TERMS OF SERVICE
Effective: January 1, 2024
Hi! We’re Again Recommerce, Inc. (also known as, The Again Co.). We provide a software platform that helps brands manage their circularity programs, including surplus and peer-to-peer resale stores (“Stores”) and trade-in programs (“Trade-In”) (individually, “Program” and collectively, “Programs”), as well as related services (together with the Programs, our “Services”).
For convenience, we’ll refer to ourselves and our subsidiaries as “we”, “our”, or “us”. Similarly, we’ll refer to the legal entity that you represent as our “Customer” or just “you” or “your”, and to the individuals who use your Store as “Program Users”.
These Terms of Service (“Terms”) set out your rights and responsibilities with regard to your purchase and use of our Services, as well as our rights and responsibilities with regard to providing the Services to you. By signing up to use our Services or by using our Services, you’re agreeing to be bound by these Terms. If you don’t agree with these Terms, you may not use our Services. These Terms, including our Privacy Policy and our Program Terms of Service, form a binding contract between you and us, which we’ll refer to as the “Contract”.
1. Account
Account. An account is required to use our Services (“Account”). You must apply to for an Account by providing us with your legal company name, administrator’s name, business address, phone number, a valid business email address, and any other information as we may reasonably request. You must be at least 18 years old to apply for an Account. We may reject your application in our sole discretion.
Authorized Users. You may authorize your employees or contractors to access your Account (“Authorized Users”). You must inform Authorized Users of their obligation to comply with the Contract. Your are responsible for the actions of your Authorized Users, including for any breaches of this Contract that they cause.
Communications. You allow us to use the email address you provided when applying for an Account (or as updated from time-to-time) as the primary method for communicating with you. You must monitor this email address. We will also send transactional notifications, such as order and shipping confirmations, to this email address.
Limits. From time to time, we may impose limits on your Account, such as limits relating to the value of any transaction or the cumulative value of all transactions in a given period, or on the number of transactions in a given period. We will not be liable to you if: (i) we do not proceed with a transaction that would exceed any limit we set; or (ii) if we permit a buyer to cancel a transaction. We reserve the right to decline or refund transactions that we believe to be high risk, fraudulent, in violation of trade sanctions, result from our determination in favor of a buyer’s claim against you, or violate these Terms.
Beta Features. Occasionally, we look for people to help us test new features or products. Beta features may still be under development, so we make them available “as is,” and any warranties or contractual commitments we make for other parts of our Services will not apply. Should you choose to help us test beta features, we would greatly appreciate your feedback so that we can best prepare our beta features for use by all of our customers.
Future Plans. Any public statements that we make about our future product plans are an expression of intent, but do not rely on them when deciding whether to use our Services. If you decide to use our Services, that decision should be based on the features and functionality that we have available at that time and not on the delivery of any future features or functionality.
2. Our Responsibilities
Providing the Services. We will provide the Services to you as described in our then-current FAQs, along with updates to the Services that we make generally available to all of our customers. Our Services will perform materially in accordance with our then-current FAQs. Not all features will be available at all times or in all jurisdictions. We reserve the right to modify the Services for any reason, without notice, and at any time. However, we will not materially decrease the functionality of the Services without reasonable advance notice.
Keeping the Services Available. We will use commercially reasonable efforts to keep the Services available 24 hours a day, 7 days a week, excluding planned or emergency downtime. We expect downtime to be infrequent, and we will try to provide you with advance notice whenever possible.
Protecting the Integrity of the Services. We will maintain reasonable administrative, physical, and technical safeguards to protect the security and integrity of our Services. Those safeguards will include measures to safeguard the security, confidentiality, and integrity of data that you or your Authorized Users provide to us through our Services (“Your Data”), or that your Program Users provide to us through your Programs (“User Data”) (we’ll refer to Your Data and User Data collectively as “Program Data”).
Providing Support. We will assist you and your Program Users with questions via email during our regular business hours, which are Monday through Friday, 8:00am pacific through 6:00pm pacific, excluding holidays. We will respond to support inquiries in a timely and professional manner. We will use our good faith efforts to resolve disputes with or among Program Users, which may include voiding purchases and issuing refunds. Any decision that we make in resolving such disputes will be made in our sole discretion.
3. Your Responsibilities
Security. You are responsible for keeping your password secure. We are not liable for any loss or damage from your failure to maintain the security of your Account. You agree not to work around, bypass, or circumvent any of the technical limitation of our Services, or decompile, disassemble or otherwise reverse engineer our Services. You agree not to access our Services, or monitor any material or information from our Services, using any bot, spider, scraper, or other automated means.
Personal Information. You are responsible for protecting the personal information that you receive, which includes personal information about Program Users, such as names, addresses, email addresses, and telephone numbers. You must keep this information private and secure, and you must comply with all applicable legal requirements. If we are sued, fined, or otherwise made to incur expenses because of your misuse of this information, you agree to indemnity us for those expenses.
Promoting Your Programs. You agree to use reasonable and good faith efforts to promote your Programs, which may include the use of online and offline media, on an on-going basis.
Listings. The photos and videos you upload to listings that you create in your Store must be your own. You must honestly and accurately describe the products you are selling. We assume no responsibility for the accuracy, labeling, or content of your listings. We may remove any listing that violates our rules, policies, or this Contract. We also reserve the right to take additional action as we deem necessary for severe or repeat offenses. Even if your listing otherwise meets our rules, you may not list any item that is listed below (we call this list our “Prohibited Items List”):
- Alcohol, tobacco, drugs, drug paraphernalia, or medical drugs
- Items that pose health and safety concerns, dangerous items, hazardous materials, recalled items, or weapons
- Items that promote, support, or glorify hate or violence
- Items that are illegal, or that promote or encourage illegal activity
- Items that are intangible, digital in nature (such as NFTs), services, advertising, or solicitations
- Items intended for adult use, or that contain explicit sexual content
- Animals, animal products, or human or animal remains
Shipping. You agree to ship sales that you make to Program Users within three (3) days of the sale. Failure to ship the item on time may result in the cancellation of the sale. If you use our integrated shipping solution (which you may enable in your account configurations), you must use the prepaid US Postal Service shipping label that we provide to you. You must comply with all applicable US Postal Service shipping regulations and other applicable shipping laws.
Reporting. You are responsible for reporting your income to the applicable tax authority. Where legally required, we will report your personal details and details of your transactions to relevant governmental authorities.
Complying With Law. You agree to comply with all applicable laws in your performance under the Contract.
Cooperation. You will cooperate with us in a reasonable, good faith, professional and courteous manner in the course of our providing Services to you. From time-to-time, this may include assisting us with addressing questions or concerns of Program Users.
4. Financial Terms
Fees. We collect a fee on completed transactions made through your Programs. Those fee are outlined in the “Subscriptions” section of your account settings. Trade-In fees are based on the number of individual items submitted by Program Users, regardless of whether you accept those items. Store fees are based on the sale subtotal (i.e., the total before taxes and shipping). If the sale is made by a Program User, a portion of our fee is paid by that Program User, and a portion is paid by you. If the sale is made by you, our fee is paid entirely by you. A sale made by a Program User is considered complete (and fees are therefore earned) when the buyer accepts delivery (or the delivery is deemed accepted according to our Program Terms of Service). A sale made by you is considered complete (and commissions are therefore earned) when the order is placed by a Program User. You may charge Program Users your own fee on sales they make through your Store by specifying the fee amount in your account configurations. We will collect that fee on your behalf and credit it to your account after deducting fees owed to us. Following the end of each calendar month, provided that your account balance is at least $5.00, we will transfer your Store account balance to the bank account that you specify in your account configuration. If the amount owed to us exceeds the amount collected on your behalf, we will issue you an invoice for the difference, together with any other fees that may be due for such calendar month (such as Trade-In and shipping fees). Invoices are due upon receipt. Fees are charged in U.S. dollars, and payments must be made in U.S. dollars.
Shipping. You will reimburse us for the actual cost of any Trade-In-related shipping expenses that we incur on your behalf. If you use our integrated shipping solution in your Store, we will determine the appropriate shipping fee based on the weight of the shipment, and collect that fee from the Program User that made the purchase. We will retain all of those shipping fees. If you choose not to use our integrated shipping solution in your Store, we will collect the shipping fees you specify in your account configurations from the Program User who made the purchase, and credit the total amount without any deduction to your account as soon as you mark that item as being shipped in your account. If you do not specify shipping rates in your account, shipping will be deemed to be free. We will not be liable to you for any shipping fees.
Payment Processing. You must maintain an account with our payment processor, which is currently Stripe. We partnered with Stripe to facilitate payment processing, disbursement of funds to sellers, and compliance with various regulations. If you don’t already have a Stripe account, you must sign up for one through Stripe. By signing up, you enter into an agreement with Stripe. We are not a party to that agreement, and are therefore not responsible for the services provided by Stripe. You must provide all required information truthfully and completely, and complete all the required steps for compliance purposes. You must keep all of your information current. We may share your personal or transactional information with Stripe for purposes related to payments processing and regulatory compliance. Stripe must accept your application before you can receive sales proceeds through our Services. If Stripe rejects your application, or if you don’t enroll for a Stripe account within 60 days after completion of your first sale, then you may forfeit your right to receive payment. If we receive notice that your activity violates Stripe’s service agreement, we may at our sole discretion take action against your account to comply with Stripe’s policies. Such actions may include canceling a transaction, disabling a listing, or suspending or terminating your selling privileges.
Gift Cards. Some Programs offer Program Users the option to receive gift cards for participating in those Programs, which they can use to make purchases on your e-commerce store. If you use our Shopify integration, then we will issue these gift cards when applicable. The value of each gift card issued will depend on which Program that gift card was issued through. The value of a gift card issued to a Program User through your Store will equal the Program User’s Store account balance at the time of redemption plus any bonus in effect at the time of the redemption, as specified by you in your account configuration. The value of the gift card issued to a Program User through Trade-In will equal the credit value of each item that you accept through your account. If you do not use our Shopify integration, we will notify you whenever a Program User chooses a gift card redemption, as well as the total value to be issued, including any bonus. You will promptly issue the gift card to that Program User and notify us of that fact by email. Because gift cards issued in this situation are issued outside of our system, we are unable to manage their balances. Regardless of whether you use our Shopify integration, once a gift card is issued through your Store (i.e., as part of a Program User’s account balance redemption), we will credit the applicable sales proceeds to your account, which will then be transferred to you less any accrued fees, as described above.
Taxes. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (“Taxes”). You are responsible for collecting and paying any Taxes applicable to your sales through your Programs. However, if we determine that we have a legal obligation to collect and pay Taxes on your behalf in a given state, we will do so based on the buyer’s location in the United States. You are responsible for paying all Taxes associated with your purchases of our Services, except for those Taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, you will reimburse us for such withholding tax.
Disputes. Any dispute as to charges must be reasonable and in good faith and communicated to us in writing within fourteen (14) days of the charge. You will work together with us in good faith to promptly resolve any dispute. Overdue undisputed amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower. You agree to reimburse us for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by us in collection of undisputed overdue amounts.
Suspension. If any undisputed fees remain unpaid thirty (30) or more days, we may, without limiting our other rights and remedies, suspend providing the Services until those amounts are paid in full, so long as we have given you at least ten (10) days’ prior notice that your account is overdue.
Interest. We may earn interest from the balances in our bank accounts. These balances results from timing differences between our receiving payment from buyers and sellers redeeming their proceeds. You will not be entitled to receive any interest (or other compensation) on any account balance you hold with us.
5. Feedback
The suggestions our customers make help us improve our Services for the benefit of all of our customers. We’re grateful for the feedback we receive. If you or your Authorized Users provide us with feedback or suggestions regarding our Services, you grant us a perpetual, worldwide, unlimited, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use your feedback or suggestions in any way without any obligation or compensation to you or your Authorized Users.
6. Ownership
What You Own. As between the parties, you own your Confidential Information (as defined below) and Your Data. You hereby grant us a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, store, and display Your Data for the purpose of providing or promoting the Services, and to perform our obligations and exercise our rights under the Contract. You represent, warrant, and agree that you have all necessary rights in your Confidential Information and Your Data to grant us this license.
What We Own. As between the parties, we own and will continue to own our Services, including all related intellectual property rights, our Confidential Information, and User Data. We hereby grant you a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, store, and display User Data. We represent, warrant, and agree that we have all necessary rights in the User Data to grant your this license. You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of our Services, use our Services, or access the Services without our express written permission. You agree not to use any of our trademarks, logos, or service marks unless we authorize you to do so in writing.
Removal. We do not pre-screen Program Data, and we may remove any Program Data in our sole discretion.
7. Term and Termination
Term. Your subscription will start on the date we approve your Account, and will continue until your Account is closed or terminated pursuant to these Terms.
Termination. You may cancel your Account at any time by contacting our support team at support@theagain.co and requesting cancellation in writing. We may suspend or terminate your Account or the Contract immediately without notice if we reasonably believe that you or your Authorized Users are using our Services in violation of applicable law. Either party may may terminate the Contract for cause upon 30 days prior written notice to the other party of a material breach by the other party, if that breach remains uncured at the end of that period.
Effect of Termination. Upon any termination or cancellation of your Account by either party for any reason: (i) we will cease providing the Services to you, and you will no longer be able to access your Account; (ii) you will not be entitled to any refunds of any fees; (iii) any outstanding balance owed to us through the effective date of such termination will immediately become due and payable in full; (iv) your accrued but unpaid commission and gift card balances will be transferred to you, less any fees owed to us; (v) your Programs will be taken offline; and (vi) this Contract will terminate, except with respect to those terms that are by their nature intended to survive termination. In no event will any termination relieve you of the obligation to pay any fees due to us for the period prior to the effective date of termination.
Data Retention and Deletion. We will retain Program Data for as long as your Account remains active. Following cancellation or termination of your Account, we will have no obligation to maintain any Program Data and, unless legally prohibited, we may delete it. Upon your written request, which we must receive within 30 days of cancellation or termination of your account, we will provide you with one (1) copy of Program Data in comma-separated value (CSV) or structured query language (SQL) format, as determined by us.
8. Confidentiality
Confidential Information. "Confidential Information" means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including nonpublic business, financial, product, and technical information. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
Duties. Receiving Party may only use the Confidential Information of Disclosing Party to fulfill its obligations under the Contract. Receiving Party will not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of the Contract, except with Disclosing Party's prior written consent or as otherwise required by law. Receiving Party will protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
Compelled Disclosure. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with reasonable prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest such disclosure.
Injunctive Relief. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
Continuing Obligations. Upon any expiration or termination of the Contract, Receiving Party will continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
9. Warranties and Disclaimer
Each party represents and warrants that it has validly entered into the Contract and has the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10. Indemnities
Indemnification by Us. We will defend, indemnify and hold you harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against you by a third party alleging that the use of the Services as permitted under the Contract infringes the intellectual property rights of such third party.
Indemnification by You. You will defend, indemnify and hold us harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against us by a third party arising from, or related to, your or any of your Authorized Users’ violation of the Contract.
Cooperation. The indemnified party will: (i) promptly give written notice of any Claim to the indemnifying party; (ii) allow the indemnifying party to control the defense and settlement of the Claim, provided that the indemnified party may participate in such defense at its own cost and that the indemnifying party may not settle any Claim in a manner that imposes any obligation or liability on the indemnified party without the indemnified party’s prior written consent; and (iii) provide to the indemnifying party, at the indemnifying party’s cost, all reasonably requested assistance in such defense. Failure to so cooperate shall relieve indemnification obligations to the extent of any actual prejudice.
Infringement Remedies. In the case of a Claim of intellectual property infringement, we may, at our sole option and expense: (i) procure for you the right to continue using the Services under the terms of the Contract; (ii) replace or modify the Services to be non-infringing without material decrease in functionality; or (iii) if neither of foregoing options are reasonably practicable, terminate the Contract and refund to you all prepaid fees for the remainder of your subscription term after the date of termination.
11. Limitation of Liability
IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. General Provisions
Privacy. We collect and process personal data pursuant to our Privacy Policy, which is hereby incorporated into the Contract. You understand and agree that we may contact you or your Authorized Users via e-mail or otherwise with information relevant to the use of the Services, regardless of whether you have opted out of receiving marketing communications or notices.
Publicity. You grant us the right to use your company name and logo as a reference for marketing or promotion purposes on our website and in other public or private communications with our existing or prospective customers, subject to your standard trademark usage guidelines, which you will provide to us. If you prefer not to be listed as a reference, please send an email to your account manager or to support@theagain.co letting us know.
Relationship. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by this Contract.
Third Party Beneficiaries. There are no third party beneficiaries to this Contract.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing sentence, either party may assign this Agreement in its entirety without consent of the other party, to a corporate affiliate or to its successor by way of merger, reorganization, or sale of substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be void.
Force Majeure. Neither of us will be liable to the other for any delay or failure to perform its obligations (excluding payment obligations) due to circumstances beyond such party's reasonable control, which may include acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's possession or reasonable control, and denial of service attacks.
Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Any effective waiver must be in writing and signed by the party against whom the waiver is to be asserted.
Remedies. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Contract is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
Governing Law and Venue. This Contract is be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules, and all disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts located in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Dispute Resolution; Waiver of Jury Trial. Both parties agree to make reasonable, good faith efforts to promptly resolve any dispute between them, including escalating within their respective organizations as appropriate, prior to commencing any legal action. TO THE EXTENT APPLICABLE AND LEGALLY PERMISSIBLE, BOTH PARTIES AGREE TO WAIVE TRIAL BY JURY IN ANY ACTION ARISING HEREUNDER.
Amendments. We may changes these Terms, our fees, or commission from time-to-time to reflect changes in our business. If we make a material changes to the Terms, we will provide you with reasonable advance notice. The revisions will become effective on the date set forth in our notice, and all other changes will become effective immediately upon posting. If you access or use the Services after a change goes into effect, that will constitute your acceptance of that change.
Notices. All notices under the Contract will be in writing (email permitted) and effective upon receipt. We may also choose to provide you with notices through the Services. Notices to us should be sent to support@theagain.co.
Complete Agreement. The Contract constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent any conflict or inconsistency between the provisions in the Terms and any other documents or pages referenced in these Terms, the following order of precedence will apply: (1) the Terms, and (2) any other documents or pages referenced in the Terms. No additional click-through or purchase order terms shall be effective.