Vendor Agreement

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This Vendor Agreement (the “Agreement”) is entered into by and between Carpenter Hill LLC (“Carpenter Hill”) and Vendor, and incorporates by reference the Carpenter Hill Privacy Notice and Terms of Use available at www.carpenterhill.com/pages/privacy and www.carpenterhill.com/pages/terms All capitalized terms not defined herein shall have the meanings set forth in the Privacy Notice or Terms of Use. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT” BELOW, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF VENDOR AND AGREE TO BE BOUND BY THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE WEBSITE AS A VENDOR.

 

1. DEFINITIONS.

Vendor” shall refer to the entity, organization, group or individual(s) who wish to sell Products who wishes to sell products on www.CarpenterHill.com (the “Website”).

Product” shall mean those products that are made in the United States by Vendor and offered for sale on the Website.


2.TERM AND TERMINATION.

a. Term. The term of this Agreement shall begin upon Vendor’s acceptance of this Agreement and shall continue until terminated in accordance with this Section.

b. Termination. Carpenter Hill may terminate this Agreement for cause as provided for throughout the Agreement or at any time for its convenience upon ten (10) days prior written notice. Vendor may terminate this Agreement at any time for its convenience upon ten (10) days prior written notice; provided, however, that all outstanding Orders transmitted to Vendor prior to the effective date of such termination shall be shipped in strict accordance with the terms and conditions of this Agreement.


3. SALE OF PRODUCTS; FULFILLMENT.

a. Selection of Products. From time to time, Vendor and Carpenter Hill shall mutually agree on Products to be made available for sale on the Website. For each such Product, Vendor shall provide a suitable description of the Product, the quantity of Products available for sale on the Website and date of availability, Vendor’s historical shipping cost per Product, and other reasonably requested Product specifications or Vendor information. Carpenter Hill will provide Vendor with a preformatted spreadsheet template (“Available Products”) for this purpose. Carpenter Hill may remove a Product from the Website or cease offering such Product for sale at any time, for any or no reason at all, in its sole discretion.

b. Samples. One (1) sample of each Product being offered by Vendor to Carpenter Hill for sale on the Website (each, a “Sample”) shall be shipped to Carpenter Hill’s offices at Vendor’s expense for quality review and photographing. All Samples must be in new, unused condition and be shipped in their original, unopened packaging and placed in a shipping receptacle that is durable and capable of withstanding shipment without wear or tear to the Products and representative of the way in which the Product will be shipped to customers. Samples that have been returned, refurbished or used may not be shipped under any circumstances. With respect to any Sample provided to Carpenter Hill, Vendor represents and warrants that (i) it has full right, title and interest in and to the Sample; (ii) Carpenter Hill may use the Samples in its sole discretion for any purpose whatsoever; (iii) Vendor has not and will not submit any Samples which cannot be replaced; and (iv) Carpenter Hill is not responsible for the handling, arrival or return of any Samples and has no obligation, liability or responsibility to return, pay for or otherwise compensate Vendor for any Sample sent to Carpenter Hill. Notwithstanding the foregoing, Carpenter Hill will return the Sample upon Vendor’s request, at Vendor’s expense in “as is” condition, upon completion of quality review and photographing.

c. Sale of Products. Carpenter Hill and Vendor shall agree on a purchase price for each Product. Unless specifically agreed to the contrary by Carpenter Hill and Vendor in writing, Carpenter Hill shall be entitled to discount the price of the Product to customers from Carpenter Hill’s Fees. Products requested by a Customer shall be fulfilled directly by Vendor from its inventory. Vendor shall keep Carpenter Hill apprised of available inventory. Vendor shall ensure that the quantity of Products it represents as available for sale to Carpenter Hill is accurate prior to the Products being listed on the Website. If Products have sizes, a full range of sizes must be available (e.g. small, medium, large, extra-large). Vendor's representations to Carpenter Hill with respect to quantities of Products available for sale to Carpenter Hill shall be true and accurate, and Vendor acknowledges that Carpenter Hill shall rely on such representations as to quantity to Carpenter Hill's detriment.

d. Title. The title to the Products shall be and remain with the Vendor until such Products are sold to customers of Carpenter Hill, at which time title passes to Carpenter Hill. All sales of Products will be treated as sales of Carpenter Hill and Carpenter Hill shall be the merchant of record with respect to same.

e. Sales Tax. Carpenter Hill is a New York company headquartered in Brooklyn, New York. Carpenter Hill shall calculate, report and remit applicable New York state and local sales taxes to taxing authorities for each sale of Products subject to sales tax under this Agreement.

f. Pricing of Products. Vendor agrees that it will not advertise or offer for sale (or allow to be advertised or offered for sale) on any Internet website, whether such website is owned by Vendor or by a third party that is selling Product on behalf of Vendor, any of the Products at any price that is lower than the price set forth on the Website. Vendor acknowledges that Carpenter Hill is relying to its detriment on the pricing quoted by Vendor and may suffer substantial harm should the pricing quoted by Vendor (whether intentionally or otherwise) not be true and accurate.

g. Fulfillment Requirements. Vendor shall be responsible for packaging and storage of Products. All Products shall be packaged, marked and otherwise prepared in accordance with the requirements specified by Carpenter Hill and good commercial practices.

i. Carpenter Hill shall pay all shipping costs for each sale of Product. Vendor must ship in full all Product orders within three (3) business days after the completion of a sale on the Website unless otherwise agreed to in writing by Carpenter Hill and Vendor. Multiple instances of late shipment of Products may result in termination of this Agreement by Carpenter Hill. Time is of the essence with respect to the provision of Products to customers.

ii. Vendor must ship all Products in new, unused and clean packaging materials. Vendor must ship Products in new plain brown or white boxes sealed with plain or clear sealing tape. Vendor is responsible for all costs related to packaging (with exception of Carpenter Hill promotional materials). No packing peanuts or other polystyrene packaging are permitted, unless biodegradable. Material changes to packaging from the Sample must be approved Carpenter Hill in advance. Vendor shall include, if applicable, any and all Product warranty information (as may be required by law), instructions and/or warnings.

iii. Vendor shall use the shipping labels designated by Carpenter Hill for all deliveries of Products. The customer receipt, shipping label, Carpenter Hill Card, Carpenter Hill Sticker and other inserts provided to Vendor by Carpenter Hill (see Exhibit B) shall contain the information, forms and approved logo submitted by Carpenter Hill to Vendor. All additional materials included in any shipment must be approved in advance by Carpenter Hill. Failure to comply with this requirement may result in immediate termination of the Agreement.

h. Marketing Materials. Vendor shall not include any of its own marketing materials or information or any marketing materials or information of any third party with any shipped Products, except for warranty information, instructions and warnings. Only materials or information provided by or approved by Carpenter Hill shall be included with a shipped Product. Failure to comply with this requirement may result in immediate termination of the Agreement.

i. Refunds. Vendor and Carpenter Hill agree that customers shall have the right to return purchased Products directly to Vendor within fourteen (14) days after delivery to the shipping address provided by customer (“Return Period”). During the Return Period, customer may return any Product that is undamaged, unused, with tags intact in its original packaging. Customers shall be instructed to ship returned Products directly back to Vendor. Customer shall bear the cost of shipping when returning a Product. Carpenter Hill shall have no obligation to receive returned products. Upon Vendor’s receipt of returned, undamaged and unused Products, Vendor shall notify Carpenter Hill of customer’s returned order. Carpenter Hill shall refund the customer within fourteen (14) business days of Vendor’s receipt of the returned Product.

j. Defective Products. If a Carpenter Hill customer is entitled to a refund due to a damaged or non-conforming Product, Carpenter Hill reserves the right to chargeback the original cost of shipping the damaged or non-conforming Product to customer, as well as the cost of shipping the replacement to customer. Carpenter Hill shall provide a credit to Carpenter Hill for any such amounts on Vendor's next invoice. Vendor may elect to have all non-conforming or damaged goods be returned to Vendor by customer at its cost.

k. Expenses. Except as otherwise set forth herein, Vendor shall be solely responsible for all expenses it incurs in the sale of the Products.

4. FEES; PAYMENT.

a. Fees. Carpenter Hill shall pay Vendor the purchase price of the Product less a forty percent (40%) fee (the “Fee”). The Fee includes the shipping cost of transporting your Product, as well as all photography costs and expenses. All Fees are calculated in US dollars.

b. Payment. Carpenter Hill pay to Vendor all amounts collected from Buyer on Vendor’s behalf, less the Fees, semi-monthly. Vendor shall receive a statement detailing the amounts collected on Vendor’s behalf during that period. Upon expiration or termination of this Agreement, Carpenter Hill may temporarily withhold payment from Vendor reasonably believed needed to cover costs and fees related to refunds, damaged or non-conforming Products which may accrue beyond termination for a period not to exceed sixty (60) days.

c. Payment Disputes. Vendor must notify Carpenter Hill of any discrepancies or claims for payment by email within ninety (90) days of the sale of the applicable Product or waive any right to dispute the discrepancy or payment claim.

5. CONFIDENTIALITY; NON-DISCLOSURE.

Confidentiality. Each party shall protect the privacy and the confidentiality of the other party’s business methods, practices, sales volumes, costs of Products, expenses, profit margins, revenue shares, financial arrangements, the terms and conditions of this Agreement, employee information and vendor relationships, as well as any other non-public, confidential or proprietary information (collectively, “Confidential Information”). During the term of this Agreement, each party may have access to the Confidential Information of the other party in order to fulfill its obligations under this Agreement. Under no circumstances may either party share, copy, sell, donate, use or otherwise disclose any Confidential Information of the other party without the express written permission of that party. In addition to the above and for the avoidance of any doubt, Vendor is expressly prohibited from utilizing any customer information it receives from Carpenter Hill for any purpose other than for fulfilling Orders, including, but not limited to, marketing to Carpenter Hill customers directly or indirectly through third parties. Vendor shall not contact Carpenter Hill’s customers directly, shall not share, sell, donate or otherwise disclose customer information to any third party for any reason whatsoever unless required by law. Violations of the Provisions of this Section may result in immediate termination of this Agreement. Additionally, the requirements of this Section shall survive termination of this Agreement.

6. INTELLECTUAL PROPERTY.

a. Carpenter Hill Intellectual Property. Carpenter Hill hereby grants Vendor a limited, non-exclusive, revocable license to use Carpenter Hill’s intellectual property strictly in accordance with Carpenter Hill’s instructions and in the forms (e.g. graphics, logos, etc.) provided by Carpenter Hill to Vendor during the term of the Agreement. Vendor shall not alter any of Carpenter Hill’s intellectual property without Carpenter Hill’s express written permission. Vendor may not utilize Carpenter Hill’s intellectual property for any purpose other than as is required to fulfill its duties under this Agreement and is expressly prohibiting from sharing or sublicensing Carpenter Hill’s intellectual property without Carpenter Hill’s express written permission. The requirements of this Section 6 shall survive termination of this Agreement.

b. Vendor Intellectual Property. Vendor grants Carpenter Hill a limited, revocable, nonexclusive, royalty free, worldwide license to use, reproduce, display, distribute and publish the trademarks, service marks, trade names, trade dress, copyrights and rights of publicity associated with the Products for the limited purpose of marketing, promoting or selling the Products through any promotional, advertising or distribution channels, including, without limitation, print, television, radio and/or internet (on the Website and beyond) in connection with this Agreement.

7. REPRESENTATIONS AND WARRANTIES.

a. Vendor Representations. Vendor represents and warrants that:

i. the execution, delivery and performance of this Agreement by Vendor will not conflict with, breach, or cause a default under, any material contract with any third party;

ii. Vendor will perform its obligations in a professional manner, consistent with the generally accepted standards of Vendor's industry;

iii. Vendor possesses the legal authority to: (A) sell the Products, and has obtained any and all consents, licenses or permissions required to sell the Products, and is not violating the intellectual property of any person or entity by selling the Products; and (B) enter into this Agreement and possesses any and all required licenses and permits to operate its business.

iv. The Products are: (A) made in the United States of America; (B) compliant with the Federal Trade Commission’s “Made in the U.S.A.” standard; and (C) not subject to any restriction, rule or regulation preventing or forbidding the importation, use, promotion, sale or resale of the Products, or any duty, tariff or penalty in connection therewith.

v. All Products, including the production, sale, packaging, labeling, ingredients, materials, safety, testing, import and transportation thereof, and all representations and advertising are fully disclosed, complete, true, accurate and in compliance with all applicable law. If Products do not so comply, Vendor shall not offer such non-compliant Products for sale to Carpenter Hill. If Vendor receives notification of any non-compliance, Vendor shall immediately notify Carpenter Hill. Such duty to notify Carpenter Hill shall survive the termination or expiration of this Agreement and/or the offering any of the Products on the Website on any particular day.

vi. At all times throughout the Term, Vendor shall be able to maintain the delivery timelines, quality assurances and service level agreements set forth herein.

vii. Vendor shall respond to any customer complaints regarding the Products within two (2) business days of being made aware of such complaints by Carpenter Hill.

b. Carpenter Hill Representations. Carpenter Hill represents and warrants:

i. that it will use its best efforts to sell the Products to its customers in the ordinary course of its business;

ii. the execution, delivery and performance of this Agreement by Carpenter Hill will not conflict with, breach, or cause a default under, any material contract with any third party.

iii. Carpenter Hill will perform its obligations in a professional manner, consistent with the generally accepted standards of Carpenter Hill’s industry.

c. No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS CONTAINED IN THIS AGREEMENT, NEITHER CARPENTER HILL NOR VENDOR IS MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FOR THE AVOIDANCE OF ANY DOUBT, EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, VERBAL OR WRITTEN, STATUTORY OR OTHERWISE, AND WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. CARPENTER HILL MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING (I) THE SUCCESS OF ANY ADVERTISING (IF ANY) IT UNDERTAKES FOR THE PRODUCTS OR THE WEBSITE; (II) THE NUMBER OF VISITORS OR IMPRESSIONS DELIVERED TO OR WITH RESPECT TO THE WEBSITE (AS MEASURED IN ANY WAY); (III) ANY SPECIFIC RESULTS TO BE ACHIEVED FROM THE LISTING OF THE PRODUCTS FOR SALE ON THE WEBSITE; THE WEBSITES ABILITY TO MEET VENDORS REQUIREMENTS, OR BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

8. INDEMNIFICATION. Vendor shall indemnify and save and hold Carpenter Hill, LLC and its, subsidiaries, employees, officers, directors, subcontractors, and agents and harmless from any and all third party claims, demands, suits, costs, judgments or other forms of liability asserted by third parties (“Liabilities”), including attorney fees and costs of suit, arising out of for injury to property or persons, regulatory action, intellectual property dispute, product defect, breach of any warranty or representation made by Vendor, failure to warn or provide adequate warnings and/or instructions related to the Products, violation by Vendor of any federal, state or local law, regulation, ordinance, etc., or any other action whatsoever occurring or allegedly occurring or otherwise arising from Vendor’s and Vendor’s employees, contractors, officers, directors, subcontractors, agents and/or subsidiaries provision of Products for sale on the Website (and fulfillment thereof) or other activity in connection with this Agreement, and whether or not occurring during the Term of this Agreement.. Notwithstanding the forgoing, Vendor’s indemnification obligations shall not apply, and Vendor shall not indemnify Carpenter Hill, in the event that the proximate cause of any such Liabilities is due to Carpenter Hill’s intentional act or omission, negligence, misconduct, or breach of any term or condition of this Agreement.

9. LIMITATION OF LIABILITY. OTHER THAN THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM THE LOSS OF USE OR PROFITS ARISING OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, OTHER THAN THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN EXCESS OF THE AMOUNT OF MONEY PAID BY EITHER PARTY TO THE OTHER WITHIN THE SIX (6) MONTH PERIOD PRECEDING THE ARISE OF ANY CLAIM.

10. MISCELLANEOUS.

a. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York.

b. Dispute Resolution. As a condition precedent to any other legal recourse (unless such legal recourse seeks injunctive relief), the parties shall make good faith efforts to come to resolution. An initial meeting to resolve the dispute shall be conducted by the parties at a meeting to be held at Carpenter Hill’s offices or via teleconference within fourteen (14) working days of a written request, which request shall specify in reasonable detail the nature of the dispute to be resolved at such meeting. The meeting shall be attended by representatives of the parties and any other person that may be affected in any material respect by the resolution of such disputes. Such representatives shall have authority to settle the dispute and shall attempt in good faith to resolve the dispute. The parties shall submit any unresolved dispute to binding arbitration before the American Arbitration Association (the “AAA”) with proceedings to take place in New York, N.Y., to be adjudicated in accordance with AAA’s expedited procedures before a single arbitrator. In the event of arbitration, the party who substantially prevails shall be entitled to reimbursement of their legal fees and expenses, and the costs and expenses of the arbitrator and any fees charged by the AAA, from the other party.

c. Construction. This Agreement shall not be construed against any party by reason of the fact that the party may be responsible for the drafting of this Agreement or any provision hereof.

d. Knowledge of Rights and Duties. The parties have carefully reviewed and completely read all of the provisions of this Agreement and understand and have been advised that they should consult with their own legal counsel for any and all explanations of their rights, duties, obligations and responsibilities hereunder.

e. Non-Solicitation. During the Term and for a period of one (1) year after the expiration or termination of this Agreement, neither party shall not, directly or indirectly, solicit or employ any person who was employed by the other party during the Term.

f. Entire Agreement. The parties agree that this Agreement, along with the Carpenter Hill Terms and Conditions and Privacy Notice constitute the entire Agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous agreements and understandings, whether oral or written, express or implied, with respect to the subject matter of this Agreement. This Agreement may not be waived, altered, amended, modified, or varied in any manner, by any verbal promises, statements, representations or course of conduct, unless expressed in a written document representing the mutual agreement of the parties. THE LEGAL APPLICABILITY OF SECTIONS 5, 6, 7, 8, 9, and 10 AND SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

g. Ownership of Customer Data. All customer data shall be owned solely by Carpenter Hill and Vendor shall have no right to access or use any customer data except for the sole purpose of fulfilling a sale of Vendor’s Products on the Website.

h. No Agency; Third-Party Beneficiary. Carpenter Hill is not the agent, fiduciary, trustee or other representative of Vendor. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under this Agreement.

i. Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of any remaining provisions.

j. No Waiver. Neither party will be considered to have waived any rights or remedies described in this Agreement unless the waiver is in writing and signed such party. No delay or omission in exercising any rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. A party’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of that party’s right to subsequently enforce such provision or any other provisions of this Agreement.

 

Exhibit A form of packing slip

 

 

 

Exhibit B  Carpenter Hill marketing materials

 

 Carpenter Hill Card - insert for each package

 

 

Carpenter Hill Sticker - affix to the outside of each package

 

I ACCEPT