This BlueX Pay Vendor Service and Promotion Agreement (including all exhibits, schedules, and incorporated documents, collectively, the "Agreement") is made and entered into (i) as of the date (the “Effective Date”) on which you (“Company” or “you”) submit your registration form on the BlueX Pay website currently located here: https://www.bluexpay.com/, (ii) by and between you and BlueX Trade, Inc. (“BlueX”, “we” or “us”).
BlueX and Company are referred to herein for convenience each as a "Party" and collectively as the "Parties". Websites owned or operated by us or our affiliates are referred to herein as the “Sites”. BlueX operates the BlueX Pay Service (“BlueX Pay”) as described in the Terms of Service (the “Terms of Service”) located here: https://www.bluexpay.com/terms-of-service/. “Services” as used herein has the meaning ascribed to it in the Terms of Service. BlueX Pay is a Service.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SITES AND/OR SERVICES DESCRIBED IN THIS AGREEMENT. BY ACCESSING OR USING THE SITES AND/OR SUCH SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITES OR SERVICES FOR THE PURPOSES DESCRIBED HEREIN AND SHOULD IMMEDIATELY CEASE SUCH USE. BLUEX MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE RELEVANT SITE OR SERVICE OR VIA EMAIL. YOUR USE OF ANY OF THE SITES AND/OR SERVICES DESCRIBED HEREIN FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THIS AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITES AND/OR THE SERVICES DESCRIBED HEREIN SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
You are entering into this Agreement with us because you want to recommend BlueX Pay to your customers (“Company Customers”). We are entering into this Agreement with you because we want (i) you to promote BlueX Pay and (ii) to provide BlueX Pay to Company Customers.
Company shall promote BlueX Pay to Company Customers as a payment option preferred no less than any other payment option.
- Company may transmit to BlueX via electronic data interchange (i) invoices payable to Company by Company Customers (each, a “Company Invoice”) or (ii) arrival notices with respect to shipments made by Company for Company Customers (each, an “Arrival Notice”; Arrival Notices together with Company Invoices, each, a “Payment Notice”).
- Provided that the relevant Company Customer has agreed to the Terms of Service and has become eligible to use BlueX Pay and other related Services necessary for BlueX to fulfill its obligations hereunder (including but not limited to BlueX’s Pay-It-Later service) (collectively, the “BlueX Pay Services”), all in accordance with all applicable terms and conditions thereof, upon receiving (i) any Payment Notice related to shipments made on behalf of such Company Customer, (ii) the Company Customer’s authorization of BlueX to pay the amount specified in such Payment Notice (each, a “Company Invoice Amount”), and (iii) the Company Customer’s further agreement to pay BlueX the Company Invoice Amount together with any additional service fees due to BlueX in accordance with the terms and conditions of the BlueX Pay Services, BlueX shall pay the Company Invoice Amount pursuant to the payment instructions set forth in the Company Invoice. Company Invoice payments may be sent individually or batched daily and may be sent via ACH or wire transfer in accordance with instruction provided by Company to BlueX via BlueX’s website. BlueX agrees and acknowledges that any requested changes to the remittance accounts received by BlueX shall be verified through a two-step process by: (i) sending an email to and (ii) calling the Company at the Company’s last known telephone number. BlueX shall indemnify and hold harmless Company from any and all damages incurred by Company in the event BlueX disburses payments to a remittance account pursuant to any change request(s) that was not verified in accordance with this Section 2.2.
- After BlueX initiates payment of a Company Invoice Amount, BlueX shall give Notice to Company that such payment has been initiated.
- For the avoidance of doubt, BlueX’s payment of any Company Invoice Amount made pursuant to this Section 2 is not contingent upon receipt by BlueX of any amounts from the relevant Company Customer, and BlueX will not ask for any form of refund from Company with respect to any Company Invoice Amount due to any failure by BlueX to receive any related amounts from a Company Customer.
- Without in any way limiting the generality of Section 14, BlueX is not responsible to any Company Customer for any service provided by the Company to any Company Customer, including the Company’s duty of shipment and release set forth in Section 3 of this Agreement. In the event that any Company Customer brings any claims against BlueX, the Company will indemnify BlueX pursuant to Section 6 of this Agreement.
Upon BlueX notifying Company that BlueX has initiated payment of a Company Invoice Amount pursuant to Section 2 above, Company will initiate its cargo release process of the relevant shipment specified in the applicable Company Customer shipment request or purchase order, in accordance with the Company’s cargo release policy, including but not limited to the satisfaction of any customs requirements at the destination port.
- This Agreement commences on the date of this Agreement and will extend for an initial term of one (1) year (“Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”), unless one Party gives the other Party Notice of its intent not to renew this Agreement at least ninety (90) days prior to the end of the Initial Term or then current Renewal Term.
- Either Party may terminate this Agreement: (i) at any time upon Notice to the other Party if the other Party breaches this Agreement and fails to cure such breach within ten (10) days after receipt of Notice of the breach or (ii) for any reason upon thirty (30) days’ Notice to the other Party.
- In the event of termination by one Party as a result of the other Party’s breach of this Agreement, the non-defaulting Party shall have all rights and remedies available to such Party at law or in equity.
BlueX shall at no point in any transaction contemplated by this Agreement be the legal or beneficial owner of any goods identified in any Payment Notice. BlueX disclaims to the fullest extent of the law any product warranty or guaranty for such goods.
Subject at all times to Section 9, each Party (the “Indemnifying Party”) agrees to be responsible for its own actions and to indemnify, defend, and hold harmless the other Party and such other Party’s directors, officers, employees, and agents (the “Indemnified Parties”, and each, an “Indemnified Party”) for, from, and against all claims and losses of any type, including reasonable attorneys’ fees, in connection with, in whole or in part: (i) any negligent act or omission by, or any willful misconduct on the part of, the Indemnifying Party or (ii) the Indemnifying Party’s failure to comply with any applicable national, state, or local law or any breach of this Agreement by the Indemnifying Party.
Each Party represents and warrants to the other Party that:
- (i) it has the corporate power and authority to execute, deliver, and perform this Agreement, (ii) the execution, delivery, and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (iii) it has duly and validly executed and delivered this Agreement, and (iv) this Agreement is its legal, valid, and binding obligation, enforceable against it in accordance with the terms hereof, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting creditors’ rights generally and general equity principles; and
- it has all licenses, permits, consents, and approvals required to be obtained by it from any regulatory agency exercising authority over it in order for it to lawfully conduct its business, to perform its obligations hereunder, and to receive the rights and benefits available to it hereunder except to the extent the failure to have any of the foregoing would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on it.
Except as otherwise expressly set forth herein, nothing in this Agreement constitutes an agreement by either Party to assign or otherwise convey title to any of its intellectual property rights to the other Party. As between the Parties, each Party will retain full ownership of and title to all intellectual property rights and related goodwill, in its respective URL addresses, domain names, equipment, materials, hardware, software designs, works of authorship, inventions, and other items provided by such Party in connection with this Agreement. The Parties also agree that any intellectual property created solely by a Party in connection with the performance of this Agreement shall be the sole and exclusive property of the creating Party.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES INCURRED OR SUFFERED BY THE OTHER PARTY, INCLUDING THE INDEMNIFIED PARTIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOST REVENUE, LOSS OF INCOME, LOSS OF BUSINESS ADVANTAGE, OR INDEMNITY COSTS, EVEN IF THE PARTY SUFFERING SUCH DAMAGES, OR AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing by personal delivery, internationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid) to the other Party at its last known address, fax number, or email. Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 10.
This Agreement and the other agreements and documents referred to herein constitute the entire agreement between the Parties with respect to the subject matter hereof and no Party shall be liable or bound to any other Party in any manner with respect to the subject matter hereof by any representations, warranties, or covenants except as specifically set forth herein or therein.
- No Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement to an Affiliate (as defined below). Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder.
- “Affiliate” of a Party means any other individual, corporation, partnership, joint venture, limited liability entity, unincorporated organization, trust, association, or other entity (each, a “Person”), that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person (including, for the avoidance of doubt, any Company Customer) any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement will be enforced, governed by, and construed in accordance with the laws of the State of California (USA), without giving effect to any conflict or choice of law principles or provisions thereof.
- Applicability of Arbitration Agreement
The Parties agree that any dispute, claim, or request for relief relating in any way to this Agreement or to any aspect of Company’s relationship with BlueX, will be resolved by binding arbitration, rather than in court, except that (i) the Parties may assert claims or seek relief in small claims court if the claims qualify; and (ii) the Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This arbitration agreement (the “Arbitration Agreement”) shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the Effective Date or any prior version of this Agreement.
- Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under US$250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration and all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the Parties will select an alternative arbitral forum. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Where the dispute is of an international nature, this arbitration provision is subject to the JAMS International Arbitration Rules.
- Location and Language
The arbitration will be seated, and the venue for all in-person arbitral proceedings will be located, in San Francisco, California (USA). The language to be used in the arbitral proceedings will be English.
- Authority of Arbitrator
The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of the Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon the Parties.
- Waiver of Jury Trial
THE PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. The Parties are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in this Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief.
ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California (USA). All other disputes, claims, or requests for relief shall be arbitrated.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement
This Arbitration Agreement will survive the termination of this Agreement.
For purposes of this Agreement, (i) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (a) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (b) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.