Seller Terms of Use

Last updated June 24, 2021

 

These terms of use (“Terms”) are entered into by and between Back Market, Inc., a Delaware corporation, headquartered at 100 Bogart St, Brooklyn, NY 11206, EIN 82-3491104, and it’s parent company, JUNG S.A.S., a simplified joint-stock company who is registered in the Register of Commerce et des Sociétés de Paris under number 804 049 476 and whose VAT number is FR 67804049476  (“Mana by Back Market,” “us,” “we,” or “our”) and the business that has been approved by Mana by Back Market to sell inventory through Mana by Back Market services (“the Seller” or “you”). These Terms are effective as of the date on which Seller consents to these Terms by providing click-wrap consent (the “Effective Date”). Any Seller who wants to supply inventory through https://www.mana.backmarket.com (the “Site”) must accept these Terms without change.
  
BY ACCEPTING THESE TERMS, YOU (A) ON BEHALF OF YOURSELF AND THE ENTITY THAT YOU REPRESENT, AGREE TO BE BOUND BY THESE TERMS, THE BACK MARKET MANA QUALITY CHARTER (THE “CHARTER”), AND THE BACK MARKET MANA PRIVACY POLICY; AND (B) CERTIFY THAT YOU ARE AN OFFICER OF THE SELLER WHO IS AUTHORIZED TO BIND THE SELLER TO THESE TERMS.
 
These Terms are subject to change by us without prior written notice at any time, in our sole discretion. Any changes to these Terms will be communicated by posting an updated Terms of Use on the Site and by email to the email address associated with your account or electronic message sent by Back Market, Inc. Your continued use of the Site will constitute your acceptance of and agreement to such changes. It is your responsibility to review these Terms each time before accessing the Site or purchasing any Products that are available through the Site. You should also carefully review our Mana by Back Market Privacy Policy before accessing and using the Site or placing an order for Products through the Site.

1. Definitions.

1.1. Terms.

The following capitalized terms, when used in these Terms, unless expressly stated otherwise, shall have the meanings set forth below:

  1. “Accessories” means any items, which perform an additional capability or feature for a Device, that are sold in addition to or separately from the Device.
  2. “Business Day” means any day except any Saturday, any Sunday, or any day which is a federal legal holiday or any day on which banking institutions are authorized or required by law or other governmental action to close. The definition of a business day varies by region.
  3. “Buyer” means an individual or entity who desires to purchase goods from the Seller through the website of Back Market, Mana by Back Market or any of its affiliates.
  4. “Certified” means possessing the necessary qualifications or meeting the necessary standards determined by Back Market and Mana by Back Market. 
  5. “Device” means a piece of mechanical or electronic equipment.
  6. “International” means to or from any country other than the United States of America.
  7. “Inventory” means the goods and materials that the Seller holds for resale.
  8. “Mana by Back Market Content” means all information, media, data, software, text, photographs, graphics, user interfaces, music, videos, tags, trademarks, logos, artwork and other content on the Site, excluding Seller Content and including the Charter and Inventory and Order management sheets.
  9. “Mana by Back Market Technology” means all technology, works of authorship, ideas, inventions, know-how, expertise, software associated with the Mana by Back Market Services and the Site.
  10. “Order” means a request by the Buyer to purchase a specific Product sold by the Seller on Mana by Back Market.
  11. “Parts” means individual components of a Device, which may be sold in addition to or separately from the Device.
  12. “Product” means any goods, including but not limited to Devices, Accessories, Parts, and Software, which the Seller has listed on Back Market and Mana by Back Market for potential sale.
  13. “R2 Certification” means that you are compliant with and in good standing with SERI’s latest R2 Standard as posted on https://sustainableelectronics.org.
  14. “Refurbished” means a product, which has been previously returned to a manufacturer or vendor for various reasons and restored to like-new condition.
  15. “Seller Content” means any information that may assist potential Buyers in assessing the Product, including but not limited to: Product descriptions, images, quantities, quality and shipping information.
  16. “Seller Mark(s)” means the Seller’s name, logo, brand or brands.
  17. “Software” means the programs and other operating information used by any computer or Device.
  18. “U.S. Domestic” means within the fifty (50) states of the United States of America, in addition to the District of Columbia.

 

2. Back Market Services.

2.1. Services.

  1. Mana by Back Market, on behalf of the Seller, will post details about the Seller’s Products on the Site. Mana by Back Market reserves the right to modify the Mana by Back Market Services at any time, provided such modifications do not materially diminish the current service offering of the Mana by Back Market Services.
  2. Mana by Back Market provides a marketplace that allows the offering, selling and buying of Products. As a marketplace, we do not own, possess or sell the Products listed on the Site, so the actual contract for sale is directly between the Seller and the Buyer. Mana by Back Market does not act as a consignee. While Mana by Back Market may provide pricing and guidance in our services, such information is solely informational. We are not party to any transaction between Buyer and Seller.  We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings or products sold. Mana by Back Market further has no control over the integrity, responsibility or any actions of any Buyer or Seller.  Mana by Back Market makes no representations about the suitability, reliability, timeliness or accuracy of any public, private or offline interactions between Seller and Buyer.  Mana by Back Market does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Mana by Back Market Services. When interacting with Buyers, you should exercise caution and common sense to protect your personal safety and property. NEITHER BACK MARKET MANA NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY SELLER OR BUYER OR USER OF THE SERVICES. BACK MARKET AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE BACK MARKET PROPERTIES.

 

2.2. Seller Registration.

  1. The Seller is required to register with Mana by Back Market. The Seller’s application will be reviewed by Mana by Back Market, and Mana by Back Market reserves the right to refuse the Seller registration for any reason in its sole discretion. As part of the registration process, the Seller will be required to register with our third-party payment processor.
  2. R2 Certification or compliance is not a requirement for the use of Mana by Back Market.  However, during registration or when listing your inventory, by signaling that you are an R2 Certified facility, you are agreeing to comply with all R2 Standards for Ready for Resale and Ready for Reuse product lot listings. For the Seller, this means that you will provide R2 Certified Buyers with Data Destruction and Testing documentation, support the Mana by Back Market Warranty and Return Policy and have a Quality Assurance Plan in place. Data Destruction requires that you erase or destroy all data contained in or on the Products prior to their resale or other disposition. Testing requires that, upon request, you be able to provide records that indicate both the test procedures used, and the results of those procedures on all equipment sold. If your R2 Certification status changes, it is your responsibility to contact Mana by Back Market to have your profile updated.
  3. The Seller represents and warrants that it is a registered company engaged in the sale of refurbished products of the types it proposes to sell on the Site. The Seller, under the "Know Your Business” procedure as part of registration, must provide Mana by Back Market or our third party payment processor, Stripe, Inc. with all information required on the form provided by us or made available on the Site, and more generally, any documents or information required by the payment partner(s) of Mana by Back Market. Such information and documents may include but is not limited to the following:
    1. Your business or trade name, physical address, e-mail, phone number, tax identification number, URL, the nature of your business or activities, and certain other information as required.
    2. Personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Stripe Account administrator.

     

    2.3. Buyer Registration.

    Mana by Back Market will enable Buyers to register on the Site and require them to submit the information necessary to participate in purchasing Products.

     

    2.4. Product Listing.

    Based on the information supplied by the Seller to Mana by Back Market, we will post listings on the Site on behalf of the Seller. The Seller will provide us  with Seller Content. The Seller is solely responsible for the accuracy of this information. The Seller represents and warrants that Mana by Back Market is not responsible for any errors or omissions arising from the listing of Products through the Mana by Back Market Services.

     

    2.5. Back Market Mana Quality Charter.

    1. The Seller is required to register with Mana by Back Market. The Seller’s application will be reviewed by Mana by Back Market, and Mana by Back Market reserves the right to refuse the Seller registration for any reason in its sole discretion. As part of the registration process, the Seller will be required to register with our third-party payment processor.
    2. R2 Certification or compliance is not a requirement for the use of Mana by Back Market.  However, during registration or when listing your inventory, by signaling that you are an R2 Certified facility, you are agreeing to comply with all R2 Standards for Ready for Resale and Ready for Reuse product lot listings. For the Seller, this means that you will provide R2 Certified Buyers with Data Destruction and Testing documentation, support the Mana by Back Market 30 Day Warranty and Return Policy and have a Quality Assurance Plan in place. Data Destruction requires that you erase or destroy all data contained in or on the Products prior to their resale or other disposition. Testing requires that, upon request, you be able to provide records that indicate both the test procedures used, and the results of those procedures on all equipment sold. If your R2 Certification status changes, it is your responsibility to contact Mana by Back Market to have your profile updated.
    3. The Seller represents and warrants that it is a registered company engaged in the sale of refurbished products of the types it proposes to sell on the Site. The Seller, under the "Know Your Business” procedure as part of registration, must provide Mana by Back Market or our third party payment processor, Stripe, Inc. with all information required on the form provided by us or made available on the Site, and more generally, any documents or information required by the payment partner(s) of Mana by Back Market. Such information and documents may include but is not limited to the following:
      1. Your business or trade name, physical address, e-mail, phone number, tax identification number, URL, the nature of your business or activities, and certain other information as required.
      2. Personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Stripe Account administrator.

       

      3. General Use of Site; Seller Content.

      3.1. Access to Site.

      Subject to these Terms, and provided that the Seller is in compliance with these Terms, Back Market grants the Seller a limited, non-transferable, non-exclusive, and personal right to receive the Mana by Back Market Services and, where applicable, to access and use the Site. Such access and use is subject to any instructions provided by Mana by Back Market. As a condition of the Seller’s use of the Site, the Seller warrants to Back Market that it will not use the Site for any purpose that is unlawful or otherwise prohibited by these Terms.

       

      3.2. Seller Content.

      1. The Seller is solely responsible for its own Seller Content and assumes all risks associated with the use of any Seller Content, including any reliance on its accuracy, completeness or usefulness, or any disclosure of Seller Content. The Seller represents and warrants that it has the right to submit any third-party content submitted. Further, the Seller will not submit content that is unlawful or otherwise objectionable or inappropriate as determined by Mana by Back Market in its sole discretion. The Seller may not state or imply that Seller Content is in any way provided, sponsored or endorsed by Mana by Back Market. The Seller acknowledges and agrees that all information and data generated or tracked by Mana by Back Market as a result of the Seller’s use of the Mana by Back Market Services shall belong exclusively to Mana by Back Market, and Mana by Back Market may use such information for any purpose, commercial or otherwise. Certain information within Seller Content may be subject to the Mana by Back Market Privacy Policy, which is incorporated herein by reference.
      2. During the period of these Terms, the Seller authorizes Mana by Back Market to use the Seller Mark(s) within the framework of Mana by Back Market’s commercial activities. This authorization grants Mana by Back Market the right to use the Seller Marks on the Site, in its media advertisements and/or its marketing operations. If desired, the Seller may explicitly request in writing for the Seller Marks to be removed from marketing and/or advertising materials. Mana by Back Market will comply within the course of a reasonable time period. Without prejudice to the foregoing, Mana by Back Market reserves the right to participate in the promotion of the Products listed online and commercialized by the Seller, particularly through the setting up of partnerships with other websites and/or media publications and/or the sending of advertising emails complying with the applicable legal requirements. Such participation does not affect the defined role limited to intermediation between the Sellers and the Buyers, as Mana by Back Market is only promoting the Site and the Products sold there and does not intervene in the relationship between the Buyer and the Seller concerning one or more specific Products, except to the limited extent set forth in these Terms.

       

      3.3. License to Seller Content. 

      By submitting any Seller Content to Mana by Back Market, the Seller grants Mana by Back Market a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable 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 Seller Content.

       

      3.4. Seller Feedback.

      The Seller agrees that the submission of any ideas, suggestions, documents, reviews, comments and/or proposals to Mana by Back Market through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Mana by Back Market has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. By submitting Feedback, you agree that: (a) you will not post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent, or otherwise objectionable or inappropriate as determined by Mana by Back Market in its sole discretion; and (b) you will not post any content that contains personal information about any individual, that violates the privacy of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Mana by Back Market a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable 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 Feedback, and to sublicense the foregoing rights.

       

      3.5. Seller Absence.

      If the Seller is absent for more than two (2) Business Days, Seller agrees to put its online shop on standby by activating the standby feature made available by Mana by Back Market on the Site. Mana by Back Market also provides the Seller with an option allowing the automatic reactivation of Product offers.

       

       

      4. Mana by Back Market Intellectual Property; Mana by Back Market Content.

      4.1. Back Market Intellectual Property.

      Mana by Back Market retains exclusive interest and ownership in and to the Mana by Back Market Services and Site, including Mana by Back Market Technology. The Seller shall not access, copy, download, install, adapt, reverse engineer, publicly display or perform or in any way alter or use the Mana by Back Market Technology for any purpose not authorized in writing by Mana by Back Market.

       

      4.2. Back Market Mana Content.

      Mana by Back Market Content is owned by or licensed to Mana by Back Market. Except as expressly provided in these Terms, no part of the Site and no Mana by Back Market Content may be reproduced, modified, adapted, published, translated, adopted to make new works or used for any commercial purpose, without Mana by Back Market’s prior express written consent. Except as expressly provided herein, you are not granted any rights or licenses with respect to any of the Mana by Back Market Content, and Mana by Back Market reserves all rights not expressly granted hereunder.

       

      5. Shipment; Fees and Payment.

      5.1. Shipment.

      The Seller is responsible for selecting which shipping option will be offered to the Buyer.

      1. Buyer-Arranged Shipping. If the Seller elects to allow the Buyer to arrange shipping, upon the Buyer’s payment and Order confirmation, Mana by Back Market will connect the Seller and the Buyer via email (“Buyer-Arranged Shipping”). The Seller will then have one (1) Business Day to provide the Buyer with the necessary pick-up information, including but not limited to weight of the package(s), package dimensions, pick-up address, and available time slots for pick-up. Products must be appropriately packaged and available for pick-up within two (2) Business Days of the Buyer’s payment and Order confirmation. Once the Order has been picked up, the Seller is responsible for providing Mana by Back Market with proof of the pick-up.
      2. Seller-Arranged Shipping. Once the Buyer has completed payment, Mana by Back Market will provide the Seller with shipping details including the Buyer’s full name, business name, shipping address, email, and phone number (“Seller-Arranged Shipping”). The Seller will have two (2) Business Days upon receiving the shipping details to confirm shipment and the package must be scheduled to deliver within seven (7) days for Domestic shipments and ten (10) days for International shipments. The Seller must provide the shipping tracking number and shipping carrier name to the Mana by Back Market.

       

      Note: To ensure secure and safe shipping, Buyer-Arranged Shipping is not supported for battery sales.

       

      1. Shipping Insurance. It is mandatory that all shipments be trackable and insured to the product lot’s total value (equal to the amount of the sale). If the Seller ships, via Seller Arranged Shipping, without insurance, the Seller accepts all responsibility if the lot is damaged or lost in transit.
      2. Packaging. The Seller may not include any marketing or branded information within the packages. Inclusion of such material may result in the limiting, suspension or termination of the Seller’s ability to use Mana by Back Market.
      3. Shipping Errors. The Seller agrees to resolve any shipping errors, including shipping delays, lost or missing Products, or damaged Products in accordance with the terms of the Charter.

       

      5.2.  Virtual Wallet.

      1. A money reserve is available on the account of a Seller who has made at least one sale through the Mana by Back Market payment system, and has been credited with the sale amount (the “Virtual Wallet”). The Seller will be given notice of any debit balance of the Virtual Wallet which would represent a breach of these Terms likely to incur liability. The Seller agrees to maintain a credit balance on the Virtual Wallet during any period of time where there is an outstanding warranty remaining on a sold Product. In the event of a breach of this obligation, Mana by Back Market may, without further formality and without compensation, immediately deactivate the Seller’s offers and/or the management of the after-sales service on the Site by simple notification via the Site and/or by email.
      2. In order to prevent any risk of a Virtual Wallet debit balance due to refunds carried out by Mana by Back Market for the Buyers on behalf of the Seller in accordance to the guarantees and warranties that apply to all Products, Mana by Back Market reserves the right to apply a security deposit, defined as follows (hereinafter “Security Deposit”). The Security Deposit is an amount, in addition to the 5% held by Mana by Back Market under Section 5.3,  calculated depending on the assessment of financial risks made by Mana by Back Market. The following non-exclusive criteria is taken into consideration by Mana by Back Market in calculating the Security Deposit: changes in the volume of sales and the refund rate of Products. Mana by Back Market reserves the right to reassess the amount of the Security Deposit at any time. The Seller recognizes that the Security Deposit amount will not be available and cannot, therefore, be fully paid out until the terms and conditions set out in section 5.2(c) below. If the funds in the Security Deposit are not sufficient to pay any expenses, then Mana by Back Market may take funds from the Seller’s Back Market business-to-consumer Wallet to cover such expenses. Similarly, if there are not sufficient funds in the Seller’s Back Market business-to-consumer Wallet to cover expenses, then Mana by Back Market may take funds from the Seller’s Virtual Wallet to cover such expenses.
      3. The Security Deposit less the expenses incurred by Mana by Back Market on behalf of the Seller will be refunded to the Seller within sixty (60) days after the closure of the Seller’s account unless Mana by Back Market’s financial risks remain established at the end of this time period. Where the latter case applies, the refunding of the Security Deposit will be carried out upon the expiration of the last warranty undertaken by the Seller within the framework of sales carried out on the Site.
      4. Mana by Back Market reserves the right to temporarily block the Seller’s Virtual Wallet following a complaint and until the resolution of a dispute. In Mana by Back Market’s sole discretion, if there are significant numbers of complaints concerning the same Seller, Mana by Back Market also reserves the right to temporarily block the Virtual Wallet of the Seller concerned.

       

      5.3. Device Payment Payment.

      1. Mana by Back Market will retain 3% of the actual sales price at which the Products were sold, excluding amounts for shipping or similar charges, sales taxes and other transactional charges (the “Mana by Back Market Service Fee”). Within five (5) Business Days of the Products being picked up by the Shipping provider designated by you or the Buyer, Mana by Back Market will issue 92% of the Device price to the Seller via our third-party payment processor. The remaining 5% of the actual sale price will be held in the Virtual Wallet and will be paid out to the Seller thirty (30) days after the delivery date (or Buyer-arranged shipping as described in Section 5.1.1 or pick-up) provided there is no outstanding dispute with regards to the Products.
      2. In the event of an RRR and the Buyer is issued a full or partial refund this fee will not be refunded to you as the Seller.  The Seller is still responsible for paying Back Market this fee.
      3. Mana by Back Market may choose to charge the Buyer an additional fee. In that case, the Buyer fee is not considered part of the Device price.

       

      5.4. Parts and Accessories Payment.

      1. Mana will retain a percentage (%) of the actual sales price at which the Products were sold, excluding amounts for shipping or similar charges, sales taxes and other transactional charges (the “Mana by Back Market Service Fee”). The schedule below outlines the % retained.
      2. Within five (5) Business Days of the Products being picked up by the Shipping provider designated by you or the Buyer, Mana by Back Market will issue 95% of the Products' sales price, minus the Mana fee as outlined below, to the Seller via our third-party payment processor. The remaining 5% of the Product's sale price, post Mana fee, will be held in the Virtual Wallet and will be paid out to the Seller thirty (30) days after the delivery date (or Buyer-arranged shipping as described in Section 5.1.1 or pick-up) provided there is no outstanding dispute with regards to the Products.
      3. In the event of an RRR and the Buyer is issued a full or partial refund this fee will not be refunded to you as the Seller.  The Seller is still responsible for paying Back Market this fee.
      4. Mana by Back Market may choose to charge the Buyer an additional fee. In that case, the Buyer fee is not considered part of the Device price.

       

      Product

      Fee %

      Smartphone Batteries

      10.72%

      Chargers

      13.05%

      Cables

      13.05%

      Earphones

      13.05%

      Smartphone Screens

      9.1%

      Macbook Components & Accessories

      9.1%

      MFI Lightning-Jack adapter

      3%

      Tablet Batteries

      10.72%

      Tablet Screens

      9.1%

      Laptop Screens

      9.1%

      Laptop Batteries

      		 9.1%

      Motherboards

      		 9.1%

      SSDs

      		 13.05%

      Fans

      		 13.05%

      Topcases

      		 13.05%

       

      5.5. Fees.

      In the event the Seller’s cancellation rate exceeds the rate specified in the Charter, Mana by Back Market may, in its sole discretion, choose to clawback payment from the Seller’s Virtual Wallet, meaning money already paid to you as the Seller must be returned to Back Market.  If the first three (3) months of the Term has expired, this amount may be up to 50% of the Mana by Back Market Service Fee on Orders over the threshold. This means that if the total value of the Order exceeding the cancellation threshold is $25,000, Back Market Service Fee, at 3%, is $750. As a penalty for the high cancellation rate, Back Market may choose to withhold 50% of this lost service fee, equivalent to $375. Additionally, Mana by Back Market may limit, suspend or terminate the Seller’s ability to use the Mana by Back Market Services and/or Site.

       

      5.6. Invoicing.

      The Seller expressly gives a mandate to Many by Back Market to issue in its name and on its behalf all invoices for the sale of the products.  Mana by Back Market will prepare and process all invoices to the Buyers on behalf of the Seller relating to transactions involving the sale of the Seller’s Products. 

      Mana by Back Market will prepare the invoice based on the Seller’s instructions and confirmation that the invoice is for the exact value for the Inventory that is to be sent to the Buyer. The Seller’s information will be represented on all invoices as the seller of record relating to transactions involving the sale of then Seller’s Products. 

      Mana by Back Market shall issue the invoice with the Mention "invoice established  by Mana by Back Marke on behalf of “name of the Seller” and provide the Seller with a copy of the invoice.  

      Mana by Back Market will prepare invoices on behalf of US based Sellers under Back Market Inc. and for EU based Sellers under Jung S.A.S..

       

      5.7.Taxes & Customs.

      The Seller acknowledges that it is solely responsible (i) for any sales, use, excise, import or export value-added tax (VAT) or similar tax or duty associated with the shipment and the sale of Product  and (ii)  for the invoices issued in its name and on its behalf, pursuant to this provision. If the Seller has the obligation to be VAT registered in order to execute the sale of the Seller’s Products it will provide Mana by Back Market the relevant VAT identification number. The Seller shall be solely responsible to (i) report and pay any tax collected, mentioned on the invoices or (ii) to request the Buyer through Mana by Back Market, with required official documents proving the transaction is not subject to tax.

        

      6. Term.

      The term shall commence on the Effective Date and continue in full force and effect until either party delivers notice of termination in accordance with Section 7 (the “Term”).

       

      7. Termination.

      7.1. Seller Termination.

      The Seller may terminate these Terms at any time by giving Mana by Back Market written notice by emailing manasupport@backmarket.com.  All listings will be removed with two (2) Business Days.

       

      7.2. Back Market Mana Termination.

      Mana by Back Market may terminate these Terms immediately and without notice (i) if Seller breaches these Terms or any applicable law, rule or regulation; (ii) to comply with applicable law; (iii) to avoid or mitigate any potential liability owed to third parties or (iv) as otherwise provided for in the Charter as amended from time to time. Mana by Back Market will provide prompt notice of termination after exercising such right. In addition, Mana by Back Market may limit or suspend the Seller’s ability to use Mana by Back Market Services or the Site.

       

      7.3. On the termination by either Mana by Back Market or the Seller.

      (a) Mana by Back Market will cease placing listings on the Seller’s behalf, and (b) the Seller will complete any pending transactions according to the terms of their respective listings unless Mana by Back Market instructs otherwise; this includes the Seller resolving all outstanding claims and/or disputes with the Buyers. The sections of these Terms which, by their nature should survive the termination of these Terms, shall survive. Moreover, Mana by Back Market may in its sole discretion and at the Seller’s expense, take any action deemed appropriate and necessary to uphold the quality of the Mana by Back Market Services and/or Site. This action may include Mana by Back Market taking over the management and resolution of any outstanding claims with the Buyers. Further, the Security Deposit held in the Seller’s Virtual Wallet will be returned to the Seller in accordance with Section 5.2.

        

      8. Confidentiality.

      The parties agree that confidential information is any information of a party which is disclosed to the other party that is marked confidential or should reasonably be understood to be confidential to the disclosing party given the circumstances surrounding the disclosure (“Confidential Information”). Each party shall maintain confidentiality of all such Confidential Information and will not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform under these Terms, except to the extent (a) it is in the public domain (other through disclosure of the recipient), (b) is already known by the recipient or received by recipient from a third party without a restriction on disclosure or use, (c) it is required by any applicable law, regulation or rule or is requested by any court, governmental or regulatory authority; in which case, subject to compliance with applicable law, notice will be given to the disclosing party. These Terms, as well as the Charter and any information regarding a Buyer received by Seller by Mana by Back Market, shall be deemed the Confidential Information of Mana by Back Market. Upon termination of these Terms, upon the request of the disclosing party, the receiving party will destroy or return to the disclosing party all Confidential Information of the disclosing party.

        

      9. Warranties.

      9.1. Mutual Representations.

      Each party represents and warrants that (a) it has full power and authority to enter into these Terms and to grant the rights and licenses provided herein, and (b) that these Terms have been duly authorized, executed and delivered by such party.

       

      9.2. Seller Representations.

      The Seller represents and warrants to Mana by Back Market that (i) it is a registered company engaged in the sale of refurbished Products of the types it proposes to sell on the Site; (ii) it will fulfill all their professional obligations; (iii) it will comply with the obligations imposed on the Seller under the Charter; (iv) it owns, or has obtained all necessary rights to distribute the Products and its Seller Content; (v) it will not engage the Buyers in transactions outside of the Site as a way to avoid payment of any fees related to the Mana by Back Market Services; (vi) the offer or sale of Products does not violate or infringe the rights of any third party, including any third party’s intellectual property rights, personal rights or proprietary rights; (vii) its offer or sale of Products is not illegal in any jurisdiction where the Product is offered or delivered; (viii) it will not engage in illegal or fraudulent activities.

        

      10. Indemnification.

      10.1.  Mana by Back Market Indemnification.

      Mana by Back Market will defend, indemnify and hold the Seller harmless from and against all loss, costs, liabilities, claims or demands, including reasonable attorneys’ fees, made by a third party arising out or related to a (i) breach of any of Mana by Back Market representations and/or (ii) misappropriation of any third party’s intellectual property right. Such indemnification will be Mana by Back Market’s sole and exclusive remedy as a result of any third-party actions arising from infringement.

       

      10.2.  Seller Indemnification. 

      The Seller will defend, indemnify and hold Mana by Back Market harmless from and against all loss, costs, liabilities, claims or demands, including reasonable attorneys’ fees, made by a third party arising out of or related to (i) breach of any of the Seller’s representations, warranties or covenants herein; (ii) sale or display of the Products or its Seller Content; (iii) use of the Products including any loss or damages resulting therefrom; (iv) any claims that any portion of the Products infringes upon or violates any third-party rights, including but not limited to any intellectual property, personal rights or proprietary rights; and (v) any violation of law by the Seller or its employees, contractors or affiliates.

       

      11. DISCLAIMERS.

      EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1 ABOVE, BACK MARKET MANA DOES NOT MAKE ANY OTHER WARRANTY IN CONNECTION WITH THESE TERMS, AND THE BACK MARKET MANA SERVICES, SITE AND BACK MARKET CONTENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE”  BASIS  WITH ALL FAULTS WITHOUT OTHER WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED. BACK MARKET MANA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND ACCURACY. BACK MARKET MANA DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THE BACK MARKET MANA SERVICE, SITE, OR BACK MARKET CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

       

       

      12. Limitation of Liability.

      IN NO EVENT SHALL BACK MARKET MANA, ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS. IN NO EVENT WILL BACK MARKET BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISES FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY A LISTED ASSET/S (B) DEFECTS IN SUCH ASSET/S ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY OR (C) ANY LOSSES OR DAMAGES ARISING FROM USE OF PRODUCTS BY ANY THIRD PARTY PROVIDED THROUGH OR IN CONJUNCTION WITH THE BACK MARKET MANA SERVICES, INCLUDING BUT NOT LIMITED TO FAILURES, DELAYS LOSSES OR INTERRUPTION IN DELIVERY OF THE PRODUCTS. THE SELLER IS RESPONSIBLE FOR ITS GOODS SOLD. IN NO EVENT WILL BACK MARKET MANA’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR IN TORT) EXCEED THE AMOUNT OF SALES FEES PAID BY THE SELLER TO  BACK MARKET MANA IN CONNECTION WITH THE DISPUTED ASSET/S.

       

       

      13. Electronic Communications.

      The communications between you and Mana by Back Market use electronic means, whether you visit the Site or send Mana by Back Market emails, or whether Mana by Back Market posts notices on the Site or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Mana by Back Market in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Back Market  provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. Back Market is not responsible for any electronic communication missed or lost by the Seller. The foregoing does not affect your statutory rights, including but not limited to your rights under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001 et seq.

       

       

      14. Export Control.

      You may not use, export, import or transfer the Site or Mana by Back Market Services except as authorized by U.S. law and any other applicable laws. In particular, but without limitation, the Site and Mana by Back Market Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site, you represent and warrant that you, any person controlling or controlled by you, any person having a beneficial interest in you, or any person for whom you act as agent or nominee in connection herewith are not an individual or entity, country or territory, that is named on a list issued by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or an individual or entity that resides, is organized or chartered, or has a place of business, in a country or territory subject to OFAC’s various sanctions/embargo programs. You also will not use the Site or Mana by Back Market Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Mana by Back Market are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export or transfer Mana by Back Market products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

       

       

      15. Anti-Money Laundering.

      The operations of Mana by Back Market and its subsidiaries in connection with any payment for goods or services purchased from Mana by Back Market are and have been conducted at all times in compliance with all applicable financial record keeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where Mana by Back Market and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”).

       

      15.1 You certify that you are not (i) a resident in, or organized or chartered under the laws of (A) a jurisdiction that has been designated by the Secretary of the Treasury under the USA PATRIOT Act as warranting special measures and/or as being of primary money laundering concern, or (B) a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles by a multinational or inter-governmental group such as the Financial Action Task Force on Money Laundering (“FATF”) of which the United States is a member; (ii) a financial institution that has been designated by the Secretary of the Treasury as warranting special measures and/or as being of primary money laundering concern; (iii) a “senior foreign political figure,” or any “immediate family” member or “close associate” of a senior foreign political figure, in each case within the meaning of Section 5318(i) of Title 31 of the United States Code or regulations issued thereunder; or (iv) a prohibited “foreign shell bank” as defined in Section 5318(j) of Title 31 of the United States Code or regulations issued thereunder, or a U.S. financial institution that has established, maintains, administers or manages an account in the U.S. for, or on behalf of, a prohibited “foreign shell bank.”

       

      15.2 You certify that as a condition of doing business with Mana by Back Market, that you (and all of your employees and agents) shall comply with all the Anti-Money Laundering Laws in connection with any transaction, transfer, deposit, advance, or payment for goods or services provided by Mana by Back Market.

       

      15.3 You certify that any payment or transfer of funds to Mana by Back Market for goods or services is not in violation of U.S. or foreign currency laws.

       

      15.4 You agree that you shall not make any payment or transfer of funds into Mana by Back Market’s account in cash or any form of cash equivalent (e.g., personal check, cashier’s check, certified check, Western Union, Moneygram, AMEX/ traveler’s check).

       

      15.5 You agree to strictly adhere to Mana by Back Market’s payment policies and procedures. Any change in payment method must be approved in writing by Mana by Back Market before any order is fulfilled; noncompliance shall result in the cancelation or delay of any pending order. 

       

      15.6 You acknowledge and agree that payment by any means except as pre-approved is subject to rejection by Mana by Back Market in its sole discretion, and that Mana by Back Market may file appropriate reports of such transactions with the U.S. Department of the Treasury and other governmental agencies.

       

      16. Dispute Resolution.

      If any claim or dispute should arise with respect to any matter relating to these Terms or other documents referenced herein, the claim or dispute shall first be resolved by mediation pursuant to the Commercial Mediation Rules of the American Arbitration Rules of the American Arbitration Association.

       

       

      17. General.

      No delay or failure to take action under these Terms shall constitute any waiver by Mana by Back Market of any provision of these Terms. If any provision of these Terms are invalid or unenforceable under applicable law, it is, to that extent, deemed enforceable to the fullest extent possible (and severable in the event such provision is completely unenforceable) and the remaining provisions of these Terms will continue in full force and effect. These Terms will bind and inure to the benefit of Mana by Back Market’s successors and assigns. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. These Terms may not be transferred, assigned or delegated by the Seller. Any attempt to assign, transfer or delegate these Terms by the Seller shall be null and void. Mana by Back Market may freely assign these Terms without consent or notice. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the Seller. ThenSeller acknowledges that Mana by Back Market is entitled to subcontract any of its contractual obligations related to the provision of services described herein to third parties selected by Mana by Back Market. These Terms do not create, and nothing contained in these Terms will be deemed to establish a joint venture between the parties, or the relationship of employer-employee, partners or principal-agent. These Terms and the Charter constitute the complete and exclusive agreement between Mana by Back Market and the Seller with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. In the event of any conflict between these Terms and the Charter, these Terms will prevail. Mana by Back Market shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.