DillBe Marketplace Supplier Agreement
This Marketplace Supplier Agreement is between Smart Decisions Lab, LLC (“DillBe”) and you (“Supplier”).
DillBe operates e-commerce websites directly and through its subsidiaries. DillBe offers unrelated suppliers the opportunity to list merchandise for sale directly to Customers on one or more of DillBe’s websites (“Marketplaces”).
DillBe wants to offer Supplier the opportunity to sell goods or services through one or more of its Marketplaces.
Supplier wants to sell goods or services to Customers using one or more of the Marketplaces.
The parties therefore agree as follows:
Article 1. Statements & Recommendation
1.1 Supplier Statements. Supplier states that: (a) Supplier has authorized the individual executing this agreement or registering Supplier for access to a Marketplace to bind Supplier, (b) Supplier is authorized to enter into and perform its obligations under this agreement, (c) Supplier believes that its performance under this agreement will not violate any other agreement, (d) Supplier is commercially sophisticated, and (e) Supplier is not owned or controlled by any of DillBe’s Directors or Section 16 Officers, as defined in 17 CFR 240.16a-2.
1.2 DillBe Statements. DillBe states that: (a) it has the authority to enter into and perform its obligations under this agreement, and (b) it believes that its performance under this agreement will not violate any other agreement.
1.3 DillBe Recommendation. DillBe hereby recommends that Supplier obtain counsel of its own choosing in reviewing this agreement and deciding whether to enter into this agreement.
Article 2. Registration & Access To Marketplaces
2.1 Registration for and Use of the Marketplaces. Supplier may register to sell on one or more Marketplaces. If Supplier registers on one or more Marketplaces, Supplier will be bound by the terms of this agreement. Upon registering, Supplier must provide all documentation required for DillBe to conduct a KYC and Compliance check on the Supplier according to the “Supplier Due Diligence and Compliance” procedure. DillBe may accept or reject Supplier’s registration for one or more Marketplaces.
2.2 Amendment of this Agreement. DillBe may modify the terms of this agreement at any time by without notice or by emailing a notice to Supplier at the email address Supplier provided in the Supplier Portal. It is the Supplier’s responsibility to ensure that they stay compliant with the terms of this agreement at all times. If Supplier registers on a Marketplace or continues to use a Marketplace, Supplier will be bound by the then current terms of this agreement.
2.3 DillBe Policies. DillBe may publish or amend policies governing Supplier’s access to or use of a Marketplace (“Policies”). If Supplier registers on a Marketplace or continues to offer products for sale on a Marketplace, Supplier will be bound by the Marketplace’s then current Policies as posted on DillBe.com.
2.4 Marketplace Design and Access. If DillBe accepts Supplier’s registration for a Marketplace, DillBe will provide Supplier access to the Marketplace as a platform for Supplier to post offers for sale to Product Listings and facilitate the sale of Supplier’s Products to Customers. DillBe may determine or change any aspect of a Marketplace without notice to Supplier. DillBe may stop providing Supplier access to a Marketplace without notice to Supplier.
2.5 Permits and Licenses. Supplier shall obtain all permits and licenses required to operate its business in accordance with Applicable Law at its own expense. Supplier shall pay all fees or assessments which may be due for selling or offering for sale its Products on a Marketplace.
Article 3. Supplier Content & Product Listings
3.1 DillBe Is Not Supplier Of Record. Sales of Products on a Marketplace are between Supplier and Supplier’s Customers; DillBe is not the supplier and is not a party to such transactions. Supplier’s listing of Products on a Marketplace does not imply that DillBe endorses or is affiliated with Supplier or Supplier’s Products.
3.2 Supplier Content. Supplier shall ensure that all information and data it provides to DillBe is accurate, not misleading, and complies with Applicable Law. Supplier shall ensure that all electronic information and data it transmits to DillBe or a Customer does not contain any harmful code or other feature designed to obtain unauthorized access to or information from or damage or degrade in any manner any computer system, application, or code.
3.3 Product Listings.
a. Supplier shall create Product Listings or offers for sale posted to Product Listings using the Supplier Portal for all Products it intends to sell on a Marketplace.
b. If it creates Product Listings, Supplier shall create Product Listings that comply with Applicable Law, the Policies, and any specifications posted in the Supplier Portal, and that are accurate and appropriate for the Marketplace to which they are posted.
c. Supplier shall ensure that DillBe’s use of Supplier’s Product Listings will not (1) violate any intellectual property rights of non-parties; (2) contain defamatory or discriminatory content; (3) constitute an infringement of a party’s rights to privacy or publicity; and/or (4) reflect unfavorably on DillBe, the Websites and/or other Suppliers on the Websites;
d. Supplier shall not create Product Listings that:
(1) offer products that are inauthentic, counterfeit, replicas or knock-off goods;
(2) offer any Restricted Products;
(3) offer Products Supplier does not currently have in stock or cannot manufacture in a timely fashion;
(4) promote or engage in any deceptive trade practice (including spoofing, slamming, cramming, phishing, or attempting to scam or defraud a DillBe Customer into surrendering private and/or personal information);
(5) contain nudity or pornographic, obscene, or offensive content; or
(6) use any DillBe trademarks or imply that DillBe endorses or approves the Product Listing.
e. DillBe may modify, reject, remove, or censor any Product Listing for any reason, and may combine two or more Product Listings or elements of two or more Product Listings. If Supplier believes a modified Product Listing would violate section 3.3.b, 3.3.c, or 3.3.d, Supplier shall promptly notify DillBe in the manner set forth in the Policies. If Supplier posts offers for sale against a Product Listing, it will be deemed to have accepted any modifications made to that Product Listing.
3.4 Product Listing Maintenance. Supplier is responsible for its own Product Listings, including updating its Product Listings to ensure that they are accurate and comply with this agreement.
3.5 Product Pricing.
a. Supplier Established. Supplier shall establish prices for its Products in compliance with this agreement. Those prices, denoted herein as pmax will be used as starting prices for negotiations with customers.
Supplier shall also establish the discounting parameters necessary to define the negotiable price range of the product for a given order quantity. Specifically, supplier shall establish: (1) order size windows and (2) negotiable discounts for each order size window. The price floor is then determined as floor = (1-h)p, where p is the full price and h is the negotiable discount for the order size, whereas floor is rounded down to 1 cent.
Supplier must also establish the negotiation parameters for each Product, indicating how conservatively or aggressively the negotiations with Customers must proceed. Based on the supplier’s selections and each individual customer’s inputs, product sale price will be determined on the basis of multi-step negotiations through www.dillbe.com negotiation system. The same system will be used at all times for all suppliers and customers, without giving preference to any of them. Supplier hereby invokes the license granted by DillBe to use DillBe’s negotiation system for negotiating the sale price for its Products with Customers. Supplier affirms that it had a chance to test the system and agrees with its outcomes unconditionally.
Product sale price depends on how the Customer negotiates and may not be identical for the same product negotiated with different customers or for the same product negotiated with the same customer at different times.
Supplier will enter and maintain pricing, discounts, and negotiation parameters using the Supplier Portal, unless DillBe approves another method in writing.
b. Pricing Parity. Supplier does not have to maintain Parity between the Products it offers on a Marketplace and identical Products offered through Supplier’s other sales distribution channels.
c. Supplier Pricing Errors. If Supplier provides incorrect pricing information in a Product Listing (a “Supplier Pricing Error”), DillBe may, at Supplier’s expense, take any commercially reasonable action necessary to avoid or repair harm to DillBe due to the Supplier Pricing Error, including requiring Supplier to honor all Product purchases at the erroneous price and compensating Customers for any inconvenience caused by a Supplier Pricing Error. Supplier shall reimburse DillBe for all losses, expenses, or liabilities DillBe incurs as a result of Supplier Pricing Errors.
Article 4. Product Sale, Delivery, Return, and Customer Service
4.1 Customer Orders.
a. Processing Customer Orders. DillBe shall process Customer Orders on behalf of Supplier and collect all amounts due for Products that Customers order from Supplier through a Marketplace. After processing a Customer Order, DillBe shall email Supplier a notice of the Customer Order at the email address that Supplier identified in the Supplier Portal. If DillBe believes a transaction is erroneous, duplicate, contrary to a Marketplace Policy, or fraudulent, it may stop, cancel or prohibit the transaction.
b. Transfer of Customer Payments. Supplier hereby appoints DillBe as an agent of Supplier for the purpose of receiving payments from Customers for Supplier’s Products sold on a Marketplace. As between Supplier and a Customer who purchases Products from Supplier, DillBe’s receipt of funds from the Customer will be deemed the receipt of funds by Supplier. DillBe shall transfer the amount DillBe collected from the Customer, less any amounts Supplier owes to DillBe, to Supplier using the processes and under the timing set forth in the Policies.
4.2 Taxes.
a. Responsibility for Supplier Taxes.
(1) Supplier is responsible for:
A. determining whether Supplier Taxes apply to a Customer Order;
B. collecting, reporting, and remitting the correct Supplier Taxes to the appropriate tax authorities;
C. reviewing, determining, and maintaining the correct product tax codes, calculation settings and all related information for Products; and
D. reviewing all tax-exempt transactions.
(2) DillBe is not responsible for:
A. determining whether Supplier Taxes apply to a Customer Order;
B. collecting, reporting, or remitting Supplier Taxes to any tax authority (except as required by Applicable Law to do so);
C. Supplier’s use of or reliance on tax data or services provided by DillBe or Tax Services, or for providing tax advice to Supplier;
D. calculating, reporting, collecting or paying any product-based excise taxes or any fees or surcharges;
E. providing support for tax exemptions based upon the identity of any individual, corporation or other entity, or the intended use of a product by any individual, corporation or other entity;
b. Tax Jurisdictions. Supplier shall determine the jurisdictions in which it has an obligation to collect and remit Supplier Taxes. Supplier shall promptly notify DillBe of the jurisdictions for which DillBe should turn on collection of Supplier Taxes on Supplier’s behalf in tax software by selecting the applicable jurisdictions in the Supplier’s Account profile in the Supplier Portal. DillBe will not turn on collection of Supplier’s Taxes on Supplier’s behalf for jurisdictions outside the United States.
c. Product Tax Codes. DillBe shall make available to Supplier a list of product tax codes and associated product taxability rules. For each of Supplier’s Products, Supplier will provide DillBe, in the format and manner required by DillBe, a reference to one product tax code and any related information requested by DillBe. If Supplier does not provide a product tax code for a Product, DillBe will not collect any Supplier Taxes for any transaction for that Product. It will remain Supplier’s responsibility to determine, collect, report, and remit Supplier Taxes to the appropriate tax authority if DillBe does not collect Supplier Taxes for a Customer Order or Product Listing.
d. Collecting Taxes. If Supplier provides product tax codes, DillBe shall turn on collection of Supplier Taxes for jurisdictions in the United States from Customers who purchase Products on a Marketplace on Supplier’s behalf for the jurisdictions selected by Supplier based on the product tax codes Supplier provided. Except as required by Applicable Law, DillBe shall transfer the Supplier Taxes collected from Customers to Supplier, and Supplier shall report and pay any Supplier Taxes to the applicable tax authorities.
e. Supplier Reimbursement. If a tax authority requires DillBe to pay any of Supplier’s Taxes, Supplier will promptly reimburse DillBe for the amounts DillBe paid and for any losses, expenses, or liabilities DillBe paid or incurred related to the tax authority’s demand to DillBe.
f. Tax Data. Supplier acknowledges that non-parties will provide tax-related data (such as tax rates) to DillBe (the “Tax Services”) and that DillBe will use that data to collect Supplier Taxes on Supplier’s behalf. Supplier acknowledges that DillBe and the Tax Services do not provide or comprise tax advice, that DillBe will not provide Supplier tax advice, and that Supplier is responsible for determining the applicability and accuracy of any tax data or tax collection.
g. Supplier Is Not Relying On Tax Data. Supplier states that it is not relying and will not rely on the accuracy of tax data provided by DillBe or Tax Services. If Supplier registers on a Marketplace, or continues to offer Products for sale on a Marketplace, Supplier will be deemed to have released any claims against the DillBe Parties or the Tax Services arising from Supplier’s use of or reliance on tax data provided by DillBe or Tax Services.
h. Sales Tax On Payments To DillBe. Supplier shall pay sales taxes, if any, pursuant to Applicable Law on any payments Supplier owes to DillBe.
4.3 Shipping.
a. Supplier Will Ship Products. Supplier shall handle all aspects of shipping Products to Customers in compliance with Applicable Law and the Policies. Supplier shall use reasonable care in packing, packaging, tagging, and labeling Products for shipment.
b. Process. When Supplier receives notice of a Customer Order from DillBe, Supplier shall fulfill the Customer Order in compliance with this agreement and make the Purchased Products available for pick up by a common carrier for delivery to the Customer. Supplier shall ship Purchased Products within the time period specified in the Policies or on the Product Page, and shall promptly upload tracking numbers for each shipment to the Supplier Portal. Supplier shall not substitute any Product for the Purchased Products. Supplier shall not include any marketing or promotional materials, or any other solicitations with the Purchased Products shipped to Customers. Title to and risk of loss of or damage to the Purchased Products will remain with Supplier until delivery to the Customer. DillBe will not have title to, or be deemed the legal owner of, any Products.
c. Overdue Orders. DillBe may cancel any Customer Order that Supplier does not ship within the shipping period specified in the Policies. DillBe is not required to compensate Supplier for any such cancelled order. It is Supplier’s responsibility to monitor all orders and ensure all shipments are made within the timeframes specified in the Policies.
d. Delivery Errors. Supplier is responsible for any non-delivery or delivery error inconnection with the delivery of its Products.
4.4 Customer Returns.
a. Supplier Will Handle Returns. Supplier shall handle any Customer returns of its Products. If Supplier accepts a Customer return, it shall provide notice of the return to DillBe in the manner set forth in the Policies. If Supplier provides DillBe notice of a return, DillBe shall refund the Customer for all amounts DillBe collected from the Customer for that Customer Order, and Supplier shall return to DillBe all amounts DillBe transferred to Supplier for that Customer Order. DillBe is not required to accept or process returns of Products. If a Customer attempts to return a Product to DillBe or one of its affiliates, DillBe may accept that return. If DillBe accepts the return, it will ship the Product to Supplier, and Supplier shall reimburse DillBe for any shipping or processing costs, and any other losses, expenses, or liabilities DillBe incurred in accepting the return. DillBe may determine fees for processing and shipping returns to Supplier by posting those fees in the Policies.
b. Supplier Return Policy. Supplier shall submit a return policy (the “Supplier Return Policy”) using the form provided on the Supplier Portal. Supplier shall honor all Customer returns of Products in accordance with the Supplier Return Policy published at the time a Customer purchased a Product. The Supplier Return Policy must:
(1) apply to all Products;
(2) outline the process for Customers to return the Products directly to Supplier; and
(3) be at least as accommodating to Customer returns as the applicable Marketplace’s return policy and Supplier’s own return policy.
c. Refunds. If Supplier accepts a Customer return and notifies DillBe of the return pursuant to section 4.4.a, DillBe may refund Supplier a portion of DillBe’s commission on that Customer Order as set forth in the Policies.
4.5 Recalled Products; Defective Products. Supplier shall immediately notify DillBe of any recall affecting a Product and shall immediately remove the Product Listing or its offers for sale posted to the Product Listing for that Product from all Marketplaces. Supplier is responsible for all defective or recalled Products, including any losses, expenses, or liabilities related to recalls of its Products, and will bear all losses, expenses, or liabilities related to notifying Customers of and handling recalls of its Products.
4.6 Customer Service Issues. Supplier shall handle all customer service issues related to Supplier’s Products. DillBe is not responsible for handling customer service issues related to Supplier’s Products, and DillBe may direct Customers who contact it with service issues related to Products to contact Supplier using the contact information Supplier has provided in the Supplier Portal.
If Supplier does not handle a customer service issue or a request from DillBe to handle that issue, DillBe may take any actions necessary to ensure Supplier’s compliance, and DillBe will not be liable to Supplier for any results of those actions. If Supplier does not handle a customer service issue to DillBe’s satisfaction, DillBe may contact the Customer and take any action to resolve the issue.
4.7 Chargebacks. DillBe may charge Supplier for losses, expenses, or liabilities DillBe incurs related to Customer disputes related to Supplier’s marketplace transactions or Products (“Chargebacks”). If DillBe wants to charge Supplier for a Chargeback, it will send Supplier a notice of that Chargeback. If DillBe sends Supplier a Chargeback notice, Supplier will respond and will provide DillBe any information requested in the Chargeback notice within five (5) business days of receiving the notice. If Supplier does not respond to the Chargeback notice to DillBe’s satisfaction, DillBe may charge Supplier for the Chargeback, and Supplier will reimburse DillBe for the Chargeback. Supplier will not be responsible for Chargebacks due to:
a. theft or unauthorized use of a Customer’s payment card information for which DillBe is responsible (except to the extent that theft or unauthorized use is attributable to Supplier); or
b. DillBe’s failure to send Supplier a notice of Customer Order.
4.8 Customer Reviews and Ratings. DillBe may ask Customers to rate or provide comments regarding Supplier or the Products, and may post any resulting ratings or comments on the Marketplace for public display.
Article 5. Fees; Commissions; DillBe’s Right To Recovery
5.1 Monthly Subscription Fee. Supplier shall pay DillBe the monthly subscription fees (if any) specified on the Supplier Information Page for access to the Marketplaces (the “Monthly Subscription Fee”). DillBe may change the Monthly Subscription Fee by posting the new fee to the “Commission Rate Schedule”, and any revised Monthly Subscription Fee will be effective from the date it is posted. Supplier’s failure to pay the Monthly Subscription Fee constitutes a material breach of this agreement.
5.2 Commissions. Supplier shall pay DillBe commissions on all amounts DillBe collects on Supplier’s behalf for sales of Products, less Supplier Taxes, according to the “Commission Rate Schedule”. DillBe may change the Commission Rate Schedule by posting any changes to the Supplier Information Page, and those changes will be effective from the date they are posted. Supplier’s failure to pay Commissions constitutes a material breach of this agreement.
COMMISSION RATE SCHEDULE
a) Monthly subscription: $0
b) Sale facilitation commission: 11% from order value excluding shipping
c) Payment method 1 (DeferredPay): 0% processing fee for transfer in 30 days after shipment date
d) Payment method 2 (PromptPay): 3% processing fee for transfer on the next day after shipment date
5.3 Methods For Obtaining Payment. Upon DillBe’s demand, Supplier shall promptly pay any amounts it owes DillBe. Supplier hereby authorizes DillBe to use any of the following methods for obtaining payment of amounts Supplier owes DillBe:
a. recouping or setting-off any payments DillBe owes to Supplier by any amount Supplier owes to DillBe;
b. reversing any credits to Supplier’s Account;
c. Deducting amounts owed to DillBe from any Supplier Holdback Funds DillBe requires;
d. charging Supplier’s credit card, or deducting funds from Supplier’s bank account; or
e. seeking payment from Supplier by any other lawful means.
5.4 Holdback Funds. DillBe may in its reasonable discretion withhold payments to be made to Supplier (“Holdback Funds”). If DillBe requires Supplier to maintain Holdback Funds, it may withhold a reasonable sum from payments to be made to Supplier based on Supplier’s creditworthiness, previous compliance with this agreement and the Policies, or any other reasonable factors. The establishment of Holdback Funds does not create any trust relationship; DillBe may commingle any Holdback Funds with its other funds, and Supplier will remain a general creditor of DillBe with respect to any Holdback Funds or other amounts DillBe owes to Supplier.
5.5 Currency. Any and all payments to DillBe will be collected in US dollars, based on the current exchange rates.
Article 6. Intellectual Property
6.1 Grant of License by DillBe. DillBe hereby grants Supplier a non-exclusive, revocable, nontransferable license to promote and sell Products on or through the Marketplaces to Customers, subject to the terms of this Agreement.
6.2 Grant of License by Supplier. Supplier hereby grants DillBe a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, display, distribute, perform, re-format, merge, create derivative works of or otherwise commercially or non-commercially exploit in any manner Supplier Information with the right to sublicense such rights through multiple tiers. DillBe shall not alter any Supplier Marks from the forms provided by Supplier except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same. DillBe may also use Supplier Information in any way that is allowed without a license from Supplier under Applicable Law. “Supplier Information” means any document or data that Supplier uploads to the Supplier Portal or provides to DillBe.
6.3 Ownership of Intellectual Property Rights. DillBe will own all right, title and interest in and any IP Rights in the Marketplaces and all data collected or stored in connection with the Marketplaces. Except as expressly provided in this agreement, Supplier will not have any ownership in or license to any such rights. If Supplier is deemed to have any ownership interest or rights in all or any part of the foregoing, then Supplier shall assign all of those interests and rights to DillBe. DillBe may use any Supplier Information to create, develop, or modify the Marketplaces or any other DillBe concept, brand, software code, product, or feature (“Improvements”), and DillBe will own any Improvement and any IP Rights in an Improvement. If Supplier is deemed to have any ownership interest or rights in an Improvement, Supplier shall assign all of those interests and rights to DillBe.
6.4 Ownership of Content. Supplier will own all Supplier Marks and Supplier Information subject to section 6.3 and the License Supplier granted DillBe in this agreement.
6.5 Infringement of Non-Party Rights. Supplier shall ensure that its Products and Supplier Information do not infringe the intellectual property rights of a non-party. Supplier shall immediately notify DillBe of any actual or alleged infringement of any intellectual property right of a non-party in connection with the Products or Supplier Information. Supplier is responsible for any losses, expenses, or liabilities related to any actual or alleged infringement of a non-party’s intellectual property rights in connection with Supplier’s Products or Supplier Information.
Article 7. Term and Termination
7.1 Start and Term. This Agreement starts when Supplier registers on a Marketplace and continues until terminated by a party.
7.2 Termination. Supplier may terminate this agreement for any reason by notifying DillBe as then specified in the Portal. DillBe may terminate this agreement for any reason by notifying Supplier.
7.3 Effect of Termination. Upon termination, any rights or obligations of a party with respect to any outstanding sale transaction (including fulfillment and returns) will survive until completed. Any termination of this agreement will be without prejudice to the rights of either party against the other with respect to any claim, right, or obligation arising before the termination. Any obligations of the Parties relating to limitations on liability, confidentiality and indemnification, as well as any other obligations under this Agreement that by their nature are intended to survive, including any payment or customer service obligations in connection with the sale of Products hereunder, will survive termination of this Agreement. Upon termination, DillBe may require Supplier to maintain Holdback Funds to cover any amounts Supplier does or may owe DillBe, including to cover amounts Supplier will owe DillBe for Customer returns of Products and Chargebacks.
Article 8. Disclaimer of Warranties
8.1 DillBe hereby disclaims all warranties, representations, or guarantees of any kind, arising from any source, related to the Marketplaces or any services, information, or products available through any links on any Marketplaces.
8.2 DillBe is providing the Marketplaces on an “as is” and “as available” basis, and Supplier’s use of the Marketplaces is at Supplier’s own risk. DillBe does not warrant that Supplier’s use of the Marketplaces will be uninterrupted, error-free, or virus-free.
8.3 DillBe does not warrant or guarantee Supplier’s results from using the Marketplaces, the sale of any Products on the Marketplaces, or any services provided by DillBe to Supplier in connection with the Marketplaces.
8.4 Supplier states that sections 8.1, 8.2, and 8.3 are conspicuous, that it has read and understood them, and believes that they are reasonable.
Article 9. Limitation of Liability
9.1 Regardless of whether DillBe is aware or has been advised of the possibility of the following losses, expenses, or liabilities, DillBe will not be liable to Supplier under any claim or theory for any special, consequential, or punitive damages, or for any lost profits, revenues, business, or data.
9.2 DillBe’s aggregate liability from any Supplier claims related to this agreement will not exceed the total amount Supplier paid to DillBe under this agreement.
9.3 Supplier states that sections 9.1 and 9.2 are conspicuous, that it has read and understood them, and believes that they are reasonable.
Article 10. Indemnification
10.1 Supplier Indemnity. Supplier shall indemnify the DillBe Parties from any loss, expense, or liability of any kind incurred in connection with any Covered Claim. “Covered Claim” means a non-party suit, claim, or demand of any kind arising out of:
a. Supplier’s breach of this agreement or Applicable Law;
b. death, illness, personal injury, or property damage arising out of or resulting in any way from any actual or alleged defect in a Product;
c. any act or omission of the Supplier, its agents, employees, or subcontractors relating to the sale of a Product;
d. any actual or alleged breach of Supplier’s written warranty for a Product;
e. any actual or alleged infringement of any patent, trademark, copyright, trade secret, trade dress or other intellectual property right of a non-party related to a Product, Supplier Information, or Supplier Mark;
f. a Product Listing;
g. a Product actually or allegedly violating any Applicable Law; or
h. Supplier’s packaging, labeling, or advertising of a Product.
10.2 Indemnification Process. If DillBe seeks indemnification from a Covered Claim, it may provide Supplier reasonably prompt notice of that claim. If DillBe sends Supplier a notice of a Covered Claim, Supplier shall respond reasonably promptly to DillBe’s request, and shall select counsel reasonably acceptable to DillBe to handle the Covered Claim. A DillBe Party may also hire counsel at its own expense to participate in the defense of a Covered Claim. Supplier shall not bind a DillBe Party in a settlement of a Covered Claim without that DillBe Party’s prior written consent.
Article 11. Confidentiality; Privacy; Data and System Integrity
11.1 Definition of Confidential Information.
a. “Confidential Information” means: (1) any technical or business data or information that a DillBe Party provides to Supplier regardless of whether marked or identified as “Confidential”, (2) the terms of this agreement, and (3) the operations and technology to be utilized in connection with the Supplier Portal and Marketplaces.
b. Confidential Information does not include information that:
(1) pertains to goods that are sold or distributed by Supplier to other retailers;
(2) is already in Supplier’s possession and not covered by a confidentiality obligation;
(3) becomes publicly available without action or fault on Supplier’s part; or
(4) Supplier obtains from a non-party without that non-party’s breach of an obligation or duty.
11.2 Treatment of Confidential Information.
a. Use.
(1) Supplier shall use Confidential Information only for performing under this agreement. Supplier shall preserve the confidentiality of any Confidential Information and any record containing Confidential Information.
(2) Supplier shall not disclose or permit the disclosure of such information or records to any non-party except: (A) to obtain services necessary to perform under this agreement, (B) to obtain legal, tax, or accounting services, or (C) to respond to a valid subpoena or similar process.
(3) Supplier shall not disclose Confidential Information or records containing Confidential Information to a non-party under section 11.2.a.2.A or 11.2.a.B unless the non-party has a legal obligation to maintain the confidentiality of the information and Supplier reasonably believes the non-party will in fact maintain the confidentiality of the information.
(4) If Supplier seeks to disclose Confidential Information pursuant to section 11.2.a.2.C, Supplier will provide DillBe reasonable notice before disclosing the information, and DillBe may reasonably respond to the proposed disclosure.
b. Return or Destruction. Supplier shall promptly return or destroy any Confidential Information or records containing Confidential Information at DillBe’s request, except to the extent the information or records are: (1) contained in backup media used as such, (2) required to be maintained under Applicable Law, or (3) necessary for purposes of prosecuting or defending a claim related to this agreement.
11.3 Customer Personal Information.
a. Definition. “Customer Personal Information” means any data or information related to identified or identifiable Customers or related non-parties (such as non-parties that Customers designate as recipients of shipments).
b. Use of Customer Personal Information. DillBe will own all Customer Personal Information that it or Supplier collects. Supplier shall use Customer Personal Information only in accordance with Applicable Law and only to perform Supplier’s obligations or exercise Supplier’s rights under this agreement or as necessary for legal compliance. Supplier shall not:
(1) transmit Customer Personal Information to any non-party except for purposes of performing under this agreement;
(2) use Customer Personal Information to send marketing materials to or contact any person except for purposes of performing under this agreement;
(3) solicit additional information from a Customer or related individual;
c. Protection of Customer Personal Information. Supplier shall protect Customer Personal Information from unauthorized access, use, deletion, degradation, encryption, or disclosure (a “Data Breach”). Supplier shall maintain industry standard data security measures and processes. If Supplier obtains any Customer credit card data in connection with this agreement, Supplier will also comply with Payment Card Industry Data Security Standards. Supplier shall not transmit Customer Personal Information in any unsafe manner or to any person unless Supplier reasonably believes that person will maintain the confidentiality and security of the information. If Supplier learns of any Data Breach, Supplier will immediately notify DillBe of the breach and will cooperate fully with DillBe to respond to the breach.
11.4 Use of Marketplace Systems.
a. Supplier Credentials. Supplier shall maintain the security of Supplier’s log-in credentials to Marketplaces. Supplier is responsible for any expense, loss, or liability caused by the loss or breach of those credentials.
b. No Unauthorized Use. Supplier shall not use a Marketplace or any of its systems, code, or APIs:
(1) to violate the security of, or gain unauthorized access to, any computer, computer network, or other device or system;
(2) to discover passwords or security encryption codes;
(3) to use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of a Marketplace;
(4) to collect any information about Customers;
(5) to reformat or frame any portion of the Websites;
(6) to attempt to duplicate all or any part of the Marketplace or its code, or to attempt to reverse engineer or decompile any code, or to attempt to create a substitute or competing marketplace service;
(7) in a manner that would be detrimental to the function of the Marketplace or to other suppliers’ or Customers’ use of or access to the Marketplace.
c. No Archive Use. Supplier acknowledges that DillBe is not providing archive services and that the Marketplaces are not intended to function as archives. Supplier is responsible for maintaining independent archival and backup copies of Supplier’s information.
11.5 Equitable Relief. Supplier acknowledges that a breach of Article 11 would result in harm to DillBe that could not be adequately remedied by payment of money damages, and that DillBe may seek equitable relief, including an injunction, to prevent such a breach. Supplier states that, if DillBe seeks equitable relief to prevent a breach of Article 11, Supplier will not argue that equitable relief is not appropriate or available to DillBe.
Article 12. Governing Law & Disputes
12.1 Governing Law. The laws of the State of New York, without regard to their conflicts or choice of law rules, govern all matters relating to this agreement. The United Nations Convention on Contracts for the International Sale of Goods do not apply to this agreement.
12.2 Disputes. All disputes related to this agreement will be filed and heard exclusively by a court of competent jurisdiction in New York County, New York.
Article 13. Miscellaneous
13.1 Use of Subcontractors. Supplier may use subcontractors in its performance under this agreement. If Supplier uses subcontractors, Supplier will: (a) be responsible for the acts or omissions of its subcontractors, and (b) require subcontractors to act in compliance with this agreement. DillBe may require Supplier to stop using any subcontractor for any reason.
13.2 Invalidity; Waiver. No finding that any part of this agreement is invalid will affect the remaining portions of this agreement. The waiver by any party of a breach of any provision of this agreement by the other party, will not be construed as a waiver of any subsequent breach of the same or any other provision of this agreement, nor will any delay or omission by either party to exercise or enforce any right or remedy under this agreement operate as a waiver of any right or remedy.
13.3 Assignment. Supplier shall not assign or transfer any of its rights or obligations under this agreement without DillBe’s written consent. Any such attempted assignment or transfer will be void.
13.4 Insurance. Supplier shall maintain insurance coverage and limits as required by Applicable Law and the Policies. Supplier shall list DillBe and all of its subsidiaries, officers, directors, agents, and employees as an additional insured on these policies. Supplier shall include in those policies a waiver of subrogation in favor of DillBe, and those policies shall be primary and noncontributory with any insurance that DillBe carries.
13.5 Notice. Unless otherwise specified in this Agreement, DillBe may provide notices to Supplier through the Portal, or at the address, email address, or fax number Supplier specifies in the Portal. Supplier shall send all notices to DillBe through the Portal. All notices provided by DillBe to Supplier through the Portal, or by email, fax, or any other form of electronic communications will be construed as being “in writing”.
13.6 Integration; No Reliance. This agreement, the Policies, and any Supplier specific addenda govern Supplier’s access to and use of Marketplaces. Supplier states that it is not relying on any promises or statements of fact not contained in these documents in deciding whether to enter into this agreement.
13.7 Construction. This agreement was drafted based on “A Manual of Style for Contract Drafting, 3d Ed.” If the terms of this agreement or a Policy conflict with the terms of a Supplier specific addendum, the terms of the Supplier specific addendum will control. If the terms of this agreement conflict with the terms of a Policy, the terms of this agreement will control.
13.8 Relationship of Parties. The parties enter this agreement intending that Supplier will be an independent contractor. This agreement does not create any partnership, joint venture, agency, sales representative, or employment relationship between the parties. This agreement is for the sole benefit of DillBe, Customers, and Supplier, and there are no other intended non-party beneficiaries of this agreement.
Article 14. Definitions
14.1 “Account” means Supplier’s Marketplace account, which is accessible through the Portal.
14.2 “Applicable Law” means all requirements of federal, state, or other jurisdictional laws, regulations, ordinances, and administration orders and rules of the United States, its territories, and all other countries in which the Products are produced, sold, or delivered.
14.3 “Business Day” means a day, Monday through Friday (New York, New York, USA local time), on which banks are open and transacting business that is not a U.S. Federal holiday.
14.4 “Customer” means any customer accessing a Marketplace, or placing or receiving any order for Products via a Marketplace.
14.5 “Customer Order” means an order of a Product by a Customer.
14.6 “IP Rights” means all intellectual property rights which now or hereafter exist throughout the universe, whether conferred by operation of law, contract, or license, including rights of authorship, including copyrights, moral rights and mask-works, marks, cosmetic designs, ornamental appearance and trade dress, trade secret rights, inventions, and technology (whether patentable or not and whether or not reduced to practice), Confidential Information (as defined herein), software and databases, rights of publicity, patents, designs, algorithms, and other industrial property rights, and “rental” rights and rights to remuneration;
14.7 “Parity” means that a Product’s price (including any discount, rebate, or “low price” guarantee), quality (including quality assurances), shipping and handling charges (including any free or discounted shipping and handling), or other benefits are at least as favorable to Customers on the DillBe Marketplace as those associated with identical Products offered on Supplier’s other sales distribution channels.
14.8 “Supplier Portal” means the online interface by which Supplier accesses its Marketplace account, communicates with DillBe Outfitters, uploads its Product Listings, manages its Customer Orders, and other such activities related to this agreement.
14.9 “Products” means the goods, offers, or services, including shipping costs, that Supplier markets and lists for sale to Customers on the Websites.
14.10 “Product Listings” means the offers Supplier creates for display on the Marketplaces related to the sale of Products.
14.11 “Purchased Products” means the Products requested in a Customer Order.
14.12 “Restricted Products” means the items and categories listed in the Supplier Restricted Products Policy, available on the Portal.
14.13 “Supplier Information Page” means the page on a Marketplace that contains the Marketplace’s Supplier terms and conditions, policies and procedures, and other information for Suppliers.
14.14 “Supplier Marks” means all of Supplier’s domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.
14.15 “Supplier Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred, or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by Supplier, or otherwise in connection with any action, inaction or omission of Supplier, any of affiliate of Supplier, or any of Supplier’s or its affiliates’ employees, agents, contractors or representatives.
14.16 “DillBe Marks” means all DillBe domestic and foreign trademarks, service marks, trade names, registrations and applications to register the foregoing, logos, and domain names.
14.17 “DillBe Parties” means DillBe and all of its past, present and future parents, subsidiaries, affiliates, directors, officers, and employees.