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Terms and Conditions of Purchase

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    FABFITFUN TERMS AND CONDITIONS OF PURCHASE

    1. Price. Unless otherwise specified in a purchase order, the purchase price includes all packaging costs, transportation costs to the Delivery Location, insurance costs, customs, duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes.
    2. License & Promotion. Vendor hereby grants to FFF the non-exclusive, worldwide, royalty-free right and license to display, in any media now or hereafter existing, Product descriptions, photos, graphics and other materials made available by Vendor to FFF for the purpose of promotion, sale and/or distribution of the Products by FFF (the “Product Collateral Materials”). Vendor acknowledges that FFF may promote the availability of the Product in connection with the marketing and promotion of FFF’s products and services generally. During the period in which it is being sold by FabFitFun, Vendor will make the Product available for sale on its principal e-commerce website. Vendor represents the “Retail Price” it provides to FFF is: (i) the price at which Vendor advertises the Product; (ii) the price at which Vendor has made substantial sales of the Product; and (iii) the retail price of the Product in accordance with applicable law. Vendor will notify FFF at least thirty (30) days in advance of any change to the Product’s Retail Price.
    3. Timely Delivery. Timely delivery of the Products is of the essence and Vendor agrees and covenants to promptly notify FFF upon becoming aware of any circumstances that might reasonably cause a delay in delivery. Vendor shall deliver the Products, in the quantities ordered, to the Delivery Location by the Delivery Date. Vendor’s use of a premium shipping methodology (e.g. expedited or overnight delivery or air rather than rail or ship) to meet its obligation to deliver the Products by the Delivery Date will be at Vendor’s sole cost and expense.
    4. Title & Risk of Loss. Unless otherwise specified in a purchase order, title and risk of loss with respect to the Products will remain with Vendor until the Products have been accepted by FFF at its designated warehouse.
    5. Inspection & Acceptance. FFF will have the right, but not the obligation, to inspect the Products (or a sample of the Products) following delivery and to reject all or any portion of the Products if FFF determines the Products (or a sample of the Products) are nonconforming or defective or do not otherwise conform to the Vendor Guidelines. Vendor agrees and understands that FFF has no obligation to inspect every carton and/or unit of Product and that FFF’s right of inspection, whether exercised or not, will not affect FFF’s right to revoke acceptance or pursue other remedies if defects or nonconformities are discovered at a later date, notwithstanding that any defect or nonconformity could have been discovered upon inspection. Payment by FFF will not be construed as an acceptance of Products, or as a waiver or limitation of any of FFF’s rights as set forth herein or otherwise available under applicable law. FFF will have no obligation to accept or pay for any unordered Products, substitute goods, or for Products shipped that do not conform to, or comply with, the terms and conditions of a purchase order, these Terms, or the Vendor Guidelines. FFF may, at any time, reject (or revoke acceptance of) and either return to Vendor or hold at Vendor’s risk and expense, any Products that: (a) fail to conform with the requirements of a purchase order, these Terms, or the Vendor Guidelines; (b) are packed, packaged, shipped, or delivered contrary to the Vendor Guidelines or as was otherwise agreed to by the Parties in writing; (c) are in excess or short of the ordered quantities; (d) are the subject of a safety or recall notice; or (e) allegedly contain any defect or inadequate warnings, labeling, instructions, or safety guards, or otherwise appear, in FFF’s good faith discretion, to pose an unreasonable risk of harm to consumers. In the event FFF takes delivery of any nonconforming Products, FFF reserves the right to deduct all expenses incurred as a result of such nonconformance, including, but not limited to, expenses related to transportation, receiving, inspection, quality testing, sorting, recall, remediation, rework, or care and custody of the Products, from any amounts otherwise due to Vendor.
    6. Representations & Warranties. Vendor represents, warrants, covenants and guarantees that: (a) Vendor is a validly existing legal entity in good standing under the laws of the States in which it is incorporated and does business and Vendor has the unrestricted right and authority to enter into a purchase order and perform its obligations thereunder; (b) Vendor and the Products are in compliance in all respects with all applicable laws, rules, regulations and ordinances; (c) the Products, including the packaging, advertising, labels and other materials contained on, with, or relating to the Products, including the Product Collateral Materials, do not infringe upon any third party’s intellectual property or other rights; (d) FFF’s resale or distribution of the Products will not violate exclusivity and/or distribution rights of any third party; (e) the Products are merchantable and fit for their intended use, are of good material and workmanship, are free from contamination or impurity and free from any defects in workmanship, material, design and title; and (f) the Products conform in every respect to applicable specifications, instructions, drawings, designs, data, samples, and descriptions, as well as any requirements or specifications provided by FFF. The foregoing representations, warranties, covenants and guarantees are cumulative and in addition to all other express or implied warranties provided by law or equity and, are continuing in nature, survive inspection or failure to inspect, payment for, and delivery and acceptance of, the Products.
    7. Set-off. Without prejudice to any other right or remedy it may have, FFF reserves the right to set off, at any time, any amount owing to it by Vendor against any amount payable by FFF to Vendor.
    8. Indemnification. To the maximum extent permitted by applicable law, Vendor covenants and agrees to defend (with counsel acceptable to FFF), indemnify and hold harmless FFF, its subsidiaries and affiliates, and its and their owners, directors, officers, employees, agents, contractors, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims and actions, damages, demands, liabilities, losses, judgments, penalties, settlements, liens, costs and expenses (including attorney’s fees) (collectively, “Losses”), relating to, arising out of, or resulting, directly or indirectly, from Vendor’s actual or alleged negligence or willful misconduct, or breach of any of the representations, warranties, guarantees or other terms and conditions contained herein. In no event shall Vendor enter into any settlement without FFF’s or the Indemnified Party’s prior written consent. The indemnification provided for herein is without prejudice to any other rights or remedies any Indemnified Party may have under any applicable law.
    9. Insurance. Vendor shall comply with FFF’s insurance requirements posted to: https://operations.fabfitfun.com/operations#template-evym4qpcy.
    10. Termination & Survival. Either party may terminate a purchase order (a) immediately in the event of material breach by the other party which, if curable, has not been cured within three (3) days of notice of such breach (provided that, if such breach cannot by its nature be cured within the 3-day period, and such breach is likely to be cured within a reasonable time, then the breaching party shall be afforded an additional reasonable period of time beyond the 3-day period (such additional period not to exceed ten (10) days) to attempt to cure such breach); and (b) upon written notice in the event a party becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Termination of a purchase order shall not affect FFF’s right to sell any and all Product already in its possession. All terms and conditions of a purchase order and these Terms which by their nature are intended to survive termination shall so survive, including, without limitation, all payment obligations, representations and warranties, indemnification obligations, arbitration, and governing law and any terms and conditions of sale included in a purchase order.
    11. Confidentiality. To the extent that FFF provides Vendor with confidential and/or proprietary information, including, but not limited to, marketing information, business plans, business methods, revenue and sales data, and other product development information (collectively, “Confidential Information”) such Confidential Information shall be kept strictly confidential by Vendor, may not be used by Vendor for any purpose other than those permitted or contemplated by a purchase order or these Terms, and may not be disclosed to any third party or publicly without FabFitFun’s prior written consent. Disclosure of Confidential Information in a related court and/or legal proceeding and/or to Vendor’s representatives and/or legal counsel shall not be deemed a breach of this Section. The provisions of this Section shall not apply to any information which (i) is or becomes generally available to the public other than as a result of a breach of confidentiality by Vendor, (ii) was in Vendor’s possession prior to receipt from FFF, or (iii) is or was independently developed by Vendor without reference to or reliance upon the confidential or proprietary information received from FFF.
    12. Dispute Resolution & Governing Law. (a) Other than a claim for injunctive relief, and subject to subsection (ii) below, any controversy or claim arising out of or relating to a purchase order or the transactions or relationship resulting therefrom will be settled by binding arbitration in accordance with commercial arbitration rules of the American Arbitration Association (“AAA”) and such arbitration shall take place in Los Angeles County, California or via remote proceedings upon agreement of the Parties. The Parties waive any objection based on venue or forum non conveniens with respect to any arbitration instituted therein. The Parties further waive any and all objections to arbitration arising from Section 1281.2(c) of the California Code of Civil Procedure, or similar provisions of California law, which shall have no application to a purchase order or the interpretation thereof. The decision of the arbitrators shall be final and conclusive, and the Parties waive the right to trial de novo or appeal, excepting only for the purpose of confirming the arbitrators’ decision, for which purpose the Parties agree shall take place in Los Angeles County, California. If the amount in controversy is greater than or equal to $250,000, the arbitration shall be conducted in English by a panel of three arbitrators mutually agreed upon by the Parties or, if the Parties cannot so agree, then as selected in accordance with the commercial arbitration rules of the AAA; provided, however, that in any event at least one arbitrator shall be a retired judge or justice residing in Southern California with no less than five years of experience presiding over civil matters. If the amount in controversy is less than $250,000, the arbitration shall be conducted in English by a single arbitrator selected in accordance with the commercial arbitration rules of the AAA.
    (b) The interpretation, validity and enforcement of a purchase order and all transactions thereunder shall be governed by the laws of the State of California without regard to its choice of law provisions; provided, however, that the Federal Arbitration Act, to the extent inconsistent, will supersede the laws of such State and govern. The application to a purchase order of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods are expressly excluded. IN THE EVENT A PURCHASE ORDER IS FOUND NOT TO BE SUBJECT TO ARBITRATION, (A) FFF AND VENDOR HEREBY AGREE AND CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN LOS ANGELES COUNTY, CALIFORNIA AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND (B) THE PARTIES KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO A PURCHASE ORDER OR THE ISSUES RAISED BY THAT DISPUTE.
    13. Additional Terms Applicable to Imported Products. (a) Tariffs. Should any duties, and tariffs as outlined in Section 301, list 3, 4a, and 4b of the Trade Act of 1974, tariffs that were effective prior to Section 301 activity, and any other applicable tariffs assessed against the Products at their time of import (collectively, “Tariffs”) on the Products be decreased from the rate in place on the date of the applicable purchase order, FFF may request Vendor’s Customs and Border Patrol Form 7501 and adjust the purchase price based on actual Tariffs paid by Vendor at time of entry. Should Vendor not comply with the foregoing, FFF shall be able to reduce the amount owed under a purchase order by the difference between the Tariff and the lowest total of tariffs and duties being enforced for the Products on the Delivery Date. Furthermore, Vendor shall promptly notify FFF if it is refunded for any Tariffs paid on the Products and the parties shall negotiate an appropriate price reduction in good faith.
    (b) Duty Drawback. With regard to Products that are manufactured outside of the U.S., imported to the U.S. and then shipped to FFF’s end-customers outside the U.S., Vendor agrees to assign to FFF any and all of Vendor’s U.S. Customs & Border Protection duty drawback rights related to eligible merchandise furnished hereunder in order for FFF to seek duty drawback. Vendor further agrees to assist FFF in its efforts to claim duty drawback by providing directly to an independent drawback broker designated by FFF within 30 days of request the documentation or information required by such broker in order to complete a drawback claim with respect to the subject merchandise, including, without limitation, a Certificate of Delivery, Certificate of Manufacture (if applicable), import entry, date of entry, port of entry, and amount of duty paid. No documentation or information required pursuant to this paragraph will be disclosed by the broker to FFF, and Vendor may require such broker to agree to maintain the confidentiality of this information prior to disclosure.
    14. General. No waiver by either party of any of the provisions of a purchase order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in a purchase order, no failure or delay of either party to exercise any rights or remedies under a purchase order shall operate as a waiver thereof, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances. The rights and obligations of a purchase order will inure to the benefit of, and be binding upon, the parties and their respective heirs, administrators, executors, personal representatives, successors and permitted assigns. Vendor may not assign its rights and obligations hereunder without the prior written consent of FFF, which will be in FFF’s sole and absolute discretion, and any purported assignment or delegation in violation of this provision shall be null and void. The invalidity or unenforceability of any term or provision of a purchase order shall not affect the validity or enforceability of any other term or provision of a purchase order, and if any term or provision of a purchase order is held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such term or provision will be construed as if it were written so as to effectuate to the greatest possible extent the expressed intent of a purchase order, and the remainder of the purchase order will not be affected thereby and will remain valid and enforceable. A purchase order, including and together with any exhibits, schedules, attachments and other documents or terms and conditions expressly incorporated herein, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. A purchase order may only be amended, changed, altered or modified by a writing signed by the parties. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement a purchase order shall be binding unless hereafter made in writing and signed by the party to be bound. All notices and other communications required or permitted to be given under a purchase order shall be in writing and deemed duly served and given when transmitted without bounceback by electronic mail. If given to FFF, all such communications must be sent to Legal@fabfitfun.com. If given to Vendor, all such communications shall be sent to any email address used by Vendor or its representatives for the purpose of transacting business pursuant to a purchase order. The relationship between the Parties is that of independent contractors. Nothing contained in a purchase order shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Unless otherwise expressly stated, No relationship of exclusivity shall be construed from a purchase order.