Commerce Terms and Conditions
THIS AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN TENEOLOGY, INC. DBA FEXY (“FEXY”, or “MERCHANT”) AND THE INDIVIDUAL OR LEGAL ENTITY (“VENDOR”) WHO HAS EXECUTED AN ORDER FORM, QUOTATION, OR OTHER ORDERING OR PURCHASING DOCUMENT REFERENCING THIS AGREEMENT (“ORDER FORM”).
BY EXECUTING AN ORDER FORM, VENDOR EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN SUCH ORDER FORM (“EFFECTIVE DATE”). IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “VENDOR” WILL REFER TO THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM.
1. TERM. This Agreement will commence on the Effective Date and shall continue until either party provides thirty (30) days’ written notice of termination (“Term”). If any order for a Product has been transmitted that would require the Vendor to deliver a Product after the last date of the then-current Term, then the Term will automatically be extended until the final date upon which all such obligations have been fulfilled, following which it will terminate without further action by either party. Upon a material breach, and after the breaching party has been given 10 days’ written notice to cure such breach, a party may terminate this Agreement for cause. In the event of such termination the non-breaching party will be responsible for fulfilling all obligations accrued by it up through the date of termination.
2. PRODUCT AND SALES. Merchant shall have the right to provide its customers with the Product(s) listed on the order form via its online stores at SeriousEats.com, SimplyRecipes.com and Relish.com. Vendor shall promptly notify Merchant if out-of-stock on any Product. Merchant shall be the sole party managing customer interactions, including collecting payment, shipping information, and other such data that may be required to deliver the Product.
3. DATA PROTECTION. Vendor agrees to maintain confidentiality of customer information provided by Merchant, in a manner at least as secure as it maintains its own customer data, and not re-use such data for its own commercial purposes.
4. ORDER PROCESS. Merchant shall transmit orders for the Products via email at the address on the Order Form, or upon mutual written approval, an acceptable automated order entry system or such other means as may be agreed upon by the parties. Each transmission shall include a list of the Product(s) ordered, a shipping address, shipping methodology, and any other information that be relevant to fulfilling an order. Vendor shall be responsible for all pick, pack and ship functions.
5. FULFILLMENT / SHIPPING. Vendor shall provide drop shipping fulfillment services and ship products. The fee for this service shall be included in the Commission Rate listed on the Order Form. Vendor shall provide Merchant with a set of shipping options and prices for each Product. Vendor agrees to ship products within the Fulfillment Period provided on the Order Form. Invoices shall be on the form provided by Merchant, if requested by Merchant. Vendor shall not include any promotional materials, catalogues, or inserts that have not been approved in writing by Merchant.
6. CUSTOMER SERVICE / RETURNS. Vendor shall provide Merchant with information on its return policy for damaged or defective items, and shall extend to Merchant the most favorable return terms it offers to other retail channels. Merchant shall solely be responsible for customer communication, involving inquiries and support. Reasonably following receipt of a customer claim, Merchant shall provide Vendor with notice of any damaged or defective product. Product returns, if required, shall be delivered to an address provided by Vendor, which Merchant can provide to its customers.
7. PAYMENT. Payment terms shall reflect those indicated on the Order Form. Merchant shall remit payment to Vendor, via Merchant’s Accounts Payable system, funds for products sold. Prior to any remittances, Vendor must provide all required tax and banking details to Merchant’s Account Payables team.
8. MARKETING. Merchant may use Vendor’s marketing materials, including photographs, videos or product descriptions, as part of its sales and promotional processes. Vendor retains rights to any materials provided, and may prohibit any such usage. Any materials created by Merchant shall remain the exclusive property of Merchant. Merchant may use its web sites, social media channels or other distribution to promote the sales of Products.
9. TAXES. Merchant agrees that it is the sole responsibility of Merchant to collect and remit sales taxes in the United States where applicable but shall not be liable for any import duties, VAT or similar taxes.
10. CONFIDENTIALITY. Pursuant to this Agreement, either party or its subsidiaries (“Discloser”) may disclose to the other party (“Recipient”) certain information that is marked confidential or proprietary at the time of disclosure, or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary (“Confidential Information”). Confidential Information does not include information that: (i) is or becomes generally known or publicly available through no fault of Recipient; (ii) was known, without restriction, by Recipient before receiving it from Discloser; (iii) is received from a third party who is allowed to provide it without restriction as to use or disclosure; or (iv) is independently developed without reliance on any Confidential Information of Discloser. Recipient will: (a) take reasonable measures to protect the Discloser’s Confidential Information, using at least those measures it takes to protect its own confidential information; (b) not use any Confidential Information except pursuant to this Agreement; (c) not disclose Confidential Information to any third parties except to its group companies, employees, agents, and third party contractors on a need-to-know basis, and as long as such parties are bound by restrictions at least as protective of Discloser’s Confidential Information as this Agreement; and (d) not export or disclose any Confidential Information in violation of applicable export control restrictions. Recipient may disclose Discloser’s Confidential Information to the extent required by any law or regulation if it gives reasonable advance notice (to the extent permitted under applicable law) so that Discloser can seek to prevent or limit such disclosure. Each party agrees that the terms and conditions of this Agreement will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement: (1) as required by any court or other governmental body having competent jurisdiction; (2) as otherwise required by law; (3) to legal counsel of the parties; (4) in confidence, to accountants, banks, and potential and actual funding sources and their advisors; (5) in connection with the enforcement of this Agreement or rights under this Agreement; (6) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (7) as mutually agreed upon by the parties.
11. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
A. Indemnity. Each party agrees to indemnify, defend and hold harmless the other party, its affiliates and their respective officers, directors and employees from and against any and all third party claims, causes of action, demands, costs, liabilities, expenses and/or damages (including reasonable attorneys’ fees and expenses) arising out of or in connection with any breach of this Agreement by such party.
B. Authority. Each of Vendor and Merchant warrants that: (i) it has all necessary rights and authority to enter into the Agreement on their own behalf; and (ii) it will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under the Agreement. Vendor warrants that its entrance into the Agreement does not conflict with the provisions of any of Vendor existing agreements and it owns or has the rights to all products and services necessary to perform its obligations herein.
C. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 14, FEXY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, AND FEXY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
12. LIMITATIONS OF LIABILITY.
A. Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, FEXY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO VENDOR FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF FEXY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
B. Cap on Liability. UNDER NO CIRCUMSTANCES WILL FEXY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY MERCHANT TO VENDOR DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
C. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FEXY TO VENDOR AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN SECTIONS 11 AND 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13. ASSIGNMENT. Neither party may assign its rights or obligations under this Agreement without the prior written permission of the other, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, no prior permission is required in the event that a party participates in a merger or consolidation or is the subject of a purchase of all, or substantially all, of its assets or capital stock or if Merchant assigns this Agreement to an affiliate.
14. GENERAL.
A. Relationship of Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties or to give either party the power to bind the other or to incur obligations on the other’s behalf. The Agreement is intended for the sole and exclusive benefit of the parties, and is not intended to benefit any third party.
B. Survivals. Upon expiration or termination of this Agreement, the following Sections will survive: 10 to 14.
C. Force Majeure. Neither party will be liable by reason of any failure or delay in the performance of its obligations under this Agreement for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet Service Providers, riots, insurrection, war (or similar), fires, floods, earthquakes, explosions and other acts of God.
D. Governing Law. The Agreement will be governed by, and interpreted and enforced in accordance with, the laws of the State of Delaware, without regard to conflicts of law principles that would require the application of any other law.
E. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email to the address provided on the Order Form or via certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
F. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict compliance in the future.
G. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
H. Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
I. Entire Agreement. This Agreement, including all exhibits and any applicable Order Form, is the final and complete expression of the agreement between these parties. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Merchant has any authority to bind Merchant with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Merchant will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Vendor in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Merchant specifically agrees to such provision in writing and signed by an authorized agent of Merchant.