IoT Marketplace Seller Terms of Service
Effective May 4, 2018
Welcome to the T-Mobile IoT Marketplace vendor terms. Any person or entity (“Vendor”, “you” or “your”) who wants to supply products or services (collectively “Products”) to the T-Mobile IoT Marketplace (“T-Mobile”, “us”, or “we”, including all T-Mobile affiliates) must accept these T-Mobile IoT Marketplace Vendor Terms and Conditions (“Agreement”). BY REGISTERING FOR OR SUBMITTING A PRODUCT FOR THIS WEBSITE, YOU (1) ON BEHALF OF YOURSELF AND THE ENTITY THAT YOU REPRESENT, AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE; AND (2) REPRESENT AND WARRANT THAT YOU ARE EXPRESSLY AUTHORIZED TO BIND VENDOR TO THIS AGREEMENT.
- Using the T-Mobile IoT Marketplace. You may not: (a) post false, inaccurate, misleading, deceptive, defamatory, or libelous content; (b) distribute viruses or any other technologies that may harm T-Mobile or the interests or property of users; (c) use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access the T-Mobile IoT Marketplace for any purpose, except with the prior express permission of T-Mobile; (d) interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure; (e) export or re-export any T-Mobile application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions; (f) infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to T-Mobile. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to T-Mobile or someone else; (g) infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that does not belongs to you; (h) commercialize any T-Mobile application or any information or software associated with such application, except with the prior express permission of T-Mobile; (i) harvest or otherwise collect information about users without their consent; or (j) circumvent any technical measures we use to provide the Services.
- Other Businesses. Parties other than T-Mobile may provide services on or through the Vendor Services. In addition, we may provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their websites. We do not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. These providers may have additional terms and conditions that apply to your use of the T-Mobile IoT Marketplace, which you should carefully review.
- Vendor Expectations. T-Mobile expects you consistently to provide service that results in a high level of customer satisfaction. This includes setting and meeting customer expectations by providing excellent customer service from beginning to end. As a seller, you’re expected to: (a) Promptly resolve customer issues; (b) Ship items on time, within your specified handling time; (c) Manage inventory and keep items well stocked; (d) Follow through on your return policy; (e) Respond to customers’ questions promptly. You must act fairly at all times. Unfair behavior includes but is not limited to the following: (a) Behavior that could be deemed as manipulation or “gaming” of any part of the buying or selling experience; (b) Actions that could be perceived as manipulating customer reviews, including by directly or indirectly contributing false, misleading or inauthentic content; (c) Activities that could be perceived as attempting to manipulate search results or sales rankings; (d) Actions that intentionally damage another vendor, their listings or their ratings. T-Mobile may remove a vendor from the IoT Marketplace at any time and for any reason.
- Ratings. Vendor ratings allow customers to evaluate the overall performance of a vendor, which helps vendors to develop a reputation within the IoT Marketplace. You may not post abusive or inappropriate feedback or include personal information about a transaction partner. This also includes posting ratings or feedback to your own account. You may request feedback from a customer, however you may not pay or offer any incentive to a buyer for either providing or removing feedback.
- Reviews: Reviews are important to the T-Mobile IoT Marketplace, providing a forum for feedback about product and service details and reviewers’ experiences with products and services – positive or negative. To ensure that reviews remain helpful, sellers must comply with these Terms and Conditions. You may not offer compensation for a review, and you may not review your own products or your competitors’ products. You may ask buyers to write a review in a neutral manner, but you may not ask for positive reviews, ask for reviews only from buyers who had a positive experience, or ask a reviewer to change or remove their review.
- Revenue Share for T-Mobile IoT Marketplace Listings: This Agreement governs our revenue share with you. For all Products with non-recurring charges that you sell through the T-Mobile IoT Marketplace, T-Mobile will retain 10% of the purchase price. For any Products with a monthly recurring charge that you sell through the T-Mobile IoT Marketplace, T-Mobile will retain 40% of the purchase price.
- Product Images/Information: On an ongoing basis, all current Product information, including electronic images and any Product information or warnings required by law to be disclosed in any sale or advertisement of the Product (“Product Information”). Product Information also includes any Product information collected by us from your website, or otherwise made available to us by you (or by a third party at your direction). You grant us a non-exclusive, worldwide, perpetual, irrevocable and royalty-free license to: (a) use, copy, display, perform and distribute the Product Information on or in connection with any website or other online point of presence, mobile application, service or feature; (b) excerpt, reformat, adapt or otherwise create derivative works of the Product Information; (c) use all trademarks or trade names included in the Product Information; and (d) sublicense any of the foregoing rights to third parties in connection with our programs or services (for example, to advertise your Products). You represent that all Product information that you provide to us or that we obtain through your website is owned by you.
- Representations, Warranties, and Covenants: You represent, warrant and covenant that: (a) the Products are genuine and free from defects; (b) all materials and other items incorporated into the Products are new (not refurbished or reconditioned), unless you have received our prior written consent otherwise; (c) the Product Information and Product packaging and labeling is true, accurate and complete, and the Products, Product packaging, and our exercise of our license rights in this Agreement will not violate any third party’s rights; (d) you will comply with all applicable laws and rules relating to the Products (including obtaining and maintaining any permits or licenses required to manufacture, distribute, sell, or otherwise deal in any Product), and the Products, Product Information, Product packaging, labeling, and import documentation (if applicable) will comply with all applicable laws and rules; (e) the Products may be lawfully marketed, stored, sold, distributed, and disposed of without restriction (e.g., no required disclosures, licenses, or registrations) other than any specific restrictions or prohibitions you disclose; (f) no Product is, or contains ingredients that are, regulated as a controlled drug or substance, or is listed as a regulated chemical; (g) no Products will be provided in the marketplace that are regulated as a hazardous or dangerous product or material, except as expressly permitted under applicable Program Policies or you disclose to us and we consent to in writing in advance of shipment ; and (h) the Products were produced, manufactured, assembled, and packaged in compliance with all applicable labor, wage, and hour laws and rules (including the U.S. Fair Labor Standards Act, if applicable), and no Products were produced, manufactured, assembled, or packaged by forced, prison or child labor (defined as age 15 or the minimum working age within the applicable jurisdiction, whichever is older).
- Product Returns; Effect of Remedies; Product Recalls: T-Mobile or its agents may return or dispose of at your expense, and you will accept and reimburse us for any Product that (a) is damaged or defective, (b) does not conform to agreed specifications or to samples, (c) is subject to recall, or (d) does not comply with this Agreement. Title and risk of loss for all products returned under this Agreement will pass to you upon delivery by us to the carrier at your expense. Payment of an invoice does not limit our remedies. You will provide us and T-Mobile IoT Marketplace customers with immediate written notice of any recall. You are responsible for costs we incur in a recall and for providing any required notices, information and documents to applicable authorities or that are otherwise necessary for carrying out the product recall.
- Vendor Defense and Indemnification: You will defend, indemnify and hold harmless T-Mobile, its affiliated companies, and their respective officers, directors, employees, and agents (the “T-Mobile Parties”) against any third party claim, liability, loss, damage, cost or expense (including reasonable legal fees) (each, a “Claim”, and collectively, the “Claims”) incurred by any T-Mobile Party arising from or relating to: (a) any death of or injury to any person, damage to any property or any other damage or loss due to any defect in or use of any Product; (b) any Product recall; (c) any infringement or misappropriation of any proprietary right by any Product, Product Information, or other content you provide to us; (d) your negligence or intentional misconduct; (e) your breach of this Agreement; (f) any Product-related issue for which you or we are strictly liable; or (g) your failure to state accurate Product descriptions, adequate warnings, or instructions. However, with respect to the foregoing indemnity obligations, you will not be obligated to indemnify T-Mobile Parties to the proportional extent the liability for a Claim is caused by the negligence or intentional misconduct of that T-Mobile Party as determined by a final, non-appealable order of a court having jurisdiction. You will not consent to the entry of a judgment or settle any Claim without the T-Mobile Parties’ prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to the T-Mobile Parties, and the T-Mobile Parties will cooperate in the defense at your expense. If any T-Mobile Party reasonably determines that any Claim might have an adverse effect, that T-Mobile Party may take control of the defense at its expense (without limiting your indemnification obligations). Your obligations under this Section 5 are independent of your other obligations under this Agreement.
- Limitation of Liability: NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS (INCLUDING LOST REVENUE AND LOSS OF BUSINESS OPPORTUNITY, AND REGARDLESS OF THE THEORY FOR RECOVERY), OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, EXCEPT FOR THOSE ARISING IN CONNECTION WITH YOUR DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
- Shipping: We will collect payment of $11.95 USD for shipping on your behalf when the Product is sold, which we will then reimburse at the same time that we provide payment for the Product. You will indemnify us for all shipping-related claims in compliance with Section 10. You will be the importer or exporter of record, as applicable, on all cross-border transfers, returns, and other shipments of Products between you and us, will not list us as the importer or exporter on any import, export or other customs documentation, and will ensure that all cross-border transfers, Product returns and other shipments comply with all import, export and other applicable laws and regulations. Under no circumstances will we be the exporter of record for cross-border shipments of Products from you to us. As the importer and exporter of record, you will be responsible for payment of any taxes, duties or fees. If we expressly agree to act as the importer or exporter of record, you will prepare and submit all documents required to export Products or to bring, distribute, and sell those Products in the destination country, and you will pay any additional fees or charges due to insufficient or incorrect documentation. We will incur no liability arising from any assistance we provide in preparing any documentation or otherwise.
- Insurance: You will obtain and maintain, at your expense, commercial general liability insurance coverage (which must include products liability coverage) of at least $1 million USD per occurrence and $5 million USD aggregate. Technology/Miscellaneous Errors & Omissions with privacy coverage endorsement with minimum limits of $5,000,000 Each Claim to include liability for Supplier or Suppliers employees/subcontractors. You must maintain your insurance coverage for 2 (two) years after the expiration or termination of this Agreement. Your required minimum limits of insurance may be satisfied by any combination of primary and excess/umbrella liability insurance policies. You will include “T-Mobile and its affiliates and their respective officers, directors, employees and agents” as additional insureds on each insurance policy. Each of these policy coverages will be on a primary basis with any insurance maintained by us, and our insurance shall be excess of all insurance maintained by you. You will provide us with 30 days’ advance notice of cancellation or expiration of each policy. Within 30 days after the effective date of this Agreement (and at each policy renewal thereafter), you will provide a certificate of insurance and a copy of any applicable endorsement evidencing our additional insured status for each insurance policy required by this Section to IoTFactoryInsurance@sprint.com. Our approval of your insurance does not relieve you of any obligations, including but not limited to your defense and indemnity obligations, even for claims over your policy limits. If you fail to perform any of your insurance obligations, we may withhold payments owed to you until you meet these obligations.
- Taxes: We will charge taxes for your Products on your behalf. We will collect taxes and revert them back to you for your own tax remittance. You will indemnify us for any taxation errors, in compliance with Section 10.
- Guaranties. If you provide any Product to us that is subject to the requirements of the U.S. Federal Food, Drug and Cosmetic Act, then you provide to us the following continuing guaranty: All food, drug, medical device and cosmetic Products comprising each shipment or other delivery previously or hereafter made by or on behalf of you to or in the order of us are hereby guaranteed, as of the date of such shipment or delivery, to be, on such date, not adulterated or misbranded within the meaning of the U.S. Federal Food, Drug, and Cosmetic Act (“FFDCA”), and not an article which may not, under the provisions of section 404, 505, or 512 of the FFDCA, be introduced into interstate commerce.
- Confidential Information; Publicity: You will, and will cause your affiliates and employees to, (a) protect and not disclose information that is identified as confidential or that reasonably should be considered confidential to us; (b) use this information only to fulfill your obligations under this Agreement; and (c) promptly return to us or destroy this information when this Agreement terminates. This Section 9 covers all confidential information regardless of when you receive it. You will not, without our prior written agreement, use any trademark, service mark, commercial symbol, or other proprietary right of T-Mobile, issue press releases or other publicity relating to Amazon or this Agreement, or refer to T-Mobile in promotional materials. If we authorize you to use any of our trademarks, you will comply with any Program Policies related to such use, including any trademark guidelines.
- Choice of Law; Dispute Resolution: This Agreement is governed by the U.S. Arbitration Act, applicable U.S. federal law, and New York state law, without reference to any applicable conflict of laws rules, the Convention on Contracts for the International Sale of Goods, or any local laws implementing the Convention on Contracts for the International Sale of Goods in any jurisdiction where the Products are sold. Any dispute arising out of this Agreement will be resolved by binding arbitration, rather than in court. For disputes related to Products or Services provided (A) in the United States, the arbitration will be administered by AAA in accordance with its Commercial Arbitration Rules, governed by the United States Arbitration Act, 9 U.S.C. Sec. 1, et seq., and (B) outside of the United States, the arbitration will be conducted pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The parties agree that (1) all arbitration proceedings will be conducted in the English language, (2) each party waives any right to seek, participate in or file a claim as a class action, or proceed as lead claimant or in a representative capacity and will not join additional parties, (3) the arbitrator will have no authority to award damages beyond actual damages, (4) the arbitration will be conducted by a single attorney arbitrator who has substantial experience and knowledge in telecommunications and commercial contracts, (5) discovery will be limited to the reasonable exchange of relevant documents and will not include other forms of discovery requests or electronic collection protocols or depositions, with the exception that if the arbitrator determines that depositions are appropriate, the number will not exceed three per party, including a corporate representative deposition, and each deposition is limited to five hours, (6) any award rendered by the arbitrator will be accompanied by a reasoned opinion and entered in any court having jurisdiction, and (7) the parties will allocate all arbitration costs equally although each party will be responsible for its own attorney fees and costs. If for any reason a claim proceeds in court rather than in arbitration you and we each waive any right to a jury trial.
- Other: Either party may terminate this Agreement at any time without any prior notice. Regardless of any termination, you will fulfill all open orders from the T-Mobile IoT Marketplace you accept before the effective date of termination. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including representations, warranties, the Product Information license, indemnification, insurance, confidentiality, payment obligations, choice of law and jurisdiction, and remedies) will survive termination. You will not assign this Agreement, or any obligation or right (including any right to payment) in the Agreement, without our prior written consent. The parties’ rights and remedies under this Agreement are cumulative. Either party’s failure to enforce any provision will not be a waiver of the party’s rights to subsequently enforce the provision. If any provision is held to be invalid, then that provision will be modified to the extent necessary to make it enforceable, and any invalidity will not affect the remaining provisions. This Agreement incorporates, and you will, and the Products you sell to us will, comply with, the terms, conditions, policies, guidelines, rules and other information (“Program Policies”) on this website, and any other funding agreement, including any updates to such Program Policies or funding agreements from time to time. To the extent there is a conflict between this Agreement, the Program Policies, the conflict will be resolved by giving precedence in the order specified in such documents, or if not specified, the following order: this Agreement, the Program Policies, the applicable funding agreement. You may use standard business forms or other communications (such as invoices, confirmations or shipping documents), but use of these forms is for convenience only and will not alter or supersede the provisions of this Agreement, any of our Program Policies, funding agreements, Email we send to any email address you have on file with us or that you have otherwise designated will constitute notice from T-Mobile. This Agreement, including the Program Policies and any funding agreement(s), is the entire agreement between T-Mobile and Vendor for the purchase and sale of Products, and supersedes all prior agreements and discussions. The parties expressly agree that this English language version of this Agreement (including all Program Policies, funding agreements, and additional terms incorporated by reference or otherwise relating to this Agreement) is definitive and that in the event of any dispute or controversy as to the proper interpretation and construction of this Agreement, the English version will prevail. Any versions provided in other languages are for reference purposes only.
- Revisions; Continued Use: We reserve the right to change any of the terms and conditions contained in this Agreement, including any Program Policies incorporated herein, at any time and in our sole discretion. Any changes will be effective upon the earlier to occur of: (a) emailing the revised terms and conditions or Program Policies, or notice of such changes, to you at your e-mail address; or (b) posting the revised terms, conditions or Program Policies on this website. You are responsible for reviewing any revised terms, conditions, policies, guidelines, and information, and any notices of revisions. YOUR CONTINUED ACCEPTANCE OF PURCHASE ORDERS OR CONTINUED USE OF THIS WEBSITE FOLLOWING OUR POSTING OF ANY REVISED TERMS, CONDITIONS, OR PROGRAM POLICIES, OR ANY NOTICE OF ANY SUCH REVISIONS, WILL CONSTITUTE YOUR ACCEPTANCE OF THE REVISIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT OR THE PROGRAM POLICIES, YOU MUST STOP ACCEPTING PURCHASE ORDERS AND STOP USING THIS WEBSITE.