GreaTFOods, It’s Vegan LLC and its subsidiaries and affiliates (“GTFO It’s Vegan”, “GTFO“, “we,” or “us”), require that all Vendors (“Vendor“) using this Web site as well as any other publicly available version of this site or co-branded sites operated by GTFO It’s Vegan (the “Site”) adhere to the following terms and conditions of use (these “Terms”) and to comply with all applicable laws and regulations. If you do not agree to these Terms, you are not authorized to use the Site. BY ACCESSING AND USING THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS.sites operated by GTFO It’s Vegan (the “Site”) adhere to the following terms and conditions of use (these “Terms”) and to comply with all applicable laws and regulations. If you do not agree to these Terms, you are not authorized to use the Site. BY ACCESSING AND USING THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS. The parties shall be referred to collectively as the “Parties.”
Vendor wishes to produce and sell its Product or Products (“Offering(s)”), either as a Branded or Private Label Offering on GTFO, and all related affiliate websites and brick-and-mortar locations (“Marketplace”). Therefore, in consideration of the mutual covenants of the Parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
1. Vendor Offering Program
1.1 Vendor Offering Fulfillment. GTFO shall promote and sell the Offering(s) per Sections 1.2 and 1.3 below. Vendor is the seller of the Offering(s) described in Addendum A attached hereto, an approved Purchase Order with GTFO, or via an e-mail correspondence between GTFO and Vendor. Unless otherwise negotiated with the Vendor to use a drop ship program, GTFO will handle fulfillment of purchased Offering(s) from the Vendor. Vendor is making the Offering(s) available and agrees to honor and permit GTFO to fulfill all Offering(s) sold through the Marketplace in accordance with the Purchase Order, this Agreement, and any applicable Laws.
1.3 Promotion of Offering(s). GTFO may promote the Offering(s) in a variety of formats, including, but not limited to, the following: (a) through its feature or popular Offering(s), (b) through its various promotion landing pages, (c) through its promotional emails, (d) through its Marketplace, (e) sold as a part of a package with other Services or Products and sold in the Marketplace, or (f) through its affiliate network. All of these formats may be offered to part or all of GTFO’s subscriber base, or the communities associated with GTFO’s affiliates. For Branded Offerings, Vendor may use marketing materials developed by GTFO to promote Vendor’s Offerings on Vendor’s website, advertising, and social media channels, so long as Vendor agrees to credit GTFO as the developer and creator of such materials.
1.4 License. For Branded Offerings, Vendor grants to GTFO a non-exclusive license and right to use, reproduce, display, distribute and transmit the Vendor’s name, logo and any trademarks, copyrights and derivative works thereof (“Vendor Marks”) and any photographs, graphics, artwork, text and other content provided or specified by Vendor (“Content”) in connection with the marketing, promotion, sale or distribution of the Offering(s), in any and all media or formats in which such Vendor Offering(s) are marketed, promoted, transmitted, sold, or distributed on the Marketplace. Vendor warrants that it owns the Vendor Marks and Content without any claims or set off rights and has full power and authority to grant the license described herein. As such, Vendor shall indemnify, defend and hold harmless GTFO from any suit, demand, claim or liability, including reasonable attorneys’ fees, arising from a breach of the foregoing warranty or any other basis arising from use of Vendor Marks and Content, including without limitation copyright infringement, trademark infringement and unfair competition
2. Vendor Payment
GTFO payment terms vary based on type of Vendor Offering Fulfillment. The Vendor Payment Amount is the amount collected for each vendor Offering, less all applicable commissions, taxes, fees, coupons and other promotions.
2.1 Direct Fulfillment. GTFO shall remit payment to Vendor according to the schedule and terms set forth in the Purchase Order, which unless otherwise defined in the via an e-mail correspondence between GTFO and Vendor, is 45 days after receipt of the Offering(s) at the GTFO fulfillment center, unless otherwise agreed to by both parties. Furthermore, Vendor agrees and acknowledges that in the event Vendor is either unwilling or unable to fulfill an Offering or Offering(s), or it is discovered that GTFO received product from Vendor that is not free from defect as outlined in Section 4 below, for which GTFO has already partially or fully paid Vendor, GTFO will deduct the amount pertaining to such Offering(s) from any subsequent payments due to the Vendor. In the event that no further payments shall be due to Vendor, Vendor shall reimburse GTFO the amount paid by GTFO to Vendor pertaining to any such Offering(s).
2.2 Pay-On-Purchase Fulfillment. No payment will be due upon issuance of a Purchase Order. GTFO will pay Vendor the Vendor Payment Amount for each Offering purchased and fulfilled by GTFO within 30 days after the Offering is shipped to the customer. If the customer requests a refund towards a previously purchased Vendor Offering for which GTFO has already paid Vendor, GTFO will deduct the Vendor Payment Amount pertaining to such Vendor Offering from any subsequent payments due to the Vendor under this Section 2.2. In the event that no further payments shall be due to Vendor under this Section 2.2, Vendor shall reimburse GTFO the amount paid by GTFO to Vendor pertaining to any such Vendor Offering.
2.3 Drop Ship Fulfillment. GTFO will pay Vendor the Vendor Payment Amount for each Offering purchased during each monthly performance period, which unless otherwise communicated begins on the first calendar day each month continuing through the performance period ending on the last calendar day of the month. GTFO shall make payments of the accrued Vendor Payment Amount to Vendor within 30 days following the end of a performance period. Furthermore, Vendor agrees and acknowledges that in the event Vendor is either unwilling or unable to fulfill a Vendor Offering for which GTFO has already paid Vendor, or if the customer requests a refund towards a previously purchased Vendor Offering for which GTFO has already paid Vendor, GTFO will deduct the Vendor Payment Amount pertaining to such Vendor Offering from any subsequent payments due to the Vendor under this Section 2.3. In the event that no further payments shall be due to Vendor under this Section 2.3, Vendor shall reimburse GTFO the amount paid by GTFO to Vendor pertaining to any such Vendor Offering. Amounts retained by GTFO are compensation to GTFO for the service of advertising and selling the Vendor Offering on behalf of the Vendor.
GTFO may, from time to time, offer site-wide specials and coupons, such as discounts on orders and shipping. GTFO also offers both an Annual and Monthly Saver discount program whereby subscribing customers receive 10% lower pricing on every order. When the coupon or membership discount is applied to the order, the amount of the discount is prorated proportionally across every item included the the cart. As such, the retail price for the Vendor Offering purchased may reduced by this prorated amount. As the Vendor Payment for each Offering is based off a percent of the retail price of that Offering, the Vendor Payment may be reduced commensurate with the discount or coupon applied to the order. The Vendor may opt not to participate in these site wide coupons and discounts. In the event the Vendor chooses not to participate, please communicate this to GTFO during the onboarding process by emailing email@example.com
3. Term and Termination.
The term for this initial agreement is five (5) years from the anniversary of the Effective Date. This Agreement shall automatically renew for an additional five (5) years, unless otherwise cancelled by the Vendor 90 days prior to the renewal date (the “Term”). GTFO may terminate this Agreement at any time for any reason by giving the Vendor written notice of such termination.
4. Vendor Representations and Warranties, and Indemnification.
4.1 Representations and Warranties. Vendor represents and warrants throughout the Term that: (a) Vendor will provide its Offering(s) free from defect; (b) Vendor has the right, power and authority to enter into this Agreement; (c) the Offering(s), upon being activated on the Marketplace shall be available immediately for sale; (d) for Branded Product, Vendor owns all right, title and interest in the Vendor Marks and Content and has the right to grant the licenses in the Vendor Marks and Content stated in this Agreement; (e) for Branded Products, the Offering(s) and any advertising or promotion of the Offering(s) relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws; (f) for Branded products, the Vendor Marks and the Content do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws
4.2 Proof of Insurance and Claims. Vendor currently has, and shall maintain at Vendor’s own expense liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in its region, consistent with best industry practices, and sufficient to fully comply with applicable Law and fulfill Vendor’s obligations under this Agreement, and furthermore, upon GTFO’s request, Vendor shall provide proof of insurance that indicate that GTFO will be covered by Vendor’s insurance policies in the event of a claim arising under, or in relation to, this Agreement or the Offering(s) provided. In the event GTFO receives defected product from Vendor, Vendor agrees to the renumeration terms outlined in Section 1.5 above. Should GTFO be required to file an insurance claim to cover losses incurred from defected product, GTFO will file the claim and then require full reimbursement against that claim from the Vendor to reimburse GTFO’s insurance carrier. Reimbursement against any GTFO filed claims must occur within 15 days of claim payout. As an example, should it be discovered Vendor’s Offering contains salmonella, GTFO’s insurance will pay for the damages incurred and Vendor agrees to reimburse the costs incurred as documented.
4.3 Indemnification. Vendor agrees to defend, indemnify and hold GTFO, its affiliated and related entities, and any of their officers, directors, members, managers, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney’s fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Vendor of this Agreement or the representations and warranties stated in Section 3.1 or elsewhere in this Agreement; (b) any claim arising out of a violation of Law; or (c) any claim arising out of or relating to the Offering(s) provided by Vendor, including but not limited to, any claims for false advertising, Offering defects, personal injury, death, professional malpractice, or property damages. Without limiting the foregoing, Vendor shall pay any monies owed to any party, as well as all attorney’s fees, related to any action against, or determinations against, GTFO related to any action to pursue GTFO for Taxes or Abandoned Property Claims. GTFO, agrees to defend, indemnify and hold Vendor its affiliated and related entities, and any of their officers, directors, members, managers, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney’s fees and costs) arising out of or relating to any of the following: (a) GTFO’s material breach of this Agreement; or (b) any infringement, misappropriation or other violation of any trademark or copyright of any third party by GTFO (excluding GTFO’s use of materials provided or authorized for GTFO’s use by Vendor under this Agreement.)
5. Confidentiality, Non-Circumvention, and Intellectual Property Rights.
5.1 Confidentiality. The terms of this Agreement are confidential, and Vendor agrees to not disclose the terms described herein to any party (other than its employees, professional advisors, parent companies, and shareholders on a need-to-know basis only after each has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such individuals). The terms contained herein are confidential between GTFO and Vendor and not known to the general public outside of this Agreement, thus any breach of this confidentiality provision by Vendor shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to GTFO for which there will be no adequate remedy at law; and in the event of such breach, GTFO will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
5.2 Non-Circumvention. Vendor hereby mutually and irrevocably agrees not to divulge GTFO’s named retail and wholesale customers revealed to Vendor at any time for any reason whatsoever, and to not circumvent directly or indirectly, the relationships that GTFO has with the retail or wholesale customers, unless permission is given in writing by GTFO. This Section 5.2 does not apply to existing Vendor retail or wholesale customer relationships for individuals or entities that are also customers of GTFO (“Overlapping Customers”). Should Vendor identify an Overlapping Customer divulged by GTFO, Vendor agrees to notify GTFO within twenty-four (24) hours of the Overlapping Customer. Should such circumvention be attempted, in addition to other remedies, fees or compensation equal to those paid, committed or agreed to be paid in the specific arrangement are due and payable to the circumvented party.
5.3 GTFO Intellectual Property. Vendor agrees and acknowledges that GTFO owns all right, title, and interest in the Marketplace, GTFO trademarks, GTFO Private Label Brands, and any proprietary recipes, packaging, software, technology or tools used by GTFO to promote, market, sell, generate, or distribute the Offerings (collectively the “GTFO IP”). Vendor shall not produce, sell, or license and GTFO Private Label Brands or proprietary recipes to any other party. Vendor shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the GTFO IP or any portion thereof, or use such GTFO IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. Vendor shall not prepare any derivative work based on the GTFO IP. Vendor shall not translate, reverse engineer, decompile or disassemble the GTFO IP.
5.4 Customer Contact Information. All customer information, including name, address, phone and email, is the exclusive property of GTFO. Outside of the purpose of fulfilling Drop Ship orders and communicating tracking information, Vendor is prohibited from using this information to contact, market, promote, and/or sell their products to GTFO customer(s). Should it be determined that the Vendor utilized GTFO customer information for any purpose other than fulfilling Drop Ship orders, GTFO reserves the right to invoice the Vendor $1,000 per Customer contact. In addition, the Vendor will be removed immediately from the GTFO site and GTFO also reserves the right to sue the Vendor for additional damages for breach of sections 5.1, 5.2, and 5.3 of this Agreement.
6.Limitation of Liability.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT OR SERVICE LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. GTFO’S SOLE AND COMPLETE LIABILITY TO VENDOR FOR ANY CLAIMS ARISING OUT OF RELATING TO THIS AGREEMENT OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF THE OFFERING(S) SHALL BE LIMITED TO THE AMOUNT OF OPPORTUNITY FEES PAID HEREUNDER. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. Any claim arising out of or relating to any error or omission in an Offering must be made within one (1) year of first publication of the Offering(s). Otherwise, the claim shall be deemed waived by Vendor.
7. Regulatory Compliance.
7.1 Privacy. In the performance of this Agreement, the Parties shall comply with all applicable Privacy Laws, rules and regulations, no later than the applicable compliance dates mandated by such Laws, rules and regulations.
7.2 Security. Each Party shall use appropriate administrative, technical and physical safeguards, to preserve the availability of electronic protected information, protect the integrity and confidentiality of protected information, and to prevent non-permitted or violating use or disclosure of protected information created or received and will keep these safeguards current.
7.3 Standards for Electronic Transactions. Each Party will comply no later than the date for compliance with all applicable final regulations, and will require any subcontractor or agent involved with the conduct of exchanging data electronically to comply, with each applicable requirement of 45 C.F.R. Part 162.
7.4 Further Assurances; Amendment. The Parties agree to execute amendments to this Agreement as may be necessary for the continuing compliance with the aforementioned Laws, rules and regulations, as additional regulations are promulgated or become final and effective. Should either party reasonably conclude that any portion of this Agreement is or may be in violation of such requirements or subsequent enactments by federal, state or local authorities, or if any such change or proposed change would materially alter the obligations of either party under this Agreement, the parties agree to negotiate written modifications to this Agreement as may be necessary to establish compliance with such authorities or to reflect applicable changes.
9.1 Entire Agreement. This Agreement and any subsequent Offering Terms constitute the entire agreement between the parties relating to its subject matter and supersede all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the Parties in writing.
8.2 Assignment. Vendor may not assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without GTFO’s prior written consent.
8.3 Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GTFO DOES NOT WARRANT OR GUARANTEE THAT THE PRODUCTS OR SERVICES OFFERINGS ON OR THROUGH THE WEBSITE SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT THE OFFERING(S) WILL BE ERROR-FREE OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE OFFERING(S) WILL BE CORRECTED, OR THAT THE OFFERING(S) WILL RESULT IN ANY REVENUE OR PROFIT FOR VENDOR.
8.4 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. Each party agrees to personal jurisdiction in any action brought in any court, Federal or State, within the County of Orange, State of California having subject matter jurisdiction over the matters arising under this Agreement. Any suit, action or proceeding arising out of or relating to this Agreement shall only be instituted in the County of Orange, State of California. Each party waives any objection which it may have now or hereafter to the laying of the venue of such action or proceeding and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding.
8.5 Force Majeure. Neither Party shall be liable for any claims or damages and shall be excused for such claims, damages, failures and delays in the performance of its obligations under this Agreement due to any act or cause beyond the reasonable control and without the fault of such Party, including, without limitation, acts of God such as fire, flood, tornado, earthquake, pandemic; acts of government (i.e., civil injunctions or enacted statutes and regulations); or acts or events caused by third parties such as riot, strike, power outage or explosion; or the inability due to any of the aforementioned causes to obtain necessary labor or materials.
8.6 Counterparts. This Agreement may be executed in one or more counterparts, which may be exchanged by facsimile or other electronic means, each of which shall be deemed an original and which together shall constitute one and the same agreement.
8.7 Covenant Against Kickbacks. Each party covenants that neither itself nor its employees, officers or agents have paid or received any bribes, kickbacks or gratuities from the other in connection with this Agreement.
8.8 Advice of Legal Counsel. Each party covenants that it has had the opportunity to obtain its own legal counsel to advise the party as to the terms, conditions, obligations, and enforceability of the Agreement prior to the Agreement’s execution.