True Goods, LLC owns and operates a Web site www.truegoods.com, which enables end users to buy natural, organic and eco-friendly products developed by third party suppliers.
True Goods, LLC desires to offer on its Web site certain products sold by third party suppliers.
True Goods, LLC has created the “Consciously Curated ® Fast-Track” program to facilitate quick supplier onboarding to TrueGoods.com, fulfillment, processing and shipping of customer orders, with storage of the suppliers’ products at the True Goods warehouse facility prior to their being purchased by an end user.
You (the supplier) agree to make your selected merchandise available for fulfillment by True Goods, LLC and to deliver your products to the True Goods warehouse facility, prior to their being purchased by an end user and without True Goods, LLC paying for such products, in accordance with the terms and conditions below.
NOW, THEREFORE, if you would like to participate in the Consciously Curated ® Fast-Track program, you must agree to the terms and conditions set forth below (the “Fast-Track Terms & Conditions”).
By participation in the Consciously Curated ® Fast-Track program, as evidenced by shipping products to the True Goods warehouse facility, you agree to comply with and be bound by these Fast-Track Terms & Conditions. See Section 24 below regarding amendments to these Fast-Track Terms & Conditions.
1. Logistics: Delivery and Storage of Merchandise.
1.1. Distributor. The Vendor hereby requests that the Company arrange for the storage of the Vendor's products and packaging (together, the “Merchandise”) at the premises of a warehouse or fulfillment center of the Company's choice (the “Distributor”), in order for the Merchandise to be shipped via the Distributor’s distribution system, to customers who purchase the Vendor's merchandise via the Site.
1.2. Warehouse Facility. The Distributor currently used by the Company is it’s own warehouse located at 3700 Quebec Street, Unit 100-317, Denver, CO 80207. The Company may switch or add Distributors and/or locations, in its sole discretion.
2. True Goods Terms of Service. The Terms of Service governing the purchase and sale of products on the Site (available at http://truegoods.com/pages/terms-of-use), including but not limited to the Fast-Track Terms & Conditions, as shall be in effect from time to time (collectively, the “Terms of Service”), shall apply to Merchandise shipped by the Vendor and to the fulfillment, delivery and storage relationship between the Company and the Vendor pursuant to the Consciously Curated ® Fast-Track program. In the event of any contradiction between the terms of the Terms of Service and Fast-Track Terms & Conditions, with respect to the fulfillment, delivery and storage arrangement, then the terms of Fast-Track Terms & Conditions shall prevail.
3. Revenue Share and Payment.
3.1. Subject to the deduction of any costs or fees set forth in these Fast-Track Terms & Conditions, 60% of the list price of the Vendor's Merchandise as advertised on the Site shall be transferred to the Vendor, following receipt of payment by the Company from the customer, in accordance with and subject to the Terms of Service and the Company’s policies and procedures regarding payment to sellers.
3.2. Unless otherwise agreed in writing, the Company shall pay the Vendor in accordance with the Company’s general payment cycle dates (on the last day of each month (unless such days fall on a holiday or weekend)). The calculation of the amounts paid to the Vendor will solely be based on the Company's records and sales reports.
4. Delivery of Merchandise to the Company.
4.1. Delivery to Warehouse Facility. The Merchandise delivered to the Distributor’s premises shall include all instructions, warnings, warranties and other materials and services normally included with such products when shipped by the Vendor to customers. The Vendor shall inspect all Merchandise prior to shipment to ensure quality, safety and conformity and to ensure that the Merchandise is property packed and loaded to prevent transit damage and tampering.
4.2. Costs. All costs relating to the labeling, packing and handling of the Vendor's Merchandise and the delivery of the Merchandise to the Distributor’s facility shall be borne by the Vendor.
4.3. Title and Risk of Loss. Title and risk of loss of the Merchandise shall remain with Vendor until the Merchandise is sold and shipped from the Distributor’s warehouse facility to the customer.
4.4. Shipment Specifications. Unless otherwise instructed in writing by the Distributor or the Company, and without derogating from any other requirements or guidelines, the following shall apply to packaging and delivery by the Vendor of the Vendor's Merchandise to the Distributor’s warehouse facility:
4.4.1. Each shipment must have its own packing list, with sufficient detail, identifying which products are in each box.
4.4.2. Merchandise should be packaged as to prevent damage.
4.5. Bar Codes. If available, vendor shall place on all Merchandise delivered to the Company accurate 12-digit manufacturer assigned Universal Product Code (“UPC”).
4.6. Customs. Any customs due relating to the delivery to the Distributor’s warehouse facility shall be borne by the Vendor.
5. Schedule. The parties will mutually agree on the date and time for each Merchandise item to be delivered to the Distributor’s warehouse facility.
6. Compliance with Laws. The Vendor warrants that all Merchandise is and will be manufactured, processed, packaged, labeled, accurately marked, tagged, tested, certified, weighed, inspected, shipped and sold in compliance with all applicable industry standards and all applicable federal, state, provincial and local laws and regulations, including by way of example all laws and regulations relating to health, safety, environment, serial and identification numbers, labeling and country of origin designation; and including all FDA, toxic substances, OSHA and the U.S. Environmental Protection Agency ("EPA") regulations; or any food safety statute; and Customs requirements. The Vendor agrees to execute and/or furnish to the Company, on reasonable request, all certifications, guaranties and other documents regarding compliance with such laws and regulations, including any Material Safety Data Sheet (“MSDS”) as required by OSHA regulations.
7. Ability to Sell. By agreeing to these Fast-Track Terms & Conditions, the Vendor warrants and represents to the Company as follows:
7.1. The Merchandise, its packaging and labeling and its sale will not infringe any patent, trademark, trade dress, trade name, copyright or other right.
7.2. The Merchandise is without defects and has adequate warnings and instructions.
7.3. The Vendor is not a party to any agreement or understanding, and there is no other impediment or restriction, that limits, prohibits or prevents Vendor from offering the Merchandise on the Site, from delivering the Merchandise to the Company or to the Distributor’s facility prior to its sale, or limits, prohibits or prevents the Company from shipping the Merchandise to end users.
7.4. The Vendor shall obtain and maintain the proper licenses and permits required to offer the Merchandise for sale on the Site, or to sell the Merchandise to end users.
7.5. No serial numbers or identification numbers on the Merchandise or on its packaging have been or will be altered, defaced or removed.
7.6. If applicable, the Merchandise will be in its original condition from the manufacturer and will contain all original product manuals, information and no seals or packaging have been or will be opened.
7.7. The Vendor and the Company are independent contractors. The Vendor is not an agent, representative and/or employee of the Company. The Vendor has no authority to incur any liability on behalf of the Company and/or to submit or accept on behalf of the Company any proposal, contract, offer and/or order and the Vendor will not act or hold itself out as an agent of the Company.
8. Refusal to Receive/Merchandise Return.
8.1. The Company at its option may, at any time, either return to the Vendor or hold at Vendor's risk and expense, any Merchandise, shipment or portion thereof that is non-conforming, or that is shipped contrary to the Company's instructions or the Terms of Service, or that is in excess of the agreed upon quantities, or that allegedly contains any defect or inadequate warnings or instructions, or allegedly violates any law, regulation, or court or administrative order, or allegedly infringes any patent, trade name, trade dress, trademark, copyright or other right.
8.2. The Vendor hereby assumes, and shall bear and pay, all risks and expenses of unpacking; examining; repacking; storing; holding and/or reshipping or returning any such Merchandise, and shall reimburse the Company its net landed cost for such Merchandise as shown on the books of the Company, in addition to any other remedies available to the Company.
8.3. The Company shall not be liable for any damages including consequential or incidental damages or lost profits or expenses incurred by the Vendor as a result of any cancellation, refusal to receive, return, refund, or offset.
8.4. The Vendor at its option may, at any time and upon fifteen (15) business days’ advance notice to the Company, request to withdraw Merchandise from the inventory at the Distributor's facility and return such Merchandise to a location of the Vendor's choice, provided that such Merchandise was not already ordered by a customer. All costs and expenses of the Vendor and/or the Company with respect the withdrawal and return of the Merchandise shall be borne by the Vendor.
9. Customer Returns. The Company may return to Vendor any Merchandise returned by the customers for any reason stated in Section 8 (Refusal to Receive/Merchandise Return) above, including buyer's remorse. The Company will bill the Vendor (or deduct such amount from future payments) for any customer returns.
10. Returned Merchandise. Vendor is responsible for all fees, taxes, and costs associated with the return of Merchandise by the Company (or the Distributor) to the Vendor, for any reason, including but not limited to if such Merchandise was unsold or if the Company refused to receive such Merchandise.
11. Refunds; Offsets. At the Company's option, the Vendor shall grant a full refund to the Company or, if the Company so elects, a credit or replacement with respect to any shipment, Merchandise or portion thereof that the Company returns or otherwise refuses to receive; and the Company may offset any such amounts against amounts the Company owes to Vendor.
12. Indemnity. The Vendor shall defend, hold harmless and indemnify the Company and its subsidiaries, affiliates, employees, agents and representatives from and against any and all claims, actions, liabilities, losses, fines, penalties, costs and expenses (including reasonable attorneys' fees) arising out of:
12.1. Any actual or alleged infringement of any patent, trademark, trade name, trade dress, copyright or other right relating to any Merchandise, or other breach of any representations, warranties or Vendor obligations as set forth in these Fast-Track Terms & Conditions or the Terms of Service;
12.2. Any actual or alleged death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, claimed to result in whole or in part from any actual or alleged defect in such Merchandise, whether latent or patent, including any alleged failure to provide adequate warnings, labeling or instructions; or
12.3. Any actual or alleged violation of any law, statute or ordinance or any administrative order, rule or regulation relating to the Merchandise, or to its manufacture, shipment, import, labeling, weights and measurements, use or sale, or any failure to provide an MSDS or certification.
These indemnities and obligations of the Vendor shall not be affected or limited in any way by the Company’s extension of warranties to its customers, or by any approval, specification, act or omission of the Company. The Vendor shall have no obligation to defend, hold harmless and indemnify the Company for the Company’s sole negligence or intentional acts.
13.1. The Vendor shall obtain and maintain, at its expense, a Commercial General Liability policy with a minimum of:
- $2,000,000 General Aggregate limit;
- $1,000,000 per each occurrence.
13.2. Upon the Company's request, the Vendor shall provide the Certificates of Insurance, evidencing the required coverage.
13.3. The Vendor's insurance shall be primary with respect to all obligations assumed by the Vendor pursuant to these Fast-Track Terms & Conditions. It shall be the responsibility of the Vendor to ensure that any of its agents, representatives, subcontractors, and independent contractors comply with the above insurance requirements. Coverage and limits referred to above shall not in any way limit the liability of the Vendor.
14. Recalls. In the event that Merchandise is the subject of a recall (which includes safety notices) initiated by the Company, the Vendor, or a government or consumer protection agency, the Vendor shall be responsible for all costs and expenses associated with the recall or notice, and shall reimburse the Company for all costs and expenses incurred by the Company related to the recall or notice, including recalling, shipping and/or destroying the Merchandise (and where applicable, any products with which the Merchandise has been packaged, consolidated or commingled), including refunds to customers and the Company’s net landed cost of unsold Merchandise.
15. Other Remedies. The exercise of any remedy herein shall be without prejudice to any other right or remedy available to either party.
16. Disputes and Arbitration. In the event of any dispute, claim, question, or disagreement arising from or relating to these Fast-Track Terms & Conditions or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Such arbitration shall be in English, in Denver, Colorado (unless otherwise agreed by the parties), before one neutral arbitrator who shall be a member of the AAA. All documents and information relevant to the claim or dispute in the possession of any party shall be made available to the other party not later than thirty (30) days after the demand for arbitration is served, and the arbitrator may permit such depositions or other discovery deemed necessary for a fair hearing. The hearing may not exceed two days. The award shall be rendered within 90 days of the demand. The arbitrator may award interim and final injunctive relief and other remedies, but may not award punitive damages. Any award of the arbitrator (including awards of interim or final remedies) may be confirmed or enforced in any court having jurisdiction. Notwithstanding the above, the Company or the Vendor may bring court proceedings or claims against each other (i) solely as part of separate litigation commenced by an unrelated third party, or (ii) if not first sought from the arbitrator, solely to obtain in the state or federal courts in Denver, Colorado, temporary or preliminary injunctive relief or other interim remedies pending conclusion of the arbitration. In the case of contradiction between the provisions of this Section 16 and the Commercial Arbitration Rules of AAA, this Section shall prevail.
17. Venue; Attorneys Fees. The Vendor irrevocably consents to the personal jurisdiction and venue of the federal and state courts in Denver, Colorado, for any court action or proceeding. The prevailing party in any arbitration or court action or proceeding shall be awarded its reasonable attorneys' fees, expenses and costs.
18. Governing Law. These Fast-Track Terms & Conditions shall be governed by and construed under the laws of the State of Colorado without regard to the conflict of laws provisions thereof.
19. Severability. If any provision of these Fast-Track Terms & Conditions or of any agreement between the Vendor and the Company is held invalid or unenforceable (as a result of legislative changes or for other reasons), this invalidity or unenforceability shall not affect the validity and enforceability of the other provisions of these Fast-Track Terms & Conditions. In the event a provision is invalid or unenforceable, such provision shall be modified to the extent necessary to make it valid and enforceable and to retain (as much as possible) the same commercial scope and content as the replaced provision.
20. Ozone Laws. The Vendor represents and certifies that:
20.1. No Merchandise contains any foam or other substances banned under regulations adopted by the EPA or under any other U.S. laws or regulations; and
20.2. The Merchandise (a) does not contain and/or is not manufactured with the use of any Class I or Class II Ozone-Depleting Chemicals, or (b) is properly labeled in full compliance with EPA regulations and other applicable laws and regulations.
21. Trademarks. The ownership and exclusive use of the trademarks owned by the Company, which include True Goods ®, the vintage decorative wording and Consciously Curated ® language and all derivatives thereof, shall remain vested in the Company and the Vendor shall have no rights or interest in them. Vendor understands and agrees that prior to using the Company’s marks or logo in any manner, it must obtain the Company’s prior written consent and must comply with the Company’s guidelines.
22. Labor Laws. The Vendor, by agreeing to the Fast-Track Terms & Conditions, represents and warrants that it and its subcontractors and suppliers will comply with all applicable local government regulations regarding minimum wage, living conditions, overtime, working conditions, child labor laws and the applicable labor and environmental laws. The Vendor further represents and warrants that it and its subcontractors and suppliers do not use any form of forced prison labor and/or child labor under the age of 14 or the minimum age required by the local government, whichever is older.
23. Entire Agreement. These Fast-Track Terms & Conditions (including the Terms of Service) represent the entire agreement between the Company and the Vendor for the matters covered in these Fast-Track Terms & Conditions and supersede any terms in Vendor’s invoices (if any) and other forms, and all prior oral or written communications between the parties. No party is entering into these Fast-Track Terms & Conditions in reliance on any oral or written promises, representations or understandings other than those in these Fast-Track Terms & Conditions.
24. Amendment. The Company reserves the right to change any of these Fast-Track Terms & Conditions at any time and in its sole discretion. Changes to these Fast-Track Terms & Conditions may be posted without advance notice to you. Any changes will be effective upon posting of the revisions on the Site. All notice of changes to the Fast-Track Terms & Conditions will be posted on the Site for thirty (30) days (available at http://truegoods.com/pages/fast-track-terms-conditions). You are responsible for reviewing the notice and any applicable changes.
Your continued participation in the Consciously Curated ® Fast-Track program following the Company's posting of any changes will constitute your acceptance of such changes or modifications. If you do not agree to any changes to these Fast-Track Terms & Conditions, you must notify the Company immediately.
25. No Representation. No representation, promise, or inducement has been made by either party that is not embodied in these Fast-Track Terms & Conditions, and neither party shall be bound by or liable for any alleged representation, promise, or inducement not so set forth.
26. Section Headings. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of these Fast-Track Terms & Conditions.
27. Injunctive Relief. It is acknowledged that the rights of the Company under these Fast-Track Terms & Conditions are of a special, unique, and intellectual character which gives them a peculiar value, and that a breach of any provision of these Fast-Track Terms & Conditions, will cause the Company irreparable injury and damage which cannot be reasonably or adequately compensated in damages in an action at law.
Accordingly, without limiting any right or remedy, which the Company may have, Vendor specifically agrees that the Company shall be entitled to seek injunctive relief to enforce and protect its rights under these Fast-Track Terms & Conditions.
28. Neither party shall be construed to be, or shall represent itself to be, a joint venture, partner, agent or employee of the other party, and neither party will have the authority to bind the other party, by contract or otherwise, to any obligations.