Seller Participation Agreement

Agreement

This Seller Participation Agreement ("SPA") governs (a) your access to and use of the following websites (each, a "Site"): (i) www.alibris.com, (ii) www.alibris.co.uk, (iii) any other Alibris websites, and (iv) the websites of any of Alibris's business partners (the "Alibris Business Partners"), including Amazon.com, Barnes&Noble BookQuest, Blackwell UK, Books-A-Million, BetterWorldBooks, eBay/Half.com, Chapters/Indigo, Ingram, and TextbookX/Akademos; and (b) sales through, or using the features of, any Site (the "Services"). By using the Site, you acknowledge that you are an authorized representative of Seller (defined below), that you are authorized to bind Seller to the terms of this SPA, and that you have read and agree that Seller will be bound by the terms of this SPA and the Alibris Policies and Procedures for Sellers, which are incorporated in this SPA, and together with this SPA may be referred to as "this Agreement". If and to the extent the Policies and Procedures for Seller conflict with the SPA, the SPA will control.

Definitions

To simplify this Agreement, the words "you" or "your" refer to the seller identified in the account application ("Seller"), and the words "we", "our", "us" and "Alibris" mean Alibris, Inc., its owners, officers, directors, employees and agents. The word "Account" means Seller's account with Alibris. The word "Item" means a book, DVD, CD, tape, vinyl, music or other product you offer for sale on a Site. The words "List," "Listing" or words of similar import mean information you post on a Site to offer an Item for sale. The words "applicable law" or words of similar import mean the international, national, federal, state, provincial and local laws, regulations, conventions, treaties, administrative rules, ordinances, court orders or other legal requirements of any jurisdiction that govern you, us, the Sites or the Alibris Business Partners. The words "includes" and "including" are not limiting in any way and mean "includes" or "including without limitation." The word "party" means you or us and the word "parties" includes both you and us. The words "will", "shall" and "must" are synonyms; each means the action is mandatory rather than optional.

Changes 

We may change this SPA and our Policies and Procedures for Sellers at any time. When we do, we will post notice of the changes to the SPA and to the Policies and Procedures for Sellers on the Seller Hub for at least 30 days. That notice will include the date the change will become effective. If it doesn't state the date the change will become effective, then the change will become effective immediately. To ensure that you receive notice of any changes, you will need to check the "Changes" section of the Seller Hub periodically, and in any event at least once a month. If you do not wish to be bound by a change, you should not access or use the Site or the Services after that change becomes effective. Your continued use of the Site and/or the Services after the effective date of a change means that you have accepted and agree to be bound by that change. The list of Alibris Business Partners may also change from time to time, and we may at any time temporarily or permanently add, modify or discontinue the Services, with or without notice or liability to you.

We have no obligation to monitor your access to and use of the Site and the Services to ensure your compliance with this Agreement and applicable law, but we have the right to do so.

1. Who can be a Seller - Seller Obligations and Requirements:

You must be able to lawfully enter into and form contracts under applicable law to become an Alibris Seller. Unfortunately, you cannot be an Alibris Seller if you are a minor.

The information you provide for the Account must be true, accurate, current and complete at the time of each sale or other transaction involving the Account, including your name, address, phone number, e-mail address and payment information. If that information changes, you must update the information for the Account within 2 business days.

You must fill a minimum of 95% of the orders that customers place with you through an Alibris Site or the Site of one of the Alibris Business Partners and you must do so within 48 hours of your receipt of that order. Failure to do so is grounds for termination.

2. What you cannot sell through a Site: 

2.1 Things you cannot sell

You must not advertise, sell or deliver:

(a) Any Item that: (i) is counterfeit, stolen, illegal, fraudulent, or illegally published or reproduced; (ii) is obscene or contains pornography; (iii) is defamatory or libelous, unlawfully threatening or harassing; (iv) infringes any other person's copyright, patent or trademark, discloses or misappropriates any other person's trade secrets or otherwise violates any other person's privacy, publicity rights or any other proprietary rights; or (v) contains any viruses, Trojan horses or other computer programming routines that may damage or interfere with the customer's use of that Item or that negatively affects any of the customer's other software, hardware or data.

(b) Books, movies, music or other Items distributed for promotional use, including advance reading copies, uncorrected proof copies (until published) and photographed materials or unauthorized reprints.

(c) Incomplete Items.

(d) To anyone located in the United States, Canada or Australia, books that are Prohibited International Edition

2.2 Things you can sell only with appropriate disclosure

You must not advertise, sell or deliver any of the following Items unless your Listing clearly and conspicuously describes the condition of that Item:

(a) Books, movies, music, DVDs, CDs, tapes, vinyl or other Items that are moldy, badly stained, unclean, incomplete or have obscured text or that are scratched or patched.

(b) Paperback books without covers.

2.3 Special Warnings

(a) You must not use a Site, Alibris or Alibris's Sparks, Nevada warehouse cross-docking service, to (a) ship Prohibited International Edition Textbooks (defined above) or (b) circumvent any other prohibitions or restrictions in this Agreement.

(b) You must comply with applicable law relating to the Items you List for sale and/or sell, including import and export laws and prohibitions on the sale, distribution or offering for sale of specific items.

(c) Any Items that Alibris deems to be unacceptable for sale may be returned to you at your expense, or retained by Alibris, and in either case, your sales credits may be debited.

3. Your Listings:

3.1 Your Warranty

By Listing an Item for sale on a Site, you warrant to Alibris, the Alibris Business Partners and their customers as follows: (a) you have full marketable and legal title and ownership of each Item you List and the right and ability to sell that Item; (b) no Item is counterfeit or otherwise illegally published; (c) the Listing for that Item is accurate, current, and complete and is not misleading or otherwise deceptive; (d) you have the legal right to publish and display all photographs, images and other content that you submit to Alibris or post on the Site ("Your Content"): and (e) Your Content (i) is not obscene, (ii) does not contain pornography, (iii) is not defamatory or libelous, (iv) is not unlawfully threatening or harassing, (iv) does not infringe any other person's copyright, patent or trademark, disclose or misappropriate any other person's trade secrets or otherwise violate any other person's privacy, publicity rights or any other proprietary rights; (v) does not contain any viruses, Trojan horses or other computer programming routines that may damage or interfere with the Site or the Services; or (vi) does not advertise, List or offer to sell any Items that are counterfeit, stolen, illegal, fraudulent, or illegally published or reproduced or any other Items in violation of Section 2 above.

3.2 Your License to Us

You grant to Alibris a non-exclusive, irrevocable, perpetual, fully paid up, royalty free, transferable, worldwide right and license: (a) to use, copy, modify for clarity, translate, publish, display and distribute, in whole or in part, Your Content that you upload or post on a Site; and (b) to sublicense those rights to the Alibris Business Partners and others (except that Alibris will not sell Your Content to other sellers).

3.3 Listing Regulations

Duplicate Listings on [the Sites][a Site] are not allowed. If you create a second account or otherwise have duplicate Listings on [the Sites][a Site], we have the right to remove that duplicate Listing or second account immediately, without notice.

3.4 Your Communications with Customers

The Site permits visitors to send you inquiries about specific items that you have Listed or that they have ordered. You must respond to each such inquiry within two business days. All other inquiries from customers, potential customers and other visitors to a Site (e.g., about payment, their account, searching, etc.) must be referred to Alibris. All payments for sales through us are processed through the Site, and you must not invoice or ask for additional fees from a customer in any Alibris transaction for any reason.

3.5 Customer Privacy

We assure visitors to the Site that you and the other sellers will not add their email addresses to prospect lists for future solicitation. Therefore, you agree not to use the email addresses or other contact information of customers, potential customers or other visitors to the Site email except to answer their questions.

4. Our Property:

You acknowledge that (a) the Site(s), including the Alibris Business Partners' Sites, contain information, data, software, trademarks, trade names, service marks, works of authorship and other material ("Our Content") that are or may be protected trademarks, copyrights, trade secrets or other intellectual property rights; (b) Our Content is and will at all times remain the sole property of Alibris, the Alibris Business Partners, and their licensors. You may not copy, modify, delete, publish, distribute or create derivative works of Our Content and you may not reverse engineer, decompile or otherwise endeavor to obtain (i) the source code for the Site or (ii) any other confidential or trade secret information that belongs to us, to the Alibris Business Partners or to our respective suppliers and customers.

5. Financial Information:

5.1 Sales

You will sell the Items to Alibris, to the Alibris Business Partners or to their customers at the price posted in your Listing on the Site as described in the Policies and Procedures for Sellers. Upon Alibris's receipt of payment from the customer, Alibris will deduct the commission payable to Alibris as described in the Policies and Procedures for Sellers and will forward the balance of the payment to you. Alibris will also send you a portion of the shipping and handling fee that customers pay (i.e., the shipping allocation) as described in the Policies and Procedures for Sellers. Discounts offered by Alibris will not reduce the amount otherwise payable to you.

5.2 Taxes

You are responsible for determining whether sales or use taxes apply to your sales transactions; Alibris has no responsibility in this regard.

5.3 Fees

You will pay Alibris the annual, quarterly and/or monthly fees described in the Policies and Procedures for Sellers based on the type of account you have, including to the extent applicable, minimum sales commissions, variable closing fees and the flat monthly subscription fee. While Alibris may deduct those charges from the amounts otherwise payable to you under Section 5.1 above, you must provide Alibris with valid credit card or ACH clearing house information so that if the fees payable to Alibris exceed the amount Alibris owes you, Alibris can charge your credit card or withdraw funds from your bank account, and you expressly authorize Alibris to do so. Any amounts not paid when due will bear interest (a) one percent (1%) per month or (b) the highest rate permitted by applicable law, whichever is lower.

6. Communications with You:

We may contact you for any lawful reason, including to offer new products and/or services. That contact will not be deemed to be "unsolicited". Except to the extent prohibited by applicable law, we may (a) contact you at any address (including email) or telephone number (including wireless cellular telephone or landline telephone numbers) that you may provide to us from time to time; (b) use any means of communication, including postal mail, electronic mail, facsimile, telephone or other technology, to reach you; (c) use automatic dialing and announcing devices which may play recorded messages; and (d) send text messages to your telephone. We may monitor and record your telephone calls with us regarding your Account in accordance with applicable law to improve customer service and security.

7. How will this Agreement End?:

Either you or we may terminate this Agreement immediately at any time by giving the other party written notice of termination. We may, in our sole discretion, suspend your Account (in whole or in part) and/or any current sale, for any reason, without notice or liability to you. Following termination, (a) we will (i) remove Your Content from the Site and (ii) remit to you all undisputed outstanding monies owed to you at the time of termination; and (b) you will (i) fulfill all outstanding orders placed through the Site prior to termination and (ii) pay all undisputed outstanding monies owed to Alibris and the Alibris Partners at the time of termination.

8. Alibris Disclaimers/Limitation of Liability: 

THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. ALIBRIS, ON ITS OWN BEHALF AND ON BEHALF OF EACH OF THE ALIBRIS BUSINESS PARTNERS, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SITE AND THE SERVICES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COURSE OF DEALING AND USAGE IN THE TRADE.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER ALIBRIS NOR ANY ALIBRIS BUSINESS PARTNER WILL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE OR THE SERVICES. IN NO EVENT WILL ALIBRIS'S AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM THE USE OR INABILITY TO USE THE SITE AND/OR SERVICES BE MORE THAN THE COMMISSIONS AND OTHER FEES YOU PAID ALIBRIS IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH LIABILITY AROSE.

9. Indemnity:

You will defend, indemnify and hold harmless Alibris and the Alibris Business Partners from and against any demand, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, or any other claim arising out of or in any way connected with your access to or use of the Site (including the Site of any Alibris Business Partner), and/or the Services, and/or your violation of this Agreement. If you fail or neglect to defend such a claim, Alibris may defend it, and in that case you will promptly pay or reimburse, on demand, all expenses that Alibris incurs in that defense, including reasonable attorney fees, as well as the amount of any judgment or arbitration award that Alibris is required to pay.

10. Dispute Resolution:

10.1 Disputes With Sellers Who Are Merchants 

ANY DISPUTE ARISING FROM OR RELATING IN ANY WAY TO AN ITEM, A LISTING, THE SITE, THE SERVICES, YOUR ACCOUNT AND/OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. IN ADDITION, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO (i) BRING A CLASS ACTION OR SIMILAR PROCEEDING IN COURT, (ii) BRING ANY CLAIM IN ARBITRATION AS A CLASS ACTION OR SIMILAR PROCEEDING OR (iii) BE PART OF ANY CLASS ACTION OR SIMILAR ACTION BROUGHT BY ANYONE ELSE, OR BE REPRESENTED IN A CLASS ACTION OR SIMILAR PROCEEDING. BOTH YOU AND WE WAIVE THE RIGHT TO BRING CLAIMS IN A COURT, BEFORE A JUDGE OR JURY, AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION.

  • • Any claim, dispute or controversy by either you or us against the other (or against the employees, parents, subsidiaries, affiliates, beneficiaries, service providers, agents, attorneys or assigns of the other) arising from or relating in any way to any Item, a Listing, the Site, the Services, your Account, any transactions on your Account, our relationship, and/or this Agreement ("Claim"), including Claims regarding the applicability or validity of Section 10.1 (this "Arbitration Provision") will be resolved exclusively and finally by binding arbitration except as provided below.
  • • All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other sources of law. Claims made and remedies sought as part of a class action, private attorney general, or other representative actions are subject to arbitration on an individual (non-class, non-representative) basis.
  • • The party bringing the Claim may select either one of two national arbitration organizations to administer the arbitration of the Claim: JAMS or the American Arbitration Association ("AAA"). The arbitration organization that is selected will apply its code or procedures in effect at the time the arbitration is filed, subject to this Agreement. The arbitration will be conducted before a single neutral arbitrator. The arbitrator's authority is limited solely to the Claims between you and us alone. The arbitration will not be consolidated with any other arbitration proceeding. You and we do not agree to any arbitration on a class action or any other representative basis. For an explanation and schedule of the fees that apply to an arbitration proceeding, please contact the arbitration organizations at the addresses below. Unless applicable law gives you the right to recover any fees or expenses from us, each party will bear the fees and expenses of its attorneys, experts and witnesses, and its share of the arbitrator's fees, regardless of which party prevails in the arbitration.
  • • The exchange of non-privileged information relevant to any Claim between you and us is permitted as provided by the code or procedures of the arbitration organization administering the Claim.
  • • Any decision rendered in such arbitration proceeding will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms may be obtained from, and Claims may be filed with, either of the two organizations, as follows: JAMS at 1920 Main Street, Suite 300, Irvine, California 92614, website at www.jamsadr.com; or the AAA at 335 Madison Avenue, Floor 10, New York, New York 10017, and website at www.adr.org. Any arbitration hearing at which you wish to appear will take place in Alameda County, California. This arbitration provision applies to all Claims now in existence or that may arise in the future. The arbitration provision shall survive termination of your Account and/or this Agreement. Merchants may not opt out of this Arbitration Provision.
  • • Notwithstanding the preceding, either party will have the right, both before and during the arbitration process described above, to obtain an injunction, specific performance or other equitable relief to protect its rights or property.

10.2 Disputes With Sellers Who Are Not Merchants 

READ THIS SECTION 10 (THE "ARBITRATION PROVISION") CAREFULLY. IT SAYS THAT ANY DISPUTE ARISING FROM OR RELATING IN ANY WAY TO AN ITEM, A LISTING, THE SITE, THE SERVICES, YOUR ACCOUNT AND/OR THIS AGREEMENT MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT. IN ADDITION, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO (i) BRING A CLASS ACTION OR SIMILAR PROCEEDING IN COURT, (ii) BRING ANY CLAIM IN ARBITRATION AS A CLASS ACTION OR SIMILAR PROCEEDING OR (iii) BE PART OF ANY CLASS ACTION OR SIMILAR ACTION BROUGHT BY ANYONE ELSE, OR BE REPRESENTED IN A CLASS ACTION OR SIMILAR PROCEEDING. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO BRING CLAIMS IN A COURT, BEFORE A JUDGE OR JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN A CASE FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS). HOWEVER, EXCEPT AS PROVIDED BELOW, YOU AND WE WAIVE THOSE RIGHTS, AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. Only a court may decide the validity of items (i) through (iii) above. If a court holds that items (i) through (iii) are limited, invalid or unenforceable, then this entire Arbitration Provision will be null and void. You or we can appeal any such holding. If a court holds that any other part(s) of this Arbitration Provision (other than items (i) through (iii)) are invalid, then the remaining parts of this Arbitration Provision will remain in force.

  • • Any claim, dispute or controversy by either you or us against the other (or against the employees, parents, subsidiaries, affiliates, beneficiaries, service providers, agents, attorneys or assigns of the other) arising from or relating in any way to any Item, a Listing, the Site, the Services, your Account, transactions on your Account, our relationship, and/or this Agreement ("Claim"), including Claims regarding the applicability or validity of this Arbitration Provision will be resolved exclusively and finally by binding arbitration except as provided below.
  • • All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other sources of law. Claims made and remedies sought as part of a class action, private attorney general, or other representative actions are subject to arbitration on an individual (non-class, non-representative) basis.
  • • The party bringing the Claim may select either one of two national arbitration organizations to administer the arbitration of the Claim: JAMS or the American Arbitration Association ("AAA"). The arbitration organization that is selected will apply its code or procedures in effect at the time the arbitration is filed, subject to this Agreement. The arbitration will be conducted before a single neutral arbitrator. The arbitrator's authority is limited solely to the Claims between you and us alone. The arbitration will not be consolidated with any other arbitration proceeding. You and we do not agree to any arbitration on a class action or any other representative basis.
  • • For an explanation and schedule of the fees that apply to an arbitration proceeding, please contact the arbitration organizations at the addresses below. The appropriate fee schedule in effect from time to time is incorporated in this SPA by reference. The cost of arbitration may be higher or lower than the cost of bringing your Claim in court, depending upon the nature of your Claim and how the arbitration proceeds. Having more than one Claim and holding face to face hearings can increase the cost of arbitration. If you are not a merchant (i.e., if you are selling Items for personal, family or household purposes), then at your written request, we will advance the arbitration fees (including applicable filing fees, hearing fees, and arbitrator fees) for any Claim that you may file against us up to the outstanding balance of your Account. The arbitrator will decide whether we or you will ultimately be responsible for paying any fees in connection with the arbitration, and because you are using the Site for personal, family or household purposes (and are not a merchant), the arbitrator may take into account whether you are financially able to pay those fees. Unless applicable law gives you the right to recover any fees or expenses from us, each party will bear the expense of its attorneys, experts and witnesses, and its share of the arbitrator's fees, regardless of which party prevails in the arbitration.
  • • The exchange of non-privileged information relevant to any Claim between you and us is permitted as provided by the code or procedures of the arbitration organization administering the Claim.
  • • Any decision rendered in such arbitration proceeding will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms may be obtained from, and Claims may be filed with, either of the two organizations, as follows: JAMS at 1920 Main Street, Suite 300, Irvine, California 92614, website at www.jamsadr.com; or the AAA at 335 Madison Avenue, Floor 10, New York, New York 10017, and website at www.adr.org. Any arbitration hearing at which you wish to appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration provision applies to all Claims now in existence or that may arise in the future. The arbitration provision shall survive termination of your Account and/or this Agreement.
  • • Sellers who are not merchants may choose to opt out of and not be subject to this Arbitration Provision but only by following the process set forth below. Sellers who are not merchants must (a) notify us in writing within 25 calendar days after the date you open your Account, you accept this Agreement or you receive notice of the existence of this Arbitration Provision; and (b) send your written notification to us at the following address: Alibris, Attn: Arbitration Opt-Out, 1250 45th Street, Emeryville, CA 94608, and your written notice must include your name, address, Account number and a statement that you wish to opt out of this Arbitration Provision. Your notice to opt out will only apply to this particular Agreement with us and to the Account identified in your opt out notice; it will not apply to any subsequent or previous agreements or to any other accounts you have, or may have had, with us. Merchants may not opt of this Arbitration Provision. If you opt out of arbitration, disputes will be resolved in the state or federal courts located in the state of your billing address at the time the Claim is filed.
  • • Unless you follow the procedure for opting out of this Arbitration Provision, you agree to the Arbitration Provision above, which provides that you or we can require that all disputes, claims or controversies between the parties be submitted to BINDING ARBITRATION. YOU UNDERSTAND THAT YOU ARE VOLUNTARILY WAIVING YOUR RIGHT TO A JURY TRIAL OR JUDGE TRIAL FOR SUCH DISPUTES.
  • • Notwithstanding the preceding, either party will have the right, both before and during the arbitration process described above, to obtain an injunction, specific performance or other equitable relief to protect its rights or property.

11. General Terms:  

This Agreement will be governed and construed in accordance with the laws of the State of California as applied to agreements made, entered into and performed entirely in the State of California by California residents, notwithstanding your actual residence.

Alibris may assign this Agreement to another person at any time without prior notice to you, and in that case, this

Agreement will continue to apply to you and your Account. You cannot transfer your Account or assign this Agreement to anyone else.

Except as expressly stated otherwise in this Agreement, (a) all notices to Alibris will be sent to the email address for Alibris on the Site or to sellers@alibris.com; and (b) all notices to you will be sent to the email address you have provided to Alibris. Those notices will be deemed given one business day after the email is sent.

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. Our failure to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.

This Agreement sets forth the entire and final understanding and agreement of the parties with respect to its subject matter; it supersedes and cancels all prior and contemporaneous oral or written agreements or understandings between the parties with respect to that subject matter.

Except as expressly described in the "Changes" section above, this Agreement may not be amended except in a writing that has been signed by the party to be bound by that amendment. Only an authorized officer of Alibris may amend this Agreement on behalf of Alibris.

Read and keep this Agreement for your records. You acknowledge that you have received (electronically or otherwise) and exact, completely filled in, legible copy of this Agreement, that you have read it, and that you agree to its terms. You also acknowledge that you have received, read and agree to comply with our Privacy Notice.