Effective as of April 8, 2020
Favorly may immediately terminate these Terms or any Services with respect to You, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
WHEREAS DMG is an Illinois corporation engaged in the business of providing an online selling platform (“Platform”);
WHEREAS Seller desires to utilize the Platform to sell his/her/its products directly to buyers; and
NOW THEREFORE, pursuant to the terms and conditions hereinafter set forth, and in further consideration of their mutual covenants herein contained, the parties hereto agree as follows:
Article 1. Effective Date, Term and Termination
Effective Date. This Agreement shall become effective as of the date listed above.
Term. This Agreement shall become effective as of the date stated above (“Effective Date”) and shall continue in effect for a period of 30 days from the above date. At the end of that period, the Agreement shall be automatically renewed for consecutive, additional 30 days periods, until one or both parties exercises his/her right of termination as set forth in this Agreement.
Termination. Either party may terminate this Agreement immediately, with or without default, upon notice to the other party as provided for herein. DMG may terminate or suspend Seller’s account at any time, for any reason.
DMG Rights. DMG reserves the right to change, suspend, or discontinue any of the Services at any time, for any reason. We will not be liable to you for the effect that any changes to the Services may have on you, including your income or your ability to generate revenue through the Services.
Article 2. Seller Account
Sellers must create a Seller’s Account on www.favorly.tv.
- All Sellers must be 18 years or older.
- Seller must be honest and provide accurate information when creating a Seller’s account.
- Seller is responsible for securing access to his/her Seller’s account. Seller must protect the account login and password.
- If Seller is a business entity, You personally guarantee that you have the authority to agree to the Terms on behalf of the business.
- Seller’s accounts are not transferable.
Article 3. Independent Parties
These Terms don’t create any agency, partnership, joint venture, employment, or franchisee relationship between you and DMG.
Article 4. Shipping
Be a Reliable Seller. Buyers expect their items to be delivered on time, especially when they pay additional fees for expedited shipping services.
Shipping Requirement. Unless noted in your listing, all orders are expected to be shipped within 48 hours of order payment. Personalized or custom made are exempted from the 48 hour shipping requirement, however, the shipping time listed for the item must be strictly adhered to and the item must be shipped within 48 hours of completion. Be sure to specify shipping costs and related service charges in your listings. Seller may not use a shipping method that is slower than the slowest one indicated in the listing. If using a payment processor which does not make your funds available immediately, Seller may not hold shipment until the funds are released.
Actual shipping cost: Seller may not charge more than the actual shipping cost to ship the item.
Handling cost: Seller may charge a handling fee. This can include the cost of packaging materials and insurance cost, if any.
Extra Services: Seller may charge buyer for extra shipping services if used. We recommend that all Sellers provide tracking information. Using tracking information, delivery confirmation, or signature confirmation can help protect you if a buyer reports that they didn’t receive an item.
Free Shipping. Seller may offer free shipping to select or all destinations. For a destination with free shipping, no other fees related to shipping, handling, or packaging can be charged.
Article 5. Returns & Cancellations
Accepting Returns. Sellers are not required to accept returns, but if Seller posts a refund policy then it must be honored. When Seller chooses to accept returns, a buyer can return an item for any reason, including if they change their mind about a purchase. As long as the return meets the Seller’s stated return requirements, then Seller is required to honor the return. If you accept returns, you must clearly state the criteria under which you will accept a return. This may include (but isn’t limited to):
- The time period in which a buyer must notify Seller about a return;
- Who pays for return shipping; and
- How the refund is issued (money back, replacement, or exchange).
Not Accepting Returns. If Seller does not accept returns it must be stated explicitly in the item listing.
No Alterations. A return policy may not add to, or alter, returns criteria once an item has been purchased.
Returns by DMG. Even if Seller does not accept returns, a buyer may be able to open a case directly with DMG for eligible items if they did not receive an item or the item doesn’t match the listing description. If it is found credible, DMG may issue a money back return from Seller’s credit or bank account on file.
Cancellations. Occasionally, you may need to cancel a transaction because the item is broken, you made a mistake in your listing, or the item is out of stock. In these cases, you must first contact the buyer and let them know that you are canceling the transaction and the reason why. All cancellations by Seller must be done within 30 days of purchase and offer a full money back refund on the sale, shipping and all other fees charged to the customer.
Article 6. Fees and Taxes
Favorly Fees. The Fees charged by favorly are listed below. Favorly may change the Seller fees from time to time by posting changes on the Site. You must use approved favorly transaction services when collecting fees from customers. In any jurisdiction where favorly has an obligation to collect sales taxes on sales You make using favorly Services, favorly may collect such sales taxes from Seller via the payment method on file or via any other means available to favorly. If Your payment method fails or Your account is past due, favorly may collect amounts owed by charging other payment methods on file with Us, retain collection agencies and legal counsel, suspend or limit Services, and, for accounts over 60 days past due, request that the platform’s electronic payment provider deduct the amount owed from your account balance. In addition, you will be subject to late fees. Favorly, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report.
Listing Fees. You will be charged a favorly listing fee of 5% of the sale price displayed for each item (including personalization fees; excluding shipping, handling, tax, vat, and credit card processing fees). Seller shall be responsible for all additional fees including tax, vat, credit card processing fees, and international foreign transaction fees. Shipping costs are deducted from the total sale amount and remitted directly to the shipping provider.
Late Fees. Favorly requires that all account fees with a total of $1.00 (us dollar) or more be paid in full each month. If Seller’s account becomes past due, favorly may suspend Seller’s account and charge Seller late fees in the amount of 6% compounded monthly, or the highest amount allowed by law.
Responsibility for Taxes. Seller is responsible for identifying its tax obligations in addition to the calculation, remittance, and reporting of all taxes. DMG will not report or remit Taxes to any government on behalf of any Seller. Seller agrees that DMG is not obligated to determine Seller’s tax obligation and/or whether taxes apply. DMG will not be responsible to calculate, collect, report, or remit any Seller obligated taxes arising from any transaction. If a taxing authority requires DMG to pay any of Seller’s taxes, Seller will promptly reimburse DMG for the amounts paid.
Shipping Products Internationally. When fulfilling sales to a country outside Seller’s country, Buyer is the importer of goods to the foreign country and Buyer is responsible for the payment of all import duties, taxes, foreign transaction fees, and custom fees. DMG isn’t responsible for any additional charges that may apply after a purchase is completed on its platform.
Article 7. Intellectual Property
Intellectual Property Ownership. Neither party shall, by virtue of this Agreement, acquire any ownership licensed or any other rights in any pre-existing graphics, photos, or intellectual or technological property of the other party (“Intellectual Property”).
DMG Intellectual Property. Seller acknowledges that DMG is the owner of certain trademarks, logos, and other property related to favorly branding and advertising (collectively referred to herein as the “Proprietary Information”,) specifically including, without limitation: the trade name “favorly” or “Delack Media Group,” and certain domain names using the phrase “favorly” or “Delack Media Group” specifically including, without limitation, “favorly.tv” and any similar domain.
Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
Seller agrees that the provisions in this clause are reasonable and necessary for the protection of the immediate and substantial interests of DMG, and that any violation of these provisions would cause substantial and irreparable harm to DMG. In the event of any breach or threatened breach by Seller of the provisions of this Agreement, in addition to any actual damages sustained, DMG shall be entitled to the entry in any court of competent jurisdiction to a temporary restraining order and/or temporary or permanent injunction restraining Seller from such breach or threatened breach, without the necessity of posting any bond.
License. By posting Your Content, you grant DMG a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, modify, reproduce, distribute, store, and prepare derivative works of Your Content. Seller agrees not to assert any moral rights or rights of publicity against DMG for using the Content.
Seller warrants that:
- all website content including logos, trademarks, photos, illustrations, audio, video, and written content provided to DMG by Seller, are owned by Seller, or Seller has received explicit permission for use, and do not violate United States copyright law,
- to the best of Seller’s knowledge, Seller’s content, or any portion thereof, does not infringe the rights of any third party, and use of the Seller’s Work as well as any trademarks in connection with the Project does not and will not violate the rights of any third parties,
- Seller has received permission from all individuals photographed (other than licensed stock photos) to be shown on the site. Each person in any photo understands and has given permission for their likeness to be used,
- any names and contact information placed on the site has been provided with consent from each individual,
- any information provided to DMG is accurate and complete,
- Seller shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
- Seller shall comply with all laws and regulations as they relate to the products, including, but not limited to, all intellectual property laws.
Seller Shall sell only authentic and legal products. It is Seller’s responsibility to source, sell, and fulfill only authentic products that are legal for sale. Examples of prohibited products include:
- Bootlegs, fakes, or pirated copies of products or content ;
- Products that have been illegally replicated, reproduced, or manufactured; and/or
- Products that infringe another party’s intellectual property rights.
Maintain and Provide Inventory Records. DMG may request that Seller provide documentation (such as invoices) showing the authenticity of products or Seller’s authorization to list them for sale. Seller may remove pricing information from these documents, but providing documents that have been edited in any other way or that are misleading is a violation of this policy and will lead to enforcement against Seller’s account.
Consequences of Selling Inauthentic Products. If You sell inauthentic products, DMG may immediately suspend or terminate your selling account, and/or withhold payments to You. DMG may also: remove suspect listings, and/or take legal action against parties who knowingly violate this policy. In addition to criminal fines and imprisonment, sellers and suppliers of inauthentic products may face civil penalties including the loss of any amounts received from the sale of inauthentic products, the damage or harm sustained by the rights holders, statutory and other damages, and attorney’s fees.
Article 8. Seller’s Conduct
This policy requires that Seller act fairly and honestly to ensure a safe buying and selling experience. All sellers must:
- Provide accurate information to DMG and our customers at all times;
- Act fairly and not misuse DMG’s features or services;
- Not attempt to damage or abuse another Seller, their listings or ratings;
- Not attempt to influence customer ratings, feedback, or reviews;
- Not send unsolicited or inappropriate communications;
- Not contact customers outside of DMG approved messaging;
- Not attempt to circumvent the DMG sales process; and
- Not operate more than one selling account on DMG without a legitimate business need.
Violation of any DMG policies may result in actions against your account, such as cancellation of listings, suspension or forfeiture of payments, and removal of selling privileges.
Morality Clause. A Seller may not (i) commit a misdemeanor or a felony or any other act or omission involving dishonesty, embezzlement, misappropriation, fraud or moral turpitude, (ii) disseminate, without authorization, confidential information, (iii) act with willful misconduct which causes harm or prejudice to DMG, (iv) engaging in activities or conduct injurious to the reputation of the company or its affiliates including, without limitation, engaging in immoral acts or repeatedly conveying to one person, or conveying to an assembled public group, negative information concerning the company or its affiliates, or (v) commission of an act of dishonesty, including, but not limited to, misappropriation of funds or any property of DMG.
Article 9. Indemnification
Indemnification. Speaker agrees to defend, indemnify, reimburse and hold DMG and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney’s fees, costs and expenses and court costs) arising out of or related to Seller’s and/or Seller’s affiliates, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns:
- breach of this Agreement,
- lack of good faith,
- failure to discharge its duties and responsibilities set forth in this Agreement, or
- negligence, gross negligence or willful misconduct.
The remedies set forth in this Article are in addition to, and not in lieu of, all other remedies that may be available to Indemnified Party, including the indemnification rights under this Article.
Article 10. Limitations of Liability
No Guarantee. DMG makes no representations or guarantee as to the amount of traffic to the site or interest generated in the site. DMG makes no representations and does not guarantee an increase in Seller’s sales. DMG will use its best efforts to perform under the contract, and makes no representation or guarantee that the site will be accessible by all browser and operating systems.
WARRANTY DISCLAIMER. DMG OFFERS ITS SERVICES “AS IS”. DMG HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSE OR OTHERWISE (INCLUDING TIME OF PERFORMANCE), RESPECTING SERVICES RENDERED PURSUANT TO THIS AGREEMENT. DMG DOES NOT GUARANTEE THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL MATERIALS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR EXPECTATIONS. YOU USE THE SERVICES SOLELY AT YOUR OWN RISK.
LIMITATION OF LIABILITY. DMG, (NOR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, DIRECTORS OR CONTRACTORS) WILL NOT BE LIABLE TO SELLER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF DMG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL DMG’S CUMULATIVE LIABILITY TO SELLER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES CHARGED TO SELLER IN THE PAST TWELVE MONTHS UNDER THIS AGREEMENT.
Article 11. Miscellaneous
Amendments. DMG may make amendments and/or changes to this Agreement, from time to time. DMG will provide notice of any changes by sending Seller with an email or message about the changes. Changes will be effective upon the posting of the changes unless otherwise specified. You are responsible for reviewing and becoming familiar with any changes. Your use of the Services following the changes constitutes your acceptance of the updated Terms.
Nonexclusive Agreement. It is agreed and understood between the parties hereto, that both parties are free to provide similar services outside of this Agreement. Nothing herein shall in any way preclude DMG or its officers, employees, agents, representatives, members or affiliates from engaging in any business activities or from performing services for its own account or for the account of others, including for companies that may be in competition with the business conducted by Seller.
Capacity to Contract. Seller represents that he or she has the legal capacity and full power and authority to execute, deliver and perform this Agreement and the execution, delivery and performance of this Agreement has been duly authorized and approved by all necessary corporate authorities and does not require any further authorization or consent.
Enforceability. The provisions of this Agreement will be enforceable notwithstanding the existence of any claim or cause of action of Seller against DMG whether predicated on this Agreement or otherwise. Nothing in this Agreement will be construed as prohibiting DMG from pursuing any other remedies available to it for such unauthorized use or disclosure or from pursuing any remedies for any other breach or threatened breach of the Agreement, including the recovery of damages from the other party.
Reimbursement for Costs and Fees. In the event DMG shall be forced to bring any legal action to protect or defend its rights hereunder and prevails, then DMG shall be entitled to reimbursed from Seller of all fees, costs and other expenses (including, without limitation, the reasonable expenses of its or their attorneys) in bringing or defending against such action. If DMG is successful in bringing such action and receiving a settlement or judgment and Seller delays in paying such settlement or judgment then DMG shall be entitled to an annual interest rate of 9% on the late payment or, if lower, the highest rate allowed by law.
Entire Agreement. This Agreement constitutes the entire understanding of the parties and supersedes all prior discussions, negotiations, agreements and understandings, whether oral or written, with respect to its subject matter. There are no other terms, obligations, covenants, representations, statements or conditions except as set forth in this Agreement. Failure to insist upon strict compliance with any term or provision of this Agreement will not be deemed to be a waiver of any rights under a subsequent act or failure to act. The parties to this Agreement acknowledge and agree that in the event of any subsequent litigation, arbitration proceeding, controversy or dispute concerning this Agreement, neither of the parties to this Agreement will be permitted to offer or introduce into evidence any oral testimony concerning any oral promises or oral agreements between them that relate to the subject matter of this Agreement that are not included or referred to in this Agreement, or any amendments to this Agreement.
Remedies Cumulative. The remedies under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
Force Majeure. Force majeure as mentioned herein refers to war, fire, earthquake, flood, power outages, internet service interruptions and other manmade or natural disasters, epidemics or pandemics, acts of terrorism or any event which is unforeseeable and unavoidable when both parties sign this Agreement. Should either party be prevented from or delayed in performing all or part of its obligations under this Agreement owing to force majeure, it shall be exempt from the Liability for Breach of Contract arising there from, but it shall continue to perform this Agreement after the influence of force majeure is removed. If the influence of force majeure makes it impossible to perform this Agreement, both parties may terminate this Agreement and negotiate for a resolution.
Modification. No change or modification of this Agreement shall be valid unless it is in writing and accepted by all the parties who are bound by the terms of this Agreement.
Assignment Generally. The parties may not assign the rights, or delegate duties under this Agreement without advance written approval of the other party except that DMG may assign its rights to an affiliate company.
Independent Covenants. The parties agree that each of the covenants contained herein shall be construed as independent of any other covenant or provision of this Agreement. If all or any portion of a covenant in this Agreement is held to be unreasonable or unenforceable by a court or agency having valid jurisdiction in a final decision to which DMG is a party, the Seller expressly agrees to be bound by any lesser covenant subsumed within the terms of such covenant that imposes the maximum duty permitted by law, as if the resulting covenant was separately stated in and made a part thereof.
Severability. If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.
Waiver. No failure or delay by DMG in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement
Survival. The confidentiality, non-solicitation, proprietary rights, photo release, intellectual property and indemnifications shall survive any termination of this Agreement.
Heirs and Assigns. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of DMG and Seller.
Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Illinois, without regard to any conflicts or laws or choice of laws principles that would require the application of the laws of any jurisdiction other than the State of Illinois, all rights and remedies being governed by said laws.
Venue and Jurisdiction. Should a lawsuit be necessary to enforce this Agreement the parties agree that jurisdiction and venue are waived and suit shall be brought in the county of the principal office of DMG.
Notices. All notices, requests, consents and other communications hereunder shall be in writing and shall be deemed sufficient if personally delivered, or sent by nationally-recognized overnight courier, by telecopy, or by
registered or certified mail, return receipt requested and postage prepaid, addressed to each Party as listed in the first paragraph herein or to such other address as the party to whom notice is to be given may have furnished to each other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received
- in the case of personal delivery, on the date of such delivery,
- in the case of email, 24 hours after the email was sent,
- in the case of nationally-recognized overnight courier, on the next business day after the date when sent,
- in the case of telecopy transmission, when received, and in the case of mailing, on the third business day following that on which the piece of mail containing such communication is posted.
Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.