TERMS OF SERVICE – Last Updated 5/25/2023

These Terms of Service constitute an agreement (this “Agreement”) by and between Ecom Circles LLC, a Michigan limited liability company (“Company”) and the corporation, LLC, partnership, sole proprietorship, individual, or other entity to which the Company will provide services (“Client”). This Agreement is effective as of the earlier of: (1) the date the Company performs any Service for the Client, or (2) the date the Client uses the System (with such date being the “Effective Date”). Client’s use of the System (as defined below) is governed by this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING THIS AGREEMENT ON BEHALF OF THE CLIENT HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CLIENT’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CLIENT TO THESE TERMS AND CONDITIONS.

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1 “Client Data” means data in electronic form input or collected through the System by or from Client, including without limitation by other Users.

1.2 “Disclaimer” means Company’s disclaimer, currently posted on the Company’s website or at https://ecomcircles.com/disclaimer/

1.3 “Privacy Policy” means Company’s privacy policy, currently posted at ecomcircles.com/privacy.

1.4 “System” means Company’s EcomCircles.com website, the Walmart Fulfillment Services fee calculator,  the WM Seller Tools extension, Repricer, Rank Tracker, Wholesale Scan Tool, WFS Calculator, and any other software as a service and corresponding training materials offered by the Company.

1.5 “User” means any company or individual who uses the System on Client’s behalf or through Client’s account or passwords, whether authorized or not, including without limitation the Client.

1.6 “Matched Listing” means any listing of a product on any marketplace along with information about where or from whom that product can be purchased whether that be a retail store, wholesaler, vendor, or any such information.

1.7 “Purchase” means any purchase made by a user of a Service

1.8 “Service” means any Company service including, but not limited to, the System, Ecom Circles subscriptions and products, Proxy Tracking credits, Matched Listings, 2-Step Dropshipping, or any additional features provided by the Company or any of its affiliates.

1.9 “2-Step” means the Service currently called 2-Step Dropshipping.

2.0 “Warehouse Services” means any service related to Ecom Circles partner warehouses, suppliers, supplier partnerships, or dropship partnerships including, but not limited to, warehouse fulfillment services, 2-step dropshipping services, returns, and storage.

2.1 “Shipping Services” means any service related to shipping carriers such as United States Postal Service (“USPS”), United Parcel Service (“UPS”), FedEx, or any other carrier service.

2. THE SYSTEM

2.1 Use of the System. During the Term, Client may access and use the System (as applicable to each Client) on a nonexclusive, limited basis, as long as Company does not terminate Client’s access to and use of the System.

2.2 Policies. The Client’s access and use of the System is subject to the Privacy Policy and the Company’s Disclaimer, which are both incorporated by reference into this Agreement.

2.3 Automated Ordering.  The System includes an automated ordering feature that purchases products on an automatic basis, based upon the Client’s preferences and selections with the software.  The Client will not approve individual transactions.   Additional fees are incurred for automated ordering, at the Company’s current fee rate.  The Client must supply its own credentials or authorization for Client’s account with the supplier and Company will place the orders on Client’s behalf.  The Company does not guarantee that the automated ordering feature will have 100% up-time and client uses the feature at Client’s risk. Automated ordering may not work with all suppliers.

2.4 Affiliate Links.  The Company’s automated ordering feature is supported in part by sponsored links from third-party merchants and advertisers.  The Company may use specially formatted links for which it receives a commission on resulting sales or clicks from affiliate partners (“Affiliate Links”).  The Company may use links to other websites belonging to Company’s advertisers and other third parties. The Company does not endorse, warrant, or guarantee the products or services available through the sponsored advertiser link, (or any other third -party products or services advertised, presented on or linked from any portion of the System), whether or not sponsored. Company is not an agent, distributor, re-seller, broker or otherwise responsible for such third-parties or the activities or policies of those websites or the products or services available on them. Company does not promise or guarantee that the product details, prices, coupon availability or other service terms, rates or rewards offered by any advertiser or other third-party are the best prices, terms, or lowest rates available in the market. By using the automated ordering service, you agree that all revenue, income, and payment generated by or from Affiliate Links are the sole possession of Company.

You accept that there are risks in accessing these third-party websites and using Affiliate Links, and that Company is not responsible for such risks.  Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third-party that you interact with through the automated ordering feature. In addition, Company will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the System, you release and hold the Company harmless from any and all liability arising from your use of any third-party website or service.

If there is a dispute between the Client and any third-party, Client agrees that the Company is under no obligation to become involved. To the maximum extent permitted by applicable law, if Client has a dispute with one or more other System users, Client releases Company, its officers, employees, agents, and successors from 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 the System.

2.5 Tracking.  The System provides an inventory, price, and order management system that may help the Client retrieve tracking numbers for orders placed on Amazon, Walmart, and other e-commerce platforms.  Usage of the tracking number service is your voluntary choice.  We do not in any way warrant the accuracy of tracking numbers retrieved using the System.  Client releases Company from all liability for any inaccuracies that may result from tracking using the System. Company is not liable for any errors that may result from using the System for tracking.  Company makes no representation or warranty that the tracking information retrieved using the System is permissible for use on any Marketplaces.

2.6 Repricing.  The Company provides a price management and insights tool that enables users to set up strategies to reprice their listings on Marketplaces (“Repricing”).  Usage of Repricing is voluntary.  The Company provides no representation or warranty about the accuracy of pricing retrieved using Repricing.  The Company is not liable for any liability for any inaccuracies or damages that may result from using the Repricing.  To the fullest extent provided by the law, the Company is not liable for any loss or damage from the use of Repricing, including any errors that may result in calculated or recommended pricing pushed to the Marketplaces.

2.7 Listing on Client Storefronts.   As part of the System and Services, the Company may list an item on a Client storefront.  The Client will pay a fee to the Company for the listing, according to the Company’s current fee structure for listing on Client storefronts.

2.8  Use of Non-Company Warehouse.  If Client does not use Company’s warehouse for 2-Step Services, then Client releases and holds harmless Company from all liability, damages, and costs related to the 2-Step Services and associated shipments.

3. FEES AND REIMBURSEMENTS

3.1 Types of Fees. Client will: (a) pay the Company the fees as agreed set by the Company (the “Subscription Fee”) for each applicable term, and (b) pay any additional fees as described by this Agreement or as described by the Company. Client may also make in-application purchases in addition to the Subscription Fee (“In-App Purchases”).  The Company may require payment in advance for any fees under this Agreement.  For late payment, Client will pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law.  Company may employ a third-party collections service at its discretion for any unpaid fees.  Client agrees that Client will be liable for all costs and fees related to collection of unpaid fees under this Agreement, including any attorneys’ fees and costs.

3.2 No Refunds. The Company will not be required to refund Fees of any kind under any circumstances.

3.3 Renewal and Cancellation.  The Company will automatically renew the Client’s subscription and charge the Client the Subscription Fee using the payment method on file until the Client cancels this Agreement by providing notice under this Agreement. There will be no refunds or prorated reduction of any fees on any downgrades of service after the monthly billing date has passed. Suspension of the Client’s storefront by a marketplace does not automatically cancel Client’s account or terminate the Client’s obligation to pay the Subscription Fee or any other fee. It is Client’s sole responsibility to upgrade, downgrade, or cancel the Service which may be done at any time thorough the settings and billings page in the System. If you cancel before the next billing date, any unused time will not be refunded, but will remain in Client’s account for a period of 30 days after which the account may be deleted at the sole discretion of the Company.

3.4 Warehouse Fees. For a Client who is using Warehouse Services provided through Ecom Circles, the 2-Step Service, shipping and handling will be charged in addition to any other fees, as in addition to any software subscription. Additionally, fees will be assessed for returns, return-related costs, storage, and fulfillment of orders.

3.5 Disputes, Unpaid Fees, and Right of Offset.  For Warehouse Services, the Company will have the immediate right to stop shipping or receiving any of Client’s inventory upon the occurrence of any of the following: (1) Client terminates this Agreement, (2) Client cancels any Warehouse Service or account, (3) Client abandons any Warehouse Service or account, (4) Client opens a chargeback dispute against the Company or related to this Agreement, (5) Client’s method of payment fails for any reason, (6) Client is not responsive to messages, or (7) Company believes, in its reasonable discretion, that Client may not be able or willing to fulfill its obligations under this Agreement.  Company may offset any unpaid fees owed by Client by selling Client’s inventory and applying the proceeds to any unpaid fees, at Company’s discretion. COMPANY MAY ALSO CHOOSE TO LIQUIDATE CLIENT’S INVENTORY DUE TO ANY OF THE AFOREMENTIONED OCCURRENCES OR AT ITS OWN DISCRETION.

3.6 Failure of Payment Method. If Client’s payment method fails for any reason, Company will attempt to contact Client to remedy the payment failure.  If Client cannot remedy the payment failure within 5 days, then Company may exercise its rights under this Agreement, including Section 3.5.

3.7 Pre-Payment. Company may require Client to pre-pay for any Service provided under this Agreement at any time, in Company’s discretion.  If Client pre-pays for a period and terminates this Agreement, then any fees incurred prior to termination will be due to the Company.  Any pre-paid fees for a term will be prorated through the date of termination, in the Company’s sole discretion and determination.

3.8 Personally Liable. If Client uses any Service or the System for its own clients, the Client is personally liable and responsible for any fees under this Agreement, regardless of whether Client’s clients pay Client.  The Company may enforce its rights under this Agreement against the Client for any usage of a Service or the System by Client’s clients.  If Client uses the Service or the System for its own clients, then the Client must enter Client’s client information into the System for billing and accounting purposes.

4. CLIENT DATA AND PRIVACY

4.1 Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by the Company.

4.2 Risk of Exposure. Client recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Client assumes such risks. Company offers no representation, warranty, or guarantee that Client Data will not be exposed or disclosed through errors or the actions of third parties.

4.3 Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the System by Client, including without limitation Client Data and any other data uploaded by Users.

4.4 Data Deletion. Company may permanently erase Client Data if Client’s account is delinquent, suspended, or terminated for 30 days or more.

4.5 Excluded Data. Client represents and warrants that Client Data does not and will not include, and Client has not and will not upload or transmit to Company’s computers or other media, any data (“Excluded Data”) regulated pursuant to regulated pursuant to any federal data security law, including but not limited to, HIPAA, FERPA, and Gramm-Leach Bliley Act (the ”Excluded Data Laws”). CLIENT RECOGNIZES AND AGREES THAT: (a) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) COMPANY’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

4.6 Ownership of Matched Listings. If Company provides Matched Listings to the Client as a service or as part of a service, Client acknowledges that Company cannot and will not guarantee that Matched Listings provided will be 100% accurate, will be in stock, or available at a profit at the time of a sale. Matched Listings provided to Client by the Company are fully owned either by the Company or a third-party vendor used by the Company. The use of Matched Listings does not transfer ownership of the Matched Listings to the Client.

4.7 Aggregate & De-Identified Data. Notwithstanding the provisions above of this Agreement, Company may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data and De-Identified Data in any way, in its sole discretion. (“Aggregate Data” refers to summaries of Client Data, or of data that includes Client Data, that do not include personally identifiable information or the names or addresses of Client and any of its Users. “De-Identified Data” refers to Client Data with the following removed: personally identifiable information and the names and addresses of Client and any of its Users.)

5. CLIENT’S RESPONSIBILITIES & RESTRICTIONS

5.1 Acceptable Use. Client will not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except as specifically authorized by this Agreement; (c) share non-public System features or content with any third party, except as specifically authorized by this Agreement; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section, including without limitation by Users, Company may suspend Client’s access to the System without advanced notice, in addition to such other remedies as Company may have. This Agreement does not require that Company take any action against Client or any User or other third party for violating this Section 4.1, or this Agreement, but Company is free to take any such action it sees fit.

5.2 Unauthorized Access. Client will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Client will notify Company immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.

5.3 Compliance with Laws. In its use of the System, Client will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Client Data.

5.4 No Chargebacks.  Client agrees to contact Company support to resolve any issues.  Client will not initiate a dispute with Client’s credit card merchant without providing Company an opportunity to resolve any issue that arises under this Agreement.

6. IP & FEEDBACK

6.1 IP Rights to the System. Company retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Client any intellectual property license or rights in or to the System or any of its components. Client recognizes that the System and its components are protected by copyright and other laws.

6.2 Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Client or other Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the Client or other User in question. Feedback will not constitute Client’s confidential information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)

7. REPRESENTATIONS & WARRANTIES

7.1 From Client. Client represents and warrants that, to the best of its knowledge: (i) Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; (ii) Client will accurately identify each User and will not provide any inaccurate information about a User to or through the System; and (iii) Client will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

7.2 Warranty Disclaimers. CLIENT ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CLIENT OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT DATA WILL REMAIN PRIVATE OR SECURE. FURTHERMORE, CLIENT ACKNOWLEDGES THAT THE SYSTEM CAN BE USED IN WAYS THAT VIOLATE POLICIES OR TERMS OF SERVICES OF THIRD-PARTY WEBSITES AND COMPANIES, INCLUDING AMAZON.COM AND WALMART.COM, AND CLIENT ACCEPTS FULL RESPONSIBILITY FOR ANY SUCH VIOLATIONS.

8. LIMITATION OF LIABILITY

8.1 Excluded Damages. IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

8.2 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS AGREEMENT APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (d) EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE; AND (e) TO ANY LIABILITY THAT ARISES FROM OR IS RELATED TO THE BREACH OF A THIRD PARTY’S TERMS OF SERVICE, INCLUDING AMAZON AND WALMART. If applicable law limits the application of the provisions of this Agreement, Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Agreement apply likewise to Company’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

8.3 Marketplaces.  You agree that Company is in no way responsible for your personal e-commerce store whether it be on Amazon, Walmart, or any other platform (“Marketplaces”).  You agree that Company has no control over or responsibility for the decisions made by Amazon, Walmart, or any other platform you chose to use or link your e-commerce store to or use Company for the benefit of.  If at any point any of the Marketplaces penalize, suspend, issue an intellectual property infringement complaint, or any other infraction on or against your e-commerce store, you will hold Company harmless and release Company from any liability related to the Marketplaces.   In such a case, Client must still pay any outstanding Company fees as described in this Agreement.

9. MISCELLANEOUS

9.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Company employee or contractor will be an employee of Client.

9.2 Notices. Company may send notices pursuant to this Agreement to Client’s email contact points provided by Client, and such notices will be deemed received 24 hours after they are sent. Client may send notices pursuant to this Agreement to support@ecomcircles.com, and such notices will be deemed received 72 hours after they are sent. In addition, Client is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact support@ecomcircles.com; and (b) Company will terminate the accounts of subscribers who are repeat copyright infringers.

9.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, pandemics, emergency orders or declarations, or other causes beyond the performing party’s reasonable control.

9.4 Assignment & Successors. Client may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. Company may assign this Agreement.  Except to the extent forbidden in this Section 8.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

9.5 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

9.6 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

9.7 Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Michigan, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Ingham County, Michigan. This Section governs all claims arising out of or related to this Agreement, including without limitation tort claims.

9.8 Conflicts. In the event of any conflict between this Agreement and any Company policy posted online, including without limitation the Privacy Policy, the terms of this Agreement will govern.

9.9 Technology Export. Client will not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Company or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Client will not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

9.10 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

9.11 Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.

9.12 Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

9.13 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

9.14 Amendment. Company may amend this Agreement from time to time by posting an amended version at its website. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Client first gives Company written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Client’s next Term following the Proposed Amendment Date (unless Client first validly terminates this Agreement). Client’s continued use of the System following the effective date of an amendment will confirm Client’s consent. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section, the Company may revise the Privacy Policy or any other policy at any time by posting a new version of either at the website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Client’s rights or protections, notice and consent will be subject to the requirements above in this Section.

 

 

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