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COMPREHENSIVE WALMART MARKETPLACE PROGRAM
RETAILER AGREEMENT
(Terms and Conditions for Walmart Marketplace Program, Walmart Fulfillment Services, and Walmart Ad Center)
ARTICLE I: INTRODUCTION
Welcome to the Walmart.com Marketplace Program.
The terms contained in Article I apply to all Walmart Marketplace Retailers.
This Comprehensive Walmart Marketplace Program Retailer Agreement (“
Agreement
”) consists of (1) the
Walmart Marketplace Terms and Conditions (“
Walmart Marketplace
Terms and Conditions
”), (2) the
Walmart Fulfillment Services Terms and Conditions (if you select to participate in WFS Services (as defined
herein)), (3) the Multichannel Fulfillment Services Terms and Conditions (if you select to participate in
Multichannel WFS Services (as defined herein)), (4) the Walmart Ad Center Platform Terms of Use (if you
participate in the Walmart Ad Center (as defined herein)), and (5) all
Walmart.com Marketplace Program
polices and guidelines for Retailers
and other policies referenced herein (together, the “
Retailer Policies
”),
which are incorporated by reference.
This Agreement applies to any entity (“
Retailer
” or “
you
”) that wants to sell goods or services (“
Products
”)
in the Walmart.com Marketplace through the Walmart.com site or any Walmart applications
(“
Walmart.com Sites
”), use any order processing, fulfillment, shipping, returns, or other services related
to the Walmart.com Marketplace provided by or for Walmart, including, but not limited to Walmart Ad
Center (as defined in Article IV) (“
Walmart.com Services
”), or use any platform, portal, web service,
application, interface, or other tool provided by or for Walmart.com in connection with the Walmart.com
Marketplace (“
Walmart.com Tools
”). The Walmart.com Sites, the Walmart.com Services and
Walmart.com Tools shall be collectively known as the Walmart.com Marketplace Program, the
Walmart.com Marketplace, or the Marketplace Program.
By submitting your application, clicking the “I’ve read and agree to the Terms for Walmart
Marketplace, Walmart Fulfillment Services, and Walmart Ad Center” check box which you are prompted
to click or by offering any Products for sale on the Walmart.com Marketplace, using any of the
Walmart.com Services, or using any of the Walmart.com Tools, you agree to be bound by all terms and
conditions of this Agreement (including the Retailer Policies), as this Agreement (or the Retailer Policies)
may be updated from time to time in accordance with this Agreement.
You represent and warrant that
you are registering with the Walmart.com Marketplace on behalf of an entity and that you have the
requisite right, power, and authority to enter into this Agreement on behalf of the entity you register with
the Walmart.com Marketplace. You represent and warrant that you will update all of the information you
provide to us in connection with the Walmart.com Marketplace, Walmart.com Services and Walmart.com
Tools as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us
(and will provide us documentation evidencing your authorization upon our request) to verify your
information (including any updated information) from time to time.
Walmart.com may change this Agreement or the Retailer Policies, including by introducing entirely new
terms on subjects not previously addressed, at any time in its sole discretion. The changes will be effective
upon posting of such updates in Seller Center, which is the primary web-based interface provided to you
by Walmart.com as part of the Marketplace Program. You are responsible for reviewing such postings
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and any applicable changes. Your continued participation in the Marketplace Program, including offering
any Products for sale on the Walmart.com Marketplace, using any of the Walmart.com Services, or using
any of the Walmart.com Tools constitutes your acceptance of such changes. If you do not agree to any
posted changes, do not continue to use the Walmart.com Marketplace, the Walmart.com Services, or the
Walmart.com Tools.
ARTICLE II: WALMART MARKETPLACE PROGRAM TERMS AND CONDITIONS
The terms contained in Article II apply to all Walmart Marketplace Retailers.
1.
Walmart.com’s Role
Walmart.com, through the Walmart.com Marketplace Program, provides the Walmart.com Sites,
Walmart.com Tools, and Walmart.com Services to enable you to sell your Products to third party buyers
(“
Customers
”). You may only sell those Products you have the legal right to sell and must do so consistent
with the terms and conditions of this Agreement. All transactions with Customers are between you and
the Customer, and you will be the seller of record. Walmart.com is not a party to any transactions
although Walmart.com will provide the Walmart.com Services in connection with the transactions as
expressly set forth in Section 6. You acknowledge and agree that Walmart.com may contract with third
party service providers to provide Walmart.com Services, management software and other services for
the Walmart.com Marketplace Program.
2.
General Product Policy
(a)
Product Guidelines.
The Walmart Marketplace Terms and Conditions describe certain
general obligations regarding Products you may and may not list on the Walmart.com Marketplace. The
Prohibited Products Policy
provide more detail regarding Walmart.com’s product requirements. You will
not list, market, promote, offer for sale, or sell any Products through the Walmart.com Sites in violation
of this Agreement (including the
Prohibited Products Policy
).
(b)
Abiding by the Law.
You will (and you represent and warrant that you will) comply with
all applicable “
Laws
” (meaning all applicable laws, regulations, legal requirements, and generally accepted
industry standards and self-regulatory principles), including Laws related to marketing, packaging,
consumer and product safety, product testing, labeling, and pricing in connection with this Agreement;
your use of the Walmart.com Marketplace, the Walmart.com Services, and the Walmart.com Tools, and
your marketing, promotion, offering for sale, or selling any Products through the Walmart.com
Marketplace. Upon Walmart.com’s request, you will promptly provide Walmart.com with (i) certificates
of authenticity (or similar documentation) for Products, (ii) documentation (e.g. email verifications from
the brand owner or supplier) showing that you have a legal right to sell the Products through the
Walmart.com Sites, (iii) documentation (e.g. email verifications from applicable rights holders) showing
that you are licensed or otherwise have a right to use any Retailer Product Content (as defined below),
and (iv) any other information or documentation requested by Walmart.com.
(c)
U.S. Only.
You will only offer Products for sale on the Walmart.com Sites that may legally
be sold and shipped in all U.S. states.
(d)
Legal Right to Sell
. You may sell a Product on Walmart.com through the Marketplace
Program if you are an authorized reseller of that Product, or purchased or otherwise legally acquired that
Product from an authorized reseller of that Product, or otherwise have a legal right to sell that Product.
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(e)
Product Authenticity.
You may only sell Products through the Marketplace Program that
are authentic. You will maintain adequate processes and procedures for conducting diligence to assure
that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. You
may not (and you represent and warrant that you will not) list any Product or Retailer Product Content on
the Walmart.com Sites or through the Marketplace Program that is counterfeit, illegal, stolen, or
fraudulent, or infringes any third-party “
Intellectual Property Rights
” (meaning any patent, copyright,
trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral
right, trade secret and any other intellectual property or proprietary right), or that you otherwise do not
have the right to sell. All information you provide about the Product will be accurate, current, and
complete and not misleading, deceptive, or fraudulent in any way.
(f)
Prohibited or Restricted Listings.
Walmart.com, in its sole discretion, may remove (but
does not have the affirmatively obligation) listings or Retailer Product Content, or prohibit you or ask you
to refrain from listing any Products or providing any Retailer Product Content. In addition, Walmart.com
may remove your listings in its sole discretion in response to notices of alleged copyright infringement,
trademark misappropriation, or other Intellectual Property Rights or other claims. If Walmart.com
requests that you remove Products or Retailer Product Content from the Walmart.com Sites, you will
make commercially reasonable efforts to remove the Products or Retailer Product Content within 24
hours of such request so that the Products and related Retailer Product Content no longer appear on the
Walmart.com Sites. You will not list or include such removed Products or Retailer Product Content on the
Walmart.com Sites at any time unless their inclusion is specifically authorized by Walmart.com in writing.
3.
Retailer Product Content and Retailer Trademarks
You may provide, link to, or opt into certain product information and any related media, materials,
links, images, and other content (together, the “
Retailer Product Content
”) in connection with this
Agreement. You represent and warrant that all Retailer Product Content you provide, link to, or opt into
is truthful and accurate and is in compliance with all Retailer Policies and that you will not use Retailer
Product Content to redirect end users of the Walmart.com Sites to any other sales channels. You hereby
grant Walmart.com and its affiliates, and its service providers and marketing partners, a non-exclusive,
royalty-free, perpetual, sublicensable, irrevocable right and license (a) to publish, reproduce, display,
distribute, transmit and otherwise use Retailer’s name, trademarks, service marks, and logos (“
Retailer
Marks
”), and (b) to publish and perform, reproduce, distribute, transmit, display, modify, create derivative
works of, and otherwise use and commercially exploit all Retailer Product Content, in each case in
connection with the Walmart.com Marketplace Program (including without limitation advertising,
marketing and promoting the Products, other products, or the Marketplace Program through the
Walmart.com Sites, third party websites, e-mail, social media or any other medium). Walmart.com and
its affiliates may permit Customers, other users of the Walmart.com Sites, and other third parties to share
and post Retailer Product Content on their websites, applications, and social media outlets. You
acknowledge and agree that Walmart.com assumes no responsibility or liability for any Retailer Product
Content (including, but not limited to, no responsibility for reviewing or policing such Retailer Product
Content or any third party’s use of such Retailer Product Content), and you are solely responsible for the
use of your use of the Retailer Product Content.
4.
Required Product Information
(a)
Retailer Product Content.
In order to list a Product for sale on the Walmart.com Sites,
you must provide all requested Retailer Product Content. You must also provide Walmart.com with all
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warnings or disclaimers required to be posted with respect to the Products. If the Product fits into a
category that is subject to specific product guidelines, you may be required to provide additional Retailer
Product Content and/or documentation or certifications for those types of Products. Additionally, Retailer
Product Content provided by you to Walmart.com for the Walmart.com Sites must be of at least the same
level of quality as the highest quality information displayed or used on the Retailer Site or any other online
sales channel for Retailer’s Products and provides users of the Walmart.com Sites with at least as much
product information, images and other content as the information provided on the Retailer Site or any
other online sales channel for Retailer’s Products.
(b)
Inventory Feed.
You will (i) use commercially reasonable efforts to timely provide
Walmart.com with an error-free updated inventory feed for those Products where inventory levels have
changed since the last inventory feed provided for such Product, and (ii) provide Walmart.com with a daily
inventory feed for all Products.
(c)
No Unlicensed Content.
If you do not have but need a license from the brand owner or
supplier to use certain content related to a Product, do not provide that content to Walmart.com.
5.
Referral Fees and Payment
(a)
Referral Fees.
Walmart.com will earn a referral fee equal to a percentage of the gross
sales proceeds from the sale of Products (i) including all shipping and handling, gift wrap, and other
charges and (ii) excluding only those taxes separately stated and charged (the “
Referral Fee Percentage
”)
from each Product sale through the Walmart.com Site (the “
Referral Fee
”) as further set forth in the
Referral Fee Schedule
. Walmart.com will remit
to you the total amount it collects from the sale of
Retailer’s Products, less the Referral Fee, for Products shipped in each 14-day period within 7 days of the
end of such 14-day period except as otherwise provided for herein.
(b)
Payment.
At Walmart.com’s option, all payments to your bank account will be remitted
through an Automated Clearing House system. We may offset any amounts that are payable by you to us
against any payments we may make to you, or collect payment from you by any other lawful means. We
will impose an initial holding period as a security requirement before funds will be disbursed for new
sellers. If Walmart.com concludes that your actions or performance in connection with this Agreement
may result in customer disputes, chargebacks, violations of Retailer Policies, risks to Walmart.com or third
parties, or other claims, then Walmart.com may, in its sole discretion, delay initiating any remittances and
withhold any payments to be made or that are otherwise due to you under this Agreement pending
completion of any investigation(s) regarding your actions or performance in connection with this
Agreement. If Walmart.com determines that your account has been used to engage in fraudulent,
deceptive or illegal activity or repeated violation of Retailer Policies, we may permanently withhold
payments to you in our sole discretion. As a security measure, Walmart.com may, but is not required to,
impose transaction limits on you or some or all Customers relating to the value of any transaction or
disbursement, the cumulative value of all transactions or disbursements during a period of time, or the
number of transactions per day or other period of time.
(c)
Set Off.
Further, Walmart.com may recoup, set off, or credit against amounts payable to
you all present and future indebtedness of you to Walmart.com arising from this or any other transaction
with you or any of your affiliates whether or not related to this Agreement. Walmart.com may also
establish a reserve or place a hold on your account.
6.
Purchase/Order Processing, Fulfillment, and Shipping
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(a)
Order Process
. All transactions with Customers are between you and the Customer, and
you will be the seller of record. Customers will place orders (the “
Orders
”) using the Walmart.com
checkout system and Walmart.com will collect all proceeds from such transactions on your behalf. You
hereby authorize Walmart.com as your authorized agent to accept payment from Customers for
remittance to you for the Products, and as such when a Customer pays Walmart.com, it shall be construed
as if the Customer will be paying you. The Customer shall never be at risk of loss of funds upon payment
to Walmart.com on your behalf. Walmart.com will electronically transmit to you the Order information
that Walmart.com determines is necessary to fulfill each Order (the “
Transaction Information
”).
Walmart.com will send an automated email message to each Customer confirming receipt of an Order.
(b)
Order Fulfillment
. Once Walmart.com has transmitted an Order to you, you will, at your
own expense, be solely responsible for, and bear all liability for, the fulfillment of the Order, including
without limitation, packaging and shipping Products and customer service. If you cannot fulfill the entire
quantity of a purchase order (“
PO
”) line in an Order, then you will cancel that PO line, fulfill all other lines
in the Order and promptly notify Walmart.com of such cancellation. If the Order consists of one PO line
that you cannot fulfill the entire quantity for, then you will cancel the entire Order and promptly notify
Walmart.com. In the event that you have opted into receive the WFS Services as set forth in Article III
below, such obligations set forth within this Section shall not apply to the limited extent such obligations
are otherwise covered by the WFS Services as set forth in Article III below.
(c)
Shipping Options
. You are responsible for properly specifying shipping options for all
Products through the Walmart.com Tool as requested by Walmart.com. You will provide Walmart.com
with the shipping, handling, and any other charges for each Product required by the Walmart.com Tool,
separate from the purchase price. You will not enable shipping in the Walmart.com Tool for any Product
in any region where the sale of such Product violates any Retailer Policy or applicable Law. In the event
that you have opted into receive the WFS Services as set forth in Article III below, such obligations set
forth within this Section shall not apply to the limited extent such obligations are otherwise covered by
the WFS Services as set forth in Article III below.
(d)
Shipping Process
. You will be responsible for shipping all Products purchased by
Customers in accordance with the
Shipping Methods and Timing Policy
. You will be responsible for all
shipping charges and for any costs or charges related to shipping-related problems, including without
limitation, damaged or lost Products, late shipments or misdelivery. You will be solely liable for all costs
related to any duplicate or inaccurate shipments based upon your retransmission of Order files through
any Walmart.com Tool. Packaging for Products may not contain any Retailer marketing materials, and
emails sent by you to Customers in connection with an Order will not contain any marketing materials or
links to any Retailer or third party website, except for links to shipping websites that permit the Customer
to track shipment of their Order. In the event that you have opted into receive the WFS Services as set
forth in Article III below, such obligations set forth within this Section shall not apply to the limited extent
such obligations are otherwise covered by the WFS Services as set forth in Article III below.
(e)
Shipping Status Reports
. Orders not timely shipped in accordance with the Shipping
Methods and Timing Policy may be automatically cancelled by Walmart.com and you will be solely liable
and responsible for all Product costs and shipping costs associated with such cancelled Order and you
forfeit any claims for any payments of Referral Fee otherwise payable under this Agreement related to
such cancelled Orders. In the event that you have opted into receive the WFS Services as set forth in
Article III below, such obligations set forth within this Section shall not apply to the limited extent such
obligations are otherwise covered by the WFS Services as set forth in Article III below.
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(f)
Risk of Fraud or Loss
. Please note that, although Walmart.com will bear the risk of credit
card fraud occurring in connection with an Order, you will bear all other risk of fraud or loss and all costs
related thereto. For all credit card chargebacks for which you bear the risk, Walmart.com will offset such
chargeback amounts against amounts otherwise owed you, or send you an invoice and you will pay such
invoice within 30 days of receipt. However, notwithstanding the foregoing, Walmart.com will not bear the
risk of credit card fraud in connection with any Product that is not shipped by you to the shipping address
specified in the Transaction Information provided by Walmart.com, and you will be responsible for all
costs related to such credit card fraud under these circumstances.
7.
Price Adjustments; Cancellations, Returns, Refunds, and Recalls
(a)
Price Adjustments.
In the event that you include a mistake or error in connection with a
Product sold on the Walmart Marketplace, upon receipt of an Order, at Walmart.com’s discretion, you
may be required to honor such mistake or error and provide the Product to the Customer.
(b)
Return Logistics and Cancellations.
Except as otherwise provided for in Article III, in the
event that you participate in WFS Services, you are solely responsible for processing all Customer
cancellations, returns, refunds and/or customer service price adjustments. You will stop and/or cancel
any Order if requested by Walmart.com; provided that, if you have transferred Products to a shipper, you
will use commercially reasonable efforts to stop and or cancel delivery by the shipper. In the event that
you participate in the WFS Services, the parties acknowledge and agree that WFS Services shall govern
Customer cancellations and returns.
(c)
Improper Returns and Abandonment.
You represent and warrant that you shall include
and keep updated with Walmart.com a proper and valid return address for Customer to return Products.
In the event that your Products are returned to Walmart.com or a third party, you acknowledge and agree
that such Products shall be considered abandoned by you, and Walmart shall have sole discretion to
handle the disposition of your Products. You will pay any and all costs incurred by Walmart.com and third
parties who improperly receive your Products.
(d)
Return Policy.
Your return and refund policies for Products sold through the
Walmart.com Sites will be no less favorable to Customers than your most favorable policies offered on
your website (“
Retailer Site
”) for such Products and must comply with the
Returns Policy
.
(e)
Refunds.
You will be responsible for all non-cash refunds (e.g., store credit, gift cards and
exchanges). If you determine a Customer is due a cash refund (e.g., via a refund to the Customer’s credit
card, debit card, or other form of original payment), you will notify Walmart.com through Seller Center
and include other related information requested by Walmart.com. For cash refunds, Walmart.com will
provide the refund to the Customer via the Customer’s original payment method (e.g., credit or debit
card), if possible. You will be responsible for reimbursing Walmart for any cash refunds or adjustments
Walmart.com makes to a Customer and Walmart.com, in its sole discretion, will obtain reimbursement
from you either (i) via offset of any amounts payable by Walmart.com to you or (ii) by billing you for such
amounts.
(f)
Recalls.
Walmart.com will have no responsibility or liability for any recalls of Products sold
through the Walmart.com Sites. You are solely responsible for any non-conformity or defect in, or any
public or private recall, or any safety alert of Retailer’s Products. You will promptly remove any recalled
Products from the Walmart.com Sites by unpublishing or retiring the Product through the Walmart.com
Tool. You will notify Walmart.com by e-mail at
OmnichannelRecallTea@email.wal-mart.com
of all Product
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recalls within 24 hours of becoming aware of the recall and will promptly provide Walmart.com with all
information reasonably requested regarding the recall.
8.
Customer Service
(a)
Obligations.
You will be responsible for all customer service, except for issues related to
payment as otherwise outlined herein. In performing such customer service, you will always represent
yourself as a separate entity from Walmart.com. You will not disparage Walmart.com or its affiliates or its
or their products or services when performing customer service obligations or any other obligation under
this Agreement. If you monitor or record customer service calls, you must give notice of such monitoring
or recording to all Customers during each such call prior to providing any customer service in accordance
with applicable Law.
(b)
Adjustments.
Walmart.com reserves the right to provide a customer service adjustment
(not to exceed the total amount paid by such Customer in connection with the Products, including without
limitation, taxes and gift wrapping and shipping fees) to a Customer that Walmart.com reasonably
determines has not been dealt with correctly by your customer service in accordance with the
Customer
Care Requirements Policy
and offset such amounts against amounts otherwise owed you or by billing you
for such amounts.
9.
Reporting and Audit Rights
(a)
Reporting
. You will, within a reasonable period of time (not to exceed 30 days) following
request from Walmart.com, provide Walmart.com with any reports, information or other documentation
relating to your compliance with this Agreement and applicable Law reasonably requested by
Walmart.com. In the event Walmart.com requests that you provide Walmart.com with copies of reports
that you were required to file with the Consumer Product Safety Commission or any other regulatory
agency, you will provide such reports within 7 days of Walmart.com's written request.
(b)
Audit Rights
. You will keep accurate and complete books, records, product testing,
compliance information and records, and accounts related to your Products, the Marketplace Program
transactions and this Agreement, and will allow Walmart.com, or its duly authorized representative, the
right, upon not less than 5 business days prior written notice, during the term of this Agreement and for
two (2) years after its termination or expiration to conduct, during regular business hours, full and
independent audits and investigations of all information, books, records, product testing, compliance
information and records, and accounts reasonably required by Walmart.com to confirm your compliance
with the terms of this Agreement and applicable Law. The cost of any and all audits shall be borne by you.
Further, upon Walmart.com’s sole discretion, Walmart.com may require you to submit your Products to
additional audit and compliance testing which shall be at your sole cost and expense.
10.
Ownership and Use Rights
(a)
Ownership of Walmart.com Marketplace.
Walmart.com, its affiliates, and their service
providers and licensors retain all right, title and interest (including all Intellectual Property Rights) in and
to (i) the Walmart.com Marketplace, the Walmart.com Sites, the Walmart.com Tools, and the
Walmart.com Services and (ii) any of their Confidential Information (as defined herein). Except for a
limited right for you to access the Walmart.com Sites and Walmart.com Tools made available to you in
accordance with and subject to all the terms and conditions of this Agreement, Walmart.com, its affiliates,
and their service providers and licensors, as applicable, retain all rights in the foregoing and grant no other
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rights or licenses (whether by implication, estoppel, or otherwise) under any of their Intellectual Property
Rights under or in connection with this Agreement.
(b)
Ownership of Transaction Information.
Walmart.com owns (and you hereby assign to
Walmart.com) all Transaction Information and all other information relating to Orders or Products,
including, but not limited to, information that is entered into a Walmart.com Tool, information that is
created as a result of a transaction, and ratings and reviews provided by Customers. All such information
is subject to the
Walmart.com Privacy Policy
and any additional privacy guidelines posted by Walmart.com
on Seller Center.
(c)
Use of Transaction Information.
You may only use Transaction Information to further a
transaction related to this Agreement, in accordance with the terms of the Agreement and the
Walmart.com Privacy Policy
, and applicable Law. You will not (i) disclose or convey any Transaction
Information to any third party (except as necessary for you to perform your obligations under the
Agreement); (ii) use any Transaction Information to conduct customer surveys or for any marketing or
promotional purposes; (iii) contact a Customer that has ordered a Product that has not yet been delivered
with the intent to collect any amounts in connection therewith or to influence such Customer to make an
alternative or additional purchase; (iv) target communications of any kind on the basis of the intended
recipient being a Walmart.com user; or (v) use any information about Walmart.com Customers gained
through the Marketplace Program to directly solicit such Walmart.com Customers through any other sales
channels. The foregoing does not prevent you from using information you gathered independent of the
Marketplace Program; provided that, you do not target communications on the basis of the intended
recipient being a Walmart.com user.
(d)
Ratings and Reviews.
Walmart.com may use mechanisms that rate or review, or allow
shoppers to rate or review, your Products and your performance as a seller and Walmart.com may make
these ratings publicly available. Walmart.com will have no liability to you for the content or accuracy of
any ratings or reviews, and Walmart.com will have no liability or responsibility to review or moderate such
ratings or reviews. You will have no ownership interest in or license to use any rating or reviews posted
on the Walmart.com Sites.
(e)
Suggestions and Feedback.
If you provide or make available suggestions, comments,
ideas, improvements or other feedback or materials to Walmart.com or its affiliates in connection with
the Walmart.com Marketplace, the Walmart.com Sites, or other subject matter of this Agreement,
Walmart.com will be free to disclose, reproduce, modify, license, transfer and otherwise distribute, and
use and exploit any of the foregoing feedback or materials in any manner.
11.
Termination or Suspension; Survival
Walmart.com may terminate this Agreement with you at any time in its sole discretion without
notice to you on Seller Center or otherwise. Walmart may also immediately terminate or suspend your
participation in the Walmart.com Marketplace, your access to Walmart.com Services or the Walmart.com
Tools, or remove your listings at any time in its sole discretion if you violate the terms of this Agreement.
Sections 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 shall survive the expiration or termination of this
Agreement for any reason.
12.
Indemnification
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(a)
Indemnity
. You will protect, defend (at Walmart.com’s option), indemnify and hold
Walmart.com and its affiliates (and their respective officers, employees, shareholders, directors, agents
and representatives) harmless from and against any and all liabilities, costs, losses, damages, judgments,
fines, penalties, interest, and expenses (including reasonable attorneys' fees and disbursements of
counsel, court costs, and costs of any investigation, defense, and settlement) arising out of any actual or
alleged Claims (regardless of whether such matters are groundless, fraudulent or false) that arise out of
or relate to any actual or alleged: (i) any breach (or alleged acts or omissions that if true would be a breach)
of any of your representations, warranties, or obligations set forth in this Agreement; (ii) the Retailer Site
or other sales channels, the Products, any Retailer Product Content, the advertisement, offer, sale or
return of any Products; (iii) any actual or alleged violation, misappropriation or infringement of any
Intellectual Property Rights by you, the Products, or any Retailer Product Content; (iv) any taxes assessed,
incurred, or owed in connection with, or arising out of, any transaction undertaken on the Marketplace
Program, or the collection, payment or failure to collect or pay such taxes, including, but not limited to,
your obligations set forth in Section 15 herein; (v) death of or injury to any person, damage to any
property, or any other damage or loss, by whomsoever, suffered, resulting or alleged to result in whole
or in part from your use of the Walmart.com Marketplace, the Retailer Site, the Products, or any Retailer
Product Content.
(b)
Claims
. “
Claim
” means any action, allegation, claim, demand, lawsuit, legal proceeding,
administrative or other proceedings or litigation, inquiry, audit, or investigation.
(c)
Indemnification Procedure.
You shall promptly notify Walmart.com in writing of the
assertion, filing or service of any Claim or other matter that is or may be covered by this indemnity, and
shall immediately take such action as necessary or appropriate to protect the interests of Walmart.com,
and its affiliates, respective officers, employees, shareholders, directors, agents and representatives. You
shall promptly notify Walmart.com in writing of the legal counsel that you propose to engage to defend
the interests of Walmart.com in such matter. Such legal counsel shall strictly comply with Walmart’s
Indemnity Counsel Guidelines. If Walmart.com determines that such legal counsel has not represented,
defended or protected Walmart.com’s interests in accordance with Walmart.com’s Indemnity Counsel
Guidelines, or reasonably believes your legal counsel is unwilling or unable to do so, Walmart.com may
replace such counsel with other counsel of Walmart.com’s own choosing. In such event, any fees and
expenses of Walmart.com’s new counsel, together with all expenses or costs incurred because of the
change of counsel, shall be paid or reimbursed by you as part of its indemnity obligation under this
Agreement. Further, you will provide, at your sole cost and expense, all cooperation, documentation, and
information reasonably requested by Walmart.com in connection with any Claim. Walmart.com shall at
all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle,
any lawsuit, claim, demand or liability asserted against Walmart.com, and its affiliates, respective officers,
employees, shareholders, directors, agents and representatives, and you will not settle or resolve any
portion of any such claim or lawsuit without Walmart.com’s prior written approval.
13.
Limitation of Liability
(a)
No Consequential Damages
. IN NO EVENT SHALL WALMART.COM OR ITS AFFILIATES BE
LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR (I) LOST PROFITS, LOSS OF USE, LOST REVENUE, LOSS OF
BUSINESS OR LOSS OF OR INACCURATE DATA, INTERRUPTION OF BUSINESS, (II) EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (III) FOR COST OF COVER,
RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY
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AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR
WHETHER THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b)
Monetary Cap
. IN NO EVENT SHALL WALMART.COM’S OR ITS AFFILIATES’ AGGREGATE
LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, COSTS, LOSSES, DAMAGES, JUDGMENTS, FINES,
PENALTIES, PENALTIES, INTEREST, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES
AND COSTS OF ANY INVESTIGATION, DEFENSE, AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY
YOU TO WALMART.COM PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE
ALLOCATION OF RISK BETWEEN THE PARTIES.
(c)
Survival of Limitations.
THE LIMITATIONS SPECIFIED IN THIS SECTION 13 WILL SURVIVE
AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF
ITS ESSENTIAL PURPOSE.
14.
No Warranties.
THE MARKETPLACE PROGRAM, THE WALMART.COM SITES, THE WALMART.COM SERVICES, AND
THE WALMART.COM TOOLS ARE PROVIDED ON AN "AS IS" BASIS. NEITHER WALMART.COM NOR ITS
AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION:
(a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE MARKETPLACE PROGRAM, THE
WALMART.COM SITES, THE WALMART.COM SERVICES, OR THE WALMART.COM TOOLS WILL MEET YOUR
REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR
OPERATE WITHOUT ERROR; AND (c) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR
USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WALMART.COM AND ITS
AFFILIATES DISCLAIM ANY AND ALL SUCH WARRANTIES.
15.
Taxes
(a)
Withholding.
If Walmart.com reasonably determines that a Law or any taxing authority
requires Walmart.com to deduct or withhold any taxes (including any tax that Walmart.com reasonably
determines should have been withheld from previous payments under the Agreement but was
erroneously not deducted or withheld) from a payment to you under the Agreement, Walmart.com shall
deduct and withhold any taxes required to be withheld by Walmart.com under applicable Law as and
when the legal obligation to withhold arises, and you hereby irrevocably consent to such withholdings.
(b)
Documentation.
You agree that you will provide Walmart.com with appropriate
withholding certificates or other certificates or documentation, including but not limited to IRS Forms W-
9 or W-8 (e.g., Form W-8ECI, Form W-8BEN, Form W-8BEN-E, Form W-8IMY, etc.) before any payment is
made to you under this Agreement, as required by Law, and upon subsequent request by Walmart.com.
You further agree to timely file all required returns, report any income, and pay any applicable taxes
incurred as a result of the payments you receive under this Agreement, and provide, upon request,
evidence to Walmart.com, including IRS Form 4669 (or other similar form requested by Walmart.com),
that such income was reported. To the extent required by applicable Law, Walmart.com agrees to provide
IRS Forms 1099-K or other appropriate forms to you evidencing the amounts paid to you under the terms
of the Agreement and any taxes withheld.
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15.
Confidentiality
.
(a)
Other Confidentiality Obligations.
You may have entered into a separate confidentiality
agreement with Walmart.com or its affiliates. The parties acknowledge and agree that the confidentiality
obligations herein shall not modify any separate confidentiality agreement entered into by you and
Walmart.com. This Agreement does not limit your obligations under any separate agreement with
Walmart.com or its affiliates.
(b)
Confidential Information Defined.
With respect to this Agreement, Confidential
Information means any information, in any form or any medium, that is provided by Walmart.com or its
affiliates to you which is (i) treated as confidential by or is a trade secret of Walmart.com, and is expressly
identified, orally or visually, as “confidential”, “restricted”, or the like, (ii) is acknowledged by
Walmart.com as valuable, special or a unique asset of Walmart.com, or (iii) would otherwise logically be
considered confidential or proprietary of Walmart.com. Walmart.com’s Confidential Information
includes, but is not limited to, this Agreement, Walmart.com’s business plans, business processes, cost,
pricing, marketing, sales, customer, and strategy information, and any additional information which
Walmart.com designates as confidential. In addition, you will treat as confidential, and may not disclose
to any third party, any information or communication from, on behalf of, or with Walmart.com regarding
your compliance with this Agreement. However, in any event, Confidential Information shall not mean
information that you can prove (A) is in or becomes part of the public domain other than through an
unauthorized or improper act or omission of you; (B) is or was independently developed by you without
reference to Walmart.com’s Confidential Information; or (C) is or was lawfully received from a third party
having no obligation as to its confidentiality.
(c)
Obligation of Confidentiality.
You shall treat as confidential Walmart.com’s Confidential
Information and shall protect it from unauthorized access, use, or disclosure. You will use no less than
reasonable care in maintaining the confidentiality of Walmart.com’s Confidential Information. You shall
not use or copy Walmart.com’s Confidential Information for any purpose other than in furtherance of
authorized purposes under this Agreement. Further, you shall restrict disclosure of, and access to,
Walmart.com’s Confidential Information solely to your personnel, agents or contractors who need to
know such Confidential Information in furtherance of the authorized purposes under this Agreement, and
only after you advise such personnel, agents or contractors as to, and they have acknowledged and agreed
to comply with, the restrictions as to such Confidential Information under this Agreement as they apply
to you. The restrictions on disclosure shall not apply to the extent that Confidential Information is
required to be disclosed pursuant to any order or directive of a court or governmental agency of
competent jurisdiction; provided that, to the extent practicable, prior written notice is given to
Walmart.com so that it may, in its discretion, seek a protective order or other relief from disclosure.
(d)
Injunction.
Without limiting any other remedies available at law or equity, Walmart.com
shall be entitled to seek injunctive relief to enjoin any threatened or continuing disclosure or unauthorized
use of its Confidential Information in violation of this Agreement.
(e)
Return of Confidential Information.
Upon Walmart.com’s written request or upon the
termination or expiration or this Agreement, you shall return all Confidential Information of Walmart.com
in your possession or control.
(f)
Survival of Confidentiality Obligations.
The confidentiality obligations hereunder shall
continue for three (3) years from the expiration or termination of this Agreement; provided, however,
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that you shall keep any trade secrets of Walmart.com confidential as long as such information is deemed
a trade secret by Walmart.com.
16.
Miscellaneous
(a)
Integrated Agreement
. This Agreement (and all
Retailer Policies
, including
Referral Fee
Percentages Schedule
,
Customer Care Requirements Policy
,
Seller Performance Standards
,
Shipping
Methods & Timing Policy
,
Returns Policy
,
Prohibited Products Policy
,
Tax Collection & Remittance
Addendum, and Information Security Addendum
) and any documents linked or referenced herein, which
are incorporated by reference into this Agreement) constitutes the complete integrated agreement
between the parties concerning the subject matter of this Agreement. All prior and contemporaneous
agreements, understandings, negotiations or representations, whether oral or in writing, relating to the
subject matter of this Agreement are superseded in their entirety by this Agreement. To the extent you
are already a party to an agreement with Walmart.com regarding your participation as a retailer in the
Walmart.com Marketplace Program, the terms and conditions of that agreement are hereby terminated
and replaced in their entirety with the terms and conditions of this Agreement but you will continue to
comply with all your surviving obligations under that agreement.
(b)
Responsibility for Affiliates and Agents.
You will be responsible for any actions taken by
your affiliates, agents, or other third parties on your behalf in connection with this Agreement.
(c)
Independent Contractors
. You and Walmart.com are acting as independent contractors.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is
intended or created by this Agreement.
(d)
Governing Law.
This Agreement is governed by and will be construed in accordance with
the laws of the State of Arkansas without regard to its principles of conflicts of law. You agree to exclusive
jurisdiction of the federal and state courts located in Benton and Washington County, Arkansas shall have
the exclusive venue and jurisdiction over any actions or suits relating thereto. The parties shall not raise and
hereby waive any defenses based upon venue, inconvenience of forum, or lack of personal jurisdiction in any
action or suit brought in accordance with the foregoing.
(e)
Assignment.
You may not assign this Agreement or any of your rights or obligations under
this Agreement without Walmart.com’s prior written consent.
(f)
Ongoing Warranties
. Except as otherwise expressly provided in this Agreement, the
representations and warranties made in this Agreement are continuous in nature and will be deemed to
have been given by Retailer at the execution of this Agreement and each stage of performance of this
Agreement.
(g)
Insurance.
You may have obligations to customers or others in the event of claims for
damage or injury arising from your operations or products you sell. If you currently maintain commercial
general, product, umbrella, and/or excess liability insurance to insure against such claims, each policy shall
also include Walmart Inc, its subsidiaries and its affiliates as additional insured. You may be required to
obtain additional insurance. If notified of such requirement, you will have up to thirty (30) days to secure
coverage. At our request, you will provide to us certificates of insurance, complete insurance policies,
and any other related documents evidencing the required insurance coverage.
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(h)
Publicity
. You will not use the name, logo, trademarks or trade names of Walmart.com or
any of their affiliates or otherwise, directly or indirectly, refer to Walmart.com of any of its affiliates in any
publicity release, promotional material, customer or partner list, advertising, marketing or
business-generating effort, whether written or oral, without the prior written consent of Walmart.com.
(i)
Export Control.
Retailer will not use the Walmart.com Marketplace to directly or
indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any
commodities, software or technology to any country, individual, corporation, organization, or entity to
which such export, re-export, or transmission is restricted or prohibited, including any country, individual,
corporation, organization, or entity under sanctions or embargoes administered by the United Nations,
US Departments of State, Treasury or Commerce, the European Union, or any other applicable
government authority.
(j)
Severability
. In the event that any provision of this Agreement is determined by a court
of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or part thereof)
shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable
of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this
Agreement shall continue in full force and remain in effect according to its stated terms and conditions.
(k)
Waiver
. The waiver by either party of a breach of or a default under any provision of this
Agreement shall not be effective unless in writing and shall not be construed as a waiver of any
subsequent breach of or default under the same or any other provision of this Agreement, nor shall any
delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or
may have operate as a waiver of any right or remedy.
(l)
Attorney’s Fees.
In the event either party brings any action or proceeding against the
other under this Agreement, each party will be responsible for its own attorney’s fees, costs, and
expenses.
(m)
Force Majeure.
Walmart.com will not be liable for any delay or failure to perform any of
its obligations under this Agreement by reasons, events, or other matters beyond its reasonable control.
(n)
Cross Default.
If Retailer is in material breach of this Agreement, Walmart.com may, in
its sole discretion, deem Retailer in material breach of any other contract that Retailer has with
Walmart.com or its affiliates. Likewise, if Retailer is in material breach of any other contract with
Walmart.com or its affiliates, Walmart.com may, in its sole discretion, deem Retailer to be in material
breach of this Agreement. In each case, Walmart.com may pursue against Retailer any and all remedies
that Walmart.com has at law or in equity.
ARTICLE III: WALMART FULFILLMENT SERVICES TERMS AND CONDITIONS
The terms contained in Article III apply only to Walmart.com Marketplace Retailers receiving WFS
Services.
17.
WFS Services.
In the event that you select to participate in the WFS Services in order to offer
Products on Walmart.com Marketplace and/or seek to use all or a part of the supply chain capabilities
and services offered by Walmart.com, including but not limited to, inbound logistics, fulfillment, outbound
transportation and reverse logistics in connection with Walmart.com Marketplace (the “
WFS Services
”),
Article III shall additionally govern your use of the WFS Services.
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18.
WFS Services Additional Terms.
The WFS Services are governed by the Agreement including the
terms contained within this Article III. The WFS Agreement consists of these Walmart.com Fulfillment
Services Terms and Conditions set forth in this Article III (“
WFS Terms and Conditions
”), the
WFS Services
Description
,
WFS Fees
, and the
Routing Guide
, each of which are incorporated here by this reference. In
the event of a conflict, inconsistency or ambiguity between the Agreement and the WFS Agreement, this
WFS Agreement shall govern and control, only with respect to the WFS Services.
19.
WFS Service Representations and Warranties
. You represent and warrant that you are
registering for WFS Services on behalf of an entity and that you have the requisite right, power, and
authority to enter into this WFS Agreement on behalf of the entity you register for WFS Services. You will
update all of the information you provide to us in connection with the WFS Services, including contact
information, as necessary to ensure that it at all times remains accurate, complete, and valid. You
authorize us to verify your information (including any updated information) from time to time.
20.
Term; Termination.
This WFS Agreement shall continue until terminated by you or Walmart.com
in accordance with this WFS Agreement. Either you or Walmart.com may at any time, terminate this WFS
Agreement with or without cause, upon thirty (30) days’ prior written notice to the other party. If Retailer
materially breaches the Agreement, Walmart.com may immediately terminate this WFS Agreement, in
whole or in part, or immediately suspend all or any portion of the WFS Services by giving written notice
to Retailer. If you terminate this WFS Agreement, you will be billed for all unpaid expenses and any cost
associated with disposition of Inventory as further outlined in this WFS Agreement.
21.
Inventory for WFS Services.
WFS Services shall only be performed with respect to inventory that
is acquired and owned by Retailer that is delivered to Walmart.com for storage and processing under the
terms of this WFS Agreement (the “
Inventory
”).
(a)
Inventory.
As more fully described in this WFS Agreement and the
WFS Services
Description
Walmart.com shall receive, store, and process Inventory on Retailer’s behalf.
Walmart.com will hold Inventory tendered pursuant to this WFS Agreement for
distribution as directed by Retailer and for other disposition as set forth in this WFS
Agreement. All right, title and interest to such Inventory will remain at all times with
Retailer, except as set forth in Section 24.
(b)
Facilities.
Walmart.com will use the Facilities listed in the
WFS Services Description
to
provide the WFS Services. If Walmart.com needs to use other facilities to perform the
WFS Services, Walmart.com shall notify Retailer prior to relocating Inventory from a
Facility listed in the WFS Services Description to another facility.
(c)
Lien on Inventory.
Walmart.com shall have a lien on the Inventory to secure payment of
the WFS Service Fees agreed to between the parties in this WFS Agreement.
(d)
Hazardous Materials.
Retailer represents and warrants that no Hazardous Materials will
be included in the Inventory subject to this WFS Agreement unless first approved by
Walmart.com in writing in each instance. “
Hazardous Materials
” means any product or
substance whose presence, use, transportation or release, either by itself or in
combination with other materials, is either (i) potentially injurious to the public health,
safety or welfare, (ii) regulated or monitored by any governmental authority, or (iii) a basis
for potential liability to any governmental agency or third party under any applicable
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statute or common law theory. Any Hazardous Materials of Retailer are required to go
through a product safety assessment as defined by Walmart.com before acceptance to
enable proper handling, storage, and shipment in accordance with applicable Law and
safety standards.
(e)
Product Restrictions.
Retailer will not (and represents and warrants that it will not)
deliver to Walmart.com, and Walmart.com may refuse to accept, any shipment or
Inventory that is a Prohibited Product, restricted from WFS Services, or that does not
comply with the Agreement. Failure to comply with such requirements may result in
refusal, disposal or return of Inventory, restriction of future shipments to a Facility, or
charges for noncompliance. Retailer must provide sufficient information to enable
assessment of items for purposes of WFS Services and policies applicable to storage,
handling, transportation, and disposal of items.
(f)
Returns.
Customer returns will be sent back to a Walmart.com Facility. Returns will be
evaluated to determine condition. If the item in Walmart.com’s determination is sellable,
it will be added back to Inventory. If determined to be unsellable, Walmart.com will use
the return reason to determine fault for the return (Walmart.com or Retailer) and apply
the fees and payments specified in
WFS Fees
Walmart.com will be considered at fault if
the item is lost or damaged while at a Walmart.com Facility or while in transit for delivery
to the end Customer. Retailer may request unsellable items be sent back to it or have
Walmart.com dispose of the item as set forth in Section 24. Retailer shall pay a Removal
fee as specified in
WFS Fees
.
22.
Service Fees and Payment Terms
.
(a)
Service Fees
. Retailer shall pay the fees for the WFS Services (“
WFS Service Fees
”) as set
forth in
WFS Fees
.
(b)
Payment.
Walmart.com may offset amounts owed by Retailer to Walmart.com under
this WFS Agreement from payments Walmart.com may make to Retailer under the
Agreement, or invoice Retailer for amounts due, in which case Retailer will pay the
invoiced amounts upon receipt, or collect payment or reimbursement from Retailer by
any lawful means. Retailer also may be required to provide Walmart.com with a valid
credit card as well as bank account information acceptable to Walmart.com
. Retailer
authorizes Walmart.com to charge Retailer’s credit card or debit Retailer’s bank account
for amounts owed and payable by Retailer.
(c)
Credit and Financial Information.
Walmart.com reserves the right to change or revoke
Retailer’s credit limit on the basis of any non-payment amounts owed under this WFS
Agreement. In such case and upon ten (10) days prior written notice by Walmart.com,
Retailer agrees that Walmart.com will have the right to decline to extend credit to Retailer
and to require that the applicable WFS Fees and costs be paid prior to performance of the
WFS Services. Retailer will promptly notify Walmart.com of all changes to Retailer’s
name, address, payment details, or a pending sale of substantially all of its assets. Any
obligation of Walmart.com under these terms and conditions to deliver Inventory or WFS
Services on credit terms will terminate upon ten (10) days prior written notice by
Walmart.com if Retailer files a voluntary petition under a bankruptcy statute, or makes
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an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy
statute is filed against Retailer, or if a receiver or trustee is appointed to take possession
of the assets of Retailer.
23.
Compliance with Laws and Policies.
Both parties agree to comply fully with any and all applicable
Laws.
(a)
Compliance of Products.
In addition to Retailer’s representations and warranties and
obligations set forth in Section 2 of the Agreement (“
General Product Policy
”), Retailer
further represents and warrants that (i) it has valid legal title to all Inventory and all necessary
rights to perform under this WFS Agreement; (ii) all Inventory and its packaging complies with
applicable Laws for marking, labeling, and other requirements; (iii) the Inventory has been
produced in compliance with applicable Laws; and (iv) the Inventory complies with
Walmart.com restricted products policies.
(b)
Product Representations and Warranties.
Retailer represents and warrants that its Inventory
and each Product it sells or offers to sell on Walmart.com Marketplace or tenders to
Walmart.com for WFS Services complies with all applicable Laws and regulations, including
without limitation Hazardous Materials regulations, Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), the Textile Fiber Products Identification Act, the Fur Products
Labeling Act, the Consumer Product Safety Act, the National Traffic and Motor Vehicle Safety
Act, the Wool Products Labeling Act, rules and regulations of the Federal Communications
Commission, and state regulations such as air quality standards enforced by the California Air
Resources Board, and Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65).
Retailer acknowledges that it is solely responsible for disclosing all relevant information
regarding its Inventory and each Product to ensure that Walmart.com can properly and legally
handle, store, ship, and dispose of such Product.
(c)
Recalls.
If a Product is subject to a Recall (as defined below), whether initiated by you,
Walmart.com, or a governmental entity (including the issuance of safety notices), you shall
be responsible for all matters and costs associated with the Recall, including but not limited
to: (i) Customer notification and contact; (ii) all expenses and losses incurred by Walmart.com
in connection with such Recall (and where applicable, any products with which the Recalled
Inventory has been packaged, consolidated or commingled), including, but not limited to,
refunds to customers, lost profits, transportation costs and all other costs associated
therewith; and (iii) initial contact and reporting of the Recall to any government agency having
jurisdiction over the affected Products. If a government agency initiates any inquiry or
investigation relating to the Products or similar goods manufactured or supplied by you, you
shall notify Walmart.com in writing immediately thereof and take reasonable steps to resolve
the matter without exposing Walmart.com to any liability or risk. “
Recall
” shall mean any
removal of Product from the stream of commerce initiated by you, Walmart.com, or a
government entity.
24.
Termination of Storage, Removal of Inventory, Disposition of Inventory
.
(a)
Effect of Termination on Inventory.
Walmart.com may on notice to Retailer require removal
of any Inventory, including but not limited to on termination of this WFS Agreement, or
because Retailer’s participation in the Walmart.com Marketplace is suspended or terminated.
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If Inventory are not removed before the end of the notice period, Walmart.com may dispose
of Inventory as set forth in this WFS Agreement.
(b)
Return.
Walmart.com also may on notice to Retailer return Inventory to Retailer. Inventory
will be returned to Retailer’s shipping address freight collect. If the address is not correct, or
Retailer has not provided or confirmed on Walmart.com request a designated shipping
address, or Walmart.com cannot make arrangements for Retailer to pay for the return
Inventory, then Walmart.com will deem the Inventory abandoned and may dispose of the
Inventory.
(c)
Disposal.
Walmart.com also may on notice dispose of the Inventory immediately if (i) the
quality or condition of the Inventory is a hazard to other property, or to the Facility or to
persons, or (ii) contrary to the terms of any Walmart.com policy incorporated into this WFS
Agreement, including but not limited to Retailer Policies, or the Routing Guide. Walmart.com
disposal of Inventory as set forth in this WFS Agreement may include sale or liquidation,
donation, recycling, or destruction or other disposition as it deems appropriate and title to
such items will transfer to Walmart.com as necessary for Walmart.com to dispose of the
items. Retailer shall pay applicable removal fees as set forth in the WFS Fees.
(d)
Proceeds.
Walmart.com may keep all proceeds of any Inventory that it disposes of or to which
title transfers including returned, damaged, or abandoned Inventory. Retailer will have no
security interest, lien, or other claim to the proceeds that Walmart.com receives in
connection with the disposition of Inventory.
25.
WFS Indemnification Obligations.
In addition to the indemnification obligations set forth in
Article I, Section 12, the following indemnification obligations of the parties shall be included, only with
respect to Article II.
(a)
Your WFS Indemnification Obligations.
In the event of (i) any act or omission of Retailer
or its employees, servants, agents, or representatives relating to the WFS Services causes or results in (A)
loss, damage to or destruction of property of the other party or third parties, and/or (B) death or injury
to persons including, but not limited to, employees or invitees of Retailer; (ii) Retailer’s violation of any
law, statute, ordinance, governmental administrative order, rule or regulation relating to the WFS
Services; (iii) Retailer’s negligent act or omission or willful misconduct by a party, or any of its employees,
representatives or agents relating to the WFS Services; or (iv) any breach by Retailer of its representations,
warranties, or obligations under this WFS Agreement, then Retailer shall protect, defend (at
Walmart.com’s option), indemnify, and hold the Walmart.com and its affiliates (and their respective
officers, employees, shareholders, directors, agents and representatives) harmless from and against any
and all liabilities, losses, damages, judgements, fines, penalties, interests, costs, and expenses (including
reasonable attorneys’ fees and disbursements of counsel, court costs, and cost of any investigation,
defense, and settlement) resulting from any and all Claims resulting therefrom. The indemnification
procedure set forth in Section 12(c) shall govern indemnification claims under this Section 25(a).
(b)
Walmart.com’s WFS Indemnification Obligations.
Walmart.com shall indemnify Retailer
from any and all third-party liability damages, claims, suits, judgments, costs and expenses (including
reasonable outside attorneys' fees), incurred as a result of its failure to comply with applicable Law,
regulation, or order in performing its obligations under this WFS Agreement.
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26.
WFS Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
TO THIS WFS AGREEMENT FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE AND/OR CONSEQUENTIAL
DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING
FROM OR RELATED TO THE PERFORMANCE OR ANY FAILURE TO PERFORM ANY OF SUCH PARTY’S
OBLIGATIONS UNDER THIS WFS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT
APPLY TO LIMIT DAMAGE RECOVERY WHICH ARISES FROM OR IS RELATED TO A PARTY’S GROSS
NEGLIGENCE IN THE PERFORMANCE OF OR THE FAILURE TO PERFORM SUCH PARTY’S OBLIGATIONS
HEREUNDER. THE FOREGOING LIMITATION ON LIABILITY ALSO SHALL NOT SERVE TO LIMIT ANY PARTY’S
RECOVERY FOR DIRECT DAMAGES FOR BREACH OF THIS WFS AGREEMENT. FOR CLARIFICATION AND
AVOIDANCE OF DOUBT, THIS SECTION 26 SHALL ONLY APPLY TO THE RECEIPT AND PROVISION OF WFS
SERVICES SET FORTH IN ARTICLE III.
27.
Multichannel WFS.
The terms contained in this Section 27 only apply to Walmart.com
Marketplace Retailers receiving Multichannel WFS Services.
(a)
A Retailer who utilizes Walmart.com’s WFS Services as outlined in the WFS Agreement
may expand its use of the WFS Services outside of the Walmart.com Marketplace Program to permit
Walmart.com to provide inbound logistics, fulfillment, outbound transportation and reverse logistics to
Retailer for alternative sales channels (“
Multichannel WFS Services
”). In the event that you elect to
receive Multichannel WFS Services, in addition to the terms of the WFS Agreement, the terms of this
Section 27 shall govern Multichannel WFS Services. In the event of a conflict, ambiguity, or inconsistency
between this Section 27 and the WFS Agreement, this Section 27 shall govern and control.
(b)
Multichannel Governing Terms.
The Multichannel WFS are also governed by the
Multichannel Services Description and the Fees for the Multichannel WFS Services, each of which are
incorporated by this reference (collectively, the “
Multichannel WFS Services Terms and Conditions
”).
(c)
Multichannel Representations and Warranties.
You further represent and warrant that
(i) you are registering for Multichannel WFS Services on behalf of an entity and that you have the requisite
right, power, and authority to enter into these Multichannel WFS Services Terms and Conditions on behalf
of the entity you register for Multichannel WFS Services and (ii) you have all rights and permissions
necessary in connection with your use of the WFS Multichannel Services, include all appropriate rights
and permissions from the platform which sells the product or service which is being fulfilled by the
Multichannel WFS Services. You will update all of the information you provide to us in connection with
the Multichannel WFS Services, including contact information, as necessary to ensure that it at all times
remains accurate, complete, and valid. You authorize us to verify your information (including any updated
information) from time to time.
(d)
Multichannel WFS Service Fees
. In lieu of the WFS Service Fees set forth in the WFS
Agreement, the
Fees for the Multichannel WFS Services
shall be charged to Retailer for the provision of
the Multichannel WFS Services.
(e)
Multichannel Order Processing.
Retailer shall transmit all Multichannel WFS Services
orders (“
Multichannel Order(s)
”) received by Retailer to Walmart.com via an application program
interface (“
API
”). Walmart.com’s Order Management Group will manage all API errors in processing of
API transmissions. The communication plan concerning all errors and/or Multichannel Order
Cancellations resulting from API errors will be mutually agreed upon by Walmart.com and Retailer.
Rev 072522
CONFIDENTIAL
ARTICLE IV: WALMART AD CENTER PLATFORM TERMS OF USE
The terms contained in Article IV apply in connection with Retailer’s use of Walmart Ad Center.
In the event that Retailer utilizes Walmart.com’s self-service advertising services (“Walmart Ad Center”),
the
terms
at
https://i5.walmartimages.com/dfw/4ff9c6c9-3238/1f108ecd-c918-47cf-a7bd-
094f9ebd478a/v1/Walmart_Advertising_Agreement.pdf
(the “Walmart Ad Center Platform Terms of
Use”) shall govern Retailer’s use of Walmart Ad Center. In the event of a conflict, inconsistency or
ambiguity between the Agreement and the Walmart Ad Center Platform Terms of Use, the Walmart Ad
Center Platform Terms of Use shall govern and control, only with respect to Walmart Ad Center.
