B-Stock Supply Services Agreement
Last Revised: March 1, 2017
PLEASE READ SECTION 2.5 (DISPUTES) CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS OR DISPUTES WILL BE RESOLVED.
B-Stock offers technology and services that facilitate online, business-to-business sales of various tangible items (“Goods”); and
Company desires to list and sell certain goods through a B-Stock owned and operated website located at www.bstocksupply.com (the “Site”).
Terms and Conditions
1.1 “B-Stock Marks” means the B-Stock trademarks, trade names, service marks, taglines, logos and the Site’s branding elements.
1.2 “B-Stock Supply Services” means the auction based marketplace services available on the Site, which B-Stock configures, operates, hosts and manages for the purpose of allowing End Users to browse, bid on, and purchase Inventory.
1.3 “B-Stock Technology” means all technology, works of authorship, inventions, ideas, know-how, expertise and software (including any copyrights, patents, trademarks and other intellectual property rights related thereto) associated with the B-Stock Supply Services and the Site.
1.4 “Company Marks” means the Company’s trademarks, trade names, service marks, taglines and logos.
1.5 “End Users” means all users of the B-Stock Supply Services.
1.6 “End User Content” means all information, content and data submitted by an End User in connection with the use by the End User of the B-Stock Supply Services.
1.7 “GMV or Gross Merchandise Volume” means the actual sale price (i.e., the winning bid or purchase price) at which the Inventory is sold, excluding amounts paid for shipping or similar charges, sales taxes and other additional transaction charges.
1.8 “Inventory” means the Company’s Goods offered through B-Stock Supply Services.
2. The B-Stock Supply Services
2.1 General. B-Stock, on behalf of Company, will post details about the Inventory for potential sale to companies or individuals who desire to purchase Goods (“Buyer(s)”). B-Stock will host and maintain the B-Stock Supply Services made available on the Site. B-Stock reserves the right to improve, enhance and modify the B-Stock Supply Services at any time; provided such improvements, enhancements and/or modifications do not materially degrade the current feature availability of the B-Stock Supply Services.
2.2 End User Registration; Support. The B-Stock Supply Services will enable End Users to register on the Site and require them to submit the information necessary to participate in bidding and purchasing Inventory. B-Stock will manage the technology underlying the B-Stock Supply Services and address, respond to, and manage any bona fide End User questions related to the use of the B-Stock Supply Services. For specific Inventory or shipping related questions, B-Stock will forward such questions to Company and Company agrees to promptly address, respond to and manage such questions.
2.3 Listing Creation. B-Stock will create and place listings on www.bstocksupply.com for Company using Company’s End User Content and other information provided by Company to B-Stock. Company will provide B-Stock with truthful and accurate product information, descriptions, quantities, weights, location, shipping charges, pictures (if available) and any other information available that will help potential Buyers evaluate the Inventory. Company is solely responsible for the accuracy of this information.
2.4 Funds Collection, Shipping and Payment of Proceeds to Company. B-Stock will use commercially reasonable efforts to collect the amounts due from Buyers following each auction, including the applicable GMV, shipping charges and Buyer’s Premium. Company will ship the applicable Goods within seven (7) days of the end of the auction. Company will invoice B-Stock for the appropriate amount after Company ships the applicable Goods. B-Stock shall not be responsible for any non-payment by Buyers. Company appoints B-Stock as its limited agent solely for the purpose of collecting the Winning Bid Amount and any shipping charges (if applicable) from Buyers for Inventory sold by Company through the Site. B-Stock’s receipt of such payment shall be considered the same as a payment to Company, extinguishing a Buyer’s payment obligation to Company as if the Buyer had paid Company directly, even if the proceeds of the payment are not received by Company from B-Stock.
2.5 DISPUTES. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS OR DISPUTES WILL BE RESOLVED. IF YOU OFFER FOR SALE OR SELL INVENTORY THROUGH THE B-STOCK SITE (EACH A “TRANSACTION”), ANY CLAIM OR DISPUTE THAT ARISES OUT OF OR RELATES TO THE TRANSACTION, WHETHER BETWEEN YOU AND B-STOCK OR BETWEEN YOU AND A BUYER (AS APPLICABLE), SHALL BE RESOLVED IN ACCORDANCE WITH THE DISPUTE RESOLUTION PROCEDURES SET FORTH IN THE ALTERNATIVE DISPUTE RESOLUTION POLICY WITH RESPECT TO ANY OTHER CLAIM OR DISPUTE BETWEEN YOU AND B-STOCK, SUCH CLAIM OR DISPUTE WILL BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA, AND YOU AND B-STOCK EACH AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED WITHIN THE STATE OF CALIFORNIA FOR PURPOSES OF LITIGATING ALL SUCH CLAIMS OR DISPUTES, AND WAIVE ALL OBJECTIONS TO PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA.
2.6 Reporting. B-Stock will provide Company, on a periodic basis, with reporting on transactions to facilitate fulfillment.
2.7.1 Company shall not access, copy, download, install, adapt, reverse engineer, publicly display or perform or in any way alter or use the B-Stock Technology for any purpose, including, without limitation, for purposes of interoperability. Company shall not, and shall not authorize or encourage any third party to, employ any robot, spider, data miner, wanderer, crawler or other automatic device or manual process to copy or monitor the B-Stock Supply Services or Site. Company shall not make any representations or warranties to any third parties related to the availability, or performance, of the B-Stock Supply Services.
2.7.2 Company shall not: (i) offer or deliver Inventory that in any way, violates or infringes upon the intellectual property, personal or proprietary rights (e.g., copyrights, trademarks, patents, trade secrets or confidentiality obligation) of any third party (including, without limitation, counterfeit Goods); (ii) offer or deliver Inventory that is illegal in any jurisdiction where the Inventory is offered or delivered; (iii) engage in any other illegal or fraudulent activities; and/or (iv) engage B-Stock’s buyers from the marketplace in transactions outside of the marketplace as a way to circumvent payment to B-Stock of fees associated with the B-Stock Supply Services.
2.7.3 Company shall not (i) bid on its own Inventory; or (ii) encourage, induce or otherwise allow Company’s employees, directors, contractors or affiliates (and their respective affiliates and family members) to bid on Inventory with the intent (as solely determined by B-Stock) to artificially raise the price or desirability of Company’s listings. The foregoing shall apply to the employee’s family members.
2.7.4 Company acknowledges that in addition to any rights B-Stock has under law or equity, to the extent Company violates this Section 2.7 or any other restrictive covenants on Company, B-Stock may (i) seek injunctive relief in a court of competent jurisdiction and (ii) notify law enforcement or any government agencies to the extent Company violates any rules, law or regulation (e.g., the offer or sale of counterfeit Goods).
3. Limited Right To Access and Use; Intellectual Property Ownership
3.1 Access Rights. Subject to the terms of this Agreement, and provided that Company is in compliance with this Agreement, B-Stock grants Company a limited, non-transferable, non-exclusive, and personal right to access and use the Site and receive the B-Stock Supply Services. Such access and use must be made in conformance with the functionality available on the Site and any instructions provided by B-Stock to Company.
3.2 B-Stock Technology. B-Stock retains all right, title and ownership in and to the B-Stock Supply Services, including the B-Stock Technology and any and all technology developed by B-Stock or licensed to B-Stock by its third-party service providers pursuant to or in connection with this Agreement and the transactions contemplated hereby. By way of clarification and not limitation, Company acknowledges that all the intellectual property rights, including copyrights, patents, trademarks, service marks and trade secret underlying all or a part of the B-Stock Supply Service shall belong exclusively to B-Stock and its third-party suppliers. There are no implied licenses under this Agreement, and any rights not expressly granted to Company hereunder are reserved by B-Stock or its third-party suppliers. Company will not exceed the scope of the licenses granted hereunder.
4.1 End User Content. Company is solely responsible for its own End User Content and assumes all risks associated with use of any other End User Content, including any reliance on its accuracy, completeness or usefulness, or any disclosure of Company’s End User Content. Company will not submit third-party content unless Company has the consent of the applicable third-party owner of such content. Company may not state or imply that End User Content is in any way provided, sponsored or endorsed by B-Stock. Company acknowledges and agrees that B-Stock is not responsible for verifying the accuracy or truthfulness of any End User Content, and B-Stock makes no warranties or guarantees regarding the accuracy, currency, suitability, or quality of any End User Content.
4.2 License to End User Content. By submitting any End User Content, Company grants B-Stock a worldwide, non-exclusive, royalty-free license (sublicensable through multiple tiers) to use, reproduce, display, modify, transmit, perform, distribute, and promote such content and information in any form, in all media now known or hereinafter. Without limiting the foregoing, Company acknowledges that B-Stock may modify End User Content as necessary to provide the B-Stock Supply Services to Company. The license granted in this paragraph shall survive the expiration or termination of this Agreement.
5. Fees and Payment
5.1 Credit Card Authorization. Company will provide B-Stock with valid, up-to-date credit card or other payment information. Company authorizes B-Stock to charge its credit card or other payment method for fees Company incurs from using the B-Stock Supply Services as they become due and payable. Company is responsible for maintaining up-to-date payment information. If B-Stock cannot charge Company for fees when due because Company’s payment information is no longer valid, or if B-Stock does not receive payment when due, Company acknowledges that B-Stock may make the B-Stock Supply Services unavailable to Company and neither B-Stock nor its third-party service providers will be responsible for any failure to provide services associated with those fees. All fees paid via the B-Stock Supply Services are non-refundable.
5.2 Monthly Service Fee. B-Stock will charge Company a monthly service fee as set forth in the Summary of Charges (the “Summary of Charges” which are incorporated herein by reference). B-Stock will bill the monthly service fee to Company’s valid credit card. The first charge will be assessed upon the Effective Date and recur each thirty (30) days thereafter until Company notifies B-Stock of the termination of the Agreement in accordance with Section 6 below. All charges are non-refundable.
5.3 Buyer’s Premium. B-Stock will charge Buyers an amount equal to ten percent (10%) of the GMV (the “Buyer’s Premium”) on each completed auction of Inventory. B-Stock will retain the Buyer’s Premium before remitting the net proceeds to Company. The minimum amount to be retained by B-Stock on any single transaction (the “Minimum Buyer’s Premium”) is set forth in the Summary of Charges.In the event that Company sells a lot of Inventory that generates less than the Minimum Buyer’s Premium, the difference will be retained from the proceeds received from the Buyer.
5.4 Other Fees. Auction listings are non-cancellable without the prior approval of B-Stock (which can be withheld or conditioned in B-Stock’s sole discretion). Company is solely responsible for ensuring that its Inventory summary is completely accurate in all respects. In the event Company, for any reason, becomes unable to complete a transaction as promised by its listing and must request the cancellation of such listing before its end time, B-Stock will charge Company a cancellation fee as outlined in the Summary of Service Charges; provided that B-Stock approves the cancellation request (such approval may be withheld or conditioned in B-Stock’s sole discretion). In the event Company cancels a transaction after the completion of a listing with a winning bidder, B-Stock will charge Company an order cancellation fee as disclosed in the Summary of Service Charges agreed to by Company. In either case, B-Stock may terminate this Agreement with notice to Company. Company will indemnify and hold B-Stock harmless against any claims from a Buyer arising from the cancellation of a listing by Company.
5.5 Taxes. Company acknowledges and agrees that it shall hold harmless and indemnify B-Stock for any sales, use, excise, import or export value-added or similar tax or duty associated with the Inventory not based on B-Stock’s net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, including reasonable attorneys’ fees.
6. Term and Termination
The term of this Agreement shall commence on the Effective Date and continue until either party delivers notice of termination (the “Term”); provided however that Company may not terminate the Agreement until after the expiration date of any of its outstanding listings of Inventory. Notwithstanding the foregoing, B-Stock may terminate this Agreement immediately, without notice; (i) if Company breaches this Agreement; (ii) to comply with applicable law; or (iii) to avoid or mitigate any potential liability owed to third parties; provided that B-Stock provides notice of such termination promptly after exercising such immediate termination right. On the termination date (a) B-Stock will cease placing listings on Company’s behalf and (b) Company will complete any pending transactions per the terms of their respective listings unless B-Stock instructs otherwise. Those sections of this Agreement which by their nature should survive the termination of this Agreement shall survive (e.g., confidentiality, limitation of liability, warranty disclaimers, reservation of rights in B-Stock Technology). Moreover, B-Stock may suspend your access to the B-Stock Services if B-Stock has a bona fide good faith belief that (i) you are violating this Agreement, (ii) such suspension is necessary to reduce exposure to third party claims or (iii) a suspension is necessary to comply with any applicable law.
7.1 Definition. A party’s “Confidential Information” is defined as any information of a party which is disclosed to the other party in writing that is (i) marked confidential or (2) that should reasonably be understood to be confidential to the disclosing party given the circumstances surrounding the disclosure. The terms of this Agreement shall be deemed the Confidential Information of B-Stock.
7.2 Restrictions. Each party will hold the other party’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform under this Agreement. Such known restrictions will not apply to Confidential Information which (i) is already known by the recipient; (ii) becomes publicly known through no act or fault of the recipient; (iii) is received by recipient from a third party without a restriction on disclosure or use; (iv) is independently developed by recipient without reference to the Confidential Information; or (v) is allowed pursuant to this Agreement. The restriction on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or similar disclosure requirement, provided that recipient will first notify the disclosing party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order. The parties’ respective obligations hereunder will survive the expiration or early termination of this Agreement for a period of three (3) years.
7.3 Termination. Upon termination of this Agreement, upon the request of the disclosing party, the receiving party will destroy or return to the disclosing party all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
7.4 Notice. Without limiting the foregoing, and subject to compliance with applicable law, each party agrees to notify the other in the event any element of this Agreement may need to be disclosed pursuant to any regulatory or other disclosure requirement, and to further seek confidential treatment requested by the other with respect to certain confidential elements of the Agreement and any documents related thereto (including information relating to fees, payments and integration) in any governmental or public filings.
8. Warranties and Indemnities
8.1 Mutual Representations. Each party represents and warrants to the other that (a) it has full power and authority to enter into this Agreement and to grant the licenses provided herein, and (b) this Agreement has been duly authorized, executed and delivered by such party.
8.2 Company Representations. Company represents and warrants to B-Stock that (i) it owns, or has obtained all necessary rights to distribute and make available the Inventory (and its End User Content) made available to Buyers in connection with this Agreement; (ii) the Inventory, and sale thereof, does not infringe or violate the rights of any third-party, including any third-party’s copyrights, trademarks, services marks, trade dress, patents, or personal or proprietary rights. Company further represents and warrants that, except as otherwise expressly provided herein, B-Stock is not responsible for: (i) any errors or omissions arising from the listing of Inventory through the B-Stock Supply Services; (ii) losses or damages arising from the use of Inventory by any third party; or (iii) any Inventory provided through or in conjunction with the B-Stock Supply Services, including without limitation any failures, delays or interruptions in the delivery of the Inventory.
8.3.1 B-Stock Indemnification. B-Stock will defend, indemnify and hold Company harmless from and against any and all claims, losses, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”) which Company may incur as a result of any third-party actions arising from or relating to (i) breach of any of B-Stock’s representations, warranties or covenants herein; and/or (ii) misappropriation of any third party trade secret or infringement by any B-Stock Mark or B-Stock Technology, of a U.S. patent, copyright, trademark right or other intellectual property right of a third party.
8.3.2 Company Indemnification. Company will defend, indemnify and hold B-Stock harmless from and against any and all Claims which B-Stock may incur as a result of any third-party actions arising from or relating to: (i) breach of any of Company’s representations, warranties or covenants herein; (ii) sale or display of the Inventory (or its End User Content); (iii) use of the Inventory and any damages resulting therefrom; (iv) any Claims that any portion of the Inventory infringes or violates any third-party rights, including, but not limited to, any intellectual property, privacy, moral or proprietary rights; and (v) any violation of law by Company or its employees, contractors or affiliates.
8.3.3 Qualifications. The foregoing obligations are conditioned on the indemnified party: (i) giving the indemnifying party notice of the relevant claim; (ii) cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (iii) giving the indemnifying party the right to control the investigation, defense and settlement of any such claim, except that the indemnifying party will not enter into any settlement that affects the indemnified party’s rights or interest without the indemnified party’s prior written approval. The indemnified party will have the right to participate in the defense at its own expense.
8.4 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 ABOVE, B-STOCK DOES NOT MAKE ANY OTHER WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, AND THE B-STOCK SUPPLY SERVICES AND B-STOCK TECHNOLOGY ARE PROVIDED “AS-IS” AND WITHOUT OTHER WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, B-STOCK DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND ACCURACY. B-STOCK DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THE B-STOCK SUPPLY SERVICE, OR B-STOCK TECHNOLOGY WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE.
9. Limitation of Liability
NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. A PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $10,000; PROVIDED HOWEVER THAT SUCH LIABILITY CAP SHALL NOT APPLY TO ANY INFRINGEMENT OF B-STOCK’S INTELLECTUAL PROPERTY BY COMPANY. THIS LIMITATION OF EACH PARTY’S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. NOTWITHSTANDING THE FOREGOING, THIS SECTION 9 SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS.
10.1 Governing Law. This Agreement will be construed in accordance with and governed exclusively by the laws of the State of California applicable to agreements made among California residents and to be performed wholly within such jurisdiction, regardless of such parties’ actual domiciles.
10.2 Independent Contractors. This Agreement does not create, and nothing contained in this Agreement will be deemed to establish a joint venture between the parties, or the relationship of employer-employee, partners or principal-agent. Further, neither party will have the power to bind the other without the other’s prior written consent nor make any representation that it has any such power.
10.3 Severability; Headings. If anyz provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
10.4 Force Majeure. If performance hereunder is interfered with by any condition beyond a party’s reasonable control, such as an act of God, the affected party will be excused from such performance to the extent of such condition.
10.5 Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile. Notices will be sent to a party at its address set forth above or such other address as that party may specify in writing pursuant to this Section.
10.6 Entire Agreement; Waiver. This Agreement, including all agreements referred to herein, sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event of a conflict between this Agreement and any exhibits attached hereto, the terms in the Agreement shall control.
10.7 Changes to this Agreement. B-Stock may alter the terms of this Agreement at any time by providing you thirty (30 days) written notice of such change. Company’s continued use of the service after such notice will constitute acceptance of such change. If Company does not wish to be bound to such changes, it must terminate this Agreement in accordance with Section 6.
10.8 Service Providers. Company acknowledges that B-Stock is entitled to subcontract any of its contractual obligations related to the provision of services described herein to third parties selected by B-Stock. In addition, Company acknowledges and agrees that the B-Stock servers on which the B-Stock Supply Services are hosted are located at the facilities of third parties in the U.S.
10.9 No Third Party Beneficiaries. Except as otherwise expressly provided for in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement.