1. About this Agreement
Please read this Agreement carefully. By clicking on the “Create Account” button during the Account registration process, completing a transaction using the Platform, browsing FileMarket.com, and/or downloading FileMarket’s mobile application(s), you represent that (1) you have read, understand, and agree to be bound by this Agreement; (2) you are of legal age to form a binding contract with FileMarket; and (3) you have the authority to enter into this Agreement as yourself or on behalf of a Principal (as defined in Section 3.1.1) and to bind such Principal to this Agreement. If you do not agree with the terms of this Agreement, please do not use the Platform any further.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Agreement available on or through this site. Except as stated elsewhere or as required by law, court order, or otherwise (in which case, all amended terms shall be effective immediately and your continued use of the Platform signifies and will be deemed your assent to and acceptance of the revised Agreement), all amended terms shall automatically be effective thirty (30) days after they are initially posted. When FileMarket amends this Agreement, FileMarket will make reasonable efforts to provide you with general, not specific, notice of such changes by posting an announcement at on its site, and/or notifying you through electronic mail/delivery. Such announcement shall be maintained for no less than thirty (30) days following the effective date of such amendment. If you do not agree with the amended terms and, accordingly, the Agreement, please do not use the Platform any further. Nonetheless, we suggest that you regularly check this site to view the then-current Agreement. This Agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, a “writing” does not include an email message and a signature does not include an electronic signature.
2. Grant of License to Use the Platform
FileMarket grants you, and you accept, a non-exclusive, personal, non-transferable limited license to access and use the Platform, subject to your full compliance with the terms and conditions of this Agreement.
3. Account Creation and Management
3.1 General Account Creation. Certain features and functionalities of the Platform may require you to create a FileMarket account (the “Account”). In establishing an Account, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see below) and to update such information as necessary to maintain its truth and accuracy.
3.1.1 Registration on Behalf of Principal. In the event you create an Account as an agent acting on behalf of a business, employer or third party because, you represent and warrant that you have the authority to do so (e.g., you are an authorized employee or agent (collectively, the “Agent”) of such business, employer or third party (collectively, the “Principal”). In creating an Account on behalf of a Principal, you (as Agent) agree to provide such Principal’s full legal name and any applicable fictitious business name(s) (including the proper trade names or “doing business as” names). In all such cases where an Agent creates and/or uses an Account for the Principal, the Agent agrees and acknowledges that he/she undertakes all such activities on behalf of the Principal, and that the Principal shall be the party to this Agreement for all purposes, regardless of whether the Agent had the proper authority to create the Account, maintained the Account, and/or transferred the Account to another Agent. Accordingly, only the Principal is entitled to any rights, remedies or benefits under this Agreement and only the Principal may control or direct the Account and all information related thereto; the Agent does not acquire or retain any personal rights with respect to such Account. The Principal is likewise subject to all of the covenants, restrictions, limitations, representations, warranties, waivers and releases included in this Agreement.
Furthermore, you hereby represent and warrant that you (as the Agent): (i) may be held liable by and to FileMarket for any misrepresentation made by you in connection with your registration for and use of the Account; (ii) may be held liable by and to the Principal; and (iii) may be held liable by law enforcement, governmental authority or court order. You (as Agent) agreement to indemnify, defend, and hold harmless FileMarket for any breach of the representations, warranties, and covenants contained in this Section 3 in accordance with Section 15 (Indemnification) of this Agreement.
3.2 Account Management. Ultimately, the Principal is responsible for all activities that occur under the Account, including, but not limited to, Account and password management, and neither Principal nor Agent will agree to sell, transfer or assign the Account or any Account related rights without the express written consent of FileMarket. You are also responsible for maintaining the privacy and security of your network settings and systems to ensure that all sensitive or confidential information originating from your systems is properly transmitted and handled.
3.3 Stripe Connected Account Agreement. Some payment processing services made available through the Platform to certain Users are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Service Agreement”). By agreeing to this Agreement, you also agree, to the extent applicable, to be bound by the Stripe Services Agreement (which may be modified from time to time by Stripe). As a condition of FileMarket enabling payment processing services through Stripe, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see above) and to update such information as necessary to maintain its truth and accuracy. You also authorize FileMarket to share such information and other transaction information related to your use of the payment processing services provided by Stripe.
4. FileMarket Services
Upon creation of an Account, FileMarket will provide you access to the FileMarket Supplier service and/or, if applicable, the FileMarket Sub-merchant service (please see below).
4.1 FileMarket Supplier. The FileMarket Supplier service allows you to promote, market or advertise (“Promote”) your Digital Goods and sell, distribute or provide (“Deliver”) such Digital Goods to a third party purchaser (a “Buyer”).
4.2 FileMarket Sub-merchant. The FileMarket Sub-merchant service allows you to Promote and Deliver your Digital Goods (at a higher combined amount within a calendar year than would be allowed under the FileMarket Supplier service) and/or Physical Products of any value to a Buyer. The FileMarket Sub-merchant service is only available in the fifty United States or to taxable United States entities at this time, and is subject to approval by FileMarket’s payment processor(s).
4.3 FileMarket Affiliate Program. You may voluntarily participate in the FileMarket Affiliate Program (the "Affiliate Program"), which allows an eligible affiliate who is bound by the Terms and Conditions of the Affiliate Program (each, an "Affiliate") to earn financial compensation (each, a "Payout") for selling your Digital Good to a Buyer originating from Links published on a Sourced Webpage (with each such resulting sale, a "Transaction"). "Links" means embedded graphics, icons, text, or HTML code provided by FileMarket that contains a unique hypertext pointed to a Universal Resource Locator (URL) address to your Digital Good that allows FileMarket to identify the Affiliate as the source of a Transaction. A "Sourced Webpage" means FileMarket's website, the Affiliate's website, or third party websites on which the Links are published. For each successful Transaction, the Affiliate would then receive a fee equivalent to: the Retail Price of the Digital Good multiplied by the affiliate percentage (the "Payout Rate") you determine for such Digital Good at the moment the Transaction is completed (the resulting amount, the "Affiliate Fee"). By way of example, if a Digital Good is sold at $10 Retail Price through a Transaction, and the Payout Rate is set to ten percent (10%), the Affiliate Fee would be equivalent to $10 multiplied by 10% = $1.
With respect to the FileMarket Supplier, FileMarket Sub-merchant service, or FileMarket Affiliate Program, FileMarket may require, and you agree to promptly furnish, additional information from you, including, but not limited to, tax identification number, social security number, identity verification, taxpayer information, or other information as the case may be. Failure to promptly provide such additional information to FileMarket may result in Account suspension and/or termination pursuant to Section 8.
All Physical Products (and Digital Goods to the extent such Digital Goods are deemed to be "goods," as defined in California Commercial Code §2105) are subject to California Commercial Code §2401(2) and Uniform Commercial Code §2401(2) with respect to the transfer of ownership of goods between the Buyer and you, unless the Buyer and you agree otherwise.
5. Fees, Balance Redemption, Taxes, and Conversion
5.1 Fees. FileMarket does not assess or collect “listing” or “insertion” fees, but will assess and collect a per transaction fee (the “FileMarket Fee”) equivalent to or greater than: 3.5% multiplied by the sum of (the Retail Price plus applicable shipping and handling fees), plus $0.25 USD.
The details of the fees with respect to Digital Goods and Physical Products are as follows:
5.1.1 Digital Goods. With respect to your Digital Goods, you may upload a digital file (including, but not limited to, .mp3, .pdf, .png, .jpeg files) to the Platform and Promote the Digital Good at a retail price determined by you, in your sole and absolute discretion (the “Retail Price”). Upon receiving a Buyer’s offer to purchase the Digital Good, FileMarket will immediately undertake technological efforts to digitally duplicate the Digital Good (with the result, the “Digital Duplicate”) and purchase such Digital Duplicate from you at a price equivalent to the Retail Price minus the FileMarket Fee minus the Affiliate Fee (see above) (the resulting amount, the “Wholesale Price”). The Wholesale Price will be paid to you and accumulate as part of your balance (the “Balance”). Upon purchase of the Digital Duplicate from you, FileMarket takes legal custody of the Digital Duplicate and agrees to sell the Digital Duplicate to the Buyer at the Retail Price plus any applicable Value Added Tax that may be required (see Section 5.3).
5.1.2 Physical Products. With respect to Physical Products, you may upload a listing of a physical good to the Platform and Promote the Physical Product at a Retail Price. Upon receiving a Buyer’s offer to purchase the Physical Product and the consummation of the sale of Physical Product to a Buyer, FileMarket will immediately determine and collect the appropriate FileMarket Fee. FileMarket will then pay you an amount equivalent to the Retail Price minus the FileMarket Fee; these amounts will then accumulate as part of your Balance. In contrast with the fulfillment and delivery of Digital Goods (as described in Section 5.1.1), you are solely responsible for the fulfillment and delivery of Physical Products to the Buyer in a timely manner. FileMarket does not ship, handle or take custody of Physical Products at any point.
5.2 Balance Redemption
5.2.1 FileMarket Supplier Balance Redemption. For a FileMarket Supplier Account with a Balance exceeding $10.00 USD, you may redeem the Balance (each, a “Redemption”) not more than once per two-week period for all sales completed up to a week prior to the payment date (each, a “Supplier Pay Period”). The Supplier Pay Period ends at 11:59:59pm Pacific time every other Friday, as determined solely by the date-/timestamp of FileMarket’s system. You may access information regarding your next Redemption on your balance page. In most cases, a deposit initiated by a Redemption may take up to two (2) business days to reach your bank account; provided, however, that Redemption payments may be temporarily delayed or withheld in by FileMarket in certain cases pursuant to Section 7.
5.2.2 FileMarket Sub-merchant Balance Redemption. For a FileMarket Sub-merchant Account with a Balance exceeding $10.00 USD, you may choose a Redemption of Balance not more than once per two-week period for all sales completed up to a week prior to the payment date (the “Sub-merchant Pay Period”). The Sub-merchant Pay Period ends at 11:59:59pm Pacific time every Friday, as determined solely by the date-/timestamp of FileMarket’s system(s). You may access information regarding your next Redemption on your balance page. In most cases, a deposit initiated by a Redemption may take up to two (2) business days to reach your bank account; provided, however, that Redemption payments may be temporarily delayed or withheld by FileMarket in certain cases pursuant to Section 7.
5.3 Taxes. The purpose of this section is to highlight some of the more important taxation issues that you will need to consider if you are using our platform. You agree to be solely responsible and liable for the proper administration, imposition, collection, reporting, and remitting of all applicable taxes. We emphasise that this information is not intended and should not be used as legal advice. If you are unsure as to your tax responsibilities then you should seek advice from experts on this subject.
5.3.1 Direct Taxation. It is your personal responsibility to disclose your earnings to your relevant tax authority and you must ensure that you are paying the correct amount of tax. This is particularly relevant for users who are operating as a business.
5.3.2 Value Added Tax (VAT). If you are a seller of physical goods and have buyers outside of the United States you may be required to charge VAT on the sales you make. If you are not sure if this applies to you please contact your tax advisor or your local tax office. [UK Sellers can follow this link to HM Revenue & Customs for some initial guidance on VAT registration]. If you are required to charge VAT on your sales then you are responsible for paying the VAT to the relevant tax authorities in accordance with the appropriate laws and regulations of that territory.
With respect to sales of applicable Digital Goods made to European Union consumers, FileMarket will, collect, report, and remit Value Added Tax governing “telecommunications, broadcasting, and electronic services” in accordance with the applicable European European Commission VAT regulations.
5.3.3 Affiliate Taxation. If you are enrolled in the Affiliate program and reside outside of the United States or refer buyers that reside outside the United States you may be liable for VAT or GST. If you are unsure if this applies to you you should contact your local tax office.
In the case that you are offering a physical good or are enrolled in the Affiliate program, even if you’re not actively selling your items outside your own country or territory you may still receive orders from international buyers. When you sell internationally you may be required to meet tax obligations for import and export transactions in the countries where you plan to sell them.
5.4 Conversion. FileMarket will calculate and render a converted exchange rate in United States Dollar (USD), regardless of whether you listed the Retail Price of your Digital Good or Physical Product in a currency other than USD. All transactions, regardless of Digital Good, Physical Product, or listed currency will settle in USD, and, accordingly, your Balance will be denominated and redeemable only in USD. FileMarket cannot and does not guarantee the accuracy of the exchange rates displayed due to the fluctuating nature of market rates. Accordingly, FileMarket recommends that you confirm current rates before engaging in any transactions on the Platform.
6. Use of the Platform.
When you use the Platform, you assent that:
6.1 You will not, or attempt to, make any unlicensed or unauthorized use of, or otherwise infringe violate or misappropriate, any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property or proprietary right (collectively, “IP Rights”) of any entity or individual, including, without limitation, incorporating any original, variation or misspellings of any third-party trademarks, service marks, creative assets, or other brand identifiers without proper authorization;
6.2 You will not, or attempt to, Promote or Deliver Digital Goods or Physical Products that: (i) violates, or may violate, the rules or policies of Card Networks or payment partners; (ii) is listed as Prohibited Products and Activities; (iii) constitutes illegal activity or is illegal; (iv) promotes or encourages discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; or (v) targets, or intends to distribute to, children under the age of thirteen (13) years old;
6.3 You will not, or attempt to, defame or impersonate any entity or person, including, without limitation, copying the “look and feel” of any third-party website or branding, or conveying or implying that you are operating a third-party website or entity;
6.4 You will not, or attempt to, probe, exploit, disable, avoid, deactivate, remove, circumvent, crawl, scan, penetrate, or test the integrity and vulnerability of the Platform in any manner, including any client or server machine, or other security or authentication measures and safeguards;
6.5 You will not, or attempt to, disassemble, reverse engineer, or decompile any part of the Platform;
6.6 You will not, or attempt to, embed, insert, include, or disseminate any viruses or other harmful, or potentially harmful, data or technology into or through the Platform, including, without limitation, for the purposes of disrupting, damaging, or interfering with the Platform and/or other users of the Platform;
6.7 You will undertake best efforts to ensure that all communications and/or representations you make in connection with your Digital Good(s) and/or Physical Product(s) will: (i) be accurate and contain all disclosures and disclaimers necessary to prevent such communications and/or representations from being false, deceptive, or misleading; and (ii) otherwise comply with all applicable laws, regulations, advisories, and policies related to consumer protection;
6.8 You will undertake best efforts to ship a Physical Product sold to a Buyer no later than seven (7) calendar days from the date of sale;
6.9 You will not require or suggest that a Buyer agree to any terms that reduce or limit FileMarket’s return and refund policy (see Section 7, below);
6.10 You will promptly: (i) respond to inquiries from FileMarket; (ii) notify FileMarket of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Digital Good or Physical Product; and (iii) in connection with (ii) directly above, assist, at your sole cost and expense, in taking any appropriate or necessary actions reasonably requested by FileMarket to respond to and/or resolve such complaints; and
6.11 You will comply with all applicable laws, regulations, court orders, third party rights, applicable industry requirements (including, but not limited to, any and all applicable provisions of the Visa International Operating Regulations, MasterCard Merchant Rules, and PCI compliance standards), and any FileMarket policy or standard that may be issued from time to time.
6.12 In the event you Promote or Deliver Digital Goods or Physical Products that contain personal information of any other individual, you must have provided any such notice to data subjects that may be required under applicable law and, to the extent required under applicable law, established a legal basis for your use of such personal data.
7. Return and Refund Policy
7.1 FileMarket, in its sole and absolute discretion, will allow for a refund (partial or full; please see Section 7.3 below) of the Retail Price of any Digital Good or Physical Product purchased using the Platform within 60 days from the Buyer’s date of purchase for any of the following reasons:
7.1.1 If the Digital Good or Physical Product violated Section 6.2;
7.1.2 If the transaction for the Digital Good or Physical Product is proven to be fraudulent or unauthorized;
7.1.3 In order for FileMarket to comply with applicable industry or other contractual requirements (i.e. credit card industry, ACH, PayPal, Stripe, Zengin), applicable laws and regulations, and or requests from law enforcement or judiciary bodies; or
7.1.4 For any reason FileMarket deems appropriate.
7.2 Upon issuance of a refund pursuant to Section 7.1, the full value of the refund will be debited against your Balance.
7.3 Due to the nature of Digital Goods, when a Buyer requests a refund for a Digital Good, the Buyer may retain a copy of the Digital Good and, in many cases, will already have received a benefit from the Digital Good prior to issuance of the refund. In such cases, FileMarket, in its sole and absolute discretion, may issue a refund for less than the full Retail Price of such Digital Good.
7.4 It is the Buyer’s sole responsibility to appropriately handle, remove or destroy any Digital Good or Physical Product that may cause Buyer to: (i) incur additional liability, including, but not limited to, criminal and/or civil liability; or (ii) experience additional adverse effects, including, but not limited to, potential privacy, security, or technical vulnerabilities.
8. Availability of Services, Suspension and Termination
Subject to the terms and conditions of this Agreement and FileMarket's policies and procedures, FileMarket shall use commercially reasonable efforts to provide the Platform in a manner that will not disrupt your business. You acknowledge and agree that from time-to-time, the Platform may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the reasonable control of FileMarket or that are reasonably unforeseeable by FileMarket, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that FileMarket is not liable for interruptions to the availability of the Platform and further acknowledge that FileMarket does not guarantee access to the Platform on a continuous and uninterrupted basis.
FileMarket may decline, remove or halt sales of any Digital Good or Physical Product, suspend or terminate an Account, and/or suspend or terminate the Platform at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
FileMarket, in its sole discretion, may suspend or terminate your Account(s), or retain any or all funds in your Balance, if FileMarket suspects or has reason to believe and/or if a person otherwise claims that you have violated the law or breached any term of this Agreement. In addition to the foregoing, and all other rights and remedies available to FileMarket at law or in equity and notwithstanding anything in the Agreement to the contrary, in the event you breach any term of this Agreement, or your Account becomes dormant and/or has a negative Balance, FileMarket will have the right to immediately suspend or terminate your Account and your rights to access, use and/or otherwise participate in the Platform. Upon such termination, you agree to immediately cease all use of the Platform. Without limiting the foregoing, FileMarket shall have the right to immediately terminate your access and use of the Platform, or any portion thereof, in the event of any conduct that FileMarket, in its sole discretion, considers unacceptable. Following suspension or termination of an Account or retaining of funds pursuant to this Section, FileMarket will review your Account in a manner determined by FileMarket in its sole discretion. You agree to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, you agree that FileMarket may retain funds in your FileMarket Account as liquidated damages and/or for the benefit of FileMarket or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (i) are not a penalty, and (ii) are reasonable and not disproportionate to such presumed damages to FileMarket.
FileMarket may temporarily withhold any portion of the funds in your Account if FileMarket, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness you may have incurred with FileMarket or any Buyer. If you maintain a refund rate in excess of 15%, you agree that we may retain an amount equal to 25% of your current Balance for 90 days on a rolling basis to cover the cost of refunds. If you maintain a refund rate significantly above this amount, your Account may be subject to additional fees.
9. Marketing Restrictions
9.1 CAN-SPAM Act. If you send emails, directly or indirectly, in connection with any Digital Good or Physical Product, then you agree, acknowledge, represent and warrant that all such emails, and procurement of email addresses thereto, shall be in compliance with all applicable federal, state, and international laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act and the Children's Online Privacy Protection Act.
9.2 Telephone Consumer Protection Act. If you send, initiate or procure a “call” (as that term is defined by the Telephone Consumer Protection Act), directly or indirectly, in connection with any Digital Good or Physical Product, you agree, acknowledge, represent and warrant that you have obtained all necessary consents and authorizations under, and will be in full compliance with, applicable laws and regulations, including without limitation regulations issued by the Federal Trade Commission, Federal Communications Commission, and state laws related to anti-spam, text messages and Do-Not-Call Registries.
10. FileMarket's IP Rights
Except as expressly permitted by Section 10.1 below, you may not use FileMarket's name, trademarks, service marks or any other IP Right of FileMarket in any manner whatsoever to suggest association or affiliation with or endorsement by FileMarket without the express prior written consent of FileMarket, which FileMarket may withhold at its sole discretion.
10.1 Permissible Uses of FileMarket IP Right. Subject to the following terms and conditions, FileMarket grants you a limited, revocable license to use FileMarket's name pursuant to the following usage guidelines (and other expressly permitted guidelines, as may be the case in the future) in connection with such use: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; and (ii) in metatags or hidden text, in each case solely for the purpose of driving traffic to the Platform to Promote your Digital Good or Physical Product. FileMarket may revoke the foregoing license and/or provide restrictions upon your use of FileMarket's name, including requiring the use of such disclaimers as FileMarket may provide, in connection with your use of FileMarket's name, at any time and for any reason in FileMarket's sole discretion.
10.2 Reservation of Rights. Notwithstanding the limited revocable license in Section 10.1, as between the parties, FileMarket shall be and remain the sole owner of all right, title and interest in and to the Platform (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed or controlled by FileMarket, and you hereby assign to FileMarket all right, title and interest you may be deemed to have therein. Accordingly, any use of the IP Right of FileMarket shall inure to the exclusive benefit of FileMarket. All rights not specifically granted to you under this Agreement are expressly reserved by FileMarket.
11. Confidentiality and Non-disclosure Obligations; Privacy
11.1 In connection with this Agreement, FileMarket may disclose to you and/or you may otherwise receive or have access to sensitive, confidential, and/or proprietary information of FileMarket (collectively, “Confidential Information”). Except as required to perform your obligations under and in accordance with the terms of this Agreement, you shall not disclose or use the Confidential Information, without the express prior written consent of FileMarket. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, Users to subscribe to any other services or promote the sale of any products that compete, either directly or indirectly, with FileMarket or the functionality and services offered by the Platform. You agree and acknowledge that FileMarket may be required to provide to governmental agencies or other third parties information in its possession regarding you or the business you conduct with FileMarket or via the Platform.
11.3 In the event you Promote or Deliver Digital Goods or Physical Products through the Platform, you agree to provide any such disclosures as may required by applicable law pertaining to your privacy and/or data protection policy and practices, including, to the extent required, disclosures that adequately describe your use of the Platform.
11.4 You agree that when you collect personal information about buyers through the Platform, including in connection with a purchase, you must provide the buyer a chance to remove themselves from your database and a chance to review what information you have collected about them. In addition, you agree that you will use personal information you receive through the Platform only for: FileMarket transaction-related purposes that are not unsolicited commercial messages; using services offered through FileMarket (such as shipping and fraud complaints), or other purposes that a User expressly chooses.
11.5 You acknowledge and agree that when you use the Platform to send emails, we may automatically scan and may manually filter messages to check for spam, viruses, phishing attacks and other malicious activity or illegal or prohibited content, and we do not permanently store messages sent through these tools. If you send an e-mail to an e-mail address that is not registered in our community, we do not permanently store that e-mail or use that e-mail address for any marketing purpose. We do not rent or sell these e-mail addresses.
11.6 If the EU General Data Protection Regulation (“GDPR”) applies to you in connection with your use of the Platform, upon your request, FileMarket will make available a Data Protection Addendum (“DPA”) designed to meet the requirements of Article 28 of the GDPR pertaining to data processing. You may request FileMarket’s DPA by emailing support@FileMarket.com. You agree not to collect any personal data through our Platform that may be governed by the GDPR before executing FileMarket’s DPA. Notwithstanding the foregoing, if FileMarket reasonably believes that your processing of personal data through the Platform is subject to the GDPR, FileMarket may require you to execute its DPA as condition of your use, or continued use, of the Platform, and you authorize FileMarket to take such remedial steps as may be warranted until such time as the DPA is executed
12. Export Control
You acknowledge and agree to comply with all applicable export laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act; and regulations issued pursuant to these and other U.S. Laws. You hereby represent and warrant that any Digital Good or Physical Product Promoted or Delivered is approved for export from the United States without additional authorization or licensing from the U.S. government. Should the export authorization status of your Digital Good or Physical Product change, you must immediately notify FileMarket in writing. Information on U.S. export control regulations can be found on the websites of the U.S Department of Commerce, U.S. Department of State and the U.S. Department of the Treasury.
13. PCI DSS Applicability and Requirement
FileMarket, to the extent it is a Service Provider (as that term is defined and/or used by the then-current Payment Card Industry (PCI) Data Security Standard v3.0), shall be responsible for the security of cardholder data, which may include primary account number (PAN), cardholder name, expiration date, and service code, it possesses or otherwise stores, processes, or transmits.
14. Required Permits
It is your sole responsibility to obtain and maintain all applicable consents, licenses and permits required for the operation of your business.
In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever (each, a “Claim”) in connection with your use of the Platform, including without limitation your activities to Promote and/or Deliver Digital Goods or Physical Products, you shall defend, indemnify and hold harmless FileMarket, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (each, a “FileMarket Party”; and collectively, the “FileMarket Parties”), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, litigation, and reasonable attorneys' fees and costs) (“Losses”) incurred by any FileMarket Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
Upon receiving notice of a Claim for which FileMarket is entitled to indemnification by you, FileMarket shall provide you with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by FileMarket will require FileMarket's prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve you of your indemnification obligations; and (iii) FileMarket may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at FileMarket's own expense, unless you fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case you shall pay all expenses related to FileMarket's use of such counsel.
In the event that FileMarket incurs costs, attorneys' fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to your Digital Goods or Physical Products (or your activities to Promote and/or Deliver thereto), including copyright infringement complaints under the DMCA (see below), FileMarket reserves the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to you by FileMarket up to a maximum of ten thousand dollars ($10,000) per event. In the event that FileMarket incurs any Losses relating to your violation of Section 9 (Marketing Restrictions) above, FileMarket reserves the right, in its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to you by FileMarket up to a maximum of twenty thousand dollars ($20,000) per event. You understand and agree that the remedies set forth above are not exhaustive and that FileMarket retains all rights to indemnification described herein. You authorize FileMarket to make, and release FileMarket from any liability in connection with, any such deductions.
16. Limitation of Liability
In no event shall any FileMarket party, or its heirs, successors and assigns, be liable for any indirect, incidental, special, punitive, or consequential damages whatsoever arising out of, resulting from, or in connection with this agreement and/or any (a) use of or inability to use the platform, (b) personal injury, property damage, or losses of any kind, resulting from your access to and/or use of the platform, (c) unauthorized access to or use of any and all personal information and/or financial information stored therein, (d) interruption or cessation of transmission to or from the platform, and/or (e) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the platform, whether or not FileMarket is advised of the possibility of such damages. Notwithstanding anything herein to the contrary, the maximum cumulative and aggregate liability of FileMarket for all costs, losses or damages from claims arising under or related in any way to this agreement, whether in contract, tort or otherwise, shall not exceed an amount equal to the total amounts due and payable by FileMarket to you under this agreement for the month immediately preceding the date upon which such damages accrue. The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. The platform, and any services or information offered through or in association with the platform, would not be provided without such limitations and you agree that the limitations of liability and disclaimers specified herein will survive and apply even if found to have failed of their essential purpose. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in such jurisdictions, you agree that the liability of FileMarket shall be limited to the fullest extent permitted by such jurisdiction.
17. No Guarantee of Validity
FileMarket does not endorse, approve, or certify any information provided on or through the Platform, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the Platform may or may not be current as of the date of your access, and FileMarket has no duty to update and maintain such information. Additionally, the information provided on or through the Platform may be changed periodically without prior notice. All content provided on or through the Platform is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness. If you have a dispute with one or more users, including any users that has purchased items from you as a Buyer or any user from whom you have purchased a Digital Good or Physical Product, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM. YOU UNDERSTAND THAT FileMarket DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM.
If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
FileMarket MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE OBTAINED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
19. Legal Disputes
If a dispute arises between you and FileMarket, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and FileMarket agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly by email at support@FileMarket.com to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against FileMarket must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost- effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction
All claims you bring against FileMarket must be resolved in accordance with this Legal Disputes Section. All claims filed or brought contrary to the Legal Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Legal Disputes Section, FileMarket may recover attorneys' fees and costs up to $1,000, provided that FileMarket has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
20. Digital Millennium Copyright Act Notice
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on or through the Platform, please notify FileMarket’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit FileMarket to locate the material;
Information reasonably sufficient to permit FileMarket to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party must be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted to the following address:
Attention: FileMarket Copyright Agent
225 Valencia St Suite A
San Francisco, CA 94103
Only DMCA notices mailed to the address above or emailed to support@FileMarket.com will be accepted. All other inquiries or requests will be discarded. Upon receiving a complaint related to copyright infringement, FileMarket may remove the content identified as being infringing. In addition, FileMarket may, but is under no obligation to, terminate the Account of the party that appears to be the infringer.
The following Sections survive any termination of this Agreement: 1, 3.1.1, 4, 5.1, 5.3, 6.9, 6.10, 7.2, 8, 10, 11, and 14 through 33.
22. No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
23. Consumer Services
In accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
24. Governing Language
This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by FileMarket are for informational purposes only and it is your obligation to obtain independent legal advice at your own expense to ensure you understand the terms of this Agreement.
FileMarket may freely assign or transfer any or all of the rights and obligations described in this Agreement, or this Agreement in its entirety in connect with a merger, acquisition, or sale of assets or by operation of law or otherwise. You may not assign this Agreement or any of your rights and duties hereunder without the prior written consent of FileMarket. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using FileMarket's name or referencing the Platform; or (iii) suggesting or implying any endorsement by FileMarket of you and/or any Digital Goods or Physical Products without the prior written approval of FileMarket, which FileMarket may withhold in its sole discretion.
28. Entire Agreement
This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter.
The waiver or failure by FileMarket to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of FileMarket set forth in this Agreement are cumulative and are in addition to any rights or remedies FileMarket may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
30. Equitable Actions
You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to FileMarket which would not be adequately compensated by monetary damages and that FileMarket may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of California or any other court of competent jurisdiction anywhere in the world (at FileMarket's sole discretion), and, you hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
31. Force Majeure
Neither you nor FileMarket shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (a) actual receipt, irrespective of the method of delivery; (b) the time of transmission from FileMarket if sent via email, as date stamped by FileMarket's systems; (c) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (d) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
Notices to FileMarket shall be delivered to:
225 Valencia St Suite A
San Francisco, CA 94103
The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. Any graphics or annotations provided in connection with this Agreement are for illustration purposes only and do not constitute part of the Agreement and changing a graphic does not qualify as a change to this Agreement. The list of Prohibited Products and Activities is separately maintained, and modifications thereto will not qualify as a change to this Agreement.