Merchant Terms and Conditions
THIS HAWAII FRESH FISH, LLC AGREEMENT (THE "AGREEMENT") CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND HAWAII FRESH FISH, LLC. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY.
As used in this Agreement, "we," "us," "BigIsland.Fish" and "Hawaii Fresh Fish, LLC" means the applicable Hawaii Fresh Fish, LLC Contracting Party and any of its applicable Affiliates, and "you" means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement.
To begin the enrollment process, you must complete the registration process. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law. As part of the application, you must provide us with your (or your business') legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.
2. Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described in the applicable rate table, displayed in the merchants section of the site. You are responsible for all of your expenses in connection with this Agreement. To use a Service, you must provide us with valid bank account information for a bank account or bank accounts acceptable by Hawaii Fresh Fish, LLC (conditions for acceptance may be modified or discontinued by us at any time without notice) ("Your Bank Account"). You will use only a name you are authorized to use in connection with a Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. 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 Bank Account for any sums payable by you to us (in reimbursement or otherwise). All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us.
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Hawaii Fresh Fish, LLC or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Hawaii Fresh Fish, LLC or third parties persist. For any amounts that we determine you owe us, we may (a) charge Your Bank Account or any other payment instrument you provide to us, either as a merchant or customer****; (b) offset any amounts that are payable by you to us (in reimbursement 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 Your Bank Account; 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 illegal activity, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in the Local Currency, and all payments contemplated by this Agreement will be made in the Local Currency.
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 of our terms or policies, or other risks to Hawaii Fresh Fish, LLC or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all customers and sellers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a customer to withdraw from a transaction because an Hawaii Fresh Fish, LLC Site or Service is unavailable following the commencement of a transaction.
3. Term and Termination.
The term of this Agreement will start on the date of your completed registration and continue until terminated by us or you as provided in this Agreement (the "Term"). We may terminate or suspend this Agreement or any Service for any reason at any time by notice to you. You may terminate this Agreement or any Service for any reason at any time by the means then specified by Hawaii Fresh Fish, LLC. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 2, 3, 4, 5, 6, 7, 8, 9, 11, 14, 15, 16, and 18 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our Affiliates and operators of Hawaii Fresh Fish, LLC Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks (provided you are unable to do so using standard functionality made available to you via the applicable Hawaii Fresh Fish, LLC Site or Service); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of Hawaii and that you are registering for the Service(s) within Hawaii; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Hawaii Fresh Fish, LLC or its Affiliates is at all times accurate and complete; and (d) you and all of your subcontractors, agents, and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.
You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of Your Sales Channels other than Hawaii Fresh Fish, LLC Sites and Hawaii Fresh Fish, LLC Associated Properties, Your Products (including their offer, sale, performance, and fulfillment), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto; (c) Your Personnel (including any act or omission of Your Personnel or any Claim brought or directed by Your Personnel); or (d) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
7. Disclaimer & General Release.
THE HAWAII FRESH FISH, LLC SITE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE HAWAII FRESH FISH, LLC SITES, AND SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE HAWAII FRESH FISH, LLC SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
BECAUSE HAWAII FRESH FISH, LLC IS MINIMALLY INVOLVED, AS A MARKETPLACE FACILITATOR, IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES HAWAII FRESH FISH, LLC (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
8. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF HAWAII FRESH FISH, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO HAWAII FRESH FISH, LLC IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
If the gross proceeds from Your Transactions exceed the applicable Insurance Threshold during each month over any period of three (3) consecutive months, or otherwise if requested by us, then within thirty (30) days thereafter, you will maintain at your expense throughout the remainder of the Term, commercial general, umbrella or excess liability insurance with the Insurance Limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming Hawaii Fresh Fish, LLC and its assignees as additional insureds. At our request, you will provide to us certificates of insurance for the coverage to the following address: c/o Hawaii Fresh Fish, LLC , 1633 Fillmore St, Ste 330, Denver CO 80206, Attention: Risk Management.
10. Tax Matters.
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 Hawaii Fresh Fish, LLC expressly agrees to receive taxes or other transaction-based charges in connection with tax calculation services made available by Hawaii Fresh Fish, LLC and used by you. You agree to and will comply with Section S-9, Tax Policies. All fees payable by you to Hawaii Fresh Fish, LLC under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, and you will be responsible for paying Hawaii Fresh Fish, LLC any of Your Taxes imposed on such fees.
During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to Hawaii Fresh Fish, LLC Transaction Information, that is not known to the general public ("Confidential Information"). You agree that: (a) all Confidential Information will remain Hawaii Fresh Fish, LLC '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; 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. 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.
12. 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.
13. Relationship of Parties.
14. Use of Hawaii Fresh Fish, LLC Transaction Information.
You will not, and will cause your Affiliates not to, directly or indirectly: (a) disclose any Hawaii Fresh Fish, LLC Transaction Information (except that you may disclose that information solely as necessary for you to perform your obligations under this Agreement if you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information); (b) use any Hawaii Fresh Fish, LLC Transaction Information for any marketing or promotional purposes whatsoever, or otherwise in any way inconsistent with our or your privacy policies or applicable Law; (c) contact a Person that has ordered Your Product with the intent to collect any amounts in connection therewith or to influence that Person to make an alternative transaction; (d) disparage us, our Affiliates, or any of their or our respective products or services or any customer; or (e) target communications of any kind on the basis of the intended recipient being an Hawaii Fresh Fish, LLC Site user. In addition, you may only use tools and methods that we designate to communicate with Hawaii Fresh Fish, LLC Site users regarding Your Transactions, including for the purpose of scheduling, communicating, or cancelling the fulfillment of Your Products. The terms of this Section 14 do not prevent you from using other information that you acquire without reference to Hawaii Fresh Fish, LLC Transaction Information for any purpose, even if that information is identical to Hawaii Fresh Fish, LLC Transaction Information, provided that you do not target communications on the basis of the intended recipient being an Hawaii Fresh Fish, LLC Site user.
15. 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 in connection with or related to any Hawaii Fresh Fish, LLC Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content.
We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on the applicable Hawaii Fresh Fish, LLC Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the General Terms and the Service Terms will be posted for at least 30 days. Changes to Program Policies may be made without notice to you. You should refer regularly to the applicable Hawaii Fresh Fish, LLC Site, as applicable, to review the current Agreement (including the Service Terms and Program Policies) and to be sure that the items you offer can be offered via the applicable Service. YOUR CONTINUED USE OF A SERVICE AFTER HAWAII FRESH FISH, LLC 'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
17. Password Security.
Any password we provide to you may be used only during the Term to access the applicable Hawaii Fresh Fish, LLC Site to use the Services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password or notify us and request assistance in securing the account.
The Governing Laws will govern this Agreement, Hawaii Fresh Fish, LLC and you both consent that any dispute with Hawaii Fresh Fish, LLC or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or we may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our mailing address, Hawaii Fresh Fish, LLC, 1633 Fillmore St, Ste. 330, Denver CO 80206.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Services, including by redesigning, modifying, removing, or restricting access to any of them.
Because Hawaii Fresh Fish, LLC is not your agent (except for the limited purpose set out in the Transaction Processing Service Terms), or the customer's agent for any purpose, Hawaii Fresh Fish, LLC will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.
We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates in your program application or within the applicable Hawaii Fresh Fish, LLC Site, as applicable, or by any other means then specified by Hawaii Fresh Fish, LLC . We may also communicate with you electronically and in other media, and you consent to such communications regardless of any "E-mail Preferences" (or similar preferences or requests) you may have indicated on the applicable Hawaii Fresh Fish, LLC Site, on the applicable Hawaii Fresh Fish, LLC Site, or by any other means. You may change your e-mail addresses and certain other information in the applicable Hawaii Fresh Fish, LLC Site, as applicable. You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to Hawaii Fresh Fish, LLC to our Merchant Services Team by using the Contact Us form.
This Agreement incorporates and you accept the applicable Service Terms and Program Policies, which Hawaii Fresh Fish, LLC may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
18. Repeat Infringer Policy; Copyright Complaints.
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: DMCA officer\ Address: Hawaii Fresh Fish, LLC, 1633 Fillmore St., Ste 330, Denver CO 80206\ Phone: 808-339-3605\ Email: firstname.lastname@example.org
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
19 Independent Contractor.
Hawaii Fresh Fish, LLC and Customer are and shall remain independent contractors. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other. Customer hereby represents that the individual clicking to accept this Agreement is authorized by Customer to bind, and does hereby bind, Customer to the terms hereof.
As used in this Agreement, the following terms have the following meanings:
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
"Hawaii Fresh Fish, LLC Associated Properties" means any website or other online point of presence, mobile application, service or feature, other than an Hawaii Fresh Fish, LLC Site, through which any Hawaii Fresh Fish, LLC Site, or products or services available on any of them, are syndicated, offered, merchandised, advertised, or described.
"Hawaii Fresh Fish, LLC Contracting Party" means Hawaii Fresh Fish, LLC.
"Hawaii Fresh Fish, LLC Site" means the US Hawaii Fresh Fish, LLC Site.
"Hawaii Fresh Fish, LLC Transaction Information" means, collectively, Order Information and any other data or information acquired by you or your Affiliates from Hawaii Fresh Fish, LLC , its Affiliates, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement, or the parties' performance under this Agreement.
"Content" means copyrightable works under applicable Law and content protected by database rights under applicable Law.
"Excluded Products" Any fish or ocean product that is illegal.
"****Fish****" ****Any fish ****or marine life that has been taken from the Ocean or fresh water streams of the State of Hawaii or Alaska.
"Governing Courts" means the state or Federal court in Denver City and County, Colorado
"Governing Laws" means the laws of the State of Colorado, United States together with the Federal Arbitration Act and other applicable federal law
"Insurance Limits" means One Million U.S. Dollars ($1,000,000)
"Insurance Threshold" means Ten Thousand U.S. Dollars ($10,000)
"Law" means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.
"Local Currency" means the applicable one of the following:
- U.S. Dollar
"Person" means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
"Sales Proceeds" means the gross proceeds from any of Your Transactions, including all shipping and handling, and other charges, and including taxes and customs duties to the extent specified in the applicable Tax Policies.
"Service Terms" means the service terms applicable to each Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms.
"Technology" means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.
"Trademark" means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
"US Hawaii Fresh Fish, LLC Site" means that website, the primary home page of which is identified by the url HawaiiFresh.Fish, and any successor or replacement of such website.
"Your Materials" means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Hawaii Fresh Fish, LLC or its Affiliates.
"Your Personnel" means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
"Your Product" means any product or service (including Optional Coverage Plans) that you have offered through the Hawaii Fresh Fish, LLC Service.
"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 (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. Also,this defined term also means any of the types of taxes, duties, levies, or fees mentioned above that are imposed on or collectible by Hawaii Fresh Fish, LLC or any of its Affiliates in connection with or as a result of fulfillment services including the storage of inventory or packaging of Your Products and other materials owned by you and stored by Hawaii Fresh Fish, LLC , shipping, or other actions by Hawaii Fresh Fish, LLC in relation to Your Products.
"Your Trademarks" means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
"Your Transaction" means any sale of Your Product(s) through an Hawaii Fresh Fish, LLC Site.
Selling through Hawaii Fresh Fish, LLC: Service Terms
Selling on Hawaii Fresh Fish, LLC ("Selling on Hawaii Fresh Fish, LLC ") is a Service that allows you to offer certain products and services directly on the Hawaii Fresh Fish, LLC Sites.
These Selling on Hawaii Fresh Fish, LLC Service Terms are part of the Agreement, but, unless specifically provided otherwise, concern and apply only to your participation in Selling on Hawaii Fresh Fish, LLC . BY REGISTERING FOR OR USING THE SELLING ON HAWAII FRESH FISH, LLC SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE SELLING ON HAWAII FRESH FISH, LLC SERVICE TERMS.
S-1 Your Product Listings and Orders.
S-1.1 Products and Product Information. You will provide in the format we require accurate and complete Required Product Information for each product or service that you offer through any Hawaii Fresh Fish, LLC Site and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Materials, Your Products (including packaging) and your offer and subsequent sale of any of the same on any Hawaii Fresh Fish, LLC Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit, defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on any Hawaii Fresh Fish, LLC Sites; or provide any URL Marks for use, or request that any URL Marks be used, on any Hawaii Fresh Fish, LLC Site.
S-1.2 Product Listing; Merchandising; Order Processing. We will enable you to list Your Products on a particular Hawaii Fresh Fish, LLC Site, and conduct merchandising and promote Your Products as permitted by us (including via the Hawaii Fresh Fish, LLC Associated Properties or any other functions, features, advertising, or programs on or in connection with the applicable Hawaii Fresh Fish, LLC Site). We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Hawaii Fresh Fish, LLC may make these ratings and feedback publicly available. We will provide Order Information to you for each order of Your Products through the applicable Hawaii Fresh Fish, LLC Site. We will also receive all Sales Proceeds on your behalf for each of these transactions and will have exclusive rights to do so, and will remit them to you in accordance with these Selling on Hawaii Fresh Fish, LLC Service Terms.
S-1.3 Shipping and Handling Charges. You are responsible for delivering your catch to the Port you have indicated on you Market Post. Hawaii Fresh Fish, LLC is not responsible for any costs or liabilities for your expenses and/or fines.
S-1.4 Credit Card Fraud. We will NOT bear the risk of credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions. You will bear all risk of fraud or loss. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop, and/or cancel any of Your Transactions. You will stop or cancel orders of Your Products if we ask you to do so. If you have already transferred Your Products to a carrier or shipper when we ask you to stop or cancel an order, you will use commercially reasonable efforts to stop or cancel delivery of that order. You will refund any customer (in accordance with Section S-2.2) that has been charged for an order that we stop or cancel.
S-2 Sale and Fulfillment; Refunds and Returns.
S-2.1 Sale and Fulfillment. You will: (a) source, offer, sell and tender to us your sold Products in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by you or us and displayed on the applicable Hawaii Fresh Fish, LLC Site at the time of the order and be solely responsible for and bear all risk for those activities; (b) package each of Your Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and ship each of Your Products on or before its Expected Delivery Date; (c) retrieve Order Information at least once each business day; (d) only cancel Your Transactions as permitted pursuant to your terms and conditions appearing on the applicable Hawaii Fresh Fish, LLC Site at the time of the applicable order or as may be required under this Agreement; (e) fulfill Your Products (except to the extent prohibited by Law or this Agreement); (f) provide to Hawaii Fresh Fish, LLC information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available; (g) comply with all Street Date instructions; (h) ensure that you are the seller of each of Your Products; (i) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of Your Products; (j) identify yourself as the seller of each of Your Products on all packing slips or other information included or provided in connection with Your Products and as the Person to which a customer may return the applicable product; and (k) except as expressly permitted by this Agreement, not send customers emails confirming orders or fulfillment of Your Products.
S-2.2 Cancellations, Returns, and Refunds. The Hawaii Fresh Fish, LLC Refund Policies will apply to Your Products.
S-3 Problems with Your Products.
S-3.1 Delivery Errors and Nonconformities; Recalls. You are solely responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of Your Products, except to the extent caused by: (a) our failure to make available to you Order Information as it was received by us or resulting from address verification. You are also responsible for any non-conformity or defect in, or any public or private recall of, any of Your Products or other products provided in connection with Your Products. You will notify us promptly as soon as you have knowledge of any public or private recalls of Your Products or other products provided in connection with Your Products.
S-3.2 "Money Back Guarantee" and Chargebacks. We may withhold proceeds of your sales for a period of time such as to provide a "Money Back Guarantee" or similar offer to consumers to ensure their satisfaction with Your Product. If we receive a request for a refund in this period, you agree to take possession of the returned product and arrange for its disposal. You agree to cooperate with our investigation of Chargebacks in a reasonable manner, consistent with the provisions above regarding returned payments.
You will pay us: (a) the applicable Referral Fees; and (b) any other applicable fees described in this Agreement (including any applicable Program Policies). With respect to each of Your Transactions: (i) "Sales Proceeds" has the meaning set out in this Agreement; (ii) "Referral Fee" means the applicable fee based on the Sales Proceeds from Your Transaction through the applicable Hawaii Fresh Fish, LLC Site specified on the Selling on Hawaii Fresh Fish, LLC Fee Schedule for that Hawaii Fresh Fish, LLC Site at the time of Your Transaction, based on the categorization by Hawaii Fresh Fish, LLC of the type of product that is the subject of Your Transaction; provided, however, that Sales Proceeds will not include any shipping charges set by us in each of the following case: (y) in the case of Your Transactions that consist solely of products sold by Hawaii Fresh Fish, LLC, directly.
S-6 Remittance of Sales Proceeds & Refunds.
Except as otherwise stated in this Agreement, we will remit to you your available disbursements balance after the twelve (12) hour Escrow in accordance to your your Braintree payment processing agreement. For each remittance, your available balance is equal to any Sales Proceeds received by us or our Affiliates but not previously remitted to you (which you will accept as payment in full for Your Transactions), less: (a) the Referral Fees; (b) any other applicable fees described in this Agreement (including any applicable Program Policies).
We may establish a reserve on your account based on our assessment of risks to Hawaii Fresh Fish, LLC or third parties posed by your actions or performance, and we may modify the amount of the reserve from time to time at our sole discretion.
S-7 Control of Hawaii Fresh Fish, LLC Sites.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Hawaii Fresh Fish, LLC Sites, including by redesigning, modifying, removing, or restricting access to any of them, and by suspending, prohibiting, or removing any listing.
S-8 Effect of Termination.
Upon termination of these Selling on Hawaii Fresh Fish, LLC Service Terms in connection with a particular Hawaii Fresh Fish, LLC Site, all rights and obligations of the Parties under these Selling on Hawaii Fresh Fish, LLC Service Terms with regard to such Hawaii Fresh Fish, LLC Site will be extinguished, except that the rights and obligations of the Parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
S-9 Tax Policies.
As between the parties, you will be responsible for the collection and payment of any and all of your taxes. Any and all fees payable by you pursuant to this Agreement are exclusive of all sales, use, and similar taxes, and you will pay any taxes that are imposed and payable on such amounts. Except as otherwise provided in this Agreement, you agree that Hawaii Fresh Fish, LLC is not obligated to determine whether taxes apply, and Hawaii Fresh Fish, LLC is not responsible to collect, report, or remit any taxes arising from any transaction. However, if a taxing authority requires us to pay any of your taxes, you will promptly reimburse us for the amounts paid.
"Purchase Price" means the total amount payable or paid for Your Product (including taxes and shipping and handling charges only to the extent specified in the applicable Section S-9, Tax Policies.).
"Required Product Information" means, with respect to each of Your Products in connection with a particular Hawaii Fresh Fish, LLC Site, the following (except to the extent expressly not required under the applicable Program Policies): (a) description, including as applicable, location-specific availability and options, scheduling guidelines and service cancellation policies; (c) information regarding in-stock status and availability, shipping limitations or requirements; (d) categorization within each Hawaii Fresh Fish, LLC product category as prescribed by Hawaii Fresh Fish, LLC from time to time; (e) digitized image that accurately depicts only Your Product, complies with all Hawaii Fresh Fish, LLC image guidelines, and does not include any additional logos, text or other markings; (f) Purchase Price; (g) any text, disclaimers, warnings, notices, labels, warranties, or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising, or sale of Your Product; (i) weight; (n) a delimited list of technical specifications; and (q) any other information reasonably requested by us (e.g., invoices and other documentation demonstrating the safety and authenticity of Your Products).
"Shipment Information" means, with respect to any of Your Products, the estimated or promised shipment and delivery date.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier, or character string, that contains or incorporates any top level domain (e.g., .com, .edu, .ca, .fr, .jp) or any variation of a top level domain (e.g., dot com, dotcom, net, or com).
"Your Transaction" is defined in the General Terms of this Agreement; however, as used in these Selling on Hawaii Fresh Fish, LLC Service Terms, it means any and all such transactions through Selling on Hawaii Fresh Fish, LLC only.
F-1 Customer Returns. Subject to Section F-2, we will, at our direction, either return to you or dispose of any Fish sold on Hawaii Fresh Fish, LLC that is returned to us by a customer and that we determine is unsuitable.
F-2 Customer Service. We will be responsible for and have sole discretion regarding all customer service issues relating to packaging, handling and shipment, and customer returns, refunds, and adjustments related to Hawaii Fresh Fish, LLC. We will have the right to determine whether a customer will receive a refund, adjustment or replacement for any Hawaii Fresh Fish, LLC Fish and to require you to reimburse us where we determine you have responsibility in accordance with the Agreement.
In addition to your obligations under Section 6 of the General Terms of this Agreement, you also agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any Claim(s).
You, on behalf of yourself and any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the "Releasing Parties"), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge Hawaii Fresh Fish, LLC and each of our Affiliates, and any and all of our and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all Persons acting by, through, under, or in concert with any of them (collectively, the "Released Parties"), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, "Losses") which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties. You, on behalf of yourself and all other Releasing Parties, recognize that you, and each of them, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after the date you register.
IN ADDITION TO THE DISCLAIMER IN SECTION 7 OF THE GENERAL TERMS OF THIS AGREEMENT, WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.
F-6 Effect of Termination
Following any termination of the Agreement or these Service Terms, we will, as directed by you, return within a period of 14 days any unsold inventory of yours we have in our possession.
F-7 Tax Matters
You understand and acknowledge that tendering product to us may create tax nexus for you in any country, state, province, or other localities in which your product is stored, and you will be solely responsible for any taxes owed as a result of such storage.
F-8 Additional Representation
In addition to your representations and warranties in Section 5 of the General Terms of this Agreement, you represent and warrant to us that: (a) you have valid legal title to all Fish and all necessary rights to distribute the Fish and to perform under these Service Terms; (b) you will deliver all Fish to us in fresh condition; (c) all Fish and their packaging will comply with all applicable marking, labeling, and other requirements required by Law; (d) no Fish is or will be caught, processed or manufactured, in whole or in part, by child labor or by convict or forced labor; (e) you and all of your subcontractors, agents, and suppliers involved in producing or delivering Fish will strictly adhere to all applicable Laws of the United States, its territories, and all other countries where Fish are produced or delivered, regarding the operation of their facilities and their business and labor practices, including working conditions, wages, hours, and minimum ages of workers.
Transaction Processing Service Terms
BY REGISTERING FOR OR USING ANY SERVICE OTHER THAN HAWAII FRESH FISH, LLC, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THESE TRANSACTION PROCESSING SERVICE TERMS FOR THAT SERVICE. NOTWITHSTANDING THE FOREGOING, IF A SEPARATE AGREEMENT GOVERNS THE OFFER, SALE OR FULFILLMENT OF YOUR PRODUCTS ON THE US HAWAII FRESH FISH, LLC SITE, THE TERMS OF THAT AGREEMENT WILL CONTINUE TO GOVERN THE PROCESSING OF YOUR TRANSACTIONS TO THE EXTENT DESCRIBED IN THAT AGREEMENT.
P-1 Payments Processing Agency Appointment
You authorize Hawaii Fresh Fish, LLC to act as your agent for purposes of facilitating payments as our sub-merchant via Braintree. (collectively, the "Transaction Processing Services").
We use Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/bank-agreement
We may at any time require you to provide any financial, business or personal information we request to verify your identity. You authorize us to obtain from time to time consumer credit reports to establish or update your Seller Account or in the event of a dispute relating to this Agreement or the activity under your Seller Account. You agree to update all Seller Account information promptly upon any change. The Hawaii Fresh Fish, LLC Privacy Notice applies to your use of the Transaction Processing Services.