By entering into a Vendor Trade Agreement (the “Vendor Trade Agreement”) which specifically references these Terms and Conditions, the Parties affirm that they accept and are bound by these Terms and Conditions and that these Terms and Conditions are hereby incorporated in and form an integral part of such Vendor Trade Agreement. Each capitalized term used but not otherwise defined in these Terms and Conditions shall have the meaning ascribed to it elsewhere in the Vendor Trade Agreement into which these Terms and Conditions are incorporated.
This document contains very important information regarding the Parties’ rights and obligations, as well as conditions, limitations, and exclusions that might apply to Parties. The Parties should read it carefully.
No Party may enter into the Vendor Trade Agreement if such Party does not agree to these Terms and Conditions.
- Buyer shall from time to time deliver Seller invoices to BlueX. In accordance with and subject to the terms and conditions of any agreement(s) between Buyer and BlueX, BlueX may make payment to Seller in respect of Goods set forth in such Seller invoice.
- Upon receipt of payment of a Seller invoice, Seller shall promptly, but in no case later than two (2) business days thereafter, release the Goods for which payment was made for shipment to Buyer.
- Immediately upon Seller’s receipt of full payment of any Seller invoice from BlueX, all Receivables related to the Goods set forth therein shall, without any further action on the part of any Party, be immediately transferred and assigned by Seller to BlueX.
- Each Party acknowledges and agrees that BlueX may at its discretion transfer, assign, cancel, or sell the Receivables to any third party.
- If any remittances are made directly to Seller with respect to Goods for which payment has been made to Seller by BlueX, Seller shall hold the same in trust for the benefit of BlueX and will immediately deliver to BlueX the identical checks, documents, instruments, or moneys received in the same form as received by Seller.
- Each Party warrants and represents to the other Party that:
- it is a corporation duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation;
- it has full power and authority and has obtained all necessary authorities and consents to enter into and perform its obligations under the Vendor Trade Agreement and such other agreements and arrangements referred to in the Vendor Trade Agreement; and
- the execution, delivery and performance of the Vendor Trade Agreement,and the consummation of the transactions contemplated hereby, do not and will not: (i) result in a violation or breach of any provision of the certificate of incorporation or by-laws of the Party; (ii) result in a violation or breach of any provision of any law or governmental order applicable to the Party; or (iii) (A) require the consent, notice, or other action by any person under or (B) conflict with, result in a violation or breach of, constitute a default under, give rise to any right of termination, or result in the acceleration of, any contract to which it is a Party.
- Seller represents, warrants, and undertakes to BlueX that:
- As to each Receivable assigned to BlueX under the Vendor Trade Agreement:
- the Receivable is not yet past due, arose in the ordinary course of Seller's business and represents a bona fide completed transaction;
- the title of Seller to the Receivable is absolute and subject to no assignment, claim, lien, or security interest;
- the Receivable, as shown on Seller’s books and records and on any invoices, bills of lading or statements, delivered to BlueX is a legally enforceable debt owed by Buyer to Seller in its full face amount;
- no partial payment has been made by anyone on such Receivable; and
- no set off, credit, allowance, adjustment, counterclaim, or defense to such Receivable exists or will exist and no agreement has been made or will be made with any person or entity under which any deduction or discount may be claimed on such Receivable;
- Seller shall execute any and all financing statements or other documents or instruments which BlueX deems necessary to protect its interest under the Vendor Trade Agreement;
- Seller’s business is solvent;
- All financial records, statements, books, or other documents shown to BlueX by Seller at any time, either before or after the signing of the Vendor Trade Agreement, are true and accurate;
- Seller will not, under any circumstances or in any manner whatsoever, interfere with any of BlueX's rights under the Vendor Trade Agreement;
- Seller will not factor or sell any Receivable except pursuant to the Vendor Trade Agreement;
- Seller has not and will not transfer, pledge, or give a security interest in any Receivable to any party; and
- Seller will not change or modify the terms of any Receivable without BlueX’s prior consent to such change in writing.
- As to each Receivable assigned to BlueX under the Vendor Trade Agreement:
- In the event of Seller's breach of any of the foregoing representations, warranties, or undertakings, BlueX shall, in addition to any other rights and remedies hereunder, have the right to request return of payment from Seller made by BlueX pursuant to Section 1.2. Such return of payment shall not be deemed a reassignment thereof, and BlueX shall retain a security interest in such Receivable until such Receivable is fully paid, settled, or discharged.
Seller shall immediately notify BlueX in each instance of the return, rejection, loss of, or damage to any merchandise represented by any Receivable, of any request for extension of time to pay or request for credit or adjustment, or of any merchandise dispute or other dispute or claim relating to any Receivable or to the merchandise or services covered thereby or tending in any way to diminish the sum certain payable thereon. If any such dispute, controversy, or claim is not promptly settled by Seller, BlueX may, if it so elects, settle, compromise, adjust, or otherwise enforce or dispose of by litigation or otherwise, any such dispute, controversy, or claim, at Seller's expense, and upon such terms and conditions as BlueX in its sole discretion shall deem proper, but BlueX shall have no obligation to do so. Seller shall not grant any allowances, credits, or adjustments to Buyer, nor accept any return of merchandise, without BlueX's prior written consent in each instance.
- Seller will indemnify, defend, and hold harmless BlueX, its directors, officers, employees, affiliates, and agents (each, an “Indemnitee”) against any claims, losses, costs, fines, penalties, or damages (including court costs and reasonable attorneys’ fees) or for any injury to any person or their property (collectively, “Claims”) to the extent arising out of or connected with the Seller’s (and its affiliates, employees, agents or representatives) (i) negligence or willful misconduct; (ii) material breach of or any provision of the Vendor Trade Agreement; or (iii) failure to comply with its obligations and representations under the Vendor Trade Agreement.
- BlueX agrees to promptly notify the Seller upon becoming aware of any Claim, provided, that failure to promptly notify the Seller shall not relieve the Seller of any liability hereunder. BlueX shall, in a diligent and timely manner, (i) provide the Seller with all material information pertaining to a Claim and the Seller’s efforts to defend against the Claim; (ii) respond to reasonable inquiries by the Seller regarding such Claim or defense and (iii) otherwise cooperate with the Seller concerning the resolution of such Claim. BlueX may, in its sole discretion, participate in any defense or settlement of a Claim and/or appoint adequate counsel, at the Seller’s sole expense, to defend any Indemnitee against a Claim. The Seller agrees not to enter into any settlement, consent or other like resolution of a Claim without the written approval of BlueX. The issuance of such approval shall not waive or otherwise limit the indemnity rights of an Indemnitee under this provision.
- The Vendor Trade Agreement commences on the date first written on the Vendor Trade Agreement and will extend for an initial term of one (1) year (“Initial Term”). Upon the expiration of the Initial Term, the Vendor Trade Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”), unless either Party gives the other written notice of its intent not to renew the Vendor Trade Agreement at least ninety (90) days prior to the end of the Initial Term or then current Renewal Term. Collectively the Initial Term and Renewal Term are referred to as the “Term” of the Vendor Trade Agreement.
- Either Party may terminate the Vendor Trade Agreement if the other: (a) breaches a material representation, warranty, term, condition, or obligation under the Vendor Trade Agreement, and fails to cure such breach within ten (10) days after receiving written notice of such breach, or (b) the other Party is dissolved, becomes insolvent, files bankruptcy, or generally fails to pay or admits in writing its general inability to pay its debts as they become due. The terminating Party shall give BlueX prompt Notice of any such termination.
Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under the Vendor Trade Agreement (each, a “Notice”) in writing to the address that the receiving party has indicated in the Vendor Trade Agreement or may otherwise designate from time to time in accordance with this Section 7. Each Party shall deliver all Notices 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). Except as otherwise provided in the Vendor Trade Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section 7.
The Vendor Trade 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.
Subject to Section 2.2, no Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party. 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.
The Vendor Trade Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
The Vendor Trade 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 any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Vendor Trade Agreement.
The headings in the Vendor Trade Agreement are for reference only and shall not affect the interpretation of the Vendor Trade Agreement.
The Vendor Trade Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto.
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 the Vendor Trade 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 the Vendor Trade Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Vendor Trade 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 the Vendor Trade 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.
The Vendor Trade 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 the Vendor Trade Agreement 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 of the Vendor Trade Agreement or any prior version of the Vendor Trade 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 USD250,000, 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. 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 the Vendor Trade 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 the Vendor Trade Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow the Vendor Trade 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 the Vendor Trade Agreement.
For purposes of the Vendor Trade 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 the Vendor Trade 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, the Vendor Trade 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. The Vendor Trade 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, the Vendor Trade Agreement to the same extent as if they were set forth verbatim herein.
The Vendor Trade Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall together be deemed to be one and the same agreement. A signed copy of the Vendor Trade Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Assignment Agreement.
Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included in the Vendor Trade Agreement are intended to authenticate the Vendor Trade Agreement and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile or email electronic signatures.