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Drop Ship Vendor Terms & Conditions

  1. The Vendor hereby grants to Retailer the non-exclusive right to promote, market, and sell products sold under the agreement (the “Products”).  
  2. This Agreement shall commence on the date the Vendor Letter Agreement is executed by Vendor (the “Effective Date”) and shall continue for a period of one (1) year, subject to termination as set forth in Section 11 herein. At the completion of this initial Term, this Agreement shall automatically renew unless either Party gives written notice of cancelation no later than 30 days prior to the end of the initial one (1) year term.
  3. Quality Assurance.
    1. Vendor specifically warrants that the Products are free from defects in design, workmanship and materials and are in compliance with the specifications and claims made by Vendor for them, including any related product claims (e.g. environmental, organic and/or 100% natural claims, etc.) (the “ Product Standards”).  
    2. At no additional charge to Retailer, upon request Vendor will provide samples of the Products for Retailer to verify the Product Standards.  
  4. Warrants.  Vendor represents and warrants to Retailer, and hereby agrees that such representations and warranties are reasonable and valid in the context of their relationship with Retailer, that:
    1. Corporate Power and Enforceability.  Vendor has the authority and full capacity to enter into this Agreement, and all corporate actions have been taken, and all approvals obtained that are necessary to make this Agreement binding and enforceable as against Vendor.  
    2. No Conflicts.  Vendor’s performance of this Agreement is not in conflict with, and will not cause an event of default under, any agreement or instrument to which Vendor is a party or by which Vendor is bound.
    3. Intellectual Property.  Vendor has full authority to distribute and use the intellectual property relating to the Products and has full authority and full power to grant to Retailer the right to use such intellectual property relating to the Products in the manner set forth in this Agreement.
    4. Products.  Each Product shipped under any purchase order (including packaging and labeling and inserts) meets its product specifications at the time of the shipment, is fit and safe for the use for which it was manufactured and does not violate any laws or infringe on any intellectual property or right of any third party.
    5.  Child Labor.  Vendor complies, and shall continue to comply, with all federal, state, local and other applicable laws, regulations, conventions or treaties prohibiting any form of child labor or other exploitation of children in the manufacturing and delivery of Vendor’s products or services.
  5. Vendor hereby covenants and undertakes to Retailer, and hereby agrees that such covenants and undertakings are reasonable and valid in the context of its relationship with Retailer, that:
    1. Licenses and Permits.  Vendor shall be responsible for obtaining all necessary licenses and permits, and for complying with all applicable laws, codes and regulations in connection with this Agreement and Vendor shall, when requested, provide Retailer with adequate evidence of its compliance with this Section 6.
    2. Rules and Regulations.  Vendor shall comply with all rules and regulations of Retailer from time to time in force which are brought to Vendor’s notice or of which Vendor should reasonably be aware.
  6. Indemnity.  
    1. Each party shall indemnify, defend, and hold harmless the other party and its subsidiaries and affiliated companies, and their respective directors, officers, employees, contractors, shareholders, agents and representatives, from and against any and all losses, damages, liabilities, penalties, costs of settlement and expenses (including, without limitation, reasonable legal fees and expenses) arising from any third-party claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) arising out of, resulting from, or related to an actual breach of this Agreement, including, but not limited to: (i) any death or bodily harm or property damage occurring or alleged to have occurred as a result of the Products provided by Vendor, (ii) statements, instructions for use or warnings on the label(s), boxes, inserts or other packaging for the Products or directions for use or application provided or approved by Vendor, (iii) any act or omission of Vendor, or the employees, contractors, agents or representatives of Vendor, in the furnishing of the Product or in the performance of work under any purchase order, (iv) any actual or alleged infringement by Vendor, Products provided by Vendor, or Vendor’s intellectual property of any intellectual property right of any third party, (v) any actual or alleged violation of, or non-compliance by, Vendor or Products provided by Vendor with any applicable law or regulation; (vi) any allegation that any Product provided by Vendor was defective or harmful or violated a warranty of Vendor in any way; or (vii) any breach by Vendor of a representation or warranty contained herein.
    2. In the event a party prevails in an enforcement proceeding related to this Section 7, the opposing party will reimburse the prevailing party for any and all costs and expenses, including, without limitation, reasonable legal fees and expenses arising out of, resulting from, or relating to such enforcement proceeding.  All indemnification obligations under this Agreement will survive termination or expiration of this Agreement or any purchase order.
  7. Confidentiality.  
    1. The Parties acknowledge that in the course of carrying out, performing or fulfilling its duties under this Agreement, each party and its respective Representatives, as defined below (collectively, the “Recipient”) may receive from the other party or its Representatives (collectively, the “Disclosing Party”) oral and written information from the Disclosing Party that is confidential.  The Recipient, and its advisors and employees (its “Representatives”), may have access to and will be entrusted with details, trade secrets, proprietary and confidential information of the Disclosing Party and its subsidiaries. The Recipient agrees to use the confidential information solely in connection with the current or contemplated business relationship between the parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the Disclosing Party. No other right or license, whether expressed or implied, in the confidential information is granted to the Recipient hereunder. Title to the confidential information will remain solely in the Disclosing Party. All use of confidential information by the Recipient shall be for the benefit of the Disclosing Party and any modifications and improvements thereof by the Recipient shall be the sole property of the Disclosing Party. The Recipient further acknowledges that the disclosure by the Disclosing Party or their Representatives of such details, confidential information and trade secrets to competitors of the Disclosing Party or its subsidiaries, or to the general public, could be highly detrimental to the interests of the Disclosing Party. Therefore, both parties hereby agree that the Disclosing Party shall be entitled to injunctive relief preventing the dissemination of any confidential information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. The Recipient further acknowledges that all such confidential information and other property of the Disclosing Party and its subsidiaries utilized by or in the possession of the Recipient is the exclusive property of the Disclosing Party and its subsidiaries.
    2. The Recipient shall not disclose any trade secrets, proprietary or confidential information, or information which in good faith and good conscience ought to be treated as confidential, of which it has become aware in the course of its relationship with the Disclosing Party or its employees, suppliers, or customers, at any time during the currency of this Agreement and appointments made hereunder, or at any time thereafter. The Recipient agrees to furnish the confidential information to its Representatives on a need-to-know basis, accompanied by a confidentiality provision no less stringent than that provided herein.  Recipient agrees to be responsible for any breach of this Agreement by it or its Representatives.  The confidentiality provisions contained herein shall not apply to information which Recipient is required to disclose by law, or which is or becomes a matter of public knowledge through no breach of this Agreement.
    3. Trade secrets, proprietary and confidential information shall include that information which relates to the Disclosing Party and its subsidiaries’ past, present, and future business and business activities, and which information is either identified to Recipient by the Disclosing Party or its subsidiaries as being such information or that a reasonable person would understand to be such information.
  8. Proprietary Rights.  
    1. Retailer grants to Vendor the limited, non-exclusive right to use, during the term of this Agreement, the trademarks and trade names of Retailer for the purpose of identifying and promoting Retailer as the Vendor of the Products.  Retailer shall have a right to review all promotional uses by Vendor before publication.    Retailer may revoke this right and any approval granted at Retailer’s discretion at any time, and such revocation shall be effectively immediately upon notice given to Vendor.
    2. Vendor agrees that Retailer may use Product images, including static images and clips thereof, Vendor trademarks, service marks, trade names, trade dress, and/or copyrights, and any other Vendor may provide in the marketing and sale of the Products. Vendor hereby warrants that all proper rights, permissions, or licenses for use, as applicable, have been obtained by Vendor for Retailer’s use in accordance with this Agreement. Vendor agrees to protect, indemnify and hold Retailer (including its affiliates, its agents, and its employees) harmless against any claim, loss or damage, including attorneys’ fees, arising directly or indirectly from any alleged or actual trademark, patent or copyright infringement or unfair competition arising from Retailer’s use under this Agreement
    3. Except for promoting the brand partnership as approved by Retailer in writing in advance of publication, Vendor will not exploit any of Retailer’s trademarks, trade names or other intellectual property for any reason.  Except for the purposes of marketing the Products, Retailer will not exploit any of Vendor’s trademarks, trade names or other intellectual property.
    4. Neither party will acquire any rights or interests in the other party’s trademarks, trade names or trade dress or other intellectual property, and any goodwill generated therein will insure solely to the benefit of the owner party.  Each party reserves all of its rights in and to its trademarks, trade names and trade dress, all graphic images and text contained on such party’s website, and all other intellectual property owned or licensed by such party.  Each party reserves the right to approve the substance and form of any and all uses of its trademarks, trade names and other intellectual property.
  9. Customer Ownership.  Retailer’s Customers are not, by virtue of this Agreement, Vendor’s customers. Vendor agrees it will not handle or address any contacts with any Customers outside of the parameters established by this Agreement, and, if contacted by any of Customers, Vendor will strictly follow the procedures outlined herein; provided that this Section 10 will not restrict Vendor with respect to people or entities who are Retailer Customers but contact Vendor for matters unrelated to Retailer, the Drop Ship products or the Drop Ship services.
  10. Right to Terminate.
    1. Notwithstanding anything to the contrary herein contained, Retailer may, at its option, immediately terminate this agreement, at any time by advising Vendor in writing, for any of the following reasons:  (i) The negligent performance or persistent failure of Vendor to perform its obligations in this Agreement; (ii) any breach by Vendor of any of the obligations in this Agreement; (iii) a continued course of malfeasant or misfeasant actions or omissions by Vendor in any of Vendor's other obligations in this Agreement; or (iv) any actions by Vendor which have or may cause harm to Retailer’s business or reputation.  
    2. The Vendor may terminate this Agreement for cause for any material breach of this Agreement by the Retailer which remains uncured 30 days after notice of such breach has been received.
    3. In addition, either party shall have the right to terminate this Agreement by providing 30 days’ written notice to the other party.
  11. Provisions which Operate Following Termination.  Notwithstanding any termination of this Agreement for any reason whatsoever, the provisions of Sections 5 through 10 and any other provisions of this Agreement necessary to give efficacy thereto shall continue in full force and effect following such termination.  Vendor further agrees that obligations respecting non-solicitation and confidential information are to remain in effect in accordance with each of their terms and will exist and continue in full force and effect despite any breach or repudiation, or alleged breach or repudiation, of this Agreement or Vendor’s engagement by Retailer.
  12. Miscellaneous:
    1. Entire Agreement.  This Agreement and the schedules hereto constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, forms, conditions, undertakings or collateral agreements, express implied or statutory between the parties other than as expressly set forth in this Agreement.
    2. Governing Law; Dispute Resolution.  
      1. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflict of laws principles.  
      2. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in New York County, New York, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by Delaware law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.
      3. Vendor acknowledges and agrees that in the event of the breach of any of the representations, warranties, covenants, provisions or restrictions contained in Sections 5 through 10, Retailer shall be entitled to obtain from any court of competent jurisdiction, interim and permanent injunctive relief, and an accounting of all profits and benefits arising out of such breach, which rights and remedies shall be cumulative and in addition to any other rights or remedies to which Retailer may be entitled.
    4. Further Assurances.  Each party, upon request by another party, shall sign (or cause to be signed) all further documents or do (or cause to be done) all further acts and provide all reasonable assurances as may reasonably be necessary to give effect to the transactions contemplated by this Agreement.
    5. Counterparts.  This Agreement may be signed in any number of counterparts, each of which is an original, and all of which taken together constitute one single document. Counterparts may be transmitted by fax or in electronically scanned form. Parties transmitting by fax or electronically will also deliver the original counterpart to the other parties, but failure to do so does not invalidate this Agreement.
    6. Sections and Headings.  The division of this Agreement into articles and sections and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular article, section or other portion hereof and include any agreement or instrument supplemental or ancillary hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to articles and sections are to articles and sections of this Agreement.
    7. Number.  In this Agreement words importing the singular number only shall include the plural and vice versa and words importing any gender shall include all genders and words importing persons shall include individuals, partnerships, associations, trusts, unincorporated organizations and corporations and vice versa.
    8. Benefit of Agreement. This Agreement shall enure to the benefit of and be binding upon the successors, assigns, administrators and legal personal representatives of Retailer and Vendor respectively.
    9. Amendments and Waivers.  No amendment to this Agreement shall be valid or binding unless set forth in writing and duly executed by both of the parties hereto. No waiver of any breach of any term or provision of this Agreement shall be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived.
    10. Assignment.  Neither party may assign this agreement without the prior written consent of the other party which will not be unreasonably withheld.
    11. Severability.  If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.  If any covenant or provision contained in Sections 5 through 10 is determined to be void or unenforceable in whole or in part, such covenant or provision shall be deemed not to affect or impair any other covenant or provision contained in this Agreement.
    12. Force Majeure.  Each party shall be excused from performance under this Agreement for any period of time and to the extent that it is prevented from performing any of its obligations under this Agreement, in whole or in part, as a result of delays caused by the other party or by an act of god, natural disaster, power interruption, acts of any state, local or federal governments or any governmental agency or official thereof, court order, third party nonperformance, or other cause, events or circumstances beyond its reasonable control.  Such non-performance will not be a default under this Agreement nor a ground for termination of this Agreement so long as the excused party makes reasonable efforts to remedy, if and to the extent reasonably possible, the cause for such non-performance.
    13. Relationship of the Parties.  This Agreement shall not be deemed to constitute or create any partnership, joint venture, master-servant, employer-employee, principal-agent or any other relationship apart from an independent contractor and contractee relationship.
    14. Notices.  Any demand, notice or other communication (hereinafter in this Section 13 referred to as a “Communication”) to be made or given in connection with this Agreement shall be made or given in writing and may be made or given by personal delivery, by registered mail or by electronic mail addressed to the recipient at the address set forth on the signature pages hereto, or such other address or individual as may be designated by notice by either party to the other.
    15. Currency.  Except as otherwise noted, all dollar figures herein are expressed in United States Dollars.