Welcome to the FifthBLVD Marketplace Program.

This Agreement applies to any entity (“Retailer” or “you”) that wants to sell goods or services (“Products”) in the FifthBLVD Marketplace through the FifthBLVD site or any FifthBLVD applications (“FifthBLVD Sites”), use any order processing, fulfillment, shipping, returns, or other services related to the FifthBLVD Marketplace provided by or for FifthBLVD, including, but not limited to FifthBLVD Ad Center, or use any platform, portal, web service, application, interface, or other tool provided by or for FifthBLVD in connection with the FifthBLVD Marketplace (“FifthBLVD Tools”). The FifthBLVD Sites, the FifthBLVD Services and FifthBLVD Tools shall be collectively known as the FifthBLVD Marketplace Program, the FifthBLVD Marketplace, or the Marketplace Program.

By submitting your application, clicking the “I’ve read and agree to the Terms for FifthBLVD Marketplace  and FifthBLVD Ad Center” check box which you are prompted to click or by offering any Products for sale on the FifthBLVD Marketplace, using any of the FifthBLVD Services, or using any of the FifthBLVD Tools, you agree to be bound by all terms and conditions of this Agreement (including the Retailer Policies), as this Agreement (or the Retailer Policies) may be updated from time to time in accordance with this Agreement.  You represent and warrant that you are registering with the FifthBLVD Marketplace on behalf of an entity and that you have the requisite right, power, and authority to enter into this Agreement on behalf of the entity you register with the FifthBLVD Marketplace. You represent and warrant that you will update all of the information you provide to us in connection with the FifthBLVD Marketplace, FifthBLVD Services and FifthBLVD Tools 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) from time to time.

FifthBLVD may change this Agreement or the Retailer Policies, including by introducing entirely new terms on subjects not previously addressed, at any time in its sole discretion.  The changes will be effective upon posting of such updates in Seller Center, which is the primary web-based interface provided to you by FifthBLVD as part of the Marketplace Program.  You are responsible for reviewing such postings and any applicable changes.  Your continued participation in the Marketplace Program, including offering any Products for sale on the FifthBLVD Marketplace, using any of the FifthBLVD Services, or using any of the FifthBLVD Tools constitutes your acceptance of such changes.  If you do not agree to any posted changes, do not continue to use the FifthBLVD Marketplace, the FifthBLVD Services, or the FifthBLVD Tools.

FifthBLVD’s Role

FifthBLVD through the FifthBLVD Marketplace Program, provides the FifthBLVD Sites, FifthBLVD Tools, and FifthBLVD Services to enable you to sell your Products to third party buyers (“Customers”). You may only sell those Products you have the legal right to sell and must do so consistent with the terms and conditions of this Agreement. All transactions with Customers are between you and the Customer, and you will be the seller of record.  FifthBLVD is not a party to any transactions although FifthBLVD will provide the FifthBLVD Services in connection with the transactions as expressly set forth.  You acknowledge and agree that FifthBLVD may contract with third party service providers to provide FifthBLVD Services, management software and other services for the FifthBLVD Marketplace Program.

Product Guidelines.

The FifthBLVD Marketplace Terms and Conditions describe certain general obligations regarding Products you may and may not list on the FifthBLVD Marketplace. All products listed for sale on FifthBLVD Marketplace must comply with any applicable local, state, and federal laws and regulations. FifthBLVD will remove any product listing that may be in violation of law, its policies, or that is incompatible with its brand. In addition, corrective actions may be taken as circumstances dictate, including suspension and/or termination of a seller’s account. FifthBLVD reserves the right to remove any product listing.

Abiding by the Law.

You will (and you represent and warrant that you will) comply with all applicable “Laws” (meaning all applicable laws, regulations, legal requirements, and generally accepted industry standards and self-regulatory principles), including Laws related to marketing, packaging, consumer and product safety, product testing, labeling, and pricing in connection with this Agreement; your use of the FifthBLVD Marketplace, the FifthBLVD Services, and the FifthBLVD Tools, and your marketing, promotion, offering for sale, or selling any Products through the FifthBLVD Marketplace. Upon FifthBLVD’s request, you will promptly provide FifthBLVD with (i) certificates of authenticity (or similar documentation) for Products, (ii) documentation (e.g. email verifications from the brand owner or supplier) showing that you have a legal right to sell the Products through the FifthBLVD Sites, (iii) documentation (e.g. email verifications from applicable rights holders) showing that you are licensed or otherwise have a right to use any Retailer Product Content (as defined below), and (iv) any other information or documentation requested by FifthBLVD.

You will only offer Products for sale on the FifthBLVD Sites that may legally be sold and shipped in all U.S. states.

Legal Right to Sell

You may sell a Product on FifthBLVD through the Marketplace Program if you are an authorized reseller of that Product, or purchased or otherwise legally acquired that Product from an authorized reseller of that Product, or otherwise have a legal right to sell that Product.

Product Authenticity.

You may only sell Products through the Marketplace Program that are authentic. You will maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. You may not (and you represent and warrant that you will not) list any Product or Retailer Product Content on the FifthBLVD Sites or through the Marketplace Program that is counterfeit, illegal, stolen, or fraudulent, or infringes any third-party “Intellectual Property Rights” (meaning any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property or proprietary right), or that you otherwise do not have the right to sell.  All information you provide about the Product will be accurate, current, and complete and not misleading, deceptive, or fraudulent in any way.

Prohibited or Restricted Listings.

FifthBLVD, in its sole discretion, may remove (but does not have the affirmatively obligation) listings or Retailer Product Content, or prohibit you or ask you to refrain from listing any Products or providing any Retailer Product Content. In addition, FifthBLVD may remove your listings in its sole discretion in response to notices of alleged copyright infringement, trademark misappropriation, or other Intellectual Property Rights or other claims. If FifthBLVD requests that you remove Products or Retailer Product Content from the FifthBLVD Sites, you will make commercially reasonable efforts to remove the Products or Retailer Product Content within 24 hours of such request so that the Products and related Retailer Product Content no longer appear on the FifthBLVD Sites. You will not list or include such removed Products or Retailer Product Content on the FifthBLVD Sites at any time unless their inclusion is specifically authorized by FifthBLVD in writing.

Retailer Product Content and Retailer Trademarks

You may provide, link to, or opt into certain product information and any related media, materials, links, images, and other content (together, the “Retailer Product Content”) in connection with this Agreement.  You represent and warrant that all Retailer Product Content you provide, link to, or opt into is truthful and accurate and is in compliance with all Retailer Policies and that you will not use Retailer Product Content to redirect end users of the FifthBLVD Sites to any other sales channels. You hereby grant FifthBLVD and its affiliates, and its service providers and marketing partners, a non-exclusive, royalty-free, perpetual, sublicensable, irrevocable right and license (a) to publish, reproduce, display, distribute, transmit and otherwise use Retailer’s name, trademarks, service marks, and logos (“Retailer Marks”), and (b) to publish and perform, reproduce, distribute, transmit, display, modify, create derivative works of, and otherwise use and commercially exploit all Retailer Product Content, in each case in connection with the FifthBLVD Marketplace Program (including without limitation advertising, marketing and promoting the Products, other products, or the Marketplace Program through the FifthBLVD Sites, third party websites, e-mail, social media or any other medium). FifthBLVD and its affiliates may permit Customers, other users of the FifthBLVD Sites, and other third parties to share and post Retailer Product Content on their websites, applications, and social media outlets.  You acknowledge and agree that FifthBLVD assumes no responsibility or liability for any Retailer Product Content (including, but not limited to, no responsibility for reviewing or policing such Retailer Product Content or any third party’s use of such Retailer Product Content), and you are solely responsible for the use of your use of the Retailer Product Content.

Retailer Product Content.

In order to list a Product for sale on the FifthBLVD Sites, you must provide all requested Retailer Product Content.  You must also provide FifthBLVD with all warnings or disclaimers required to be posted with respect to the Products. If the Product fits into a category that is subject to specific product guidelines, you may be required to provide additional Retailer Product Content and/or documentation or certifications for those types of Products.  Additionally, Retailer Product Content provided by you to FifthBLVD for the FifthBLVD Sites must be of at least the same level of quality as the highest quality information displayed or used on the Retailer Site or any other online sales channel for Retailer’s Products and provides users of the FifthBLVD Sites with at least as much product information, images and other content as the information provided on the Retailer Site or any other online sales channel for Retailer’s Products.

Inventory Feed.

You will (i) use commercially reasonable efforts to timely provide FifthBLVD with an error-free updated inventory feed for those Products where inventory levels have changed since the last inventory feed provided for such Product, and (ii) provide FifthBLVD with a daily inventory feed for all Products.

No Unlicensed Content.

If you do not have but need a license from the brand owner or supplier to use certain content related to a Product, do not provide that content to FifthBLVD.

Referral Fees.

FifthBLVD will earn a referral fee equal to a percentage of the gross sales proceeds from the sale of Products (i) including all shipping and handling, gift wrap, and other charges and (ii) excluding only those taxes separately stated and charged (the “Referral Fee Percentage”) from each Product sale through the FifthBLVD Site (the “Referral Fee”) as further set forth 17% plus 3% processing fees.  FifthBLVD will remit to you the total amount it collects from the sale of Retailer’s Products, less the Referral Fee after 25 days from when the product is shipped.

Payment.

At FifthBLVD’s option, all payments to your bank account will be remitted through an Automated Clearing House system. We may offset any amounts that are payable by you to us against any payments we may make to you, or collect payment from you by any other lawful means.  We will impose an initial holding period as a security requirement before funds will be disbursed for new sellers.  If FifthBLVD concludes that your actions or performance in connection with this Agreement may result in customer disputes, chargebacks, violations of Retailer Policies, risks to FifthBLVD or third parties, or other claims, then FifthBLVD may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to you under this Agreement pending completion of any investigation(s) regarding your actions or performance in connection with this Agreement.  If FifthBLVD determines that your account has been used to engage in fraudulent, deceptive or illegal activity or repeated violation of Retailer Policies, we may permanently withhold payments to you in our sole discretion.  As a security measure, FifthBLVD may, but is not required to, impose transaction limits on you or some or all Customers 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.

Vendor payments upon request will be issued to vendors within 25 days from the date of product receipt from customers who have placed orders. This designated duration is accounted for in order to accommodate any potential product returns.

Vendor Minimum payments must reach a standard of threshold of $250.00. In the event there are payments due less than $250.00 . Vendors will need to submit a written request via email so that we can process this payment. Please be advised that this special request will be subject to a $10.00 processing fee.

Set Off.

Further, FifthBLVD may recoup, set off, or credit against amounts payable to you all present and future indebtedness of you to FifthBLVD arising from this or any other transaction with you or any of your affiliates whether or not related to this Agreement. FifthBLVD may also establish a reserve or place a hold on your account.

Order Process

All transactions with Customers are between you and the Customer, and you will be the seller of record. Customers will place orders (the “Orders”) using the FifthBLVD checkout system and FifthBLVD will collect all proceeds from such transactions on your behalf.  You hereby authorize FifthBLVD as your authorized agent to accept payment from Customers for remittance to you for the Products, and as such when a Customer pays FifthBLVD, it shall be construed as if the Customer will be paying you. The Customer shall never be at risk of loss of funds upon payment to FifthBLVD on your behalf.  FifthBLVD will electronically transmit to you the Order information that FifthBLVD determines is necessary to fulfill each Order (the “Transaction Information”).  FifthBLVD will send an automated email message to each Customer confirming receipt of an Order.

Order Fulfillment

Once FifthBLVD has transmitted an Order to you, you will, at your own expense, be solely responsible for, and bear all liability for, the fulfillment of the Order, including without limitation, packaging and shipping Products and customer service.  If you cannot fulfill the entire quantity of a purchase order (“PO”) line in an Order, then you will cancel that PO line, fulfill all other lines in the Order and promptly notify FifthBLVD of such cancellation.  If the Order consists of one PO line that you cannot fulfill the entire quantity for, then you will cancel the entire Order and promptly notify FifthBLVD.

Shipping Options

You are responsible for properly specifying shipping options for all Products through the FifthBLVD Tool as requested by FifthBLVD. You will provide FifthBLVD with the shipping, handling, and any other charges for each Product required by the FifthBLVD Tool, separate from the purchase price. You will not enable shipping in the FifthBLVD Tool for any Product in any region where the sale of such Product violates any Retailer Policy or applicable Law.

Shipping Process

You will be responsible for shipping all Products purchased by Customers in accordance with the Shipping Methods and Timing Policy. You will be responsible for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Products, late shipments or misdelivery.  You will be solely liable for all costs related to any duplicate or inaccurate shipments based upon your retransmission of Order files through any FifthBLVD Tool.  Packaging for Products may not contain any Retailer marketing materials, and emails sent by you to Customers in connection with an Order will not contain any marketing materials or links to any Retailer or third party website, except for links to shipping websites that permit the Customer to track shipment of their Order.

Shipping Methods and Timing

  • Orders cannot be shipped in competitor boxes or packaging.
  • Do not knowingly mark an order as “shipped” without the item.
  • Packages may not contain any seller or third-party promotional or marketing materials (including but not limited to, customer surveys, requests for product reviews, promotional offers, coupons, or similar marketing items). Please see the packing rules for best practices.
  • Tracking numbers must be accurate and valid and only communicated to FifthBLVD once a package has been tendered to the carrier for shipment.
  • All attempts to increase the sale price of a purchased item after a FifthBLVD order has been completed are prohibited.

Your Processing Schedule refers to the days of the week you process and ship orders. To ensure a consistent customer experience, sellers are required and automatically enrolled to support all business days (Monday – Friday) in their Standard Processing Schedule.

FifthBLVD strives to provide timely order status updates to customers. When sellers ship the item, we pass the tracking information on to the customer. Lengthy processing times may trigger Customer Care contacts, prompt order cancellations, and create a negative customer experience.

Sellers are required to ship orders by the end of the next business day (0 or 1 business day lag time).

We don’t require sellers to use any specific carriers or carrier service levels to support the specified transit times within each shipping method. It is important, however, that sellers meet customer expectations regarding the Expected Delivery Date. Sellers must choose an appropriate lag time, shipment method, carrier, and carrier service level to deliver the order to the customer on or before the Expected Delivery Date indicated for FifthBLVD Marketplace orders. Repeated failures to meet the Expected Delivery Date may result in selling privilege restrictions.

Expected Ship Date(ESD) is the date a seller must provide FifthBLVD with an order shipping confirmation, including valid tracking information. Once the shipping confirmation is received, FifthBLVD will send the shipment notification to the customer. If the shipping confirmation is received on or before the ESD, the order is considered “shipped on time.” ESD is assigned based on a combination of the Order Cutoff Time and Fulfillment Lag Time.

Shipping Status Reports

Orders not timely shipped in accordance with the Shipping Methods and Timing Policy may be automatically cancelled by FifthBLVD and you will be solely liable and responsible for all Product costs and shipping costs associated with such cancelled Order and you forfeit any claims for any payments of Referral Fee otherwise payable under this Agreement related to such cancelled Orders.

Risk of Fraud or Loss

Please note that, although FifthBLVD will bear the risk of credit card fraud occurring in connection with an Order, you will bear all other risk of fraud or loss and all costs related thereto. For all credit card chargebacks for which you bear the risk, FifthBLVD will offset such chargeback amounts against amounts otherwise owed you, or send you an invoice and you will pay such invoice within 30 days of receipt. However, notwithstanding the foregoing, FifthBLVD will not bear the risk of credit card fraud in connection with any Product that is not shipped by you to the shipping address specified in the Transaction Information provided by FifthBLVD, and you will be responsible for all costs related to such credit card fraud under these circumstances.

Price Adjustments.  

In the event that you include a mistake or error in connection with a Product sold on the FifthBLVD Marketplace, upon receipt of an Order, at FifthBLVD’s discretion, you may be required to honor such mistake or error and provide the Product to the Customer.

Return Logistics and Cancellations.

Except as otherwise provided, you are solely responsible for processing all Customer cancellations, returns, refunds and/or customer service price adjustments.  You will stop and/or cancel any Order if requested by FifthBLVD; provided that, if you have transferred Products to a shipper, you will use commercially reasonable efforts to stop and or cancel delivery by the shipper.

Improper Returns and Abandonment.

You represent and warrant that you shall include and keep updated with FifthBLVD a proper and valid return address for Customer to return Products.  In the event that your Products are returned to FifthBLVD or a third party, you acknowledge and agree that such Products shall be considered abandoned by you, and FifthBLVD shall have sole discretion to handle the disposition of your Products.  You will pay any and all costs incurred by FifthBLVD and third parties who improperly receive your Products.

Return Policy.

Your return and refund policies for Products sold through the FifthBLVD Sites will be no less favorable to Customers than your most favorable policies offered on your website (“Retailer Site”) for such Products and must comply with the FifthBLVD Returns Policy.

Refunds.

You will be responsible for all non-cash refunds (e.g., store credit, gift cards and exchanges). If you determine a Customer is due a cash refund (e.g., via a refund to the Customer’s credit card, debit card, or other form of original payment), you will notify FifthBLVD through Seller Center and include other related information requested by FifthBLVD. For cash refunds, FifthBLVD will provide the refund to the Customer via the Customer’s original payment method (e.g., credit or debit card), if possible.  You will be responsible for reimbursing FifthBLVD for any cash refunds or adjustments FifthBLVD makes to a Customer and FifthBLVD, in its sole discretion, will obtain reimbursement from you either (i) via offset of any amounts payable by FifthBLVD to you or (ii) by billing you for such amounts.

Recalls.

FifthBLVD will have no responsibility or liability for any recalls of Products sold through the FifthBLVD Sites. You are solely responsible for any non-conformity or defect in, or any public or private recall, or any safety alert of Retailer’s Products. You will promptly remove any recalled Products from the FifthBLVD Sites by unpublishing or retiring the Product through the FifthBLVD Tool. You will notify FifthBLVD by e-mail of all Product recalls within 24 hours of becoming aware of the recall and will promptly provide FifthBLVD with all information reasonably requested regarding the recall.

Customer Service

Obligations.
You will be responsible for all customer service, except for issues related to payment as otherwise outlined herein. In performing such customer service, you will always represent yourself as a separate entity from FifthBLVD. You will not disparage FifthBLVD or its affiliates or its or their products or services when performing customer service obligations or any other obligation under this Agreement. If you monitor or record customer service calls, you must give notice of such monitoring or recording to all Customers during each such call prior to providing any customer service in accordance with applicable Law.

Adjustments.
FifthBLVD reserves the right to provide a customer service adjustment (not to exceed the total amount paid by such Customer in connection with the Products, including without limitation, taxes and gift wrapping and shipping fees) to a Customer that FifthBLVD reasonably determines has not been dealt with correctly by your customer service.

You must use the Message Center to reply when a customer chooses to contact you directly from the Seller Page or their “Account” section on FifthBLVD. You may respond to customers’ requests for information about a product both before and after a sale. You may also receive customer communication forwarded by FifthBLVD teams. For more details about using the Message Center to answer customer inquiries. NOTE: To the extent possible, you must reply in line within the same message thread initiated by the customer to avoid confusion and ensure the customer sees all your responses. 

Marketplace sellers must comply with the following: 

  • Your customer service and customer service escalation email address must always be current and accurate in Seller Center.
  • You must respond to all customer and FifthBLVD Customer Care inquiries within 48 hours, with high-quality responses. Auto-reply messages do not constitute a high-quality response.
  • Do not initiate any communication with customers relating to order status or product information. FifthBLVD system generates automatic emails to customers about order status at every stage. However, if customers inquire about any order details, you are expected to reply within 48 hours.
  • You must continue to monitor your email addresses to ensure you do not miss any other communications from FifthBLVD teams.
  • You must provide high-quality responses within the first hour upon receipt of the Better Business Bureau or Attorney General Complaints.
  • Additional Days Off apply only to order processing exceptions and are not “vacation” periods. You must provide Customer Support during your Additional Days Off. Failure to respond to a customer or FifthBLVD Customer Care contact may result in refunds.

FifthBLVD may refund orders to satisfy a customer, impose seller category restrictions, or suspend accounts for failure to adequately and timely respond to customers or FifthBLVD Customer Care contacts.

The following communications are strictly prohibited:

  • Any communications to customers other than specifically related to fulfillment or customer service.
  • Unsolicited emails or telephone calls to customers, including for marketing communications.
  • Abusive or threatening language to customers, FifthBLVD teams, or other Marketplace sellers.

FifthBLVD Customer Care Refunds; Customer Service Adjustments
Without limiting the Marketplace seller’s obligations for customer service, FifthBLVD may in its discretion take customer service actions for the benefit of customers, including without limitation canceling orders, issuing refunds, processing returns, or making other customer service adjustments.

Refund Dispute Process

Marketplace sellers may file a dispute for refunds processed by FifthBLVD Customer Care via email.

  • Please do not repeatedly (more than 2 times) contact customers regarding refunded orders.
  • Dispute Requests must be submitted within 15 days of the date the payment report was released.
  • Sellers must provide adequate information to support their claim.
  • FifthBLVD will review these requests and determine the appropriate action.

Reporting and Audit Rights

Reporting. You will, within a reasonable period of time (not to exceed 30 days) following request from FifthBLVD, provide FifthBLVD with any reports, information or other documentation relating to your compliance with this Agreement and applicable Law reasonably requested by FifthBLVD. In the event FifthBLVD requests that you provide FifthBLVD with copies of reports that you were required to file with the Consumer Product Safety Commission or any other regulatory agency, you will provide such reports within 7 days of FifthBLVD’s written request.

Audit Rights. You will keep accurate and complete books, records, product testing, compliance information and records, and accounts related to your Products, the Marketplace Program transactions and this Agreement, and will allow FifthBLVD, or its duly authorized representative, the right, upon not less than 5 business days prior written notice, during the term of this Agreement and for two (2) years after its termination or expiration to conduct, during regular business hours, full and independent audits and investigations of all information, books, records, product testing, compliance information and records, and accounts reasonably required by FifthBLVD to confirm your compliance with the terms of this Agreement and applicable Law.  The cost of any and all audits shall be borne by you.  Further, upon FifthBLVD’s sole discretion, FifthBLVD may require you to submit your Products to additional audit and compliance testing which shall be at your sole cost and expense.

 

Ownership of FifthBLVD Marketplace.  

FifthBLVD, its affiliates, and their service providers and licensors retain all right, title and interest (including all Intellectual Property Rights) in and to (i) the FifthBLVD Marketplace, the FifthBLVD Sites, the FifthBLVD Tools, and the FifthBLVD Services and (ii) any of their Confidential Information (as defined herein).  Except for a limited right for you to access the FifthBLVD Sites and FifthBLVD Tools made available to you in accordance with and subject to all the terms and conditions of this Agreement, FifthBLVD, its affiliates, and their service providers and licensors, as applicable, retain all rights in the foregoing and grant no other rights or licenses (whether by implication, estoppel, or otherwise) under any of their Intellectual Property Rights under or in connection with this Agreement.

Ownership of Transaction Information.
FifthBLVD owns (and you hereby assign to FifthBLVD) all Transaction Information and all other information relating to Orders or Products, including, but not limited to, information that is entered into a FifthBLVD Tool, information that is created as a result of a transaction, and ratings and reviews provided by Customers.  All such information is subject to the FifthBLVD Privacy Policy and any additional privacy guidelines posted by FifthBLVD on Seller Center.

Use of Transaction Information.
You may only use Transaction Information to further a transaction related to this Agreement, in accordance with the terms of the Agreement and the FifthBLVD Privacy Policy, and applicable Law. You will not (i) disclose or convey any Transaction Information to any third party (except as necessary for you to perform your obligations under the Agreement); (ii) use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes; (iii) contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; (iv) target communications of any kind on the basis of the intended recipient being a FifthBLVD user; or (v) use any information about FifthBLVD Customers gained through the Marketplace Program to directly solicit such FifthBLVD Customers through any other sales channels.  The foregoing does not prevent you from using information you gathered independent of the Marketplace Program; provided that, you do not target communications on the basis of the intended recipient being a FifthBLVD user.

Ratings and Reviews.
FifthBLVD may use mechanisms that rate or review, or allow shoppers to rate or review, your Products and your performance as a seller and FifthBLVD may make these ratings publicly available.  FifthBLVD will have no liability to you for the content or accuracy of any ratings or reviews, and FifthBLVD will have no liability or responsibility to review or moderate such ratings or reviews.  You will have no ownership interest in or license to use any rating or reviews posted on the FifthBLVD Sites.

Suggestions and Feedback.
If you provide or make available suggestions, comments, ideas, improvements or other feedback or materials to FifthBLVD or its affiliates in connection with the FifthBLVD Marketplace, the FifthBLVD Sites, or other subject matter of this Agreement, FifthBLVD will be free to disclose, reproduce, modify, license, transfer and otherwise distribute, and use and exploit any of the foregoing feedback or materials in any manner.

Termination or Suspension; Survival
FifthBLVD may terminate this Agreement with you at any time in its sole discretion without notice to you on Seller Center or otherwise.  FifthBLVD may also immediately terminate or suspend your participation in the FifthBLVD Marketplace, your access to FifthBLVD Services or the FifthBLVD Tools, or remove your listings at any time in its sole discretion if you violate the terms of this Agreement.

Vendors must provide FifthBLVD a 30 day notice before deleting their website from the FifthBLVD platform.  In the event Vendors delete their website from the FifthBLVD portal without the required 30 day notice. A one time $5000 cancelation fee will be assessed to the vendor payable within 30 days of the cancellation date.

Indemnity

You will protect, defend (at FifthBLVD’s option), indemnify and hold FifthBLVD and its affiliates (and their respective officers, employees, shareholders, directors, agents and representatives) harmless from and against any and all liabilities, costs, losses, damages, judgments, fines, penalties, interest, and expenses (including reasonable attorneys’ fees and disbursements of counsel, court costs, and costs of any investigation, defense, and settlement) arising out of any actual or alleged Claims (regardless of whether such matters are groundless, fraudulent or false) that arise out of or relate to any actual or alleged: (i) any breach (or alleged acts or omissions that if true would be a breach) of any of your representations, warranties, or obligations set forth in this Agreement; (ii) the Retailer Site or other sales channels, the Products, any Retailer Product Content, the advertisement, offer, sale or return of any Products; (iii) any actual or alleged violation, misappropriation or infringement of any Intellectual Property Rights by you, the Products, or any Retailer Product Content; (iv) any taxes assessed, incurred, or owed in connection with, or arising out of, any transaction undertaken on the Marketplace Program, or the collection, payment or failure to collect or pay such taxes, including, but not limited to, your obligations set forth in Section 15 herein; (v) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever, suffered, resulting or alleged to result in whole or in part from your use of the FifthBLVD Marketplace, the Retailer Site, the Products, or any Retailer Product Content.

Claims
Claim” means any action, allegation, claim, demand, lawsuit, legal proceeding, administrative or other proceedings or litigation, inquiry, audit, or investigation.

Indemnification Procedure.
You shall promptly notify FifthBLVD in writing of the assertion, filing or service of any Claim or other matter that is or may be covered by this indemnity, and shall immediately take such action as necessary or appropriate to protect the interests of FifthBLVD, and its affiliates, respective officers, employees, shareholders, directors, agents and representatives.  You shall promptly notify FifthBLVD in writing of the legal counsel that you propose to engage to defend the interests of FifthBLVD in such matter.  Such legal counsel shall strictly comply with FifthBLVD’s Indemnity Counsel Guidelines.  If FifthBLVD determines that such legal counsel has not represented, defended or protected FifthBLVD’s interests in accordance with FifthBLVD’s Indemnity Counsel Guidelines, or reasonably believes your legal counsel is unwilling or unable to do so, FifthBLVDcom may replace such counsel with other counsel of FifthBLVD’s own choosing. In such event, any fees and expenses of FifthBLVD’s new counsel, together with all expenses or costs incurred because of the change of counsel, shall be paid or reimbursed by you as part of its indemnity obligation under this Agreement.   Further, you will provide, at your sole cost and expense, all cooperation, documentation, and information reasonably requested by FifthBLVD in connection with any Claim.  FifthBLVD shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against FifthBLVD, and its affiliates, respective officers, employees, shareholders, directors, agents and representatives, and you will not settle or resolve any portion of any such claim or lawsuit without FifthBLVD’s prior written approval.

Limitation of Liability

No Consequential Damages
IN NO EVENT SHALL FifthBLVD OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) LOST PROFITS, LOSS OF USE, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF OR INACCURATE DATA, INTERRUPTION OF BUSINESS, (II) EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (III) FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Monetary Cap
IN NO EVENT SHALL FifthBLVD’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, COSTS, LOSSES, DAMAGES, JUDGMENTS, FINES, PENALTIES, PENALTIES, INTEREST, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ANY INVESTIGATION, DEFENSE, AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY YOU TO FifthBLVD PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.

Survival of Limitations. 
THE LIMITATIONS SPECIFIED IN THIS SECTION 13 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

No Warranties.
THE MARKETPLACE PROGRAM, THE FifthBLVD SITES, THE FifthBLVD SERVICES, AND THE FifthBLVD TOOLS ARE PROVIDED ON AN “AS IS” BASIS. NEITHER FifthBLVD NOR ITS AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE MARKETPLACE PROGRAM, THE FifthBLVD SITES, THE FifthBLVD SERVICES, OR THE FifthBLVD TOOLS WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (c) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FifthBLVD AND ITS AFFILIATES DISCLAIM ANY AND ALL SUCH WARRANTIES.

Taxes

Withholding.
If FifthBLVD reasonably determines that a Law or any taxing authority requires FifthBLVD to deduct or withhold any taxes (including any tax that FifthBLVD reasonably determines should have been withheld from previous payments under the Agreement but was erroneously not deducted or withheld) from a payment to you under the Agreement, FifthBLVD shall deduct and withhold any taxes required to be withheld by FifthBLVD under applicable Law as and when the legal obligation to withhold arises, and you hereby irrevocably consent to such withholdings.

Documentation. 
You agree that you will provide FifthBLVD with appropriate withholding certificates or other certificates or documentation, including but not limited to IRS Forms W-9 or W-8 (e.g., Form W-8ECI, Form W-8BEN, Form W-8BEN-E, Form W-8IMY, etc.) before any payment is made to you under this Agreement, as required by Law, and upon subsequent request by FifthBLVD.  You further agree to timely file all required returns, report any income, and pay any applicable taxes incurred as a result of the payments you receive under this Agreement, and provide, upon request, evidence to FifthBLVD, including IRS Form 4669 (or other similar form requested by FifthBLVD), that such income was reported.  To the extent required by applicable Law, FifthBLVD agrees to provide IRS Forms 1099-K or other appropriate forms to you evidencing the amounts paid to you under the terms of the Agreement and any taxes withheld.

Confidential Information Defined.

With respect to this Agreement, Confidential Information means any information, in any form or any medium, that is provided by FifthBLVD  or its affiliates to you which is (i) treated as confidential by or is a trade secret of FifthBLVD, and is expressly identified, orally or visually, as “confidential”, “restricted”, or the like, (ii) is acknowledged by FifthBLVD as valuable, special or a unique asset of FifthBLVD, or (iii) would otherwise logically be considered confidential or proprietary of FifthBLVD.   FifthBLVD’s Confidential Information includes, but is not limited to, this Agreement, FifthBLVD’s business plans, business processes, cost, pricing, marketing, sales, customer, and strategy information, and any additional information which FifthBLVD designates as confidential.    In addition, you will treat as confidential, and may not disclose to any third party, any information or communication from, on behalf of, or with FifthBLVD regarding your compliance with this Agreement.   However, in any event, Confidential Information shall not mean information that you can prove (A) is in or becomes part of the public domain other than through an unauthorized or improper act or omission of you; (B) is or was independently developed by you without reference to FifthBLVD’s Confidential Information; or (C) is or was lawfully received from a third party having no obligation as to its confidentiality.

Obligation of Confidentiality.

You shall treat as confidential FifthBLVD’s Confidential Information and shall protect it from unauthorized access, use, or disclosure.  You will use no less than reasonable care in maintaining the confidentiality of FifthBLVD’s Confidential Information.  You shall not use or copy FifthBLVD’s Confidential Information for any purpose other than in furtherance of authorized purposes under this Agreement.  Further, you shall restrict disclosure of, and access to, FifthBLVD’s Confidential Information solely to your personnel, agents or contractors who need to know such Confidential Information in furtherance of the authorized purposes under this Agreement, and only after you advise such personnel, agents or contractors as to, and they have acknowledged and agreed to comply with, the restrictions as to such Confidential Information under this Agreement as they apply to you.   The restrictions on disclosure shall not apply to the extent that Confidential Information is required to be disclosed pursuant to any order or directive of a court or governmental agency of competent jurisdiction; provided that, to the extent practicable, prior written notice is given to FifthBLVD so that it may, in its discretion, seek a protective order or other relief from disclosure.

Injunction.

Without limiting any other remedies available at law or equity, FifthBLVD shall be entitled to seek injunctive relief to enjoin any threatened or continuing disclosure or unauthorized use of its Confidential Information in violation of this Agreement.

Return of Confidential Information.

Upon FifthBLVD’s written request or upon the termination or expiration or this Agreement, you shall return all Confidential Information of FifthBLVD in your possession or control.

Survival of Confidentiality Obligations.

The confidentiality obligations hereunder shall continue for three (3) years from the expiration or termination of this Agreement; provided, however, that you shall keep any trade secrets of FifthBLVD confidential as long as such information is deemed a trade secret by FifthBLVD.

Miscellaneous

Integrated Agreement.
This Agreement (and all Retailer Policies, including Referral Fee Percentages Schedule, Customer Care Requirements Policy, Seller Performance Standards, Shipping Methods & Timing Policy, Returns Policy, Prohibited Products Policy, Tax Collection & Remittance Addendum, and Information Security Addendum) and any documents linked or referenced herein, which are incorporated by reference into this Agreement) constitutes the complete integrated agreement between the parties concerning the subject matter of this Agreement. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded in their entirety by this Agreement. To the extent you are already a party to an agreement with FifthBLVD regarding your participation as a retailer in the FifthBLVD Marketplace Program, the terms and conditions of that agreement are hereby terminated and replaced in their entirety with the terms and conditions of this Agreement but you will continue to comply with all your surviving obligations under that agreement.

Responsibility for Affiliates and Agents.  You will be responsible for any actions taken by your affiliates, agents, or other third parties on your behalf in connection with this Agreement.

Independent Contractors. You and FifthBLVD are acting as independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Governing Law. This Agreement is governed by and will be construed in accordance with the laws of the State of Florida without regard to its principles of conflicts of law. You agree to exclusive jurisdiction of the federal and state courts located in Benton and Washington County, Arkansas shall have the exclusive venue and jurisdiction over any actions or suits relating thereto. The parties shall not raise and hereby waive any defenses based upon venue, inconvenience of forum, or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing.

Assignment. You may not assign this Agreement or any of your rights or obligations under this Agreement without FifthBLVD’s prior written consent.

Ongoing Warranties. Except as otherwise expressly provided in this Agreement, the representations and warranties made in this Agreement are continuous in nature and will be deemed to have been given by Retailer at the execution of this Agreement and each stage of performance of this Agreement.

Insurance. You may have obligations to customers or others in the event of claims for damage or injury arising from your operations or products you sell. If you currently maintain commercial general, product, umbrella, and/or excess liability insurance to insure against such claims, each policy shall also include FifthBLVD Inc, its subsidiaries and its affiliates as additional insured. You may be required to obtain additional insurance. If notified of such requirement, you will have up to thirty (30) days to secure coverage. At our request, you will provide to us certificates of insurance, complete insurance policies, and any other related documents evidencing the required insurance coverage.

Export Control.

Retailer will not use the FifthBLVD Marketplace to 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, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.

Confidentiality.

You may have entered a separate confidentiality agreement with FifthBLVD. This Agreement does not limit your obligations under that agreement. In addition, you will treat as confidential, and may not disclose to any third party, any information or communication from, on behalf of, or with FifthBLVD regarding your compliance with this Agreement.

Severability. In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions.

Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have operate as a waiver of any right or remedy.

Attorney’s Fees.

In the event either party brings any action or proceeding against the other under this Agreement, each party will be responsible for its own attorney’s fees, costs, and expenses.

Force Majeure.

FifthBLVD will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events, or other matters beyond its reasonable control.

Cross Default.

If Retailer is in material breach of this Agreement, FifthBLVD may, in its sole discretion, deem Retailer in material breach of any other contract that Retailer has with FifthBLVD or its affiliates.  Likewise, if Retailer is in material breach of any other contract with FifthBLVD or its affiliates, FifthBLVD may, in its sole discretion, deem Retailer to be in material breach of this Agreement.  In each case, FifthBLVD may pursue against Retailer any and all remedies that FifthBLVD has at law or in equity.

Updated October 30, 2022