Terms & Conditions
SoldThrough Master Services Agreement
This Master Services Agreement (Agreement) is entered into by and between Sold Through LLC (Company), and the client identified on the accepted Order Form linking this Agreement (Client) and is effective as of the Effective Date stated in the Order Form. Acceptance by Client of an Order Form shall entitle it to the Services offered by Company as described in the Order Form, subject to the terms and conditions of this Agreement and the Order Form. Each of Company and Client may be individually referred to herein as a Party and collectively as the Parties.
In consideration of the terms herein, the Parties agree as follows:
Definitions. Any capitalized terms used herein that are not specifically defined herein shall have the meaning ascribed to them in the Order Form(s).
Business Day means a day, other than a Saturday, Sunday or public holiday in the United States.
Chargebacks means charges implemented by Retail Operators or Wholesale or D2C accounts for Client’s failure to follow RO Shipping Standards or other guidelines.
Delivery means the transfer of physical possession of the Marketplace/Dropship Goods to the Company at the Warehouse.
Fees means the costs, fees and charges to be paid by Client for the Services.
Fulfilment Services means services performed for Client by Company for B2B or DTC sales as set forth on a Fulfilment Services Order Form.
Goods means Client’s manufactured product/merchandise ready for sale.
Gross Sales means the Company’s total revenue either paid by or due to Company from Retail Operators based on shipment of Marketplace/Dropship Goods. For any Retail Operators that operate via Marketplace and charge a Marketplace Platform Fee, Gross Sales are net of Marketplace Platform Fees.
Logistical Costs means the costs of performing logistical services for the Client in respect of its Wholesale or D2C Clients and any additional expenses incurred by Company due to Client’s actions or inactions.
Marketplace/Dropship Goods means Goods shipped by the Client in response to a Marketplace Purchase Order prior to their resale by the Company.
Net Sales shall refer to Gross Sales minus the revenue owed back to Retail Operators by Company based on Client returns and Chargebacks (Net Sales = Gross Sales – Returns – Chargebacks). For any Retail Operators that operate via Marketplace and charge a Marketplace Platform Fee, Net Sales are net of Marketplace Platform Fee.
Retail Operators means the retailers approved by the Client.
RO Shipping Standards mean the requirements set by each Retail Operator relating to the manner of packaging or presentation of the Marketplace/Dropship Goods
Self-Bill means an invoice from the Client to the Company in an amount equal to Net Sales minus Selling & Service Fee plus the Logistical Costs.
Services means those services to be supplied by the Company to the Client, as set out in the Order Form(s).
Warehouse means the Company’s owned or operated warehouse facility in Austin, Texas, or such other premises as may be agreed between the parties from time to time.
General Interpretation. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). The Order Form(s) and any Schedules thereto form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Order Form(s) and any Schedules thereto. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to any party shall include that party's personal representatives, successors and permitted assigns. Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions. A reference to writing or written includes email. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms. Any reference to days or months, shall refer to calendar days or months unless otherwise specified in the Agreement.
Structure of Agreement.
Order Form. This Agreement sets forth the general terms and conditions governing the contractual relationship between Company and Client. The Parties entered into one or more Order Forms (each an Order Form) which shall set forth:
the Services to be provided by Company to Client;
the Fees); and
such other terms and provisions as the Parties may mutually agree.
No Order Form shall be binding upon any Party unless and until the same is duly executed by both Parties. Any addition, change or modification in or to the type, nature or other characteristics of the Services requested by Client during the Term of this Agreement shall be subject to mutual agreement of the Parties and shall be set forth in a written amendment, appendix or addendum to an existing Order Form (an Order Form Amendment) or new Order Form, as appropriate and executed by both parties. For purposes hereof, each reference to an Order Form shall mean each Order Form and each Order Form Amendment, as applicable.
Order of Precedence. The terms and provisions of this Agreement shall apply to all Services and the relationship of the Parties, and are incorporated into each Order Form. In the event of any conflict or inconsistency between the term and provisions of this Agreement and any Order Form or Order Form Amendment, (i) the terms of any Order Form Amendment shall control over conflicting or inconsistent terms of this Agreement or any Order Form and (ii) the terms of any Order Form shall control over conflicting or inconsistent terms of this Agreement. Terms and Conditions on any Client forms provided to Company are hereby rejected in their entirety and will not apply to any Services performed under this Agreement and, in the event of a conflict between Client forms and this Agreement, this Agreement shall control in all respects.
Privacy/Data.
Service Provider. With respect to the application of data and privacy regulations inclusive of GDPR, CCPA and other similar applicable regulations and laws with respect to the Services of Company, Company is and shall be deemed a “Service Provider” (as such term is used under CCPA) and/or Data Processor and as such, agrees that it shall not collect, retain, use or disclose Personal Information for any purpose other than for the specific “business purpose” of performing the Services set forth herein or as otherwise may be permitted under applicable regulations and laws. For the purpose of this Agreement and any related Order Form hereto, “business purpose” means the use of Personal Information for the business’ or service provider’s operational purposes, or other notified purposes.
Processing of Data. For the performance of Services under this Agreement, Company may, as a Service Provider and data processor, processes personal information on behalf of Client, Company will comply with all Client reasonable written instructions with respect to compliance with the provisions of CCPA, subject to the exceptions and exemptions thereto. Notwithstanding the foregoing, Client and Company shall mutually agree in writing prior to Company incurring any additional costs associated with adhering to Client’s written instructions regarding processing Client’s or its customers’ Personal Information. Client represents and warrants to Company that Client has obtained all necessary consents of its customer for use of their Personal Information for the purpose of the provision of Services hereunder.
Deletion Request. If Client informs Company of its customer request for the deletion of their customer’s data in the exercise of their customer’s consumer privacy rights or Company receives a request from a customer of Client for deletion, Company will follow the reasonable instructions of the Client and a mutually agreed process for (i) the verification and identification of customer data within the Company system and (ii) the confirmation of Client’s request for any deletion or the de-identification of such customer data. Notwithstanding the foregoing, Client and Company shall mutually agree in writing prior to Company incurring any additional costs associated with adhering to Client’s written instructions regarding processing Client’s or its customers’ personal information.
Archival Copy. Notwithstanding the foregoing, Company as a Service Provider may retain and preserve a copy of the Personal Information or any other Client data for archival, auditing, disaster recovery, record retention and/or legal or regulatory purposes, subject to maintaining the confidentiality and security of such retained information.
Company Obligations. The Company shall:
provide the Services as set out in the Order Form(s) in accordance with this Agreement;
perform the Services with the highest level of care, skill and diligence in accordance with best practice in the Company's industry and trade;
co-operate with Client in all matters relating to the Services, and comply with the Client's reasonable instructions;
before the date on which the Services are to start and at all times during the Agreement maintain all necessary licences and consents and comply with all applicable laws in relation to the Services;
observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Warehouse; and
in relation to the Company's personnel, ensure that all personnel involved in the provision of the Services have suitable skills and experience to enable them to perform the tasks assigned to them, and that such personnel are in sufficient number to enable the Company to fulfil its obligations under this Agreement.
Access to Warehouse. The Company shall provide the Warehouse and the Client (or its representatives) may inspect the Warehouse and the Goods during business hours with reasonable notice to the Company and Company shall provide all reasonable assistance to Client (or Client's representatives) in relation to such inspection. Client acknowledges that a Company employee must be present during any such inspection. The Company shall, or shall ensure that any third-party provider shall, maintain the Warehouse(s) throughout the term of this Agreement in such manner that it remains suitable to store the Goods, including but not limited to in such a manner as to protect them from damage or deterioration.
Title and risk. Client represents and warrants that it is the legal owner of and has lawful possession of the Goods. Client represents and warrants that it has the sole legal right to direct Company as to the storage, release and/or delivery of the Goods or other Services.
Title for Marketplace/Dropship Goods.
Title to the Marketplace/Dropship Goods shall not pass to the Company until the earlier of:
Client receiving payment in full (in cash or cleared funds) for the Marketplace/Dropship Goods; or
the Marketplace/Dropship Goods being sold by Company to a Retail Operator or end customer. Upon such sale, title to the Marketplace/Dropship Goods shall pass initially to Company. It is understood that the Company is only holding the Marketplace/Dropship Goods in trust for the Client until the sale to the Retail Operator and/or end customer. Proceeds of all sales of Marketplace/Dropship Goods shall then be the property of the Company for purposes of effecting the sale to the Retail Operator and/ or end customer. If any Marketplace/Dropship Goods sold to a customer are returned for any reason, the return transaction shall automatically transfer title to such returned merchandise back to Client.
The Company may resell the Marketplace/Dropship Goods in the ordinary course of its business.
The Company acknowledges that it holds the Marketplace/Dropship Goods in its possession as bailee for the Client until such time as title passes in accordance with Section 6(i).
Title for Goods Sold DTC or B2B.
Client shall retain all right and title to all Goods which are in the possession and control of Company.
Company shall have a first priority security interest and general lien on any and all Goods in its possession or control or in route for all claims by Company under this Agreement (including any disputed amount hereunder, all costs and expenses incurred by Company in connection with the Services, all advances made by Company on Client’s behalf, all Chargebacks, returns or other Retail Operator penalties and all costs of collection, including attorney’s fees). Such security interest shall be perfected by possession and Client hereby authorizes Company to file any necessary UCC financing statements. If such claim remains unsatisfied for thirty (30) days after demand for payment is made, Company may sell at public auction or private sale, at the expense of Client, upon ten (10) days written notice to Client, all of Client’s Goods in Company’s possession or control, or so much thereof as may be necessary to satisfy any such lien, and apply the net proceeds of such sale to the payment of any amount due to Company. Any surplus from such sale shall be transmitted to Client and the Client shall be liable for any deficiency in the sale.
Nothing contained in this Section 6(b) shall be construed to apply to Marketplace/Dropship Goods.
Risk of Loss. Company shall be responsible for all loss of or damage to the Goods (risk of loss) which occurs while in Company’s possession or control, but only to the extent caused by the negligence or willful misconduct of Company or its employees or agents. Client acknowledges and agrees that Company is not responsible for loss or damage to the Goods other than as expressly stated in the preceding sentence. Client shall be solely responsible for obtaining its own insurance covering the risk of loss and/or damage to the Goods.
Company's Responsibilities Before Title Passes. Until title passes to the Company, the Company shall:
store the Goods in its possession so that they remain readily identifiable as the Client's property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
keep the Goods in its possession in satisfactory condition and in accordance with instructions from the Client from time to time; and
except as permitted under Section 6(b)(ii), not have any lien, security interest or other right in any Goods and shall not exercise, or purport to exercise, any such right or charge, or hold itself out as owner of the Goods.
Stock Loss, Inventory Reconciliation and Acceptable Shortage Allowance.
Company shall perform an annual inventory reconciliation at minimum of once a year, at its own expense. Client acknowledges and agrees that a shortage allowance of 2.0% relating to shortage or loss of Goods which such shortage or loss is caused by Company (including where stock is not saleable due to damage caused by Company) (Acceptable Shortage Allowance) acceptable and non-compensable.
Any shortage or loss of Goods which such shortage or loss is caused by Company (including where stock is not saleable due to damage caused by Company) exceeding the Reasonable Shortage Allowance shall be paid at fifteen percent (15%) of MSRP.
Inspection and Rejection of Goods.
Client shall submit a packing list for DTC and B2B Goods setting forth a written list of the contents of each shipment sent to the Warehouse by Client including the details of the description and number of the Goods (Packing List) or shipment invoice for Marketplace/Dropship Goods (include all information which Company has advised Client in advance is required to meet a Retail Operators shipping standards) (Shipment Invoice) shipped to the Company (the Packing List and Shipment Invoice are collectively referred to herein as the Required Documentation).
The Company, or a third-party representative on behalf of the Company, shall inspect all Goods in a timely manner.
In the event of any discrepancy between the Required Documentation and the physical count of merchandise upon receipt at the Warehouse, the physical count shall be deemed correct and appropriate.
The Company may request supporting documentation and/or information from the Client including written proof of Delivery and Bill of Lading.
The Company may reject any Goods that are defective, non-compliant or that do not conform to the description. The Company shall notify Client of any defective or non-conforming Goods:
in the case of a defect that is apparent on normal visual inspection, within five Business Days of the inspection set forth in Section 8(b); and
in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
Client may, at its option, elect that the damaged, non-compliant and/or non-conforming Goods be either (i) destroyed by Company or (ii) returned to Client. The costs associated with the destruction or return of damaged or non-conforming Goods shall be borne solely by the Client.
Payment of Fees, Late Fees, Interest and Disputes.
Client shall pay all Fees in accordance with the terms of each Order Form.
Any payments which remain due and owing for more than two (2) days past their due date shall be subject to a late fee of 10% of the delinquent payment amount in addition to any outstanding Fees or any other payment due under this Agreement then owing. Client shall pay the lesser of eighteen percent (18%) interest or the maximum amount permitted by law on any outstanding sums due under this Agreement that remain unpaid. The foregoing interest shall accrue from the date such payment is due until the date such payment is actually paid. Company reserves the right to offset any amounts owed to Company against any remittances owed by Company to Client until all Fees (including late fees) are paid in full.
The acceptance and deposit by Company of any payment from Client, which payment contains reference in any manner that such payment constitutes “payment in full” or “in full satisfaction” shall not constitute an accord and satisfaction or a waiver by Company of any rights it possesses, in law or equity, to collect payment in full from Client.
In the event Client disputes the accuracy of any Company invoice, Client shall (i) within thirty (30) days of receipt thereof, send to billing@soldthrough.com a written statement setting forth, in reasonable detail, the specific nature of the dispute and (ii) pay any undisputed portion of such invoice in accordance with the applicable payment terms. If Client fails to timely provide such written statement or pay such undisputed portion of the invoice amount, Client shall be deemed to have irrevocably accepted such invoice, and Client shall have no further right to dispute the invoice. If Client timely provides such written statement and pays the undisputed portion of the invoice amount, then representatives of Company and Client shall, within fifteen (15) days, attempt to resolve such dispute. If such dispute is not resolved, the Parties shall follow the provisions for dispute resolution set forth in Section 28 hereof.
Additional Payment Terms for Marketplace/Dropship Goods
Except for the Additional Optional Services, the Client and the Company shall pay all invoices and Self-Bills in full and in cleared funds within 30 days of the date of each invoice or Self-Bill. Notwithstanding the foregoing, any Self-Bills issued by Company in the month of December in any year shall be paid in full and in cleared funds within 60 days of the date of such Self-Bill.
Payment by the Company shall be made to the bank account nominated in writing by the Client and vice versa. All payments shall be made in $USD.
Company shall pay Client for funds due from Retail Operators for sale of Marketplace/Dropship Goods, net of the Service & Selling Fee and any Chargebacks. Terms of Payment from Company to Client shall not exceed Net 30 terms upon receipt of funds from Retail Operator.
Payment shall be sent electronically via wire transfer to the Client's nominated bank account, together with the Company Merchandise Balance Statement for Client’s reference.
Any additional expenses or Chargebacks incurred by Company due to Client’s failure to comply with Retail Operator Shipping Terms shall be immediately deducted from next Company payment to Client related to sale of Marketplace/Dropship Goods.
For any Additional Optional Services (as defined on an Order Form), Company shall invoice Client once per calendar week. Invoices are due upon receipt and will be paid in US Dollars via Automated Clearing House (ACH) payment within seven (7) days after the invoice date. Client shall provide and maintain access for Company to withdraw the payments hereunder by ACH from a Client-owned account. Client is responsible for all wire and banking fees charged by Client’s originating financial institution as may be necessary to remit payment in USD in accordance with these terms.
Additional Payment Terms for Fulfilment Services.
For the Fulfilment Services, Company shall invoice Client once per calendar week. Invoices are due upon receipt and will be paid in US Dollars via Automated Clearing House (ACH) payment within seven (7) days after the invoice date (Invoice Due Date). Client shall provide and maintain access for Company to withdraw the payments hereunder by ACH from a Client-owned account. Client is responsible for all wire and banking fees charged by Client’s originating financial institution as may be necessary to remit payment in USD in accordance with these terms.
Confidentiality. Each Party agrees that it shall not disclose to any third party (excepting their employees, consultants and professional advisors who are bound by similar confidentiality obligations) any information concerning the customers, business information, trade secrets, methods, processes or procedures or any other confidential or proprietary information of the other Party which it learns during the course of its performance of this Agreement (Confidential Information). The Parties agree that the terms of the Order Form shall be the Confidential Information of Company. The receiving Party shall only use the Confidential Information of the disclosing Party for the performance of its duties, and the exercise of its rights, under this Agreement. Confidential Information shall only include information that is (a) provided in writing or other tangible form and marked with a “Confidential” or “Proprietary” legend; or, (b) reasonably understood to be confidential or proprietary in light of the nature of the information and the circumstances of disclosure. Confidential Information shall in no event include that which (i) is or was known to a Party prior to receipt hereunder; (ii) at the time of disclosure to either Party by the other Party was generally available to the public, or which after disclosure hereunder becomes generally available to the public through no fault attributable to either Party; (iii) is hereafter made available to either Party for use or disclosure from any third party having a right to do so, (iv) is independently developed by the receiving Party, (v) is provided by the disclosing Party to a third party and not under any obligation of confidentiality, or (vi) is required to be disclosed by court order or by operation of law, so long as the disclosing Party has received prior notice from the receiving Party and has had an opportunity to seek a protective order. This obligation will survive the termination of this Agreement for a period of two (2) years after the date of termination.
Commission Adjustments and Right to Renegotiate.
The Parties acknowledge and agree that Company may institute price increases of the Selling and Service Fee to adjust for: (i) increased costs to Company or (ii) significant divergences from financial information provided by Client to Company prior to contract signing, by giving notice of such increase at least (60) days prior to the increase effective date. Such price increases shall not occur more than once every twelve (12) months
In the event of an increase of the Selling and Service Fee pursuant to this Section 11, Client may, within thirty (30) days of receipt of notice of such increase, request an option to re-negotiate to ensure fair profitability for both parties. If the parties, after negotiating in good faith, are unable to come to a resolution thirty (30) days after Client having made a request pursuant to this Section, Client may immediately terminate the applicable Order Form by giving written notice to Company to this effect.
Return of Goods.
Return of Goods During the Term:
Client may request return of any unsold Goods in writing at any time and following receipt of such notice, the identified Goods cannot be sold by Company.
Company shall return to Client any unsold Goods within thirty (30) days after receipt of Client's notice requesting the return of such Goods. The expense of any such return of Goods, including the warehouse handling and freight costs shall be borne by Client. Company may at any time, at Company's initiative, return to Client any Goods. The expense of any such return of Goods shall also be borne by Client.
The Company may liquidate unsold Goods with prior written consent from the Client and shall follow any reasonable instructions of the Client in doing so.
For Marketplace/Dropship Goods: The Monthly Operational Fee shall apply regardless of volume of Marketplace/Dropship Goods Client places with Company. If the value of the Goods placed with Company at any given time falls below the total amount of Monthly Operational Fees remaining for the Term, Company may decline to return Marketplace/Dropship Goods unless Client pre-pays the remaining Monthly Operational Fees.
For any individual SKU within the Marketplace/Dropship Goods where the last receipt date was seven (7) months prior, Client shall either (i) pay for the return of such SKU to Client or (ii) pay Company a storage fee in an amount equal to Company’s then-current storage rates.
Return of Goods Upon Expiration or Termination: If, within thirty (30) days of termination or expiration of this Agreement, Client has not coordinated the return of Goods, Company may, in its sole discretion, elect to liquidate unsold Goods in Company’s possession without prior written consent from the Client.
Client Representations and Warranties. Client represents, warrants, and covenants that:
Legal Compliance. All Goods comply in all material respects with applicable federal, state and local statutes, decrees, ordinances, rules, regulations, requirements, executive orders, or other provisions of law;
Intellectual Property. Client owns or has valid licenses for all intellectual property rights in the Goods and their sale will not infringe any third-party intellectual property rights;
Product Safety. All Goods are safe for their intended use, properly labeled, and include all required warnings and instructions;
No Recalls or Regulatory Actions. No Goods are subject to any recall, regulatory investigation, or enforcement action;
Financial Capacity. Client has sufficient financial resources to perform its obligations hereunder and pay all amounts due; and
Authority. Client has full corporate power and authority to enter into this Agreement and perform its obligations
Indemnification. Each Party (the Indemnifying Party) agrees to indemnify and hold harmless the other and its members, managers, directors, officers, employees and affiliates (the Indemnified Parties) from and against all claims, taxes, losses, damages, liabilities, costs and expenses, including reasonably incurred attorneys’ fees and other legal expenses, to the extent arising directly from:
any negligent, reckless or intentionally wrongful act of the Indemnifying Party or Indemnifying Party’s assistants, employees, or agents; and
any and all third-party claims to the extent that they arise directly out of breach by the Indemnifying Party of its obligations, representations or warranties under the Agreement; and,
Client agrees to indemnify Company against any product liability claims or regulatory violations or enforcement actions related to the Goods.
Non-Solicitation. Client shall not solicit any client, associate, employee, or third-party partner relationship brought forth by the Company for the benefit of services provided to the Client under the execution of this Agreement during the Term and any Renewal Term (as defined below), and for a period of twenty-four (24) months following expiration or termination of this Agreement.
Insurance. Unless otherwise agreed in an Order Form, during the Term and any Renewal Term, each Party shall maintain a General Liability insurance policy of $3,000,000. Client acknowledges that Company does not maintain insurance for loss, damage or destruction of Client’s Goods and Client is responsible for maintaining such coverage. Upon Company's request, Client shall provide Company with a certificate of insurance and policy endorsements for all insurance coverage required by this Section 16 and shall not do anything to invalidate such insurance. Company requires that the certificate of insurance shall name Company as an additional insured.
Limitation of Liability. References to liability in this Section 17 apply to every liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. Except for a breach of Section 10, Client’s breach of Section 15 and the exclusions set forth in Sections 17(a) and 17(c), all indirect and consequential losses are excluded.
Neither party may benefit from the limitations and exclusions set out in this Section in respect of any liability arising from its deliberate default.
Nothing in this Section 17 shall limit the Client's payment obligations under this Agreement.
Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
death or personal injury caused by negligence; or
fraud or fraudulent misrepresentation.
Subject to Section 17(c), the Company's total liability to the Client for damage, destruction, loss and related expenses to the Goods while in the possession of the Company, shall be limited to the lesser of (i) 100% of the total fees paid by Client to Company, or retained by Company from sums remitted to Client in the preceding twelve (12) month period (ii) or $100,000.
Term and Termination.
The term of this Agreement shall continue as long as an Order Form referencing or incorporating this Agreement remains valid and in effect. Termination or expiration of any Order Form shall leave other Order Forms unaffected. Any references herein to Term shall include Renewal Terms, as applicable. Notwithstanding the foregoing, neither party may terminate any Order Form between October 1 and December 31 of any year, unless (1) such termination is a result of a material breach and in compliance with Section 18(b)(i), or (2) both parties agree in writing.
Without affecting any other right or remedy available to it, either party may terminate an Order Form with immediate effect by giving written notice to the other party if the other party:
commits a material breach of any term of this Agreement or an Order Form and such breach is irremediable or if where such breach is remediable the party at fault fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
the other party repeatedly breaches any of the terms of this agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement or an Order Form;
makes an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts as they become due, or shall file any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file any answer admitting or not contesting the material allegations of a petition filed against such party in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of such party or of all or any substantial part of the properties of such party, or such party or its directors or majority stockholders shall take any action looking to the dissolution or liquidation of such party; or
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or substantially the whole of its business.
On the occurrence of any of the events under Section 18(b)(iii) in relation to the Company, Client may either itself or through a third party remove Goods at any time from the Warehouse or other premises where they may be stored and Company shall do all such things as may be reasonably necessary to deliver up such Goods to Client or its nominee.
To ensure the orderly closure of business operations and to mitigate financial risk, upon termination of this Agreement or termination of any Order Form, Company reserves the right, in its sole reasonable discretion, to establish and maintain a reasonable reserve amount. This reserve will be determined based on factors including, but not limited to, the specific Marketplace/Dropships on which Client’s products are listed, historical return rates, and projected post-sale liabilities.
The reserve may be withheld from disbursements and held for a reasonable period of time following the conclusion of active selling activity or the termination of this Agreement or any Order Form (the “Reserve Period”). The purpose of this reserve is to cover:
Product returns or chargebacks
Marketplace/Dropship fees or penalties
Other obligations related to customer service or fulfillment issues that arise after sales have ceased
Company will communicate the reserve amount and holding period in writing and will release any unused funds after the Reserve Period, minus any applicable deductions.
Upon any termination of this Agreement, each Party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, provided that the provisions of Section 10, 14, 15, 17, 19, 28, and any other provisions that by their nature survive termination, will survive. Termination will not relieve either Party from any liability arising from any breach of this Agreement, and termination of this Agreement by a Party will be without prejudice to any other right or remedy of such Party under this Agreement or applicable law.
Use of Client’s Name and Logo in Marketing. Client agrees that Company may use Client’s name and Logo in select marketing materials, including on its website and social networking channels in such style, size and position as the Client shall agree (agreement not to be unreasonably withheld). Client maintains the right to reasonably request changes as necessary to uphold Client’s brand image.
No Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce of its other rights under this Agreement. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Relationship of Parties. Nothing in this Agreement will be construed to imply a joint venture, partnership, or agency relationship between the Parties. The Parties will be considered independent contractors under this Agreement.
Assignment. Neither this Agreement nor any rights or interest created hereunder may be assigned, sublicensed or transferred by either party and any such attempted assignment or sublicense, whether voluntary or by operation of law, directly or indirectly, shall be void and of no force or effect, unless agreed in writing by the other party.
Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the non-performing party's reasonable control.
Entire Agreement. This Agreement, including each Order Form and Order Form Amendment, if any, contains the entire agreement between the parties and there are no other promises or conditions in any other agreement whether oral or written and neither party has relied on any representations not specified in this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
Amendment. Company may amend this Agreement from time to time by posting an amended version on its website and sending Client written notice thereof. Such amendment will become effective 30 days after such notice (Proposed Amendment Date) unless Client first gives Company written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of the next Renewal Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Section 20 hereof). This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
Severability. If any provision of this Agreement shall be held to be invalid for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provisions of this Agreement are invalid or unenforceable, but that by amending such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
Electronic Acknowledgement and Counterparts. The Parties agree that electronic signatures shall be deemed valid and acceptable as originals. The parties expressly agree that a PDF or other electronically scanned or preserved copy of the Agreement shall be admissible to the same extent as the original. The Agreement shall be effective until each Party has delivered to the other at least one properly executed counterpart.
Dispute Resolution/Arbitration.
Without limiting any party’s rights hereunder, in the event of a dispute under this Agreement, the parties shall endeavour to reach an amicable resolution and if unable to do so within thirty (30) days after receipt of a notice of dispute given by one party to the other, then, upon notice by any party to the other(s), any unresolved controversy or claim shall be settled by arbitration administered by the International Centre for Dispute Resolution in accordance with the provisions of its International Arbitration Rules. The number of arbitrators shall be (one). The place of arbitration shall be Austin, Texas, United States.
No action by Client for breach of this Agreement may be commenced more than twelve (12) months after the accrual of the cause of action. Any action by the Company relating to this Agreement is not so limited and shall be governed by the applicable statute of limitations.
Governing Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the federal laws of the United States of America and the state laws of the State of Texas.