional Terms or Policies), or cause any other risks to ANM, its customers or other third parties; or (viii) ANM determines, suspects, or is informed that you are selling goods or engaging in acts in violation of the prohibited activities defined under Section 5 of this Agreement (including, without limitation, selling goods that are counterfeit, illegal, or violate third party rights) or that you are otherwise violating this Agreement or any Applicable Laws or other requirement of any court, arbitrator or other governmental authority.
14. Warranty Disclaimer #
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, ALL SERVICES, AND ANY PROMOTION, MARKETING AND SALE OF YOUR PRODUCTS AND SERVICES THROUGH ANY THIRD PARTY PLATFORM, ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY, OF ANY KIND. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, ANM (FOR ITSELF AND ITS AFFILIATES AND LICENSORS) EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING OR TRADE USAGE, THAT THE SERVICES OR ANY THIRD PARTY PLATFORM WILL BE AVAILABLE FOR USE, THAT USE OF THE SERVICES OR ANY THIRD PARTY PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR ANY SALES OR OTHER TRANSACTION VOLUME OR AMOUNTS THAT MAY BE GENERATED THROUGH USE OF THE SERVICES OR ANY THIRD PARTY PLATFORM. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM ANM OR ANY THIRD PARTY SHALL CREATE ANY WARRANTY.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND ANY THIRD PARTY PLATFORM AND THAT ANY CONTENT OR OTHER INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES OR THAT MAY BE SENT OR RECEIVED IN CONNECTION WITH USE OF ANY THIRD PARTY PLATFORM MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANM IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Liability Limit #
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, WARRANTY, STRICT LIABILITY, OR OTHERWISE) SHALL ANM (OR ITS AFFILIATES OR LICENSORS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY LOST PROFITS, LOST REVENUE, LOST SALES, OR OPPORTUNITY OR LOST DATA, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR ANY THIRD PARTY PLATFORM, OR YOUR OR ANY THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES OR ANY THIRD PARTY PLATFORM, EVEN IF ANM, ITS AFFILIATES, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANM SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OF THE SERVICES OR ANY THIRD PARTY PLATFORM.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT ANM IS LIABLE TO YOU EXCEED (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO ANM IN CONNECTION WITH THE SERVICES IN THE THREE (3) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM.
WARRANTY DISCLAIMERS AND THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ANM AND YOU AND SHALL APPLY EVEN IF FOUND TO FAIL OF THEIR ESSENTIAL PURPOSE.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU DESPITE THE “GOVERNING LAW” SECTION OF THIS AGREEMENT, THE ABOVE APPLIES ONLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS.
16. Indemnity #
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, YOU RELEASE US AND AGREE TO INDEMNIFY, DEFEND AND HOLD ANM, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS, EMPLOYEES, CUSTOMERS, USERS, LICENSORS, SUPPLIERS AND PARTNERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, INVESTIGATIONS, LIABILITIES, DAMAGES (ACTUAL AND CONSEQUENTIAL), LOSSES, PENALTIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM OR IN ANY WAY RELATED (A) YOUR ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR OBLIGATIONS IN THIS AGREEMENT; (B) YOUR PRODUCTS, SERVICES OR CONTENT, INCLUDING, WITHOUT LIMITATION, ANY ACTUAL OR ALLEGED INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS, VIOLATION OF ANY PRIVACY RIGHT, RIGHT OF PUBLICITY, OR THIRD PARTY AGREEMENT, VIOLATION OF ANY APPLICABLE LAWS, PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RELATED THERETO, USE ANY REPOSTING OF ANY CONTENT YOU PROVIDE, ANM’S EXERCISE OF THE LICENSE RIGHTS GRANTED TO ANM UNDER THIS AGREEMENT, OR YOUR BREACH OF THE WARRANTY SET FORTH IN SECTION 7; (C) YOUR USE OF THE SERVICES (INCLUDING ANY ACTIONS TAKEN BY A THIRD PARTY USING YOUR ACCOUNT); (D) YOUR ACTS AND OMISSIONS; AND (D) YOUR TAXES (AS DEFINED BELOW). ANM MAY IN ITS SOLE DISCRETION ELECT TO DEFEND, AND CONTROL THE DEFENSE AND SETTLEMENT OF, ANY INDEMNIFIED CLAIM. IF YOU DEFEND ANY INDEMNIFIED CLAIM, YOU WILL USE COUNSEL REASONABLY SATISFACTORY TO US TO DEFEND SUCH INDEMNIFIED CLAIM. IF AT ANY TIME WE REASONABLY DETERMINE THAT ANY INDEMNIFIED CLAIM MIGHT ADVERSELY AFFECT US, WE MAY TAKE CONTROL OF THE DEFENSE. YOU MAY NOT CONSENT TO THE ENTRY OF ANY JUDGMENT OR ENTER INTO ANY SETTLEMENT OF A CLAIM WITHOUT OUR PRIOR WRITTEN CONSENT. ANM MAY DEDUCT FROM YOUR ACCOUNT ANY AMOUNTS INCURRED IN DEFENDING OR SETTLING ANY INDEMNIFIED CLAIM AND ANY DAMAGES OR OTHER AMOUNTS AWARDED IN CONNECTION WITH ANY INDEMNIFIED CLAIM.
“Your Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason in connection with your use of the Services, any advertisement, offer or sale of products, services or Content by you on or through or in connection with the Services. This defined term also means any of the types of taxes, duties, levies, or fees mentioned above that are imposed on or collectible by ANM or any of its Affiliates in connection with or as a result of fulfillment services, including the storage of inventory or packaging of products, services, or Content and other materials owned by you and stored by ANM, shipping, or other actions by ANM. “Your Taxes”, however, does not include any taxes collected and remitted by ANM as disclosed in the Tax Policy.
17. Insurance #
If requested by ANM, within thirty (30) days after such request, you will maintain at your expense throughout the remainder of the Term general commercial, umbrella, or excess liability insurance with the limits per occurrence and in aggregate requested by us covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations, and bodily injury, with a policy or policies naming ANM and its Affiliates and assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage.
18. Taxes; Legal Compliance #
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that ANM chooses or is required to calculate, collect, and remit taxes according to Applicable Laws.
Notwithstanding or limiting in any way the foregoing, you shall comply with all Applicable Laws regarding your use of any of the Services and, if applicable, your listing, solicitation of offers to purchase, and sale of items. In addition, you will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that ANM may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.
For direct shipments from outside the European Union to customers in the European Union, ANM may provide you with its Import One Stop Shop (”IOSS”) number. You understand and agree that you will only use this IOSS number in relation to sales carried out via the ANM online marketplace. If you use the IOSS number of ANM inappropriately in any way, ANM may, at its sole discretion, withhold or offset retaining amounts otherwise due to you, issue a penalty, suspend your account, or take any other actions ANM deems appropriate for so long as ANM in its sole discretion believes that you used the ANM IOSS number in an inappropriate way. Inappropriate usage of the IOSS number includes, but is not limited to, the following scenarios:
- you use the IOSS number of ANM for shipments related to sales carried out outside the ANM online platform (for instance, where you sell and ship goods to a customer in the European Union via another online marketplace);
- you do not transmit the ANM IOSS VAT number to your freight forwarder in a secure manner;
- you communicate the ANM IOSS VAT number to other persons; or
- you publish the ANM IOSS VAT number anywhere (for example an internet website).
19. Customs Duty and Indirect Taxes #
In an effort to remain compliant with respective consumer legislations, we strongly encourage you to maintain good standing with respect to customs and indirect taxes, where applicable.
Due to separate and applicable tax jurisdictions, purchases may be subject to specific sales, customs duty, goods and services taxes (GST), or value-added taxes (VAT), and the shipping time and associated cost may increase.
In an effort to maintain compliance with U.S. or international tax law, ANM may require you to provide a valid indirect tax registration number to sell on our marketplace, and you may be required to remit indirect taxes as the result of conducting business. As a result, we strongly encourage you to consult your own tax experts and register for indirect taxes based on your acts and circumstances.
You agree that you are responsible for all indirect tax collection and payment among all parties of this Agreement, unless ANM chooses to collect and remit tax as disclosed in its Tax Policy.
20. Severability #
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.
21. Survival #
Provisions that, by their nature, should survive termination of this Agreement shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any confidentiality obligations, any terms regarding ANM’s ownership or intellectual property rights or any terms regarding Disputes between us. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.
22. Export #
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under Sanctions or embargoes administered by the United Nations, the U.S. Departments of State, Treasury, or Commerce, the European Union, the United Kingdom, or any other applicable government authority.
23. Confidentiality #
During the course of your use of the Services, you may receive information relating to us or to the Services that is not known to the general public, including personal information related to ANM users (“Confidential Information”). You agree that: (a) all Confidential Information will remain ANM’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other person or entity; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. If there is a breach of Confidential Information, you agree to notify ANM immediately upon your discovery of such breach and to cooperate fully in ANM’s investigation, mitigation and remediation of the breach. You are solely responsible for reimbursing ANM for any and all costs associated with a breach of Confidential Information. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
24. Use of ANM Transaction Information #
25. Force Majeure #
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
26. Relationship of Parties #
27. Electronic Communications #
You agree that all notices required to be given under these Terms or any Additional Terms or Policies, and other communications from ANM, may be given electronically, including, without limitation, through emails, texts, mobile push notices, or notices and messages provided on or through the Services, the ANM Merchant Dashboard, or the ANM API, and you agree to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that ANM provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.”
28. Assignment #
You agree that ANM may assign all of its rights and duties under this Agreement to an Affiliate of ANM, and in such event, ANM will notify you of such assignment by email or other written notification. You may not assign any of your rights and duties under this Agreement to any other party without the prior express written consent of ANM.
29. Choice of Law, Jurisdiction and Venue #
Jurisdiction and venue of any matter not subject to arbitration, as stated in Section 8, shall reside exclusively in Arizona and nowhere else, except that any action to enforce a judgment may be brought in any court of competent jurisdiction.
Notwithstanding the foregoing, and the Dispute Resolution provisions in Section 8, residents of the State of Louisiana shall be entitled to bring an action against ANM in their home forum and pursuant to Louisiana law.
30. Suggestions and Other Information #
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us (collectively, “Submissions”), ANM will consider such Submissions to be non-confidential and non-proprietary. ANM shall have no obligations concerning the Submissions, and ANM will be free to, and you hereby grant to ANM a royalty-free, non-exclusive, worldwide, perpetual, sublicensable (through multiple tiers), irrevocable right and license to, use, disclose, reproduce, perform, display, transfer and otherwise distribute, synchronize, broadcast, adapt, modify, excerpt, analyze, re-format, create derivative works of and otherwise commercially or non-commercially exploit any of the foregoing Submissions in any manner, in any medium and in any format and for any purpose, including, without limitation, for the advertising, marketing, or promotion of ANM, any Services or any future product or service, without any restriction or compensation to you. If we make suggestions on using the Services, you are responsible for any actions you take based on our suggestions.