The Expert - Vendor Agreement

THE EXPERT MARKETPLACE - VENDOR AGREEMENT

Last Updated: March 24, 2022

IMPORTANT – please read the terms and conditions of this Vendor Agreement for The Expert Marketplace (hereinafter, this “Agreement”) CAREFULLY. This Agreement is a legally binding contract between The Expert, Inc., (hereinafter, “The Expert”) and the business, company, organization and/or or entity (hereinafter, the “Vendor”) specified on the applicable electronic or written vendor schedule entered into by and between The Expert and the Vendor (the “Vendor Schedule”) for the supply and fulfillment of the Vendor’s products and/or goods to be listed for sale by The Expert on The Expert online marketplace, as further described in this Agreement.

1. Acceptance of this Agreement.

BY EXECUTING AND/OR OTHERWISE AGREEING TO A WRITTEN OR ELECTRONIC VENDOR SCHEDULE REFERENCING THIS AGREEMENT WITH THE EXPERT YOU: (1) acknowledge that YOU have read, understand, and agree to be bound by, this Agreement (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); (2) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE VENDOR AND TO BIND THE VENDOR TO THE TERMS OF THIS AGREEMENT; AND (3) you AGREE THAT THE VENDOR IS ENTERING INTO THIS AGREEMENT WITH THE EXPERT, Inc., a Delaware corporation. IF YOU AND/OR THE VENDOR DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND THE VENDOR TO THIS AGREEMENT, DO NOT EXECUTE OR OTHERWISE AGREE TO ANY VENDOR SCHEDULE.

2. The Expert Marketplace; Vendor Products; Marketing & Promotions

2.1 The Expert Marketplace. The Expert controls and operates the online marketplace (hereinafter, the “Marketplace”), which is hosted and made available on The Expert’s website located at www.theexpert.com, or such other website as designated by The Expert (the “Website”), through which The Expert’s end user customers (each, a “Customer”) may purchase certain products and goods from The Expert’s approved vendors. The Expert has the right, at The Expert’s sole discretion, to determine the content, appearance, design, functionality and all other aspects of the Marketplace and Website, including the right to redesign, modify, remove, and/or alter the content, appearance, design, functionality, and any other aspects of the Website and/or Marketplace and any element, aspect, portion or feature thereof (including any Product listings). The Expert also has the right to cease providing the Website and/or the Marketplace at any time and without notice or to delay. THE EXPERT RESERVES THE RIGHT TO, AND VENDOR HEREBY AGREES THAT THE EXPERT MAY, RATE (OR ALLOW CUSTOMERS TO RATE) VENDOR’S PRODUCTS SOLD THROUGH THE MARKETPLACE AND/OR RATE VENDOR’S PERFORMANCE AS A VENDOR ON THE MARKETPLACE, AND TO MAKE THESE RATINGS AND FEEDBACK PUBLICLY AVAILABLE.

2.2 Vendor Products. Vendor hereby authorizes The Expert to list and sell the Products through the Marketplace, and Vendor shall be responsible for the fulfillment of such sales, in accordance with this Agreement and any guidelines, rules and/or policies of The Expert referenced herein or that have otherwise been made available to Vendor, including, without limitation, the Return Policy (located at https://www.theexpert.com/blog/marketplace-return-policy) (collectively, “The Expert Policies”). For purposes of this Agreement, “Products” means collectively, any and all goods and products listed in the Vendor Schedule, and/or submitted by Vendor through The Expert’s third-party inventory management tool (currently, FLXpoint) (the “Inventory Tool”), and/or otherwise agreed in writing by the parties (email okay), and any related materials, including, but not limited to Vendor Packaging (as defined in Section 4.5 below) for such Products. Vendor agrees that Vendor will only submit listings for Products that Vendor owns or controls, or is otherwise authorized to sell and to permit The Expert to list the Products for sale, on the Marketplace. In addition, Vendor shall use reasonable efforts to ensure that the Products sold on the Marketplace will be of high quality. Vendor shall apply quality assurance standards to the preparation, distribution and sale of the Product that are substantially consistent with general industry standards for the applicable products, including the requisite federal, state, and local health and safety laws and code requirements.

2.3. Product Inventory & Lead Times. Unless otherwise expressly approved by The Expert in writing, Vendor agrees to track and manage inventory of the Products using the Inventory Tool, including, without limitation, any applicable required lead time to manufacture a Product from the date an order is received for such Product (the “Lead Time”). For the avoidance of doubt, in no event shall a Lead Time for a Product exceed six months, unless expressly approved by The Expert in writing. Vendor shall be solely responsible for ensuring Vendor’s inventory of Products and applicable Lead Times are up to date and accurate at all times, regardless of whether Vendor uses the Inventory Tool or The Expert has authorized Vendor to use an alternative method. If Vendor’s inventory is not automatically synced through the Inventory Tool or Vendor does not use the Inventory Tool as authorized by The Expert, Vendor agrees to manually upload inventory through the Inventory Tool or provide The Expert an up-to-date inventory list in the format reasonably specified by The Expert, in each case, on a daily basis. Vendor acknowledges and agrees that the use of the Inventory Tool is subject to, and Vendor represents and warrants it shall comply with, the FLXpoint terms of service and privacy policy available at https://flxpoint.com/terms-of-service/, and/or any other applicable terms, conditions and/or policies applicable to the use of the Inventory Tool.

2.4. Product Listings and Information. Vendor is responsible for providing and shall provide complete, accurate and up to date information for each Product, including, without limitation, Lead Time (if applicable), product design, coloring, packaging, electronic images of the Products, trademarks, marks of origin, logos, information regarding safety, compliance, industry standards or testing related to a Product, and any product information or warnings required by law to be disclosed in any sale or advertisement of a Product (all of the foregoing, collectively, the “Product Information”) for each Product. Vendor agrees to and shall provide all Product Information for the Products provided by Vendor hereunder to The Expert, either through the Inventory Tool or in the format specified by The Expert, within 24 hours of: (a) Vendor entering into a Vendor Schedule for the applicable Products; (b) Vendor adding any Products to the Inventory Tool; and/or (c) any changes in the Product Information. In addition, Vendor represents and warrants that all Product Information will be provided in compliance with this Agreement and The Expert Policies, and as required by applicable law.

2.5. Marketing and Promotions. The Expert shall be responsible, in its sole discretion, for marketing, promoting and advertising the Marketplace and the Products in connection with and/or through the Marketplace, including, online and offline advertisements, and through social media channels and/or other media, marketing and/or advertising networks. Without limiting Vendor’s obligations under Sections 2.4 and 2.5, The Vendor agrees to provide The Expert with the information, materials, and/or assistance reasonably requested by The Expert in support of The Expert’s marketing efforts hereunder. In addition, from time to time, The Expert may offer the Vendor the opportunity to include the Products in special promotions, including, pricing promotions (each, a “Promotion”) and/or to participate in joint marketing efforts and/or campaigns related to the Products (“Joint Campaigns”). If Vendor decides to participate in any Promotion and/or Joint Campaign, the terms, scope, timeline, and the respective costs, performance for each party shall me mutually agreed in writing prior to the applicable Promotion and/or Joint Campaign. Notwithstanding the foregoing, Vendor shall not issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or the Marketplace except with the prior written consent of The Expert.

2.6. Listing and Removal of Products. The Expert, in its sole discretion, will be responsible for listing, and managing the listing of, the Products for sale on the Marketplace. For the avoidance of doubt, nothing in this Agreement requires or obligates The Expert to list the Products on the Marketplace and The Expert makes no warranties, representations and/or guarantees regarding the listing of any Products and/or the sale of any Products. In addition, The Expert has the right, at any time and without notice or to delay, to halt any transaction, suspend the listing or de-list any or all Products if, in The Expert reasonably believes (in its sole discretion) that Vendor has violated this Agreement, including, without limitation, any of The Expert Policies.

2.7. License to Use Vendor Materials. Vendor hereby grants The Expert a non-exclusive, worldwide, sublicensable, and royalty-free license to: (a) use, copy, display, perform, and distribute the Product Information provided by Vendor to The Expert hereunder, and any trademarks, trade names, logos or other intellectual property relating to Vendor or any Products that is included or contained in the Product Information (all of the foregoing, collectively, the “Vendor Materials”), on or through the Marketplace; (b) excerpt, reformat, adapt or otherwise create derivative works of the Vendor Materials, and (c) use, incorporate Vendor Materials in marketing materials, content, and/or documentation created by and/or on behalf The Expert, including, without limitation, The Expert Images (hereinafter, “The Expert Marketing Materials”), either on a standalone basis or with products and services of The Expert and/or third parties, in each case, to exploit, market, promote, and advertise the Products, the Marketplace, and The Expert, in any and all media now known or developed hereinafter, and otherwise to the extent reasonably necessary to provide the services hereunder and to provide the Marketplace to its Customers. Subject to the limited licenses granted to The Expert herein, Vendor will retain all right, title and interest in and to the Vendor Materials. Vendor waives any right to inspect or approve The Expert Marketing Materials and/or Expert Images or their use. The foregoing licenses shall terminate with regard to any particular Product if The Expert and Vendor mutually agree in writing (email okay) to remove the listing for such Product, and shall terminate with regard to all Products on the termination of this Agreement; provided, however, that The Expert shall be entitled to continue using Vendor Materials to fulfill its obligations in connection with any Orders (as defined in Section 4.1) accepted by the Vendor prior to the date that The Expert and Vendor agree to remove the listing of the applicable Product or the effective date of termination of this Agreement, as applicable.

2.8. The Expert Proprietary Rights.

1.1. Subject to Vendor’s rights in Vendor Materials (if applicable), The Expert or its licensors retain all right, title and interest in and to The Expert Marketing Materials and The Expert Images (excluding, in each case, any Vendor Materials incorporated therein), The Expert Packaging (as defined in Section 4.5 below), the Website, Marketplace, Inventory Tool, and other materials, documentation and information made available by The Expert in connection therewith, including any and all copies thereof and improvement, updates, and/or or enhancements thereto, (all of the foregoing, “The Expert IP”), and all patent, copyright, trademark, and trade secret rights, embodied in, or otherwise applicable to The Expert IP, whether such rights are registered or unregistered, and wherever in the world those rights may exist. The Expert and its licensors and suppliers reserve all rights and licenses not expressly granted to Vendor and no implied licenses or rights are granted by The Expert. Vendor acknowledges that any ideas, inventions, suggestions for improvement or discussions submitted by Vendor regarding the Website, Marketplace, Inventory Tool, and other materials, documentation and information made available by The Expert in connection therewith, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (collectively, “Feedback”), may be used by The Expert without compensation or attribution to Vendor or any third party, and Vendor hereby grants to The Expert, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license to use and exploit such Feedback for any purpose.

3. Pricing; Fees; Collection of Fees; Commissions

3.1. Vendor’s Price; Shipping Fees. Vendor will specify the minimum advertised price (the “MAP”), if any, for each Product, whether per item or bulk, in the applicable Vendor Schedule for the Product, subject to the requirements in Section 3.2. All prices must be in USD. In addition, Vendor is responsible for providing accurate information to enable The Expert’s shipping providers to set the appropriate shipping costs and fees for each Product, which may include, by way of example only, weight, size and/or dimensions of the Product and its packaging and/or shipping containers. Vendor will be responsible for any penalties, costs, and/or fees incurred by The Expert (above the actual shipping fees for the Product), resulting from Vendor’s failure to provide accurate information as set forth above.

3.2. Pricing Parity / Most Favorable Pricing. Vendor agrees that Vendor will not list the price and/or MAP for any Product at a greater price than that for which such Product is listed (or sold) through other channels of distribution, including Vendor’s own channels of distribution. If at any time during the term of this Agreement Vendor lists any Product at pricing terms, including, any MAP, aggregate pricing, and/or rebate terms, via other channels of distribution, including Vendor’s own, that are more favorable than the pricing terms provided to The Expert hereunder, Vendor will immediately adjust the pricing hereunder (including, without limitation the MAP) to match the more favorable pricing terms for said Product by providing written notice to The Expert of such adjustment. The Expert may conduct periodic reviews of other online and offline outlets, stores and/or channels, through which Vendor’s products are sold, for the purpose of confirming Vendor’s compliance with the provisions of this paragraph.

3.3. Customer Pricing. The Expert will have sole discretion in determining and setting the price for each Product that The Expert lists for sale on the Marketplace (the “Sales Price”); provided that, except as otherwise set forth below in this Section, The Expert will not list the Products for sale at less than the MAP for the Products (if any) specified on the applicable Vendor Schedule. Notwithstanding the foregoing, if the parties agree to hold a Promotion that includes a discounted price offered for any Products, the term “Sales Price” as used herein, shall be the applicable discounted price for such Products under the Promotion. For the avoidance of doubt, the term “Sales Price” as used in this Agreement, does not include taxes, shipping fees, payment processing fees, and/or any discount codes or offers provided by The Expert to Customers that are not part of a Promotion or otherwise mutually agreed on by The Expert and the Vendor.

3.4. Collection of Fees; Taxes. The Expert will be responsible for collecting the payments of the fees, shipping fees, and taxes from each Customer who places an Order through the Marketplace. The Expert will calculate, collect and remit applicable federal, national, state or local sales or use Taxes or value added taxes (collectively “Taxes”) that The Expert is legally obligated to collect for its sale of the Products. The Expert may deduct or withhold any Taxes that The Expert may be legally obligated to deduct or withhold from any amounts payable to Vendor under this Agreement, and payment to Vendor as reduced by such amounts will constitute full payment and settlement to Vendor of amounts payable under this Agreement. Vendor agrees to provide The Expert with any forms, documents, or certifications requested by The Expert to satisfy any information reporting or withholding obligations with respect to any payments under this Agreement.

3.5. The Expert Commission Rate. The Expert will receive a commission fee at the rate set forth on the applicable Vendor Schedule based on the Net Sales Price for each Product sold through the Marketplace (the “Commission”). “Net Sales Price” means the Sales Price, less any discounts provided by The Expert to the Customer that are not provided as part a Promotion or are not otherwise mutually agreed on by The Expert and the Vendor. The Expert will automatically deduct the Commission from the payment that it collects with respect to each Order.

3.6. Vendor Fees & Payment Terms. For each Product purchased through the Marketplace, the Vendor shall receive a fee equal to the Sales Price listed on the Marketplace for such Product minus The Expert’s Commission. For the avoidance of doubt, the Vendor acknowledges and agrees that it will not receive any part of any fees collected by The Expert other than the Sales Price (minus The Expert’s Commission), including, without limitation, any fees The Expert collects for installation, consultations, delivery services, or other professional services. Within 20 (twenty) business days after the end of each calendar month during the term of this Agreement, The Expert will make payments of the fees due to Vendor hereunder based on the amounts actually received by The Expert from Customers pursuant to Orders placed in such calendar month. Payments will be made electronically via The Expert’s third-party payment provider (currently, Bill.com (subject to change)). Vendor is required to have all necessary accounts to accept such payments.

3.7. Set-off. Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy it has or may have, The Expert may, without notice to Vendor, set-off or recoup any liability it may owe to Vendor against any liability for which The Expert determines that Vendor is liable to The Expert, whether such liability arises under this Agreement or a specific Order; including, without limitation, any refunds issued to Customers where the Vendor is responsible for the reimbursement of the fees (including, but not limited to, shipping fees) paid by such Customers as set forth in Section 5.3.

3.8. Expenses. Vendor is responsible for all of Vendor’s expenses in connection with this Agreement, except where this Agreement explicitly provides otherwise.

4. Orders; Fulfillment and Shipment; Inventory

4.1. Order Submission; Acceptance. The Expert will promptly notify Vendor via the Inventory Tool of any and all orders placed by Customers to purchase the Products through the Marketplace (each, an “Order”). Vendor will have 1 business day from the time the notification of the applicable Order is posted in the Inventory Tool to accept or reject the Order; provided however, that Vendor may not reject an Order, except with respect to stocked Products (i.e., Products that are ready-made and/or ready-to-ship without manufacturer Lead Times), where Vendor does not have the Product(s) in stock. If Vendor has not accepted or rejected an Order within such period set forth above, the Order shall be deemed accepted by Vendor. The Expert will be listed as the “merchant of record” for each Product.

4.2. Vendor Order Fulfillment & Shipment Obligations. Vendor is responsible for the fulfillment, packaging, and, except as otherwise set forth in this Section 4.2, the shipment of all Orders. With respect to Orders that include the purchase of The Expert’s professional delivery services (the “Delivery Services”), unless otherwise specified by The Expert, the Vendor will not be responsible for the shipment such Orders, but will be responsible for the preparation of the Order for pickup by The Expert’s providers of the Delivery Services. In all cases, Vendor agrees to pack, fulfill, ship, prepare, and/or deliver each Product, as applicable, in compliance with this Agreement, The Expert Policies, the terms and conditions and any other policies or rules imposed by the carrier used to ship the Products and/or The Expert’s provider of the Delivery Services, and any and all applicable laws, rules or regulations. Should The Expert incur or be obligated to pay additional fees, charges or penalties imposed by any carrier and/or the providers of the Delivery Services resulting from Vendor’s failure to provide accurate or up to date information and/or perform its obligations set forth herein, such as incorrect/misguided pickup location details, inaccurate hours of operation, refusal to coordinate/schedule collection, failure to prepare the Order for pickup by the carrier and/or Delivery Services in accordance with this Agreement, including, but not limited to, packaging requirements, Vendor will be responsible, and shall reimburse The Expert for, such fees, charges and/or penalties.

4.3. The Expert Shipping Labels. The Expert will provide shipping labels for Vendor to download and use, as applicable, to: either (a) ship the Products for each standard Order (i.e., an Order that does not include Delivery Services), or (b) prepare the Products for pickup and shipment by The Expert’s delivery providers for each Order that includes Delivery Services. Vendor acknowledges and agrees that each shipping label can only be used to ship the corresponding Order and the shipping labels may not be transferred or sold to a third party. Unless otherwise expressly approved by The Expert in writing, the Vendor may not use any shipping labels that are not provided by The Expert. For the avoidance of doubt, Vendor is, and shall remain, fully responsible for the Products, Vendor Packaging, and any contents of any parcels Vendor ships, including, without limitation, any parcels shipped using shipping labels provided by The Expert.

4.4. Fulfillment & Shipment Timelines

a. Stocked Products. Vendor will have 7 days from the acceptance of each standard Order for stocked Products as set forth in Section 4.1 above to fulfill and ship the Order; provided that if Vendor has not shipped an Order within 48 hours from acceptance, Vendor will promptly notify The Expert of the status of the pending shipment of the Order, and update The Expert on a daily basis thereafter until the Order has been shipped.
b. Backordered Products. If Vendor accepts an Order for a Product that is backordered or back-stocked, Vendor agrees to promptly notify The Expert and to fulfill the Order for such Product as soon as possible, which may include shipping the Order and/or preparing the Order for pick (with respect to Orders that include Delivery Services), in partial shipments to the extent possible. Vendor agrees to keep The Expert updated on a weekly basis regarding the expected date of fulfillment of any backordered or back-stocked Products until the applicable Order for such Products has been fulfilled in its entirety. Vendor acknowledges and agrees that the Customer may cancel the Order, and received a refund of fees paid, for any such backordered Product, at any time prior to the date Vendor has notified The Expert and/or the Customer may cancel any Orders, and receive a refund of fees paid, for any such backorder or back-stocked Products at any time prior to the date Vendor has notified The Expert in writing that Vendor has received the backordered or back-stocked Product in its inventory.
c. Products with Lead Times. Vendor will have 7 days from the expiration of the Lead Time stated for the applicable Product at the time the Order is submitted to Vendor, to fulfill and ship the Order; provided that if Vendor has not shipped an Order within 48 hours from expiration of such Lead Time, Vendor will promptly notify The Expert of the status of the pending shipment of the Order, and update The Expert on a daily basis thereafter until the Order has been shipped. Vendor shall immediately notify The Expert if the Vendor will not be able to complete shipment of the Order by the expiration of the Lead Time, and shall keep The Expert up to date and informed on the expected date of fulfillment and shipment. If the fulfillment of an Order is delayed more than 90 days from the stated Lead Time, The Expert may cancel the Order without any liability to Vendor.
d. Delivery Services. With respect to Orders that include Delivery Services, Vendor shall fulfill and prepare the Order for pickup and shipment by The Expert’s providers of the Delivery Services on or before the date and time specified by The Expert and/or The Expert’s providers of the Delivery Services in writing following acceptance of the Order.
e. Confirmation of Shipment. Within twenty-four (24) hours of Vendor downloading the shipping label provided by The Expert for the applicable Order, Vendor will provide The Expert via the Inventory Tool, as applicable: (a) a shipment confirmation via the Inventory Tool for each standard Order, or (b) confirmation that the Order is prepared for pickup and shipment by The Expert’s providers of the Delivery Services. Where Vendor has obtained The Expert’s approval to use its own or a third party’s shipping labels, Vendor must provide The Expert a shipment confirmation via the Inventory Tool within twenty-four (24) hours of Vendor creating or obtaining a shipping label for the applicable Order.

4.5. Packaging. All Products will be packaged for shipment in accordance with this Agreement and, except as otherwise set forth below, in Vendor’s standard packaging containers that are suitable for the shipment of the Products (the “Vendor Packaging”). The Expert may provide or otherwise make available to Vendor shipping box(es), packaging, and/or packaging materials that include The Expert branding and/or are required for the shipment of the Products through the Delivery Services (collectively, “The Expert Packaging”). If The Expert provides any Branded Packaging to Vendor, Vendor must ship the Products in the Branded Packaging and/or include the Branded Packaging in the Vendor Package (as applicable) in accordance with The Expert’s packaging guidelines and policies that have been provided to Vendor, unless otherwise agreed by the parties in writing (email okay). Vendor shall use best efforts to package the Products in a manner that is, and in containers which are, designed to ensure the Products are not damaged during transit (for example, by way of illustration only, packaging the Products in containers that are appropriate for the size and quantity of the applicable Product in the shipment and with adequate protective padding, packaging and materials to protect the Products during transit). Vendor will promptly notify The Expert if, in Vendor’s reasonable discretion, Vendor believes that the Branded Packaging is not suitable for the shipment of the Products, in which case, the parties will work together in good faith to come to resolve the issue. Unless otherwise approved by The Expert in writing, the Vendor may not include any advertising materials and/or other information or content in the packaging and/or shipping boxes, other than the instructions, documentation, and/or product specification information for the applicable Product.

4.6. Substitutions; Modifications. Vendor will not substitute Products or combine or consolidate Orders without The Expert’s prior written consent. Modified terms specified in confirmations or other communications sent by Vendor to The Expert are not binding unless agreed to in writing by both parties. The Expert may modify or cancel Orders without penalty before Vendor deliver Products to the carrier.

5. Product Returns, Remedies, and Product Recalls

5.1. Returns. Vendor acknowledges and agrees that Customers may return Products subject to and in accordance with The Expert’s then-current Return Policy. For the avoidance of doubt, except with respect to incorrect items, lost, damaged and/or defective Products as set forth in Section 5.2, Customers may not return any Products identified as non-returnable in the Return Policy, including without limitation, any Products that are final-sale, bespoke, personalized, made-to-order, and/or custom-made for any reason.

5.2. Incorrect, Lost, Damaged or Defective Products. The Expert shall be responsible for the review, investigation, and determination (which shall be in The Expert’s sole discretion) of any return or replacement requested by Customers for incorrect, lost, damaged or defective Products as set forth in The Expert’s then-current Return Policy. The Expert’s assessment and determination of any incorrect, lost, damaged or defective Products shall be in The Expert’s sole discretion and shall be final and binding on Vendor. Vendor agrees to provide reasonable assistance and cooperation as requested by The Expert in connection with The Expert’s investigation and determination of any lost, damaged and/or defective Product claim. Vendor understands and agrees that Customers will not be required to return any defective or damaged Product.

5.3. Vendor Responsibility

a. Except as otherwise set forth in this Section 5.3 with respect to incorrect, lost or damaged Products, if a Customer returns a Product in accordance with the Return Policy, Vendor will be responsible for the reimbursement of (i) the amounts equal to the fees paid or credited by The Expert to the Vendor for such Product, and (ii) the shipping fees paid by the Customer for such Product if such Product was shipped using shipping labels not provided by The Expert.
b. Except as set forth in Section 5.4, if The Expert determines that a Product sold under this Agreement is lost, damaged or defective, Vendor shall be responsible for, as applicable (i) the reimbursement of the fees paid by the Customer for the Product, including shipping fees, which, for the avoidance of doubt, Vendor shall pay directly to The Expert and not the Customer, unless otherwise specified by The Expert, and/or (ii) the replacement of the Product, at no additional cost to The Expert or the Customer.
c. If The Expert determines that Vendor shipped the incorrect Product or, with respect to made-to-order Products, Vendor did not make the Product in accordance with the applicable specifications, then Vendor will be responsible for providing a replacement of the Product, at no additional cost to The Expert or the Customer.
d. In addition, on a case-by-case basis, as an alternative to replacement of a damaged Product, The Expert may, in its sole discretion, approve Vendor to repair the Product on-site at the Customer’s premises. Any such repairs will be performed by Vendor at no additional cost to The Expert or the Customer.
e. Vendor will fulfill and ship replacements for, and/or repair (as applicable), incorrect, lost, damaged and/or defective Products in accordance with this Agreement. For the avoidance of doubt, except as set forth in Section 5.4, Vendor shall be responsible for the cost of any return shipping fees and shipping fees for the replacement for any incorrect, lost, damaged and/or defective Products.
f. Vendor acknowledges and agrees that any amounts for which Vendor is responsible for reimbursement hereunder, shall be paid by the Vendor directly to The Expert and not the Customer, unless otherwise specified by The Expert. The Expert may, at its option, either invoice Vendor for, or deduct from future fees due and payable by The Expert to Vendor under this Agreement, any fees and/or amounts for which the Vendor is responsible for pursuant to this Section. Invoiced fees and amounts shall be due and payable by Vendor within ten (10) days from receipt of The Expert’s invoice.

5.4. The Expert Responsibility. Except as otherwise set forth in this Section 5.4 with respect to lost or damaged Products, if a Customer returns a Product in accordance with the Return Policy, The Expert will be responsible for the reimbursement of (a) the amounts equal to the Commission payable to The Expert for such Product, and (b) the shipping and/or delivery fees paid by the Customer for such Product, if the Product was shipped using The Expert provided shipping labels and/or Delivery Services. If The Expert determines that a Product shipped using The Expert shipping labels and/or Delivery Services is lost, or the Product is damaged in transit to the Customer, The Expert shall be responsible for (i) reimbursement of the fees paid by the Customer for the Product, or (ii) the cost of the replacement Product and applicable shipping fees for the Product; except, in each case, to the extent the misplaced and/or damaged Product results from Vendor’s negligence or failure to comply with its obligations under this Agreement, including, without limitation, its packing obligations.

5.5. Product Recalls and Safety Alerts. Vendor will notify The Expert in writing of any Product recall or safety alert within 24 hours of becoming aware of such recall and/or safety alert. Vendor is responsible for all costs and expenses that The Expert and/or The Expert’s Customers incur in connection with any recall or safety alert for any Products, and for providing any required notices, information, and documents to applicable authorities or that are otherwise necessary for carrying out and/or otherwise complying with the recall or safety alert. Vendor must receive prior written authorization from The Expert before notifying any affected Customers of any recall or safety alerts for any Products.

6. Customer Service; Transaction Information and Customer Data

6.1. Customer Service. The Expert will serve as the point of contact for customer service for Customers. Vendor shall not communicate with any Customers, unless explicitly authorized by The Expert on a case-by-case basis. If any Customer reaches out directly to Vendor through the Marketplace or otherwise regarding Vendor, Vendor’s Products and/or any Orders placed by such Customer for Vendor’s Products, Vendor shall forward the inquiry or communication to The Expert within 1 business day from Vendor’s receipt of the inquiry or communication, and agrees to provide any additional information reasonably requested by The Expert in order to respond to the inquiry and/or communication.

6.2. Vendor Assistance. If The Expert reaches out to Vendor regarding any fulfillment, customer service, shipping or other issues, questions or operational problems related to any Products and/or Orders, Vendor shall provide, via email: (a) a response to, or a confirmation of receipt of, such communication from The Expert within 1 business day from receipt, and (b) the resolution that Vendor will provide within 2 business days from receipt. Without limiting the foregoing, Vendor agrees to cooperate and assist at The Expert’s reasonable request in connection with any customer service and/or support provided by The Expert to Customers who have purchased Vendor’s Products.

6.3. On-Site Repairs. If The Expert approves Vendor to perform on-site repairs of Products (as set forth in Section 5.3(c)), Vendor shall use Vendor’s best efforts to perform the repairs such that the results are satisfactory to the Customer. Vendor represents and warrants that it possesses the necessary expertise to perform the repairs consistent with the highest professional standards of the applicable industry and that it shall perform the repairs with reasonable care and skill and in a workmanlike manner in accordance with such industry standards. All employees and/or contractors utilized by Vendor must have the necessary ability and qualifications to perform the repairs, and Vendor shall supervise, and be responsible and liable for, its employees and/or contractors. Vendor shall not assign any employee and/or contractor to perform repairs who has been convicted of a felony. Vendor agrees to cooperate with any reasonable request by The Expert to monitor the performance of the repairs, and shall consult with and keep The Expert informed on status of the repairs.

6.4. Transaction Information and Customer Data. The Vendor will receive transactional information regarding Orders for the Products, which will consist of the Order details (Product(s) and quantity) and the shipment address (collectively, “Transaction Information”). Vendor may only use the Transaction Information, and any other data and/or information of Customer’s collected through the Marketplace (collectively, “Customer Data”), that is provided and/or made available to Vendor hereunder, strictly for the purposes of performing Vendor’s obligations under this Agreement or for purposes of legal compliance. As between The Expert and Vendor, The Expert has sole ownership of, and shall retain all right, title, and interest in and to, any and all Transaction Information and Customer Data.

7. Vendor Representation and Warranties.

The Vendor represents, warrants, and covenants on an ongoing basis that:

a. Vendor is duly authorized to enter into this Agreement and has all licenses, permissions, authorizations, consents, and permits necessary to carry out its obligations under this Agreement, including, without limitation, to list and sell, and authorize The Expert to list and sell, the Products through the Marketplace;
b. Vendor is in compliance with and shall comply with all applicable laws, rules, and regulations with respect to the performance of its obligations under this Agreement (including obtaining and maintaining any permits, authorizations, and/or licenses required to manufacture, distribute, sell, export, import or otherwise deal in any Product);
c. the Products, Product Information, Vendor Materials, and The Expert’s exercise of the licenses granted by Vendor to The Expert in this Agreement, do not and will not violate any third-party rights, including, but not limited to, any contractual rights, intellectual property or proprietary rights, and/or any rights of privacy or publicity;
d. the Product Information, packaging, and labeling is true, accurate and complete, and complies with this Agreement, The Expert Policies, and all applicable laws, rules and regulations;
e. the Products may be lawfully marketed, stored, sold, distributed, and disposed of without restriction (e.g., no required disclosures, licenses, or registrations) other than any specific restrictions, warnings or prohibitions that Vendor expressly includes in the Product Information for such Products and which are disclosed to Customers as set forth in this Agreement;
f. the Products are (i) not a Prohibited Product, (ii) free from any defects in workmanship, material, and design, (iii) are fit for their intended purpose and operate as intended, (iv) are merchantable, (v) are free and clear of all liens, security interests, or other encumbrances;
g. the Products have been manufactured, packaged, shipped, stored and labeled in accordance with the terms of the Agreement, The Expert Policies, and all applicable local, national, international, and/or foreign industry standards, laws, treaties, rules and/or regulations, including those related to import, export, health, safety, labor (including, but not limited to, forced, prison, and/or child labor), wage and hour laws and rules, environment, labeling, country of origin designation, customs requirements and consumer protection (including, but not limited to, the U.S. Fair Labor Standards Act, and any requirements, rules or regulations issued by the Bureau of International Labor Affairs (ILAB), the Department of Transportation (DOT), Occupational Safety and Health Administration (OSHA), the Fair Trade Commission (FTC), U.S. Department of Agriculture (USDA), the U.S. Food and Drug Administration (FDA) and/or any other or similar local, national, international, and/or foreign agencies, administrations), and Vendor agrees to execute and/or furnish all certifications, guaranties and other documents regarding and verifying compliance with such industry standards, laws, treaties, rules and regulation;
h. the country of origin of the Products is not subject to U.S. or other applicable government sanctions that prohibit the importation of products from such country at the time of import or at the time Vendor delivers the Products to the Customer; and
i. Vendor is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or otherwise owned or controlled by such a party.

These warranties survive any delivery, inspection, acceptance, or payment of or for the Products by The Expert or the Customer. The Expert may pass through to its Customers all warranties granted by Vendor under this Agreement and Vendor agrees to fulfill cooperate with and assist The Expert in processing any warranty claims relating to the Products.

8. Term; Termination

8.1. Term; Termination This Agreement commences on the date Vendor accepts this Agreement as set forth in Section 1 and shall continue until terminated as set forth in this Agreement. Either party may terminate this Agreement at any time, for any reason, upon thirty (30) days prior written notice to the other party. In addition, either party may terminate this Agreement for material breach by the other party that remains uncured thirty (30) days after delivery of written notice to the breaching party describing such breach in reasonable detail. The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or under applicable law.

8.2. Effect of Termination. Upon termination, all rights and obligations of the parties under this Agreement will terminate, and except that Vendor will fulfill any Orders accepted by Vendor prior to the effective date of termination, unless otherwise agreed upon in writing by The Expert. The following Sections will survive any expiration or termination of this Agreement: 1, 2.1, 2.7 (to the extent set forth therein), 2.8, 3 (with respect to Orders accepted prior to termination), 4 (with respect to Orders accepted prior to termination), 5, 6, 7, 8.2, 9, 10, 11, 12, 13, 14 and 16.

9. Indemnification

9.1. Indemnity Obligations. Vendor, at Vendor’s sole expense, will defend, indemnify, and hold harmless The Expert and its officers, directors, managers, representatives, employees, contractors, service providers, suppliers, and/or agents (collectively, the “The Expert Indemnified Parties”) against any claim, liability, loss, damage, cost or expense (including reasonable legal fees, fines, and sanctions) (each, a “Claim”, and collectively, the “Claims”) incurred by any The Expert Indemnified Party arising from or relating to: (a) the Products, including, without limitation, any death of or injury to any person, damage to any property or any other damage or loss resulting from the Products(s); (b) product liability claims (including, strict liability) relating to the Products, and/or any Product-related issue for which Vendor or The Expert are strictly liable; (c) any Product recall or safety alert; (d) any infringement or misappropriation by Vendor (or its affiliates or representatives) of any third-party rights, including intellectual property rights, in or to any Product, Product Information, Vendor Materials or other content Vendor provides and/or make available to The Expert hereunder; (e) Vendor’s or its employees, contractors, or agents negligence, fraudulent misrepresentation or intentional misconduct; (f) Vendor’s breach of any representations and/or warranties contained in this Agreement; (g) Vendor’s failure to provide accurate and up to date Product Information; (h) Vendor’s failure to comply with this Agreement, any The Expert Policies or any applicable laws or regulations; (i) Vendor’s or its employees, contractors, or agents performance of any repairs to the Products, including, but not limited to, any death of or injury to any person, damage to any property or any other damage or loss to the extent caused by any act or omission of Vendor and/or its employees, contractors, or agents; and/or (j) Vendor’s breach of any terms and conditions, or other agreements, applicable to the Inventory Tool and/or any third party carriers and/or shipping providers.

9.2. Procedure. In connection with the foregoing indemnification obligations, Vendor will not consent to the entry of a judgment or settle any Claim without The Expert Indemnified Parties’ prior written consent, which may not be unreasonably withheld. Vendor will use counsel reasonably satisfactory to The Expert Indemnified Parties, and The Expert Indemnified Parties will reasonably cooperate in the defense at Vendor’s expense. If any The Expert Indemnified Party reasonably determines that any Claim might have an adverse effect, it may take control of the defense at its expense (without limiting Vendor’s indemnification obligations). Vendor’s obligations under this Section 9 are independent of Vendor’s other obligations under this Agreement.

10. Disclaimer; No Warranties.

THE EXPERT MAKES NO WARRANTIES, REPRESENTATIONS OR GUARANTEES WHATSOEVER, AND HEREBY DISCLAIMS, on behalf of itself and its affiliates, suppliers, and service providers, ANY AND ALL REPRESENTATIONS AND WARRANTIES RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. THE EXPERT DOES NOT WARRANT THAT THE FUNCTIONS AND/OR SOFTWARE CONTAINED IN THE WEBSITE, THE MARKETPLACE AND/OR THE INVENTORY TOOL WILL MEET VENDOR’S REQUIREMENTS. THE EXPERT DOES NOT GUARANTEE THAT THE WEBSITE, THE MARKETPLACE, AND/OR THE INVENTORY TOOL WILL BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. THE EXPERT WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING WITHOUT LIMITATION THOSE RELATING TO ANY SALES TRANSACTIONS.

11. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT WILL THE EXPERT BE LIABLE TO VENDOR OR ANY THIRD PARTY OR PERSON FOR ANY LOST PROFITS, LOST REVENUES OR LOSS OF BUSINESS ADVANTAGE, COST OF COVER, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) THE EXPERT’S TOTAL AGGREGATE LIABILITY TO VENDOR FOR ANY DAMAGES OR ALLEGED DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF THE COMMISSION COLLECTED BY THE EXPERT HEREUNDER FOR THE APPLICABLE ORDER OR ORDERS GIVING RISE TO THE LIABILITY OR $100.00. THE LIMITATIONS SPECIFIED IN THIS PARAGRAPH SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE EXPERT’S SUPPLIERS shall have no liability arising from or related to this agreement.

12. Confidentiality.

Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”). For the avoidance of doubt, the commissions, Transaction Data and Customer Data shall be deemed the Confidential Information of The Expert. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for the purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Confidential Information shall not include information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party, or its employees and contractors, has become, generally available to the public; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under this Section to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (1) as required by law, or (2) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality.

13. Governing Law.

This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. Each Party consents exclusively to the jurisdiction and venue of the competent state and federal courts located in Manhattan, New York.

14. Notices.

All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, or upon confirmation of delivery or transmission if sent by e-mail. Notices shall be sent to each party at their respective addresses set forth on the signature page or via email as follows: (a) to The Expert: hello@theexpert.com; and (b) to Vendor: to the email address specified on the initial Vendor Schedule. Each party may update their contact information from time-to-time by notice to the other party pursuant to this Section 14. Vendor consents to receiving electronic communications from The Expert, including, without limitation, notices via email, and/or through the Website and/or user interface of the Inventory Tool. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Products, Product listings, Orders, and/or use of the Inventory Tool. Vendor agrees that any notices, agreements, disclosures or other communications that The Expert sends to Vendor electronically will satisfy any legal communication requirements, including that such communications be in writing.

15. Modifications to this Agreement.

The Expert may modify this Agreement from time to time by giving notice to Vendor by email. Unless a shorter period is specified by The Expert (e.g., due to changes in the law or exigent circumstances), modifications become effective thirty (30) days from the date of The Expert’s notification to Vendor of the changes. If Vendor does not agree to any updates or modifications to this Agreement, Vendor may terminate this Agreement pursuant to Section 8.1 above prior to the applicable date the modified Agreement goes into effect as set forth in this Section, in which case, the then-current version of this Agreement shall continue to govern each party’s obligations and rights under this Agreement through the effective date of termination (and any surviving obligations as set forth in Section 8.2). If Vendor does not terminate this Agreement prior to the applicable date the modified Agreement goes into effect as set forth in this Section, Vendor shall be deemed to have accepted and agreed to the modified version of this Agreement.

16. General.

Vendor’s relationship with The Expert is that of an independent contractor and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. Vendor may not assign this Agreement without The Expert’s prior written consent. The Expert may freely assign this Agreement. This Agreement, together with any and all Vendor Schedules entered into hereunder, The Expert Policies, and any other terms, conditions and/or policies referenced herein, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. In the event of any conflict between the terms of this Agreement and a Vendor Schedule, the Vendor Schedule shall control solely with respect to the subject matter set forth therein.

Change Log:

March 24, 2022

Updated 4.4.b to clarify the process around backordered products
Updated 5.3.a and 5.3.f to clarify Vendor reimbursement responsibility around returns
Updated 5.4 to clarify The Expert reimbursement responsibility around returns