Weld and Willow Merchant Terms of Sale

Effective Date: 11.16.2023

THESE MERCHANT TERMS OF SALE (“MERCHANT TERMS”) GOVERN YOUR USE OF THE ONLINE WEBSITE, INTERFACES, FEATURES, AND SERVICES LOCATED AT WWW.WELDANDWILLOW.COM (COLLECTIVELY, THE “SERVICES”) OWNED AND OPERATED BY WELD AND WILLOW (COLLECTIVELY, “WELD AND WILLOW,” “WE,” “US,” OR “OUR”). PLEASE READ THESE MERCHANT TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. THESE MERCHANT TERMS INCLUDE AN ARBITRATION CLAUSE AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT. THESE MERCHANT TERMS TAKE EFFECT WHEN YOU ACCESS OR USE THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU ATTEST THAT YOU ARE AT LEAST THE AGE OF MAJORITY IN YOUR STATE OR PROVINCE OF RESIDENCE AND ARE LEGALLY CAPABLE OF ENTERING INTO A BINDING CONTRACT. IF YOU DO NOT AGREE TO BE BOUND BY THESE MERCHANT TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES. THESE MERCHANT TERMS MAY BE UPDATED FROM TIME TO TIME.

1. SCOPE. These Merchant Terms govern your access to, use of, and transactions made through the Services, where you may sell products and services to Weld and Willow customers (“Customers”). The Services enable registered businesses to sell and deliver certain products and services to Customers. You acknowledge that Weld and Willow will not be a party to a contract between you and the Customers or participate in any other aspect of your sale except as set forth in these Merchant Terms.
2. POLICIES. Certain policies accessible through the Services apply to your use of and access to the Services. These “Services Policies”may include, without limitation, the Weld and Willow Privacy Policy and any other policies posted to your Merchant Account, as they may be amended from time to time. To the extent that you have previously received or are currently subject to any other Weld and Willow policies, you agree to abide by such policies. In the event of a conflict between any Weld and Willow policy, and these Merchant Terms, these Merchant Terms shall govern and control with respect to the subject matter herein.
3. ACCOUNT SECURITY. In order to list and sell products on the Services, you must register your business for an online account with a user ID and/or password (“Merchant Account”). Your Merchant Account will contain information and details unique to your business. You may authorize others to create “User Accounts” associated with your Account. You are responsible for all activities that occur under your Merchant Account and any associated User Accounts, and must ensure your Users comply with these Merchant Terms. You are responsible for maintaining the security of the passwords associated with your Merchant Marketplace Account and User Accounts. You hereby grant to Weld and Willow the right to monitor, diagnose, communicate with, retrieve information from, and otherwise access your Merchant Account for the purpose of providing you with the Services. Your access to your Merchant Account or any associated User Account may be revoked by Weld and Willow at any time with or without cause.
4. REPRESENTATIONS AND WARRANTIES. You represent and warrant that you own all right, title, and interest in and to your business logo as provided to Weld and Willow for display on the Services, and that you have all necessary rights and consents to grant Weld and Willow a license to use and display such business logo on the Services. You also represent and warrant that you will comply with all applicable laws and the policies set forth in Section 2 (Policies).
5. PRICING; PRODUCT WARRANTIES. You will set the pricing and warranties for the products and services you sell on the Services. All pricing and warranty information for your sales on the Services must be visible to Customers prior to making a purchase.
6. ORDER ACCEPTANCE; ORDER PICK UP; ORDER CANCELLATIONS. You must accept and fulfill all Customer orders for products and services submitted to you through the Services (“Orders”). Orders are your binding obligation to sell the Customer the products and services ordered via the Services. Weld and Willow reserves the right to, in its sole discretion and for any reason, on a case-by-case basis, reject or cancel any Orders even after a confirmation email has been sent with the Order number and details. For Orders where a Customer has selected the option to pick up their Order in person at your physical store, you must have that Order prepared for the Customer to pick it up within two (2) hours of the earlier of (a) the time the Customer placed their Order or (b) the opening time of your physical store. Weld and Willow will notify you in the event of an Order cancellation. In addition, Weld and Willow may limit or eliminate certain pre-approved products and services available for sale by you if you continuously cancel confirmed Orders of such products and services on the Services.
7. INVOICING. You must accompany all fulfilled Orders with an invoice to the Customer directly from you. All invoices shall, at a minimum, include the following items: (a) Order number; (b) your business name, address, phone number, and any other contact information available to the Customers; (c) the name, description, quantity, and net price of each product or service purchased in the Order; (d) any special prices or discounts applicable to the Order; (e) the cost of shipping; (f) the total amount of the Order; and (g) any additional terms and conditions, such as, but not limited to: your (i) shipping policy; and (ii) return, exchange, and refund policy.
8. SHIPPING. You are responsible for all shipping charges on products and services you sell on the Services, including returned items, subject to applicable law and the Policies set forth in Section 2. You will prominently display your shipping policy for all products and services sold on the Services to be available for all Customers to read before placing an Order, and you agree and acknowledge that your shipping policy is binding between you and the Customer. At a minimum, your shipping policy must include your designated shipping carrier and shipping rate and speed options. All your shipments must contain a tracking number and a description of all physical items and units included in the shipment. You bear the risk of loss during shipment at all times.
9. RETURNS; REFUNDS. You are responsible for all returns and refunds on products and services you sell on the Services, including replacement items, subject to applicable law and the applicable Policies set forth in Section 2. You will prominently display your return and refund policy for all products and services you sell on the Services to be available for all Customers to read before placing an Order.
10. PAYMENT TERMS; SETOFF. Fees payable to you (“Fees”) shall be calculated in US Dollars as follows: (a) the total amount paid by Customer for delivered Orders of products and services; (b) minus the service fees charged by third-party providers and Weld and Willow; (c) minus the total amount of taxes due on each Order (to be paid by Weld and Willow as required by law). Fees shall be payable to you for every Order shipped before the conclusion of the preceding full calendar month. We will, at our discretion, set off any amounts owed to you, including for any Customer disputes we resolve on your behalf as set forth in Section 11. Any outstanding amounts owed to us will be due and payable within thirty (30) days. No failure or delay on our part in the exercise of any such rights or remedies will constitute a waiver of such rights or remedies under this Section 10, or limit Weld and Willow in its enforcement of any other remedies that may be available to it. No cancellation of your Merchant Account will relieve you of any of your obligations under these Merchant Terms
11. CUSTOMER DISPUTES. We may, in our sole discretion, resolve any shipping, return, or refund disputes between you and a Customer that you do not resolve to the Customer’s satisfaction.
12. USER CONTRIBUTIONS. The Services may contain interactive features that allow you and Customers to post content or materials (collectively, “User Contributions”) on or through the Services. User Contributions are not confidential and shall be the sole property of Weld and Willow. You also represent and warrant that you will not post fraudulent, malicious, or inaccurate statements or information, and you acknowledge and agree that Weld and Willow is not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Services. You understand and agree that User Contributions can be visible to the public on the Services, third-party websites, and search engines, including after being deleted by you, and Weld and Willow has no responsibility or liability for such exposure. You also represent and warrant that:
    • You own or control all rights in and to the User Contributions that you post to the Services.
    • All of your User Contributions do and will comply with these Merchant Terms.
    • You are responsible for any User Contributions you submit or contribute and you, not Weld and Willow, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
    • Weld and Willow is not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Services.
13. CONTENT STANDARDS. These content standards (“Content Standards”) apply to any and all User Contributions and use of Interactive Services (as set forth in Section 12 of these Merchant Terms). User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
    • Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
    • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
    • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
    • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Merchant Terms or the Weld and Willow Privacy Policy.
    • Be likely to deceive any person.
    • Promote any illegal activity, advocate, promote, or assist any unlawful act.
    • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
    • Impersonate any person, misrepresent your identity, or affiliation with any person or organization.
    • Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising.
    • Give the impression that they emanate from or are endorsed by Weld and Willow or any other person or entity, if this is not the case.
14. WARRANTY; DISCLAIMER. WE WARRANT THAT THE SERVICES WILL BE ADMINISTERED IN A PROFESSIONAL AND COMPETENT MANNER AND THAT WE SHALL USE REASONABLE COMMERCIAL EFFORTS CONSISTENT WITH INDUSTRY STANDARDS. EXCEPT AS SET FORTH HEREIN, THE SERVICES MADE AVAILABLE TO YOU BY WELD AND WILLOW ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WELD AND WILLOW MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE PRODUCTS AND SERVICES IT SELLS AND THE INFORMATION IT PROVIDES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WELD AND WILLOW MAKES NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS; (C) THE QUALITY OF ANY INFORMATION OR COMPENSATION RECEIVED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (D) ANY ERRORS ON THE SERVICES WILL BE CORRECTED.
15. INDEMNIFICATION. You will defend, indemnify, and hold harmless Weld and Willow and its affiliates, and their respective directors, officers, employees, representatives, contractors, and agents, from and against any loss, damage, judgment, settlement, expense, interest, and any other liability (including reasonable attorneys’ fees and costs) related to or arising out of any third party allegation, claim, lawsuit, or proceeding (a “Claim”) to the extent such Claim is based on your use or misuse of the Services in connection with: (a) an infringement of any patent, trademark, or copyright, including costs and expenses; (b) any breach of these Merchant Terms; (c) any unlawful, improper, or negligent use by anyone of any product or service you sell under these Merchant Terms; (d) any dispute between you and a Customer or authorized User Account holders under your Merchant Account; (e) your negligence or misconduct; or (f) any Customer visits to your physical store for any reason, including, but not limited to picking up Orders. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at your expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
16. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, WELD AND WILLOW’S LIABILITY IN ALL EVENTS IS LIMITED TO THE SERVICE FEES PAID TO WELD AND WILLOW FOR THE RELATED SALE IN QUESTION. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL WELD AND WILLOW BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, THAT RESULT FROM YOUR SALE OF ANY PRODUCTS OR SERVICES, OR USE OF THE WELD AND WILLOW MARKETPLACE OR ANY WELD AND WILLOW SERVICES, EVEN IF WELD AND WILLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. INFORMATION; ACCESS; CONFIDENTIALITY; MARKETING.
    • Information. Except as disclosed in these Merchant Terms, our use of your information is governed by the Weld and Willow Privacy Policy. We will own all information generated during a Customer interaction, including, but not limited to, name, address, phone number, shipment date, ASIN/SKU, quantity, and other information gathered from Customers’ activity and Orders placed on the Services. We will provide Customers’ shipping information to you as needed to enable you to fulfill Orders for your products and services sold on the Services. We may share additional Customer information with you as needed subject to your compliance with applicable privacy laws.
    • Access. You hereby grant to Weld and Willow the right to monitor, diagnose, communicate with, retrieve information from, and otherwise access your Merchant Account for the purpose of: (i) providing the Services to you; and (ii) offering the Services to customers. It is your responsibility to secure, at your own cost, your Merchant Account and any associated User Accounts as set forth in Section 3 (Account Security).
    • Confidentiality. These Merchant Terms, and any and all activities you perform or engage in connection with your use of the Services are confidential except as otherwise permitted in these Merchant Terms (“Confidential Information”). You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You may use Confidential Information only in connection with your use of the Services. You will not disclose Confidential Information unless required by law. This applies to all Confidential Information in your possession, regardless of when or where you receive it. This obligation shall survive as long as permitted under applicable law.
    • Marketing. If you receive information about a Customer who places an Order for a product or service you sell on the Services, you agree to use the information to fulfill the Customer’s respective Order and delete such customer (and any additional) information received after the Order has processed. You may not disclose or distribute a Customer’s information to a third party for purposes unrelated to the Services. In addition, you may only send marketing communications to Customers who have consented to receive them in accordance with applicable laws and only through the Services.
18. DISPUTE RESOLUTION: MANDATORY BINDING INDIVIDUAL ARBITRATION AND CLASS AND COLLECTIVE ACTION WAIVER.
    
    Important: This Section 18 limits certain LEGAL rights and includes a waiver to the right to maintain a court action, the right to a jury trial, and the right to participate in any form of class or representative ACTION, and limits your ability to obtain certain remedies and forms of relief. Please review carefully.
    • In the unlikely event that a disagreement arises between you and Weld and Willow, prior to initiating any arbitration or lawsuit, you must first contact Weld and Willow at [email protected]  so that we may work in good faith to find a mutually agreeable solution. If the issue cannot be resolved between you and Weld and Willow within sixty (60) days of written notice, you and Weld and Willow agree, as permitted by applicable law, to resolve any claim or controversy at law or equity arising out of, relating to, or connected in any way with the Services, these Merchant Terms, or Additional Terms (collectively, “Dispute”) through binding INDIVIDUAL ARBITRATION, or as we and you otherwise agree in writing. You agree that the term “Dispute” in these Merchant Terms will have the broadest meaning possible. These Merchant Terms also cover any Dispute between you and any officer, director, board member, agent, employee, affiliate of Weld and Willow, or third party if Weld and Willow could be liable, directly or indirectly, for such Dispute. If the parties have more than one Dispute between them, you and Weld and Willow agree to assert all such Disputes in a single arbitration so they may be resolved at the same time, or they will be deemed waived. This Section 18 shall survive termination of these Merchant Terms.
    • CLASS AND COLLECTIVE ACTION WAIVER: You and Weld and Willow explicitly agree to the fullest extent allowable and enforceable under applicable law, that the arbitrator must decide any Dispute on an individual basis. No Dispute shall be arbitrated on a class, representative, or CONSOLIDATED basis. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated absent the express written consent of Weld and Willow. The arbitrator may only award relief (including injunctive relief, if available) on an individual basis. Notwithstanding any other clause contained in these Merchant Terms, any challenge to the validity of this Section 18(b) must be determined by a court of competent jurisdiction and not by an arbitrator. If, for any reason, this Section 18(b) is held to be unconscionable or unenforceable, then the entirety of this Section 18 shall not apply and the Dispute must be brought exclusively in a state or federal court in Costa Mesa, California. Accordingly, you and Weld and Willow consent to the exclusive personal jurisdiction and venue of such courts for such matters. Moreover, any state or federal court action shall be tried to a judge and not a jury.
      
      Arbitration Procedure:
      
      1. As stated above, we require you to first contact us directly to seek a resolution. If we cannot resolve a Dispute within sixty (60) days, then, to the fullest extent permitted by applicable law, Disputes shall be resolved solely by a single, neutral arbitrator of the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ Streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Weld and Willow consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and Weld and Willow will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Weld and Willow to pay a greater portion or all of such fees and costs in order for this Section 18(b)(i) to be enforceable, then Weld and Willow will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will: (a) apply applicable law and the provisions of these Merchant Terms; (b) determine any Dispute according to applicable law and facts in the record and no other basis; and (c) issue a reasoned award. In any arbitration arising out of or related to these Merchant Terms, the arbitrator(s) may not award any incidental, indirect, or consequential damages, including damages for lost profits.
      2. You are responsible for paying your portion of the fees set forth in the JAMS fee schedule. The Company will pay all remaining JAMS fees. If your claim against Weld and Willow is for less than $1,000, and you succeed on the merits, Weld and Willow will pay all fees. If you believe you cannot afford the JAMS fee, you may apply to JAMS for a fee waiver.
      3. WITH ARBITRATION: (A) THERE IS NO JUDGE OR JURY; (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES; AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Any Dispute shall otherwise be governed by the internal laws of the State of California without regard to California choice of law principles, except that the provisions of these Merchant Terms concerning arbitration shall be governed by the Federal Arbitration Act.
      4. Certain portions of this Section 18 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (an “Agreement”) and JAMS’ Streamlined Arbitration Rules. You and Weld and Willow agree that we intend that this Section 18 satisfies the “writing” requirement of the Federal Arbitration Act.
      5. In the event that JAMS is unavailable or unwilling to hear the Dispute, you and Weld and Willow shall agree to, or a court shall select, another arbitration provider.
      6. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU WANT TO ASSERT A DISPUTE AGAINST WELD AND WILLOW, THEN YOU MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
         
19. ENTIRE AGREEMENT. These Merchant Terms constitute the exclusive and complete agreement between us and you. We will not be bound by any term, condition, obligation, or other provision which is different from or in addition to the provisions of these Merchant Terms or which may be in any order, receipt, acceptance, confirmation, correspondence, or other document, including informational forms we complete, sign, or otherwise provide to you for your convenience.
20. TERM; TERMINATION. These Merchant Terms take effect when you create a Merchant Account and continue in effect until you or we terminate your Account and each associated User Account or these Merchant Terms. We may terminate these Merchant Terms by providing notice to you. We reserve the right, in our sole discretion, and with or without notice unless required by applicable law, to refuse service; remove or edit content; modify, suspend, or discontinue the availability of any features, products, or services; terminate your right to use some or all of the Services; terminate your Merchant Account; and/or cancel Orders. Weld and Willow may choose to charge, modify, or stop charging a fee for any service in its sole discretion. Upon termination, all rights and obligations under these Merchant Terms automatically terminate except for rights of action occurring prior to termination, payment obligations, and Sections 1, 12 – 15, 17(c) – 18, and 21 – 22. YOU HEREBY WAIVE AND HOLD HARMLESS WELD AND WILLOW AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY WELD AND WILLOW DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY IT OR LAW ENFORCEMENT AUTHORITIES IN RELATION TO YOUR USE OF THE SERVICES.
21. COPYRIGHTS; TRADEMARKS; PATENTS. Use of the Services does not give you the right to frame, use, or reproduce any of our copyrighted material, trademarks, service marks, or other proprietary rights or material, or to use any of our patents, except as expressly permitted in writing by Weld and Willow.
22. MISCELLANEOUS.
    • Feedback. If you make any suggestions about the Services or the features (including any related technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner without any compensation owed to you.
    • Assignment. Except in connection with a reorganization, merger, sale, or transfer of substantially all of your assets (in which cases you must promptly provide written notice following assignment), you may not assign these Merchant Terms without our prior written consent. Subject to that restriction, these Merchant Terms will be binding on, inure to, and be enforceable against the parties and their respective successors and permitted assigns.
    • Severability. If any provision of these Merchant Terms is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Merchant Terms and will not affect the validity and enforceability of any remaining provisions.
    • Waiver.Our failure to enforce your strict performance of any provisions of these Merchant Terms will not constitute a waiver of our right to enforce such provisions or any other provision of these Merchant Terms subsequently.
    • Conflicts.In the event of any conflict between these Merchant Terms and the policies, these Merchant Terms will prevail.
    • Notices.You consent to receive communications from us electronically, including through e‑mails, text messages, in-app push notices, notices and messages posted on the Services or in your Merchant Account, and other communications made available to you (subject to your opt-out option) as set forth in the Weld and Willow Privacy Policy. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. We may also send you notices at the address provided when registering your Merchant Account, which you agree is a proper and valid address for any legal or contractual purpose.
    • Contact. You may contact Weld and Willow at [email protected] or (949) 691-1734 with any questions regarding these Merchant Terms.