THIRD PARTY SUPPLIER TERMS AND CONDITIONS
- Product Supply and Marketing. From time-to-time, Supplier may offer products and equipment ("Products") for marketing or sale through the BoxedUp marketplace ("BoxedUp Marketplace"). Through the BoxedUp Marketplace, BoxedUp will enable Supplier to (1) list Products on the BoxedUp Marketplace for rental and/or sale, and (2) conduct merchandising and promote Products in accordance with the Agreement. In addition, BoxedUp may promote the rental and sale of the Products within the BoxedUp Marketplace as BoxedUp sees fit and appropriate. At no charge to BoxedUp, Supplier shall support the Products and any efforts to sell or rent the Products through the BoxedUp Marketplace, and provide digital sales literature, advertising materials and reasonable training and support in the sale, rental, and use of the Products to employees and customers of BoxedUp ("Customers"), if requested to do so by BoxedUp. BoxedUp may advertise and promote the Products in a commercially reasonable manner and may use Supplier's trademarks, service marks and trade names in connection therewith. Supplier agrees to cooperate with BoxedUp in advertising and promoting the Products.
- Order Processing. When a Customer orders an item for rental or purchase, BoxedUp will collect from the Customer and provide to Supplier applicable Product, quantity, shipping and other information ("Order Information") for each order of Products through the BoxedUp Marketplace. Upon receipt of the Order Information, Supplier will promptly either confirm or reject the proposed rental or purchase through the BoxedUp Marketplace functionality. Once Supplier has accepted an order, BoxedUp collects payment information and receives all proceeds from the rental and/or sale of Products ("Proceeds") for each of these transactions, and will remit Supplier's portion of the Proceeds in accordance with this Agreement. BoxedUp, in its sole discretion, may withhold for investigation, refuse to process, and/or cancel any of Supplier';s rental or sale transactions within the BoxedUp Marketplace. BoxedUp is only responsible for connecting Suppliers and Customers, and shall not be responsible for ensuring that information (including credentials) a Customer provides to BoxedUp or Supplier is accurate or up-to-date. Upon acceptance of the Order Information by Supplier, a binding contract will be formed directly between Supplier and the Customer. BoxedUp will use commercially reasonable efforts to (1) verify the identity of the Customers and (2) confirm that a Customer';s certificate of insurance evidences a level of insurance substantially equivalent to Supplier's insurance requirement.
- Shipping and Handling. Unless specified for pick-up or otherwise, for Products ordered by Customers on or through the BoxedUp Marketplace that are not fulfilled using Fulfillment by BoxedUp ("Supplier-Fulfilled Products"), Supplier will be solely responsible for shipping Supplier-Fulfilled Products to Customers, in accordance with the terms of the applicable Order Information. For Supplier-Fulfilled Product rentals, Supplier will also be responsible for providing packaging and pre-paid, return shipping labels for the return of the Supplier-Fulfilled Products at the end of the rental period.
- Sale, Rental and Fulfillment. Other than as described in a Fulfillment by BoxedUp Agreement, Supplier will: (1) source, offer, rent or make available for rent, sell and fulfill Supplier-Fulfilled Products, and source, offer, rent or make available for rent, and sell Supplier's Products that are subject to a Fulfillment by BoxedUp Agreement, in each case in accordance with the terms of the applicable Order Information, this Agreement, and all terms provided by Supplier or BoxedUp and displayed on the BoxedUp Marketplace at the time of the order and be solely responsible for and bear all risk for those activities; (2) package and/or prepare for pick-up each Supplier-Fulfilled Products in a commercially reasonable manner complying with all applicable packaging and labeling requirements and, if applicable, ship each of Supplier-Fulfilled Products on or before its expected ship/pick-up date; (3) retrieve Order Information at least once each business day; (4) only cancel transactions as permitted pursuant to the terms and conditions appearing on the BoxedUp Marketplace at the time of the applicable order or as may be required under this Agreement; (5) provide to BoxedUp information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by BoxedUp using the processes designated by BoxedUp, and accordingly BoxedUp may make any of this information publicly available; (6) if applicable, include an order-specific packing slip, and any tax invoices, within each shipment of Supplier-Fulfilled Products; (7) identify Supplier as the originator of each of Supplier-Fulfilled Product on all packing slips or other information included or provided in connection with Supplier-Fulfilled Products and as the individual to which a Customer may return the applicable Supplier-Fulfilled Product; and (8) not send Customers emails confirming orders or fulfillment of Supplier-Fulfilled Products. If any Products are fulfilled using Fulfillment by BoxedUp, the Fulfillment by BoxedUp Agreement will apply to the storage, fulfillment, and delivery of such Products. For all rentals and sales on BoxedUp Marketplace, pursuant to this Agreement, Supplier shall retain title to all Products and the parties agree that the title to any Product shall never be in the name of BoxedUp nor shall BoxedUp ever take possession of any Supplier-Fulfilled Product.
- Customer Feedback. BoxedUp may use mechanisms that rate, or allow BoxedUp Customers to rate, Products and Supplier's performance as a seller, which ratings and feedback may be made publicly available.
- Pricing, Payment and Taxes.
- Sale Pricing. Supplier will set the sale price for all Products based in its sole discretion.
- Commissions. As specified on the applicable Order Reservation, for any sales or rentals of the Products, BoxedUp will collect payment from Customers for all Products rented and/or purchased, and shall remit all amounts due hereunder. BoxedUp shall, within seven (7) days following Customer's receipt of the Product, pay to Supplier the amounts collected by BoxedUp in connection with such sale or rental, less the commission as specified in the Commission Terms located at # (the "Commission").
- Taxes. As between the parties, Supplier will be responsible for the collection, reporting, and payment of any and all of its taxes, except to the extent that (i) BoxedUp automatically calculates, collects, or remits taxes on Supplier's behalf according to applicable law; or (ii) BoxedUp expressly agrees to receive taxes or other transaction-based charges on Supplier's behalf and remit such taxes and transaction-based charges to Supplier in connection with tax calculation services made available by BoxedUp and used by Supplier. Supplier agrees to and will comply with any BoxedUp tax policies. All fees and payments payable by Supplier to BoxedUp under this Agreement are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and Supplier will be responsible for paying BoxedUp any of Supplier's taxes imposed on such fees and any deduction or withholding required on any payment.
- Cancellations, Disputes and Chargebacks. Because the rental contract is directly between Supplier and Customer, Supplier shall be responsible for all cancellations by Customer of Product rentals or sales, and resolving all disputes with Customers related to rental or sales payments for Product rentals or sales, including any chargebacks that may occur with respect to Customers' credit card companies. BoxedUp shall use commercially reasonable efforts to assist Supplier with respect to any cancellations, disputes and chargebacks. Supplier shall refund to BoxedUp any payments made for Product rentals or sales that are subject to any cancellation, the successful dispute of the charges by a Customer, or subject to any chargeback of such payment by a Customer, and authorizes BoxedUp to charge Supplier for all refunds due BoxedUp resulting from cancellations, disputes or chargebacks related to rentals or sales of Supplier';s Product.
- Warranties and Disclaimer.
- Supplier represents and warrants that: (1) this Agreement constitutes a legal, valid, and binding obligation, enforceable against Supplier; (2) Supplier owns all right, title and interest in and to the Products (free of any liens, or encumbrances where Customer's rights to such Products may be negatively affected) and has the right to grant the rights granted in this Agreement; (3) the Products do not infringe upon or violate any patent, trademark, copyright, or other proprietary right of any third party, any state or federal law, or any administrative regulation, and that there are no suits or proceedings pending or threatened which allege that any Products or the use thereof infringes upon such rights; (4) the Products is authentic and not counterfeit or stolen; and (5) merchantable and fit for their intended use and that the Products will perform in conformance with the specifications and documentation provided with the Products. If Products are returned to Supplier by Customer as a result of defects resulting in a breach of the foregoing warranties, Supplier shall notify BoxedUp in writing within 48-hours of Supplier's receipt of such defective Products. Supplier agrees that such warranties are made for the benefit of BoxedUp, and the Customers of the Products. BoxedUp may, at Supplier's sole expense, return Products to Supplier that is found to be defective or not Accepted, as defined in Section 1.2 of an applicable Fulfillment by BoxedUp Agreement, for immediate credit of all costs and shipping charges incurred by BoxedUp in returning the defective Products. Supplier hereby agrees to indemnify and hold BoxedUp harmless from all damages, suits, litigation, awards, and costs, including but not limited to attorneys'; fees and costs, as a result of or arising out of in any way BoxedUp';s display, rental or sale of the Products for any reason whatsoever, including but not limited to civil or criminal suits over authenticity, legality, ownership, infringement of copyright or trademark, or any other claim or litigation.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOXEDUP DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
- Limitation of Liability. IN NO EVENT WILL BOXEDUP OR ANYONE REPRESENTING BOXEDUP BE LIABLE TO SUPPLIER UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOSS OF PROFITS OR DATA, RESULTING FROM THE SUBJECT MATTER OF THIS AGREEMENT; OR (II) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF THE FEES PAID TO BOXEDUP (OR AMOUNTS BOXEDUP OWES TO SUPPLIER) FOR THE APPLICABLE PRODUCTS.
- Term and Termination. This Agreement shall continue from the effective date in the applicable Order Reservation until and unless terminated in accordance with this Section (the "Term"). Termination shall be effective when either party serves ten (10) days' written notice thereof on the other party. Upon termination of this Agreement all further rights and obligations of the parties shall cease, except that (i) Supplier shall fulfill any Product rentals or sales obtained through BoxedUp Marketplace that are in effect as of the termination date, (ii) BoxedUp shall pay Supplier monies due Supplier through the termination date, and for rentals or sales continued under subsection (i) after the termination date, and (iii) each party shall fulfill any other obligation set forth in this Agreement which is to take effect after the date of termination. Sections 6, 7, 8, 10, 12 and this sentence shall survive termination of this Agreement.
- Confidential Information. Each party acknowledges that, in the course of this Agreement, each party (the "Receiving Party") may conceive, create, review or receive information considered by the other party (the "Disclosing Party") to be confidential or proprietary, including without limitation information or material relating to drawings, designs, products, services, fees, budgets, contacts, business plans, marketing, intellectual property, ideas, analyses, and/or data ("Confidential Information"). During and after the Term, (i) the Receiving Party shall maintain any and all Confidential Information of the Disclosing Party in strict confidence, except if and to the extent such Confidential Information has been made publicly available through no fault of the Receiving Party or must be disclosed by law, and (ii) Receiving Party shall not use any Confidential Information for the benefit of any person or entity other than Disclosing Party or Disclosing Party's affiliates, and only then with Disclosing Party's prior written consent. Any breach or threatened breach of this Section 10 will cause irreparable harm to the Disclosing Party for which damages would not be an adequate remedy, and, therefore, the Disclosing Party is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies. Upon any expiration or termination of this Agreement, the Receiving Party shall promptly return to the Disclosing Party all originals and copies of any Confidential Information, and destroy all information, records, and materials developed therefrom. Supplier may not collect any information from or relating to Customers ("Customer Information"), whether via BoxedUp Marketplace, in the course of offering Supplier Products, or otherwise, beyond what is necessary to offer the Supplier Products for the applicable Customer from or about whom such Customer Information was collected. Suppliers also must not use any Customer Information beyond what is necessary to offer the Supplier Products for such applicable Customer. Upon the conclusion of offering the Supplier Products to a Customer (or otherwise upon the request of such Customer or BoxedUp), Supplier must properly destroy all Customer Information from or relating to such Customer and make no further use of it whatsoever. Suppliers must collect, use, maintain, and transmit all Customer Information in compliance with all applicable laws.
- Non-circumvention of Commission Obligation. Supplier will not use the BoxedUp Marketplace to find a Customer and then complete a transaction independent of the BoxedUp Marketplace in order to circumvent the obligation to pay any service charges related to BoxedUp's provision of the BoxedUp Marketplace or for any other reasons. Supplier agrees that BoxedUp shall be entitled to its Commission on all violations of this Section 11 in addition to any other remedies available to BoxedUp.
- General. This Agreement sets forth the entire Agreement between the parties hereto in connection with the subject matter hereof and supersedes all other agreements and understandings, whether oral or written. No alteration, amendment or qualification of this Agreement shall be valid unless it is in writing and is executed by both of the parties hereto. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated in the Order Reservation or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. The parties executing this Agreement warrant that they have the requisite authority to do so. Nothing contained in this Agreement shall be deemed to create any dealership, franchise, association, partnership or joint venture between the parties hereto. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with the laws of the State of Delaware without regard to the conflict of laws provisions thereof. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in or with jurisdiction over New Castle County, Delaware, and each party consents to the jurisdiction thereof. In the event that any legitimate dispute arises out of this Agreement, BoxedUp shall have the right to withhold any payment to Supplier. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If one or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable portion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise remain in full force and effect and enforceable. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys' fees. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/electronic signature shall be deemed an original and valid signature. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors and assigns. Supplier shall not assign this Agreement in whole or part without the prior written consent of BoxedUp. The parties are independent contractors, this Agreement does not create a partnership or joint venture, and neither party shall have any right, power or authority in any way to act as agent of or bind the other party except as expressly stated in this Agreement.