WISH LOCAL PARTICIPANT TERMS AND CONDITIONS

These Wish Local Participant Terms and Conditions are effective July 31, 2020. To view the previous terms click here.

Effective Date: July 31, 2020

These Wish Local Participant Terms and Conditions (the “Terms and Conditions” or “Agreement”) govern use of the Service (as defined below). By registering and/or participating in the Service in any manner, including without limitation, by creating an account, using the Application (as defined below) or accepting or distributing products from Wish US Holdings LLC as defined herein (“Wish” or “we” or “us”), or its merchants and you (“Participant” or “you”), you accept and agree to be bound by these Terms and Conditions, including those additional terms and conditions, policies and guidelines referenced herein and/or published or made available by Wish. If you have a merchant account, your use of the Services is also governed by the Merchant Terms of Service and Agreement (“Merchant Terms”). If there is a conflict between the Merchant Terms and these Terms and Conditions as it relates to Participant acting as a Merchant, the Merchant Terms shall control to the extent of the conflict.

The Application Terms of Use are hereby incorporated by reference and shall apply to Participant’s use of the Application. If there is a conflict between these Terms and Conditions and the Application Terms of Use, these Terms and Conditions shall control. In addition, you must abide by Wish's policies and guidelines stated in these Terms and Conditions and the Wish policy and guideline documents listed below (which are incorporated into these Terms and Conditions by reference), each of which, in addition to these Terms and Conditions, may be updated by Wish from time to time in its sole discretion without notice to you:

Wish's Services are available only to, and may only be used by, individuals who are at least 18 years and who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. Wish may, in its sole discretion, refuse to offer access to or use of the Service to any person or entity or change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Application and/or Service is revoked in such jurisdictions. Wish reserves the right, to the extent permitted by applicable laws and to the extent available, to conduct background checks verifying Participant eligibility to participate in the Service.

4.1. General.

As further specified on the Application at the time the Participant agrees to receive and distribute certain Products, Participant shall: (i) timely check-in, process and store such Products after receiving the Products from Wish, Wish Merchants and/or carriers as instructed on the Application and in these Terms and Conditions (including Wish's policies and/or guidelines incorporated herein by reference); (ii) distribute such Products and/or Participant Inventory to the applicable Wish end customers as instructed on the Application and in these Terms and Conditions (including Wish's policies and/or guidelines incorporated herein by reference), and (iii) perform such other services relating to the foregoing activities as set forth on the Application and in these Terms and Conditions (including Wish's policies and/or guidelines incorporated herein by reference) or otherwise reasonably requested by Wish (collectively, “Product Distribution Services”). Wish reserves the right, in Wish's sole discretion, to cancel unconfirmed or inactive Participant accounts and/or to refuse to offer the Application and/or Service to you, for any (or no) reason and at any time.

4.2. Title to Products; Product Loss.

Except in the case of Participant Inventory: a) title to the Products shall not pass to Participant under any circumstances; and b) Participant shall not claim any rights of ownership in any Product and shall not lease, transfer or otherwise dispose of any Products except as expressly permitted under these Terms and Conditions. Participant shall be responsible for all Products that are lost or damaged at any time after delivery to Participant and prior to receipt by the applicable Wish end customer (or transfer pursuant to Section 4.4 below, as the case may be). Wish may, in its discretion, offset the cost of replacement or reimbursement for any such lost or damaged Products against any amounts payable to Participant. Notwithstanding the above, if Participant owns and has title to its own product inventory (i.e., any inventory that is not owned by Wish or Merchant Inventory), Participant retains all title to said product inventory.

4.3. Location; Storage; Security.

All Products shall be stored in Participant’s applicable facility designated on the Application (the “Participant Location”). Participant shall use commercially reasonable safety and security practices designed to safeguard any areas where Products will be stored and/or handled and/or where Wish users will visit to pick up items, including, where appropriate, physical, technical and administrative (i.e. policies and procedures) measures. Wish and/or its authorized representatives, shall have the right, and if permitted by applicable law, at any time during normal business hours and upon reasonable prior notice to Participant, to inspect the Participant Location.

4.4. Transfer of Products.

If requested by Wish, and in accordance with Wish’s instructions, Participant shall ship requested amounts of Product(s) to any location designated by Wish. Wish shall pay or reimburse Participant for the direct and verified out-of-pocket shipping costs of such transfer if Wish does not instruct Participant to use Wish’s shipping account.

5.1. Payment.

Wish shall pay Participant as noted within the Participant’s Wish account or the terms of any other agreement the Participant may have with Wish. This information is available to the Participant in the Participant’s Wish Local account under Account>Legal in the Application, Participant’s Wish account or as otherwise communicated to you by Wish, for Participant’s satisfactory performance of the services required under these Terms and Conditions.

Payment by Wish to Participant is considered made and complete upon transmission by Wish, of the payment amount owed to Participant, to the payment method Participant has selected (e.g., PayPal, or others as may be added or removed from the Application from time to time) irrespective of Participant’s receipt of payment from the payment provider or processor. Each payment provider or processor may have its own terms of use or other legal requirements, and Wish does not guarantee and is not responsible for any services provided by such payment provider or processor (including, without limitation, any remittance of payment, security protocols or obligations to Participant, accurate and timely disbursal of payments to Participant, non-availability of services, etc., of such payment provider or processor). Risk of loss and nonpayment from the payment provider or processor remains with Participant.

If Wish determines that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Wish or third parties, then Wish may in its sole discretion charge fees or withhold any payments to you for as long as Wish determines any related risks to Wish or third parties persist.

In addition to the above, Wish may unilaterally elect to delay the remittance and withhold the amounts payable to Participant or any other payment due under the terms of this Agreement, until such time as Wish receives confirmation of Product delivery. Transactions for which Wish cannot confirm delivery of Products or Participant Inventory may be ineligible for payment.

5.2. Taxes.

Participant will determine in its sole discretion the amount of any indirect tax due by Wish in connection with this Agreement.

Participant will be solely responsible for the remittance to the proper taxing authorities of all indirect tax or similar taxes due, if any, with respect to this agreement. All Participant invoices must be received within ninety (90) days after the Participant services are performed for this provision to be valid. Wish will not be responsible for any indirect tax levied against the Participant unless such invoice is received by Wish within such ninety (90) day period. Participant will include any such indirect tax as a separate line item on Participant invoice.

Participant will be solely liable for, and will indemnify and hold Wish harmless against, all indirect tax liability (including interest, penalties, and costs and expenses, including without limitation reasonable attorneys’ fees) assessed on the Participant related to this Agreement.

5.3. Fees.

For any amounts that we determine you owe us, we may (a) charge your account or any payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to you; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to violate our policies, then we may in our sole discretion permanently withhold any payments to you. In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Wish or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable policies, may result in their forfeiture.

This Agreement may be terminated: (i) by either Party in the event of the other Party’s material breach if such breach is not cured within ten (10) days after terminating Party’s written notice to the breaching Party; (ii) by Participant, for any reason (or no reason at all), by thirty (30) days’ advance written notice to Wish; and (iii) By Wish, for any reason (or no reason at all), by written notice to Participant.

Upon the termination of this Agreement by either Party pursuant to Section 9 and in no event later than sixty (60) days after the date of written notice of termination by either Party, Participant shall: (i) immediately return to Wish, or securely destroy as directed by Wish, all materials containing or referencing Wish Confidential Information; (ii) submit to a physical inspection of Participant’s inventory of Products (if requested by Wish); and (iii) reasonably cooperate in the orderly “wind-down” of this Agreement, including but not limited to, the transition and transportation of Products in inventory to another location designated by Wish and the completion of customer orders in effect through the Application and/or Service placed prior to the date of termination (“Transition Period”). If this Agreement is terminated by Wish pursuant to Section 9(i), Participant shall bear the expense of transferring any transporting Products in inventory. If this Agreement is terminated by Wish pursuant to Section 9(ii), Wish shall bear the expense of transferring any Products in inventory.

Any customer orders in effect through the Application and/or Service prior to termination shall not be affected by termination and will continue to be governed by the terms of this Agreement.

Without limiting any other rights or remedies, Wish may (without notice to Participant and without refunding any fees or payments to Participant): issue a warning to Participant, warn Wish's community of Participant’s actions, temporarily or indefinitely restrict or prohibit Participant’s access to the Service, temporarily or indefinitely suspend, freeze or terminate Participant’s account(s), issue penalties or fines against Participant, cause payments due to Participant to be withheld or forfeited, take any other actions as may be required by law, and/or take technical and legal steps to keep Participant off the Application and from participating in the Service if: 1) Participant breaches these Terms and Conditions (including, without limitation, any terms, policies or guidelines incorporated herein); 2) Wish is unable to verify or authenticate any of Participant’s personal information; 3) Wish believes that Participant is acting inconsistently with the letter or spirit of Wish's policies; and/or 4) Wish believes Participant has engaged in improper or fraudulent activity in connection with Wish, or Participant’s actions may cause legal liability or financial loss to Wish or Wish’s Merchants using the Application and/or Service.

Wish hereby agrees to defend, indemnify and hold harmless Participant and its respective affiliates, and their respective directors, officers, employees, and agents from and against any and all third party claims (each, a “Claim”) brought against Participant to the extent that the Claim arises from: (a) allegations that Wish’s Application infringes or misappropriates a third party’s intellectual property rights; (b) product liability directly resulting from any defect in a Product; or (c) an allegation that a Product violates the intellectual property rights of such third party, provided that, subsections 9(b) and 9(c) herein apply only to the extent such Claim directly arises from Wish-owned products or inventory. Wish’s indemnification obligations herein shall not apply to Participant Inventory or Merchant Inventory.

Participant hereby agrees to defend, indemnify and hold harmless Wish and its respective affiliates, and their respective directors, officers, employees, and agents from and against any Claim arising out of or resulting from: (a) Participant’s negligence; (b) any personal injury, death or property damage (to the extent the injury or death or property damage is not caused by Wish); (c) Participant’s taxes; or (d) Participant’s or willful misconduct.

The foregoing indemnification obligations shall only apply if the indemnifying party is promptly notified of the applicable Claims (provided the failure to promptly notify shall only relieve the indemnifying party of its obligations to the extent it can demonstrate material prejudice from such failure) and is given reasonable assistance and sole control over defense and settlement of the applicable Claims. Notwithstanding the above, Participant may not consent to the entry of any judgment or enter into any settlement of Claims on behalf of Wish without Wish’s prior written consent.

Participant shall, throughout the term of this Agreement and at its own cost and expense, maintain insurance to cover Participant’s indemnity obligations pursuant to this Agreement and specifically covering third-party claims. Failure of Wish to obtain a Certificate of Insurance from Participant will not relieve the Participant of its insurance obligations.

Participant shall, upon request by Wish, assist in conducting any product recall involving or relating to the Products (including, without limitation, by accepting and returning Products to a site designated by Wish or a responsible third party). Wish shall pay or reimburse Participant for its reasonable, verifiable out-of-pocket return shipping or pick-up costs (as selected at Wish’s option) for affected Products directly resulting from such assistance requested by Wish.

Participant agrees that, in part to protect the security and value of the confidential information and trade secrets of Wish that has been and is being disclosed to Participant, during the term of this Agreement and Participant’s use of the Service, and for the Transition Period set forth in Section 7 herein, Participant will not render any services for, or otherwise endorse, any e-commerce platform which offers products or services competitive with Wish.

Participant understands and agrees that during the Term it may be furnished with or otherwise have access to information, whether disclosed in writing, orally or by other means, that Wish considers to be confidential, including but not limited to business, financial and technical information, plans, software, systems, reports, forecasts, prices, trade secrets, processes and know-how, whether tangible or intangible (the “Confidential Information”). The Confidential Information includes, without limitation, any data and information relating to Wish’s Merchants or customers. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is or becomes generally publicly available through no act or omission of Participant; or (ii) Participant rightfully obtains from third parties without restriction. Participant agrees to: (i) use the Confidential Information only for the purpose of performing its obligations hereunder; and (ii) secure, protect and maintain the confidentiality of the Confidential Information using at least as great a degree of care as it uses to maintain the confidentiality of its own most confidential information, but in no event less than reasonable care. Participant shall not reproduce Confidential Information except as necessary in furtherance of the purpose of these Terms and Conditions. Participant shall not communicate with any of Wish’s Merchants. Participant may release Confidential Information required to be disclosed by law only pursuant to a duly authorized subpoena, court order or government authority and provided that Participant notifies Wish prior to disclosure (if legally permissible) and allows Wish the opportunity to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure, and to the extent Participant is then required to disclose any such Confidential Information, it shall limit its disclosure thereof to the greatest extent possible under the circumstances.

Participant must comply with all applicable anti-corruption laws and regulations concerning bribery, money laundering, corruption, terrorist financing, and financial recordkeeping (including but not limited to, the United States Foreign Corrupt Practices Act and the United Kingdom Bribery Act). Participant must not offer, promise, give, or accept a bribe or anything of value, either directly or indirectly, to government officials to encourage them to act improperly or to reward them for doing so, or obtain or provide undue or improper advantages to anyone for any reason. Participant agrees to comply with all export, import, and trade control laws, regulations and orders applicable to the export, re-export, transfer, import, sale or use of Products.

EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, NEITHER PARTY MAKES (AND HEREBY DISCLAIMS) ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WISH BE LIABLE TO PARTICIPANT IN CONNECTION WITH THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OR THEORY OF ACTION, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER SIMILAR DAMAGES, HOWEVER CAUSED, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. FURTHER, WISH’S AGGREGATE LIABILITY SHALL NOT EXCEED THE PAYMENTS WISH PAID TO PARTICIPANT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION OR CLAIM AROSE.

Participant may not use Wish’s name, trademarks, or logos (the “Wish Marks”) without Wish’s prior written consent. If Wish approves Participant’s use of the Wish Marks, Participant shall (a) only use the Wish Marks in accordance with any quality standards and usage guidelines, as may be prescribed by Wish from time to time, and (b) immediately cease all use of the Wish Marks when requested by Wish. Without limiting the foregoing, Participant may not use the Wish Marks in any manner or in connection with any products or services that are (i) misleading, defamatory, libelous, obscene, vulgar, profane, scandalous, or otherwise objectionable; (ii) used in connection with any material that infringes the rights of any third party, including without limitation intellectual property rights; or (iii) offered by any company other than Wish.

Participant grants Wish a worldwide royalty-free, perpetual, non-exclusive, sublicensable, transferable, license to use, publish, display, reproduce, save, modify, create derivative works of, perform, distribute, or translate any images, pictures, text, logos, business name, or other materials, including without limitation Participant’s name, image, or likeness, created, developed, or used by Participant in connection with Participant’s use of the Application or Service, in any medium or format, for promotional, advertising, or other purposes (including for use in social media posts, communications, or videos).

Wish may offer referral programs and may allow you to participate in such referral programs. You acknowledge and agree that Wish may terminate referral programs or your participation in a referral program at any time and that your participation will be governed by the Wish Referral Program Terms and/or Wish Local Referral Program Terms of Use, as applicable.

From time to time, Wish may, in its sole discretion, invite you to participate in a pilot or trial program or to use beta features that are in development and not yet available to all Wish Local Participants (“Beta Programs”). Beta Programs may be subject to additional terms and conditions, which Wish will provide to you prior to your use of the Beta Programs. Such Beta Programs and all communications or materials (oral or written) relating to Beta Programs will be considered Wish Confidential Information and subject to the confidentiality provisions in these Terms and Conditions. You agree that you will not make any public statements or disclose your participation in any of the Beta Programs without Wish’s prior written consent. Wish makes no representations or warranties regarding the Beta Programs. Wish may change, cancel or discontinue the Beta Programs at any time, in Wish’s sole discretion. To the extent permitted by applicable law, Wish will have no liability for any harm or damage arising out of or in connection with a Beta Program.

Participant shall perform any and all services under these Terms and Conditions as an independent contractor. Nothing in these Terms and Conditions shall be construed to express or imply a joint venture, partnership, principal/agent, affiliate, fiduciary or employer/employee relationship between Wish and Participant.

These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). Any dispute, claim or controversy arising from or relating to the subject matter of these Terms and Conditions shall be finally settled by binding arbitration in San Francisco, California before one commercial arbitrator with substantial experience in resolving commercial contract disputes, in accordance with the JAMS’s Comprehensive Arbitration Rules and Procedures then in effect and currently available at http://www.jamsadr.com/rules-comprehensive-arbitration/ unless the amount of claim as specified by the claimant in the arbitration does not exceed $250,000 (in which case the JAMS Streamlined Arbitration Rules and Procedures then in effect and currently available at http://www.jamsadr.com/rules-streamlined-arbitration/ shall apply). Notwithstanding the foregoing, each party shall have the right to pursue injunctive or other equitable relief from any court of competent jurisdiction at any time. The JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. The arbitration will be conducted in English and shall be the exclusive forum for resolving such dispute. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. In any dispute, the prevailing party will be entitled to recover costs and attorneys’ fees.

You agree to receive communications from Wish electronically, such as emails, texts, mobile push notices, or notices and message on the Application and/or as part of the Service, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Wish provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.”

Wish may unilaterally change these Terms and Conditions (or any policy or guideline published by Wish) at any time and in our sole discretion. If Wish does so, it will attempt to bring such change to the attention of Participant by sending such party an email, placing a notice on the Application, in any policy or other document, or by some other means made available to you. You are responsible for reviewing these locations and informing yourself of all applicable modifications, changes or notices. Any such change or modification will be effective upon the posting of a new set of terms on or within our Application, in any policy or other document, or by some other means made available to you (which we may do with or without notice to you) and will apply to all Products or Participant Inventory arranged to be shipped after such posting. Except as set forth in this Section 25, no changes or modifications or waivers are to be made to these Terms and Conditions unless evidenced in writing and signed for and on behalf of both parties.

Participant agrees to comply with all applicable laws and regulations. Participant may not assign its rights or obligations under these Terms and Conditions without the consent of Wish. Wish may freely assign its rights and/or obligation under these Terms and Conditions. The failure of either party to enforce its rights under these Terms and Conditions shall not be construed as a waiver of such rights. These Terms and Conditions supersede all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of these Terms and Conditions and all past dealing or industry custom. In the event that any provision of these Terms and Conditions shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect and enforceable. Sections 1-3, 5-10, 12-13, 15-18, 22, and 24-25 will survive the termination or expiration of these Terms and Conditions. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party. Headings and captions are for convenience only and are not to be used in interpretation of these Terms and Conditions. If Wish has posted or provided a translation of the English language version of these Terms and Conditions, or any other terms or policy incorporated herein, you agree that the translation is provided for convenience only and that the English language version controls and will govern your uses of the Application and the Service.