Vendor Terms
Standard Terms and Conditions
Last Updated: May 2025
These Standard Terms and Conditions apply to Vendor and 2Modern in connection with that certain Vendor Agreement between the parties. Any capitalized terms used herein and not otherwise defined shall have the meaning ascribed in the Vendor Agreement. These Standard Terms and Conditions apply to all Orders, as well any goods manufactured, sold, delivered, or otherwise provided by or on behalf of Vendor.
1. Definitions. The definitions provided on Appendix 1 apply to this Agreement.
2. Orders. Vendor may ship Merchandise only after receipt of, and in accordance with, an Order for that Merchandise. Subject to the other provisions of this Agreement, Vendor may accept an Order only as follows: (i) by providing a confirmation notice to 2Modern, if such notice is requested by 2Modern, or (ii) if no prior notice is required by 2Modern, shipping conforming Merchandise in accordance with this Agreement and the Order. Vendor agrees to work in good faith with 2Modern to receive Customer Orders and supply inventory updates/data as described in the Operations Manual and elsewhere in this Agreement. Without limitation of anything contained in this Agreement, any additional, contrary, or different terms contained in any Order acceptance or confirmation, invoices, bills of lading (and notations thereon) or other communications, and any other attempt to modify, supersede, supplement, or otherwise alter this Agreement, are deemed rejected by 2Modern and will not modify this Agreement or be binding on the parties unless such terms have been fully approved in a signed writing by authorized representatives of both parties as described in this Agreement.
3. Payment Terms; Cash Discount; Audits
3.1. Payment Terms. Unless otherwise agreed, Vendor will submit invoices according to AP remittance guidelines in the then-current Operations Manual. Vendor will transmit invoices on the same day Merchandise is shipped, and 2Modern shall pay Vendor within thirty (30) days of receipt of shipment confirmation. [Need to address negotiation of 2/10, net 30 terms where/when we can]
3.2. Payments Except for amounts disputed in good faith, 2Modern will make payments of invoices through its preferred method of payment (“PMP”) as described in the then-current Operations Manual unless Vendor does not have a United States-based bank, in which case 2Modern will make payments via EFT, as described in the then-current Operations Manual.
4. Set-off; Credit Balance. 2Modern may, without prejudice to any other right or remedy it may have, recoup, set off, or credit against amounts payable to Vendor all present and future indebtedness of Vendor to 2Modern arising from this or any other transaction with Vendor or any of its affiliates whether or not related hereto, including but not limited to anticipated costs and expenses related to indemnification obligations. Vendor will promptly pay to 2Modern in cash any credit balance upon written request.
5. Taxes. The Order price includes all taxes, fees and charges, except sales, excise or use tax for which 2Modern is obligated upon the sale or use of the Merchandise. If Vendor receives a refund of any taxes included in the Order price or otherwise collected from 2Modern by Vendor, Vendor will promptly pay or credit 2Modern the amount of the refund, including any interest.
6. Price; Price Changes; Discontinued Merchandise.
6.1. Price.
(a) 2Modern Shipping Accounts: Where Vendor ships Merchandise using 2Modern’s parcel account or 2Modern otherwise arranges shipping, all prices include, and Vendor is solely responsible for, all costs and expenses relating to taxes (as stated in Section 5), packing, crating, boxing, and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Merchandise.
(b) Vendor Shipping Accounts: For all Merchandise shipped other than described in Section 6.1(a), Vendor is solely responsible for, all costs and expenses relating to taxes (as stated in Section 5), packing, crating, boxing, transporting, loading and unloading, customs, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Merchandise.
(c) Firm Prices. Except as provided in the Section 6.2, all prices are firm and are not subject to increase for any reason, including changes in market conditions, increases in raw material, component, labor or overhead costs, or because of labor disruptions.
6.2. Price Change. Vendor will give 2Modern written notice of any proposed Merchandise price increase at least thirty (30) days prior to the effective date of the increase.
6.3. Discontinued Merchandise. Vendor will give 2Modern written notice of discontinued items (by SKU) at least sixty (60) days prior to the discontinuation date.
7. Vendor Responsibilities. In addition to complying with the requirements of the Operations Manual, Vendor will comply with the following:
7.1. Data Exchange Requirements. Unless otherwise agreed by 2Modern in writing, Vendor will receive Orders and send invoices using 2Modern’s then-Preferred E-Commerce Vendor (as provided in the Operations Manual), either directly or by accessing the portal offered by the then-preferred vendor.
7.2. Vendor Communication Requirements. Vendor will comply with the communication requirements described in the Operations Manual.
7.3. Vendor Content Requirements.
(a) Content. Before Merchandise will be offered, marketed or sold on the 2Modern website(s) or in the 2Modern apps, Vendor must provide 2Modern product images, product descriptions, any warnings required by Law to be disclosed in any sale or advertisement of the Merchandise, and other Content in accordance with 2Modern’s specifications in the Operations Manual (or otherwise communicated to Vendor) and fully and accurately complete the “Vendor Content Spreadsheet” to 2Modern’s reasonable satisfaction. During the term, and at no additional charge to 2Modern, Vendor will provide 2Modern with updates to the Content on 2Modern’s request, or if any Content is changed, becomes outdated or inaccurate. Vendor will cooperate in good faith with 2Modern to ensure that the Content for Vendor’s Merchandise is accurate and complete, and Vendor will respond promptly and completely to 2Modern’s requests for Content.
(b) License to Content. All right, title and interest in the underlying Content as originally provided by Vendor to 2Modern will remain the exclusive property of Vendor or the original licensor of the Content. Vendor hereby grants 2Modern a limited, royalty-free, non-exclusive, non-transferable right to publish, use, reproduce, distribute, transmit, display, modify, edit and create derivative works based on the Content on the 2Modern website(s) or in the 2Modern apps and in connection with the marketing and promotion thereof, in connection with the retail sale and rental of its products and services (including without limitation, all 2Modern’s businesses), now known or invented in the future, including but not limited to paid advertisements, paid social media, or otherwise.
(c) Right to Use. Without limiting Section 7.3(b), 2Modern may display and perform, distribute, publish, modify, edit, create derivative works based on and otherwise use the Content to fulfill its merchandising requirements and to comply with its style guidelines and the “look and feel” of the 2Modern website(s) or 2Modern apps (such modified, edited or derivative works, the “Modified Content”). 2Modern will retain all right, title and interest to the Modified Content, subject to Vendor’s rights in the underlying Content set forth in Section 7.3(b). The rights in this Section 7.3 include the right to have third parties exercise 2Modern’s rights on its behalf, including third party service providers, and will not expire or terminate for so long as needed for marketing and fulfillment of the Merchandise (including handling of customer returns and warranties)
8. Purchase Costs and Conditions. Vendor is responsible for verifying the accuracy of costs, discounts, allowances and all other terms of sale on all Orders.
9. DELIVERY TIME IS OF THE ESSENCE; Non-Compliance Credits.
9.1. DELIVERY TIME IS OF THE ESSENCE. THE TIME SPECIFIED IN AN ORDER FOR SHIPMENT AND/OR DELIVERY OF MERCHANDISE IS OF THE ESSENCE OF THIS AGREEMENT AND IF SUCH MERCHANDISE IS NOT SHIPPED AND/OR DELIVERED WITHIN THE TIME SPECIFIED, 2MODERN RESERVES THE RIGHT, AT ITS OPTION AND WITHOUT LIMITATION, TO CANCEL THE ORDER AND/OR REJECT ANY MERCHANDISE DELIVERED AFTER THE TIME SPECIFIED (AND TO ALLOW ANY CUSTOMER TO DO THE FOREGOING). In addition to the aforementioned remedy, 2Modern may exercise any other remedies provided for in this Agreement or provided by applicable Law, including but not limited to those remedies provided by the Uniform Commercial Code. Notwithstanding 2Modern’s right to cancel shipment, or to reject or revoke acceptance of Merchandise, Vendor will inform 2Modern immediately of any actual or anticipated failure to ship all or any part of an Order or the exact Merchandise called for in an Order on the shipment date specified. Acceptance of any Merchandise shipped after or before the must arrive by date will not be construed as a waiver of any of 2Modern’s rights or remedies resulting from the untimely shipment. No incremental handling or fulfillment charges will be charged to 2Modern.
9.2. Non-Compliance Credits. In addition to any other remedy provided for in this Agreement or by applicable Law, 2Modern reserves the right to assess Non-Compliance Credits for breaches of this Section 9 or any other Service Level stated in this Agreement or the Operations Manual.
10. Delivery to Customers; Delivery to 2Modern; Packaging.
10.1. Delivery to Customers. Subject to the Operations Manual, delivery of Merchandise to Customers will be completed as follows:
(a) for parcel shipments Vendor will use 2Modern’s carrier account described in the Operations Manual (currently Fedex), unless otherwise agreed as described in the Operations Manual; and
(b) for LTL shipments, 2Modern will designate and book the carrier, unless otherwise agreed as described in the Operations Manual.
10.2. Delivery to 2Modern. Subject to the Operations Manual, delivery of Merchandise to 2Modern will be completed by carriers designated by 2Modern, unless otherwise agreed as described in the Operations Manual.
10.3. Packaging; Packing Slip.
(a) Vendor will comply with the packaging requirements contained in the Vendor Manual. Vendor will be solely responsible for all damage that occurs to shipped items while in-transit that is caused by Vendor’s failure to securely and safely package the items and will reimburse 2Modern for any customer service adjustments 2Modern reasonably provides to Customers related to such damage.
(b) Vendor is required, unless otherwise agreed in writing or email (i) to use 2Modern’s approved packing slip (including branding, format and content), (ii) must be able to generate approved and conforming packing slips from Vendor’s own systems, and (iii) obtain approval from 2Modern of a test packing slip prior to Vendor fulfilling Orders.
11. Fulfillment of Orders; Cancellation.
11.1. Fulfillment of Orders.
(a) Vendor will comply with the on-time shipment, estimated ship date, and other shipping related requirements described in the Operations Manual.
(b) No Split Orders. Unless Vendor receives prior approval from 2Modern as described in the Operations Manual, Orders should not be split-ship. If an Order contains both parcel shipped Merchandise and LTL Merchandise, then all Merchandise should be shipped LTL, unless Vendor receives prior approval from 2Modern as described in the Operations Manual.
11.2. Cancellation.
(a) Before Shipment. In addition to any rights provided under this Agreement or by Law, at any time, unless otherwise agreed in writing or email (i) prior to shipment by Vendor or (ii) provision of an Estimated Ship Date, 2Modern may cancel without penalty all or any part of an Order, other than Made to Order Merchandise, and 2Modern will not pay invoices or shipping charges on any Orders or part of an Order cancelled prior to shipment.
(b) For Breach by Vendor. Notwithstanding Section 11.2(a), in the event of cancellation by a Customer of any Order (or part thereof, including Made-to-Order Merchandise) due to (i) a breach of this Agreement by Vendor or (ii) inaccurate lead times or revised extended delivery dates provided to 2Modern, Vendor will work with 2Modern in good faith to “save the order” by extending a discount on 2Modern’s gross price, which 2Modern will pass on to the Customer, or other reasonable accommodations to prevent Customer from cancelling (e.g. reimburse shipping or expedited production or shipping, all at no additional cost to 2Modern). If the Customer still cancels all or part of the Order, 2Modern may terminate the Order (or the part canceled by the Customer) without penalty and 2Modern will not pay invoices or shipping charges on that Order (or part thereof). For purposes of this Section 11.2(b), a cancellation of by a Customer based on FTC Rule 16 CFR Part 4352 will be considered a termination based on breach by Vendor unless 2Modern’s acts or omissions are solely the cause of the termination.
(c) Made-to-Order Merchandise. In the case of Made-to-Order Merchandise not canceled as under Section 11.2(b), 2Modern and Vendor will work together to equitably address any cancelation.
12. Title and Risk of Loss.
12.1. Title. Title to Merchandise shipped under any Order passes to 2Modern upon delivery of the Merchandise to the shipping carrier. Title will transfer to 2Modern even if Vendor has not been paid for such Merchandise, provided that 2Modern will not be relieved of its obligation to pay for Merchandise as stated in this Agreement.
12.2. Risk of Loss. For Orders shipped under 2Modern’s account or freight paid directly by 2Modern, risk of loss to the Merchandise passes to 2Modern upon receipt of the Merchandise by the carrier. For all other Orders and notwithstanding any agreement between 2Modern and Vendor concerning transfer of title or responsibility for shipping costs, risk of loss to Merchandise shipped under any Order passes to 2Modern upon receipt and acceptance by 2Modern or the Customer at the delivery location, and Vendor will bear all risk of loss or damage regarding Merchandise until the receipt and acceptance of such Merchandise in accordance with the terms of this Agreement.
13. Acceptance; Customer Returns; Recalls.
13.1. Acceptance. If 2Modern determines that Merchandise delivered under this Agreement are non-conforming or excess (i.e. a quantity greater than ordered), then 2Modern may, at its option: (a) if the Merchandise is non-conforming, either (i) reject the non-conforming Merchandise for a refund plus any inspection, test, shipping, handling, and transportation charges paid by 2Modern or (ii) require prompt correction or replacement of such Merchandise on 2Modern’s written instruction; or (b) if such Merchandise are excess, reject such excess for a refund, plus any inspection, test, shipping, handling, and transportation charges paid by 2Modern; or (c) in either case, retain the Merchandise. In each case the exercise by 2Modern of any other rights available to 2Modern under this Agreement or pursuant to applicable Law shall not be limited. Unless otherwise agreed in writing, 2Modern shall ship from any location, at Vendor’s expense and risk of loss, the nonconforming or excess Merchandise to the nearest authorized Vendor location. If 2Modern exercises its option to replace nonconforming Merchandise, Vendor shall, after receiving 2Modern’s shipment of nonconforming Merchandise, ship to 2Modern, at Vendor’s expense and risk of loss, the replaced Products to the delivery location for that Order in a timely manner. 2Modern’s right to reject and return or hold Merchandise at Vendor’s expense and risk will also extend to Merchandise which is returned by Customers.
(a) Return Due to Vendor Issue. If a Customer rejects or returns an item of Merchandise due to a Vendor Issue, then Vendor agrees to (i) reimburse 2Modern for all shipping fees (including return shipping to Vendor if Customer returned Merchandise to 2Modern), (ii) if no replacement Merchandise is shipped to Customer, refund 2Modern’s purchase price of the Merchandise; and (iii) if replacement Merchandise is shipped to Customer, ship the Merchandise at no additional cost to 2Modern and reimburse 2Modern for any shipping fees paid by 2Modern for replacement shipment. Vendor will not charge 2Modern any amounts (including without limitation a restocking fee) related to a return of Merchandise due to a Vendor Issue.
(b) Return Not Due to Vendor Issue. Unless otherwise agreed in writing, Vendor will accept return of an item Merchandise for up to thirty (30) days after delivery if the return is other than for a Vendor Issue and any cost of the return will be borne by 2Modern.
13.3. Recalls. If 2Modern, Vendor, or any governmental authority determines that any Merchandise sold to Vendor or Customers are defective and a recall campaign is necessary, either party may implement such recall campaign. 2Modern must return defective Merchandise to Vendor or destroy such Merchandise, as determined by Vendor, at Vendor’s sole cost and risk. Without prejudice to Vendor’s rights under Sections 15.2(c), (c), (d), and (e), Section 13.1, and Section 13.2, if a recall campaign is implemented, at 2Modern’s option and Vendor’s sole cost, Vendor shall promptly either repair or replace, or credit or refund prices for, all such returned Merchandise. The foregoing will apply even if any Merchandise warranty or warranties applicable to the Merchandise have expired. 2Modern shall provide reasonable assistance in such recall, provided that Vendor shall pay all of 2Modern’s recall-related expenses, including reasonable handling charges per unit of Merchandise. Where applicable, Vendor shall pay all reasonable costs and expenses associated with determining whether a recall campaign is necessary.
13.4. Allowance. If Vendor and 2Modern agree that Vendor will not accept returns, then Vendor will provide 2Modern the allowance set forth in Exhibit B. Notwithstanding the foregoing or anything contained in this agreement or otherwise related to returns of Merchandise, nothing will restrict 2Modern's right to return to Vendor, at Vendor's expense, (i) Merchandise that are damaged or defective at the time of delivery, (ii) Merchandise that do not conform to any agreed specifications or to samples provided by Vendor, (iii) Merchandise subject to recall, or (iv) Merchandise that are defective where such defect(s) appear at an unusually high rate suggesting systemic or general defects across a product line
14. Term and Termination.
14.1. Term. The term of this Agreement will commence on the Effective Date and continue until terminated in accordance with applicable provisions hereof.
14.2. Termination for Convenience. 2Modern may terminate this Agreement at any time by providing written notice to Vendor. Vendor may terminate this Agreement at any time by providing 2Modern at least sixty (60) days prior written notice of its intent to terminate. Upon a termination by 2Modern under this Section 14.2, 2Modern’s liability shall not exceed the following amounts not previously paid for, without duplication: (i) services completed in accordance with this Agreement prior to 2Modern’s notice of termination under this Section 14.2; (ii) finished goods, which have passed final acceptance testing and are waiting to be delivered in accordance with this Agreement prior to 2Modern’s notice of termination under this Section 14.2. 2Modern shall not be required to make payments to Vendor for any other amounts, including without limitation, for loss of anticipated profit, unobserved overhead, interest on claims, unamortized depreciation, or general administrative burden charges, or similar items. Upon a termination by Vendor under this Section 14.2 Vendor’s obligation to deliver in accordance with this Agreement any Orders accepted by Vendor prior to the notice under this Section 14.2 survives, and in no event shall Vendor be required to make payments to 2Modern for loss of anticipated profit, unobserved overhead, interest on claims, unamortized depreciation, or general administrative burden charges, or similar items.
14.3. Termination for Cause. In the event that a party breaches a material term of this Agreement, and said breach is not cured within ten (10) days following receipt of written notice from the other party describing the breach, the non-breaching party may terminate this Agreement upon written notice to the other party.
14.4. Termination for Insolvency. Either party may terminate this Agreement immediately if the other party: (i) becomes insolvent or unable to pay its debts; or (ii) makes a general assignment for the benefit of its creditors; or (iii) files or has filed against it, voluntarily or involuntarily, a petition under any bankruptcy or insolvency law where such petition is not dismissed within sixty (60) days; or (iv) has a receiver appointed with respect to all or substantially all of its assets.
14.5. Effective of Termination.
(a) This Agreement shall remain in effect for any Orders issued by 2Modern prior to the effective date of such termination for Merchandise other than Orders for Merchandise which are related to the termination.
(b) Sections 2-5, 7-9, 13, and 15-20, and all other Sections that expressly state they survive, will survive termination of this Agreement.
15. Representations and Warranties.
15.1. By 2Modern. 2Modern hereby represents and warrants that
(a) (i) it has the right and power to enter into and perform this Agreement; (ii) there are no actions, suits, disputes, proceedings or governmental investigations pending or threatened against the party or affecting the transactions contemplated hereby or restricting or limiting the purchase, use, manufacture or sale of the Products; (iii) no order, judgment, decree, stipulation or consent of or with any governmental authority affects or may affect the transactions contemplated by this Agreement or restricts or limits the purchase, use, or sale of Merchandise; and
(b) It, and its agents, employees, or subcontractors, are in materially compliance with and will continue to comply with all Laws applicable to the sale of Merchandise.
15.2. By Vendor. Vendor warrants and represents that
(a) all Merchandise is merchantable and fit for the use and purpose for which they are intended and that they are free from any defects or matter injurious to persons or property;
(b) all Merchandise and related packaging comply with all applicable product safety, labeling and certification standards, regulations and requirements of the United States (federal, state and local level) or the country of destination;
(c) all Merchandise has and shall be made in full compliance with all local, foreign, domestic and other laws, rules, regulations and requirements, whether made by Vendor or any of its subcontractors or suppliers, including but not limited to: (i) wage and hour, child labor, OSHA, the Fair Labor Standard Act (FLSA), and all other labor laws; (ii) it will comply with all requests of the Wage and Hour Division of the U.S. Department of Labor for information relating to the production of merchandise or the employment of workers producing the merchandise; (iii) price discrimination laws; (iv) those relating to standards for weights, measures, sizes, quantities and ingredients; (v) trademark, copyright, patent, unfair competition and all other intellectual property laws; (vi) the Federal Hazardous Substances Act, Food, Drug and Cosmetics Act, The Child Safety Protection Act, Fair Packaging and Labeling Act, California Safe Drinking Water and Toxic Enforcement Act (Proposition 65) and Consumer Product Safety Act, (vii) all customs laws including Section 304 of the Tariff Act of 1930 as amended, and all country of origin requirements set forth therein, and (viii) the Federal Trade Commission Act, including the care labeling regulations issued pursuant thereto:
(d) Vendor has taken all actions necessary to ensure, and shall be solely responsible for ensuring, that Vendor and each of its subcontractors and suppliers has and will comply with all local, foreign, domestic and other laws, rules and regulations and requirements as set forth above; (d) Vendor has timely, fully and accurately applied for, completed and provided all necessary export licenses, certificates of origin, and other documentation required by law or by 2Modern;
(e) all textile quota category and country origin declarations fully and accurately describe the exported merchandise and Vendor has not relied upon any representation or advice by 2Modern;
(f) Vendor will not disclose nor has disclosed to any third party, nor has used or will use for its own benefit, any of 2Modern’s trade secrets or information which may reasonably be believed to be confidential to 2Modern (such as designs, tooling, components, etc.);
(g) all Merchandise shipped will clear customs at the country of importation and will not be seized or embargoed;
(h) all Merchandise shipped meet all industry and 2Modern requirements and quality standards;
(i) Merchandise shall meet all testing requirements as set forth in 2Modern’s instructions;
(j) any Merchandise design presented to 2Modern by Vendor is Vendor’s original creation and will not infringe or violate any intellectual or other property right, United States or foreign;
(k) any Merchandise manufactured, shipped or sold to 2Modern do not contain chemicals of concern in violation of applicable laws. The warranty period shall extend to final acceptance by 2Modern’s customer;
(l) it has the right and power to enter into and perform this Agreement;
(m) there are no actions, suits, disputes, proceedings or governmental investigations pending or threatened against the party or affecting the transactions contemplated hereby or restricting or limiting the purchase, use, manufacture or sale of the Merchandise; (iii) no order, judgment, decree, stipulation or consent of or with any governmental authority affects or may affect the transactions contemplated by this Agreement or restricts or limits the purchase, use, manufacture, or sale of Merchandise;
(n) it, and its agents, employees, or subcontractors, are in material compliance with and will continue to comply with all Laws applicable to the sale of Merchandise and Vendor will provide any certifications or information reasonably requested by 2Modern relating to such compliance.
(o) the Merchandise you supply to 2Modern is new and not used, remanufactured, reconditioned, or refurbished (except where 2Modern has expressly agreed in writing to accept such Merchandise), (all information regarding the Merchandise, provided by or on behalf of Vendor to 2Modern, including all weights, measures, sizes, legends or descriptions, country of origins, claims with regard to the Merchandise, is true and correct, and conforms and complies with all Laws relating to the Merchandise; and
(p) the Merchandise has been tested by third-party testing bodies approved by Vendor, found compliant with all applicable standards and Laws, and the results of such tests will be provided to 2Modern at 2Modern’s request; in addition, if 2Modern desires to purchase any Merchandise from Vendor that would be covered by the ASTM F2057 voluntary furniture tip-over standard, Vendor will only sell Buyer such Merchandise that are designed to meet the then-current version of that standard (as of the date of delivery of the Merchandise).
15.3. OPERATING IN CALIFORNIA. Vendor makes the following representations and warranties, and agrees to the following additional provision if it or any of its approved subcontractors are located and/or operate in California:
(a) Registration with the California Labor Commissioner. During the term of the Agreement, Vendor shall represent and warrant that Vendor and any and all of its approved subcontractors shall be registered and in good standing with the California Labor Commissioner. Vendor agrees to provide 2Modern with copies of its or its subcontractors’ certificates of registration evidencing such good standing upon execution of these Standard Terms. Vendor shall notify 2Modern immediately upon knowledge of subsequent revocation or denial of renewal of registrations.
15.4. Compliance with Laws. Vendor has been, is, and will be in compliance with all Laws, orders or permits of or issued by any country or countries having jurisdiction over their businesses and operations, and, without limiting the generality of the foregoing, Vendor (i) maintains, has maintained, and will maintain safe and healthy workplaces in compliance with such Laws, Orders or permits, (ii) does not employ and will not employ prison, forced, compulsory or child labor, (iii) does not subject and will not subject employees to corporal punishment, (iv) does not discriminate and will not discriminate in its workplaces on the basis of race, gender, personal characteristics or beliefs, (v) maintains, has maintained, and will maintain reasonable working hours, overtime and work weeks in compliance with the aforementioned Laws, Orders or permits and consistently with local business custom, (vi) offer and will offer fair wages and benefits in compliance with such Laws, Orders or permits, (vii) does not, has not and will not employ child labor, which for purposes of this Agreement means workers under the age mandated by such Laws, Orders or permits or the age of 14, whichever is greater and (viii) does not and have not used deceptive practices deliberately to misrepresent the country of origin of goods sold to 2Modern or to evade import restrictions or duties applicable to such goods.
15.5. Pass-through. Vendor may pass through to Customers all warranties granted by Vendor under this Agreement in Sections 15.2(c)(i)-(iv).
16. Indemnification
16.1. Vendor Indemnification. Vendor shall indemnify, protect, defend, and hold harmless each 2Modern Indemnified Party and their officers, directors, employees, shareholders, affiliates, and agents from and against any and all Losses relating to any and all Claims, suits, loss, liability, expense and damage, including but not limited to costs of suit and attorneys’ fees alleging or related to: (a) breach of this Agreement, or non-fulfillment of any representation, warranty or covenant under this Agreement, by Vendor or its agents, employees, or subcontractors; (b) any grossly negligent or more culpable act or omission of Vendor or its or its agents, employees, or subcontractors (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (c) any bodily injury, death, damage to real or tangible personal property caused by the negligent acts or omissions of Vendor or its agents, employees, or subcontractors; (d) any failure by Vendor or its agents, employees, or subcontractors to materially comply with any applicable Laws applicable to the sale of the Merchandise from Vendor to 2Modern; (e) an Order, the Merchandise, or the Content; and/or (f) Vendor or its contractor’s acts or omissions in connection with this Agreement, an Order, the Merchandise, or the Content, (g) defect in the Merchandise, regardless of whether the action is based upon negligence or strict liability, (h) violation of any national, state or local law or regulations pertaining to the manufacture or labeling of the Merchandise, their content, packaging, or their country of origin, (i) violation of any applicable laws, regulations or statutes.
16.2. This indemnity shall apply under all circumstances unless a court of final jurisdiction holds that the loss was the result of the sole negligence or willful misconduct of 2Modern. Vendor hereby waives its rights to raise a defense to its obligations under this section based upon any intervening, contributing or comparative (whether active or passive) negligence of 2Modern.
17. Limitation of Liability. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR RECALLS, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY THE OTHER PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
18. Insurance. Without limiting Vendor’s indemnification obligations under this Agreement, at all times during the term of this Agreement, Vendor will, at its own expense, procure and maintain, at a minimum, the types and amounts of insurance coverage described below. The insurance companies issuing the policies must have Standard & Poor’s rating of BBB or better or A.M. Best’s rating of A-VII or better and have an extensive North American presence. Upon execution of this Agreement, and annually thereafter (within sixty (60) days after policy renewal), and unless otherwise agreed in writing, Vendor will provide 2Modern with certificates of insurance (“COI”) evidencing the required insurance coverages and, with the exception of workers’ compensation, naming 2Modern and all of its direct and indirect subsidiaries as an additional insured per Vendor Endorsement ISO CG 20 15 07 04 for General Liability for USA and Canada, with coverage limits of $2,000,000 each occurrence. The policies must (i) respond as primary coverage and non-contributory to any other insurance policy available to 2Modern; and (ii) provide that the insurance companies issuing the policies shall use commercially reasonable efforts notify 2Modern at least thirty (30) days prior to any policy cancellation or material modification to the coverages.
19. Confidentiality; Customer Data; Information Security.
19.1. Confidentiality. Each party agrees to protect, maintain in confidence and not disclose any Confidential Information that it may obtain from the other party. Each party: (a) shall use such information solely for the purposes contemplated by the Agreement, and shall not sell, rent, lease, or otherwise disclose, or permit unauthorized access of, such information to any third party except as required by applicable law or regulation; (b) shall take all reasonable steps to protect the confidentiality of such information, but in no event less than the same standard of care used to protect its own confidential information; and (c) shall give access to such information only to those individuals who have a need to know in connection with the performance of that party’s obligations under the Vendor Agreement. Upon request by the disclosing party, the receiving party shall promptly destroy such information or return such information to the disclosing party in the same format as the disclosing party provided such information to the receiving party. To the extent that the receiving party is permitted to retransmit any information it receives from the disclosing party, the mode of retransmission must be at least as secure as the mode by which the disclosing party transmitted the information to the receiving party. This Section 19 will not be deemed to prohibit disclosures required by applicable law, regulation, court order or subpoena; provided that, prior to any such disclosure, the recipient of such Confidential Information shall (i) promptly notify the disclosing party in writing of such an obligation (provided such notice is lawful) to enable the other party to challenge such disclosure, (ii) cooperate with the disclosing party regarding any challenge to such disclosure, and (iii) if ordered or required by law to provide such information, provide the minimum such information as is necessary to comply with such order or law. All Confidential Information supplied by a party to the other party in connection with this Agreement, and all copies, reprints, reproductions or translations thereof made and retained by a receiving party, will, at the disclosing party’s written request and upon termination of this Agreement, be returned by the receiving party to the disclosing party or, in accordance with the disclosing party’s express written direction and applicable law, destroyed with certification of return or destruction, as applicable. Notwithstanding the preceding sentence, each of the parties will be permitted to retain any electronic records and files containing Confidential Information of the other party which have been created pursuant to the automatic or normal course archiving and back-up procedures of the party. Any Confidential Information of a party that is not returned or destroyed pursuant to this Section 19.1 shall continue to be subject to the confidentiality and non-disclosure provisions of this Agreement notwithstanding any expiration or termination of this Agreement.
19.2. Customer Data. Without limiting Section 19.1, Vendor agrees it will use Customer Data solely to the extent necessary to deliver shipments as specified by 2Modern. Vendor will not use Customer Data for its own marketing, targeting, or data aggregation or analysis (whether or not the Customer Data is anonymized) purposes or for any purpose other than to ship Orders as expressly permitted by this Agreement. Vendor will ensure that Vendor’s use of Customer Data is at all times compliant with all applicable laws, rules, regulations and data privacy requirements. Vendor will delete Customer Data within a reasonable period of time after fulfillment of the Order.
19.3. Information Security. Each party agrees that for as long as that party controls, possesses, stores, transmits or processes the other party’s Confidential Information, the party shall, to the extent required by applicable law (as determined in such party’s reasonable discretion), employ and maintain a comprehensive data privacy and information security program, including physical, technical administrative, organizational, and procedural safeguards (“Safeguards”), that is designed to protect the other party’s Confidential Information from unauthorized access, use, or disclosure. The Safeguards shall, without limitation, be consistent with all applicable Laws and industry standards for the type of industry and type of information being stored, including, without limitation those related to data security and privacy. Vendor represents and agrees that Vendor will store Customer Data only in the United States.
20. Miscellaneous.
20.1. Notices. All notices required under this Agreement shall be in writing and shall be deemed given when (a) delivered personally; (b) placed for delivery with a nationally recognized overnight courier; or (c) sent by registered or certified mail, return receipt requested, to the parties at the respective addresses set forth below or such other address notified to the other party according to this Section 20.1:
(a) If to 2Modern:
2Modern
35 Miller Ave #192
Mill Valley, CA 94947
Attn: CEO
(b) If to Vendor: the address set forth in the first paragraph of this Agreement, Attention: Contract Notices.
20.2. No Business Expectations. 2Modern has no obligation and makes no promises to purchase any minimum amount of Merchandise from Vendor. No person has authority, on 2Modern’s behalf, to make any representations or promises to Vendor of any expected or possible level of business with Vendor or about 2Modern’s intentions or expectations regarding any present or future business with Vendor. 2Modern will never assume that Vendor will be willing to continue to deliver Merchandise under this Agreement or to accept any specific volume of Orders. Conversely, Vendor should never assume that 2Modern will issue Orders for specific volumes, if any, of Merchandise, even if Vendor’s impression is based on discussions Vendor may have had with 2Modern representatives. No 2Modern representative has authority to order Merchandise except an authorized representative through an Order issued pursuant to and subject to the terms of this Agreement.
20.3. Relationship of the Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose and neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
20.4. Assignment. Vendor will not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of 2Modern. Any purported assignment, delegation or transfer made without such consent is void. The duties and obligations of each party under this Agreement shall be binding upon, and the rights and benefits of each party shall inure to, the successors, successors-in-interest, permitted assigns and permitted transferees of the respective party.
20.5. Non-Waiver; Modification and Amendment. No course of dealing, course of performance, or failure of either party to strictly enforce any provision in this Agreement is to be construed as a waiver thereof. No modification, amendment or waiver of any of the provisions contained in this Agreement, or any future representation, promise or condition in connection with the subject matter of an Order, shall be binding upon either party unless made in writing and signed by a duly authorized representative or agent of both parties.
20.6. Governing Law; Venue. This Agreement is governed by the laws of the State of California, without application of conflicts of law principles. Each party hereby irrevocably agrees that any dispute or action relating to this Agreement will be exclusively brought in the state or federal courts located in California, and hereby expressly submits to the personal jurisdiction and venue of such courts for purposes thereof and expressly waives all claims of improper venue and all claims that such courts are an inconvenient forum.
20.7. Severability. Provisions of this Agreement will be interpreted to be valid and enforceable under applicable law; provided, however, that if any provision is held invalid or unenforceable, such provision will not invalidate this Agreement. This Agreement’s remaining provisions will stay in effect and be enforced to the fullest extent permitted by law.
20.8. Entire Agreement. This Agreement (including the Exhibits which are incorporated by reference into this Agreement), the Vendor Policies (as may be amended from time to time) and any Order constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement. All prior agreements, negotiations, dealings and understandings, whether written (including any electronic record) or oral, regarding the subject matter hereof, are superseded by this Agreement. Furthermore, if there is a conflict of terms between this Agreement and an Order, this Agreement will be the controlling document.
20.9. Counterparts; Originals. This Agreement may be executed and delivered in counterparts, each of which will be deemed an original, but all of which, taken together, will constitute one and the same instrument. A signature transmitted via facsimile or electronic mail, or a scanned original, will be deemed an enforceable signature for purposes of demonstrating the signing party’s assent to this Agreement. A facsimile, scanned or other copy of this Agreement evidencing execution by both parties shall be deemed an original.
APPENDIX 1
DEFINITIONS
- “Approved Format” means a file transfer protocol and format that designated by 2Modern in the Operations Manual, which may include without limitation EDI, XML, or Approved Portal.
- “Approved Portal” means any online portal provided by the Preferred E-Commerce Vendor (or another vendor if agreed in writing by 2Modern).
- “Business Day” means any day other than Saturday, Sunday, or a federal holiday.
- “Claim” means .any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
- “COI” has the meaning set forth in Section 18.
- “Confidential Information” means with respect to Vendor, information regarding unreleased products, pricing, wholesale customers, business and marketing plans and programs, and financial information; and with respect to 2Modern, Customer Information, business and marketing plans and programs, and financial information. “Confidential Information” does not include information that: (i) is, at the time of disclosure to the recipient, or thereafter becomes, through no act or omission of the recipient, a part of the public domain; (ii) was in the recipient’s lawful possession without an accompanying secrecy obligation prior to the disclosure; (iii) is hereafter lawfully disclosed to the recipient by a third party without an accompanying secrecy obligation or breach of any duty or agreement by which such third party is bound; or (iv) is independently developed by the recipient without reference to the Confidential Information of the other party.
- “Content” means product images, product descriptions, and other information, materials, and content for marketing and promoting Merchandise. Content also includes any product information collected by 2Modern from your website, or otherwise made available to 2Modern by Vendor (or by a third party at Vendor’s direction).
- “Customer” means an individual or entity that is a customer of 2Modern
- “Customer Information” means all the information that 2Modern provides Vendor or to which Vendor has access relating to a Customer, including without limitation, name, address, phone number, email, and Order details.
- “EDI” means electronic data interchange and/or the use of electronic document exchange using a portal, or other similar exchange of information and documents.
- “Estimated Ship Date” (“ESD”) means for backordered Merchandise or Made to Order Merchandise the estimated date the Merchandise will ship. The ESD will be provided to 2Modern as described in the Agreement and Operations Manual.
- “Extensible Markup Language” (“XML”) means the electronic transmission of information regarding specific business processes (invoicing, ordering, reporting, etc.) between two or more businesses according to standards mandated by 2Modern.
- “Indemnified Party” means, collectively, a party and its affiliates, and each of their officers, directors, employees, agents, successors, and permitted assigns.
- “Inventory Feed” means the an error free file or feed, in an Approved Format, listing all Merchandise from Vendor’s current stock and the available inventory of each item even if the quantity of such Merchandise is zero, including but not limited to the estimated ship date or lead time for each SKU.
- “Law” means any applicable international, foreign, or domestic law, regulation, order or other requirement imposed or compelled by a governing or regulatory authority having legal force (whether federal, state or local), including any treaty, statute, common law, judicial decision, rule, regulation, code or ordinance. Law includes, without limitation, the Hazardous Materials Transportation Act, U.S. Department of Transportation Hazardous Material Regulations and Federal Aviation Regulations.
- “Losses” means, collectively, losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party.
- “LTL” means less than truck-load.
- “Made to Order Merchandise” means an item of Merchandise offered by Vendor to 2Modern that will be manufactured following receipt of the Order from 2Modern.
- “Merchandise” means all products, goods, materials, equipment, articles, and tangible items supplied by Vendor to 2Modern, and all packaging, instructions, warnings, warranties, advertising and other services included therewith.
- “Modified Content” has the meaning set forth in Section 7.3(c).
- “Non-Compliance Credits” means a credit for any Service Levels violation in the amounts set forth in the Non-Compliance Credit Chart, attached to this Agreement as Exhibit C.
- “Operations Manual” is attached as Exhibit B, and may be updated from time to time as provided in the Agreement.
- “Order” means 2Modern’s standard purchase order specifying on ore more of the following terms: (a) the Merchandise to be purchased, including product identifier; (b) the quantity of each of the Merchandise ordered; (c) the delivery date; (d) the unit price for each of the Merchandise to be purchased; (e) the billing address; and (f) the delivery location, which, for drop ship orders, includes the name and address of the DS Customer.
- “Preferred E-Commerce Vendor” means the vendor designated in the Operations Manual.
- “PMP” has the meaning set forth in Section 3.2.
- “Quarterly Review” has the meaning set forth in Exhibit C.
- “Safeguards” has the meaning set forth in 19.3.
- “Service Levels” means the requirements of Sections 7, 10, or 11 or any Vendor performance metric described in the Operations Manual.
- “Vendor Issue” means a delayed shipment by Vendor, mis-shipment by Vendor, erroneous shipment by Vendor after acknowledged cancelation, or the Merchandise is alleged to be defective or damaged.
