Terms of Use

The effective date of these Terms of Use is August 24, 2011.

By accessing and using any features and functionalities on this website portal (managed and hosted by Sears Holdings Management Corporation acting on behalf of itself and its affiliates, collectively referenced as “Sears,” “we” or “us”) and uploading product image(s), descriptions(s) and any advertisement or advertisement related materials in connection with your product (“Content”), the “Seller” (also referred to herein as “you”) agrees to be bound by these terms of use (collectively, “Terms of Use”). Should Seller register for a seller account with Sears Marketplace, additional terms and conditions related to the Marketplace program registered for apply, and Seller must agree to them as part of the setup process. We reserve the right to modify these Terms of Use at anytime without any prior notice to you. Therefore it is your obligation to review these Terms of Use each time you use this website to maintain your compliance with any updates made to the Terms of Use.

Please read these terms carefully. Your access to and use of the website portal constitutes your acceptance of all the provisions of these Terms of Use. If you are unwilling to be bound by these Terms of Use, you should not access or use the website. If any of the terms and conditions contained herein are deemed invalid, void, or for any reason unenforceable, the terms and conditions herein shall also be deemed severable and shall not affect the validity and enforceability of any remaining condition.

Eligibility

The website portal and the functionalities and agreements contained therein are not targeted towards, nor intended for use by, anyone under the age of 18. By accessing and using this website portal, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not access, use or register on the website portal. In the event we become aware you are under 18 years of age, we will pull your Content from the website, disable your passwords allowing you to access the website portal, and immediately terminate all agreements in place between Sears and you, as related to this website portal and any website related service offering extended to you from Sears.

Privacy

Please review the Sears Privacy Policy, which also governs your access and use of any customer information transmitted between Sears and you, to understand our practices.

License to the Content

If you submit to us any Content to promote any products or services offered by you to consumers through our websites, and unless we indicate otherwise, you grant Sears and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media. You also grant to Sears, its affiliates and sublicensees the right to use the name that you submit in connection with such Content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the Content that you submit; that the Content is accurate; that our use of the Content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Sears, its affiliates and sublicensees for all claims arising from any and all Content that you supply. Sears has the right, but not the obligation, to monitor, edit, or remove any Content that you provide from our websites. Sears takes no responsibility and assumes no liability for any Content submitted by you or any third party on your behalf. As further defined in your program terms and conditions, you are expressly responsible for any Content you upload, and agree to defend and indemnify Sears for any liability arising for any reason whatsoever from your Content.

Your Use of Our Website

Sears hereby grants to you a limited license to access and make personal use of this website portal and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Sears. This license does not include any resale or commercial use of this website or its contents; any derivative use of this website or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. This website or any portion of this website may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Sears. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Sears or its affiliates without the express written consent of Sears. You may not use any meta tags or any other “hidden text” utilizing Sears’ or its affiliates’ name or trademarks without the express written consent of Sears. Any unauthorized use by you shall terminate the license granted to you by Sears hereunder.

Communications by Emails

By accessing this website portal, you consent to receive corresponding communications from us by means of email messaging. Sears will communicate with you by means of email messaging or by posting notices, policy changes, updated terms of use, or any other sort of intended communications with you on this website portal. You agree and your continued access and use of the website portal shall be construed as your acknowledgement that all notices, policy changes, updated terms of use and other intended communications directed to you from Sears as provided to you by email or posted on this website will satisfy any legal requirement that such communications be in writing.

Copyright

The Content that you provide to us for display as a product listing on the website shall at all times remain your property. However, the manner displayed and compilation of your Content with those of other third party provided or sourced content, any and all logos, graphics, text, icons, images, audio clips, digital downloads, data compilations, and software shall be deemed and shall remain the property of Sears or its supplier of such materials and protected by all applicable copyright laws. All software used in connection with this website and the services provided to you by Sears is the property of Sears or its supplier and protected under all applicable copyright laws.

If you believe any User Content or any other aspect of the Sears Marketplace infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. § 512) by providing the following information:

  1. A description of the copyrighted work that you claim has been infringed;
  2. A description of where the material that you claim is infringing is located on the Sears Site;
  3. Your address, telephone number and email address;
  4. A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
  5. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright at issue or are authorized to act on the copyright owner’s behalf; and
  6. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.

Our designated copyright agent for notice of claims of copyright infringement on the Sears Site may be reached at the following address:

Copyright Agent

Sears Holdings Management Corporation
3333 Beverly Road
Hoffman Estates, IL 60179

Or by email: shmcdmca@searshc.com

Counter-Notice

If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to the Copyright Agent:

  • Your physical or electronic signature;
  • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Chicago, IL, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Sears may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Sears’ sole discretion.

Your Account

You are responsible to maintain the safe guarding of all password(s) provided to you by Sears for your access and use of the website and any services offered to you pursuant to the website by Sears. Your use of your account is subject to all service levels and those requirements that Sears imposes on you as are made available to you by Sears in any notices, Terms of Use, agreements that Sears may update from time to time and/or communications posted on this website portal, or sent to any address you specify. Any misuse of the website, violation of these Terms of Use, or any of Sears’ policies that occurs during your access to the website portal and that is attributed to actions from your account or to a user of your password shall be considered an action taken by you. In the occurrence of such events, Sears shall have the right, in its sole discretion, to disable your password(s) and to immediately terminate all agreements between Sears and you. It is your obligation to immediately notify Sears if you suspect or discover that your password(s) have been compromised.

Your Content

You agree that you are solely responsible for any Content and materials that you provide to us to post on our website. You also acknowledge and agree that Sears is solely acting in the role as a passive conduit for your online distribution and publication of your Content and materials provided.  Furthermore, you agree that any and all Content and materials you provide to Sears in connection with the website will not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of illegal, counterfeit, stolen items; (c) infringe upon any third party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation; (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) display nudity, models wearing see-through clothing, sexually explicit content; contain any obscenities, or content that advocates racial, religious or social intolerance, or hatred; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) link directly or indirectly to or include descriptions of goods or services that: (i) are prohibited by any Sears agreement(s), our Privacy Policy, these Terms of Use, or any other policy documents and community guidelines as posted on a Sears-hosted or managed website or; (ii) are offered for sale on a non-affiliated-with-Sears third party website, unless such links within the Content are otherwise approved in writing by Sears.

Prohibited Merchandise

Unless otherwise expressly permitted in writing by Sears, Seller shall not promote, offer for sale, or provide Sears Marketplace with Product Listings that contain any of the following items:

• pornography in any form of media;

• sexual aids or toys, or other adult novelty products;

• alcoholic beverages, cigars, cigarettes or tobacco products;

• live animals or taxidermy;

• tomb artifacts or grave-related items;

• automobiles, motorcycles, or scooters requiring registration;

• charity fundraising activities;

• used cosmetics;

• credit or debit cards;

• gift cards;

• hazardous materials, or Hazmat designated items;

• illegal and/or prescription drugs, illegal drug paraphernalia, or materials describing how to make illegal drugs;

• embargoed goods from prohibited countries currently listed by the U.S. Office of Foreign Assets Control;

• event tickets;

• firearms and weapons (including but not limited to knives, bows, guns, gun parts, gun kits, ammunition, mace, pepper spray, black powder, and explosives);

• government issued uniforms, government documents, government identifications, and government licenses;

• human parts and human remains;

• surveillance equipment (including but not limited to lock picking devices, wiretapping devices, telephone bugging devices);

• lottery tickets;

• mailing lists and personal consumer information;

• manufacturer’s coupons;

• medical devices regulated by any state or federal agency or authority;

• pesticides;

• plants (including live plants and seeds);

• firewood or lumber (not including artificial or manufactured firelogs);

• postage meters or stamps;

• real estate;

• stocks and other securities;

• travel; and

• illegal products, illegal services, stolen or recalled products.

All Product Listings are subject to limited review by Sears. Sears reserves the absolute right at any time, without notice to Seller, and in Sears’ sole discretion, to update the list of Prohibited Merchandise and immediately pull any Merchandise in violation of this list from the Website, or take whatever action necessary to ensure compliance with this list. Your provision of any of the above Prohibited Merchandise, or any Content associated therewith containing any references to your promotion or offering of any Prohibited Merchandise to users shall provide us with immediate grounds to terminate your access and use of our website.

Disclaimer of Warranty and Limitation of Liability

THIS WEBSITE PORTAL IS PROVIDED TO YOU BY SEARS AND ITS AFFILIATES ON AN “AS IS” AND “AS AVAILABLE” BASIS. SEARS AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEBSITE PORTAL OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS WEBSITE PORTAL. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE PORTAL IS AT YOUR SOLE RISK. ANY CONTENT OR INFORMATION PROVIDED IN AN FAQ SECTION IS PROVIDED FOR YOUR CONVENIENCE ONLY, AND MAY NOT REFLECT ALL UPDATES MADE TO ANY BINDING TERMS OF USE, SELLER AGREEMENT, OR SEARS MARKETPLACE POLICY OR PROCEDURE. SEARS AND ITS AFFILIATES RESERVE THE RIGHT TO WITHDRAW OR DELETE ANY INFORMATION FROM THIS SITE AT ANY TIME WITH OR WITHOUT NOTICE TO YOU IN ITS DISCRETION. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SEARS AND ITS AFFILIATE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SEARS AND ITS AFFILIATES DO NOT WARRANT THAT THIS WEBSITE PORTAL, ITS SERVERS, OR ANY ELECTRONIC MAIL AND/OR COMMUNICATIONS SENT BY SEARS AND ITS AFFILIATES TO YOU FROM THIS SITE ARE FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS. SEARS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OR ANY THIRD PARTY’S USE OF THIS WEBSITE PORTAL EITHER ON YOUR BEHALF OR THEIR OWN BEHALF, WHICH SHALL INCLUDE, BUT IS NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Disputes

Any dispute relative to Sears Marketplace or use or inability to use this Seller Portal will be governed by the laws of the State of Illinois, without regard to its conflict of law provisions. Any dispute relating in any way to your visit to or participation on Sears Marketplace or the Seller Portal shall be submitted to confidential arbitration in Chicago, Illinois, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Illinois, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms of Use shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Use shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration involving any other party subject to these Terms of Use, whether through class arbitration proceedings or otherwise.

Applicable Law

Your use of this website portal and the services provided by Sears and its affiliates in connection therewith shall be deemed as your acknowledgement and agreement to be bound by and that the laws of the State of Illinois, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any kind, manner or sort that might arise under these Terms of Use between you and Sears and its affiliates.

Miscellaneous

No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use, and you do not have any authority of any kind to bind Sears in any respect whatsoever. We may provide you with notices, including those regarding changes to these Terms of Use, by email, regular mail, or postings on the Seller Portal. These Terms of Use, which shall be deemed accepted by you upon your use of the Portal, constitute the entire agreement among you and Sears regarding use of the Portal. Sears’ failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of the enforcement of such right or provision. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and enforceable. These Terms of Use are not assignable, transferable or sublicensable by you, except with our prior written consent. The headings in these Terms of Use are for convenience only and have no legal or contractual effect. These Terms of Use include and incorporate the Privacy Policy for the Sears Site and any notices regarding the Sears Site.

Contact and Violations

For any questions regarding these Terms of Service, the Sears Marketplace FAQs, or to report any violations or problems with this site, please contact us at Seller Support.