Last updated: February 23, 2021.
This Guidefitter Online Retailer Addendum ( the “Retailer Addendum”) is entered into by and between the entity that executed the Order Form referencing and incorporating this Retailer Addendum (the “Company”) and Guidefitter, Inc., a Delaware corporation with corporate offices located at 392 Gallatin Park Dr, Suite 201, Bozeman, Montana 59715 (“Guidefitter”). This Addendum is made pursuant to the Influencer Marketing & Sales Program Terms of Service located at https://www.guidefitter.com/legal/influencer-marketing-sales-program-terms-of-service (the “Terms” and together with the Order Form and this Retailer Addendum, the “Agreement”). Capitalized terms not defined herein shall have the meaning set forth in the Order Form and/or the Terms.
WHEREAS, Guidefitter and Company have entered into the Terms.
WHEREAS, Company desires to grant Guidefitter the right to sell the Products on the Website;
WHEREAS, it will generally be the case that such Products will be drop-shipped and Company will be responsible for fulfillment as set forth herein (except in those occasional instances in which Guidefitter chooses to hold stock on hand in which case Guidefitter will be responsible for fulfillment, also as set forth herein);
WHEREAS, in connection with the foregoing, Company wishes to grant Guidefitter a license to use the Marks; and
WHEREAS, Guidefitter desires to sell the Products on the Website(s) and display the Marks in connection with the same;
NOW THEREFORE, in consideration of the mutual promises and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, the parties agree as follows:
1. Website Sales.
1.1 General. Company hereby grants to Guidefitter the non-exclusive right to sell and display and Guidefitter agrees to sell and display the Products on its Website to Customers within the Territory. Such sales by Guidefitter shall only occur on the Website and not on any third-party sites, including without limitation Amazon.com, Amazon Marketplace, Ebay.com, or any auction or similar site. Guidefitter agrees that it shall not ship the Products to Customers that it knows are outside of the Territory or to any address outside of the Territory. Guidefitter shall not sell the Products to Customers that it reasonably believes may be purchasing such Products for further resell.
1.2 Marks. Company grants to Guidefitter a non-exclusive, limited license to use and display the Marks during the Term solely in connection with activities authorized by this Agreement. Guidefitter understands and agrees that in Guidefitter’s marketing and advertising of Products, Guidefitter shall conform to Company’s trademark usage guidelines that are provided to Guidefitter in writing as the same may be updated from time-to-time provided that Guidefitter receive sixty (60) days advance written notice of such changes. The use by Guidefitter of the Marks in connection with this Agreement shall not create any right, title or interest, in or to the Marks in favor of Guidefitter and all goodwill associated with the use of the Marks shall inure to the benefit of Company.
1.3 Insiders. Company acknowledges and agrees that sales of the Products may include sales at a discount to authorized members of Company’s Brand Program, the applicable Insider Discounts and Insider Categories identified on the Order Form. Following execution of the Order Form, the Company can add additional Insider Categories at any time; however, Company will not be permitted to remove any Insider Categories without the prior written consent of Guidefitter.
2. Drop Ship Sales & Physical Inventory.
2.1 Drop Ship Sales. Guidefitter shall purchase for Drop Ship Sale those Products ordered by Customers in accordance with the terms and conditions of this Agreement.
2.2 Physical Inventory. From time to time, Guidefitter may place orders for Products that it will hold in physical inventory for eventual resell to Customers pursuant to the terms of this Agreement.
3. Guidefitter Obligations.
3.1 Promotion. Guidefitter will use commercially reasonable efforts to promote and market the sale of Products. This may include digital campaigns, abandoned cart reclamation campaigns, retargeting campaigns and other similar campaigns. All such marketing and advertising shall be consistent with Company’s Product Collateral. Company shall not make any claims in its advertising which exceed or contradict claims made by Company in its Product Collateral, or any warranty regarding Products that exceeds the warranties granted by Company in such Product Collateral. Guidefitter will provide use and warning information supplied by Company to Guidefitter as part of the Product Collateral, to Customers. Guidefitter shall prominently display, on the page on the Website featuring any Company Product, the applicable Brand return and/or exchange policy, the Product warranty provided by Company, and any other Product guarantees or policies provided by Company.
3.2 E-Commerce Shop. Guidefitter will create an e-commerce shop on its Website for Company’s Brands and Products. Guidefitter will use commercially reasonable efforts to maintain such ecommerce shop including updating the shop with new Products and pricing, removing discontinued Products and updating available inventory, providing it receives written notification from Company regarding the same. To the extent Guidefitter maintains physical inventory pursuant to Section 2.2, Guidefitter shall use commercially reasonable efforts to ensure that the Website accurately reflects the availability of Products held in such physical inventory.
3.3 Customers. Guidefitter will be responsible for all interactions with Customers, including both pre- and post-sale Customer service. This will include responding to Customer inquiries regarding Product information, availability, shipping timeframes, order status and processing returns or exchanges (if permitted hereunder).
3.4 Physical Inventory Fulfillment. In the event Guidefitter chooses to hold Products in its physical inventory at its locations, such inventory will be shipped first to fulfill Customer orders of Products. In such instances, Guidefitter will be responsible fulfillment of such orders and will promptly ship such Products to the Customers. On the expiration or earlier termination of this Agreement, Guidefitter may, in accordance with the applicable terms and conditions of the Agreement, sell off its existing physical inventories of any Products as of the date of such expiration or termination.
4. Company Obligations.
4.1 Product Collateral. Promptly, following execution of this Agreement, Company will provide Guidefitter with all Product Collateral that Guidefitter should use in the listing and/or promotion of the Products on the Website. Company shall ensure that all such Product Collateral is true, accurate and complete and that such Product Collateral complies with all applicable laws.
4.2 Inventory Updates. Company shall provide Guidefitter with updates regarding the inventory of Products available frequently, but in no event less than daily. Such inventory updates will either be provided manually (via spreadsheets provided to Guidefitter) or via one of the integrations described in Section 4.5 below as specified in the Order Form.
4.3 Drop Ship Fulfillment. Company shall promptly following receipt of a Drop Ship Order, but in no event less than two (2) business days following such receipt, ship the Products indicated in such Drop Ship Order to the Customer indicated therein. Company shall provide Guidefitter with the shipping information regarding each such shipment immediately following such shipment by either using the shipping information feature on the Brand Portal or via any electronic data interchange or any integration (as described in Section 4.5 below), in each case as specified on the Order Form. Such information shall include all relevant Product information about the Products shipped as well as the tracking number.
4.4 Returns & Exchanges. All warranty claims by Customer related to Company’s Products shall be resolved by and shall be the sole responsibility of Company. Company shall provide return and exchange policies related to each Product as part of the Product Collateral. Company shall accept returns from Customers in accordance with its standard return policy, a copy of which will be provided as part of the Product Collateral contemporaneously with the execution of the Agreement. In the event a Customer initiates a return of a Product by contacting Guidefitter regarding the same, Guidefitter, will provide Company with the needed information to facilitate such exchange and Company agrees to facilitate the exchange in accordance with the return and exchange policies provided for such Products and shall bear the costs related to such returns and exchanges.
4.5 B2B Integration. The parties may work cooperatively to develop an integration which will allows the information technology systems of each to directly communicate regarding inventory updates, shipment and fulfillment information, invoicing, and/or other information pertinent to the automated operation of the Service. To the extent that Guidefitter provides any application programming interfaces (APIs), integration code and/or any other software in connection with such an integration (collectively “Connectors”), such Connectors shall be (a) considered part of the Service and subject to the restrictions, ownership provisions, limitations, disclaimers, and reservations set forth regarding such Services in the Agreement; (b) owned by Guidefitter, including all right, title and interest therein; (c) the Confidential Information of Guidefitter; and (d) subject to any additional restrictions and/or reservations that may be provided by Guidefitter in connection with such Connectors. To the extent that Company provides any Connectors, such Connectors shall be (i) considered part of the Company System and subject to the restrictions, ownership provisions, limitations, disclaimers and reservations set forth regarding such Company System in the Agreement; (ii) owned by Company, including all right, title and interest therein; (iii) the Confidential Information of Company; and (iv) subject to any additional restrictions and/or reservations that may be provided by Company in connection with such Connectors. Subject to the foregoing and the terms of this Agreement, each party grants to the other a limited, non-exclusive, royalty-free license to use such Connectors during the Subscription Term solely in connection with the integration contemplated herein and in the performance of such Party’s obligations or exploitation of such Party’s rights under this Agreement.
5. Pricing & Sales Terms.
5.1 MAPP. Company may provide Guidefitter with a price list. Such price list may contain Company’s suggested list prices (“MSRP”). Such prices are calculated taking into account the quality and performance of the Products and the skilled, professional services provided by Company to users of such Product and to allow Company to continue to invest significant resources in research and development, consumer and retailer education, and to continue to provide innovations which are beneficial to both Guidefitter and Customers. As a result, to the extent a Minimum Advertised Price Policy (“MAPP”) is provided by Company to Guidefitter, for sales to General Consumers, Company requests that Guidefitter comply with such MAPP. Nothing in the MAPP or in this Agreement is intended to nor shall it prevent Guidefitter from setting the prices at which Guidefitter actually sells the Products. For the avoidance of doubt, Company acknowledges and understands that pricing for Conservation Org Members and/or Insiders may be different and lower than Company’s MSRP and inconsistent with the Company’s MAPP.
5.2 Product Payments. For Products sold via the Website, Company shall, within ten (10) days of the end of each calendar month, invoice Guidefitter for amounts due to Company for such sales (as calculated pursuant to the details contained in each applicable Order Form). Unless otherwise set forth in the applicable Order Form, Guidefitter agrees to pay all undisputed invoices within thirty (30) days of receipt. In the event there is an executed credit application either appended to the Order Form or later executed by the parties (“Credit Application”) with payment terms different from those above, the terms contained in such Credit Application shall control.
5.3 Title and Risk of Loss. Legal title and risk of loss to all Products shall transfer to Guidefitter upon shipment. Company shall ship products using a shipper reasonably acceptable to Guidefitter and Guidefitter will directly make any claims to such shipper related to Products lost or damaged during shipment. Company agrees to promptly provide all information that may be helpful in making such claims.
6. Customer Input. Company acknowledges and agrees that Customers may create reviews of the Products, take pictures of the Products, and otherwise create data, information, media, or materials related to such Products (“Customer Input”). Customer acknowledges and agrees that such Customer Input may reflect positively or negatively upon Company, the Brands or the Products and Guidefitter shall have no obligation to remove any such negative Customer Input (though, Guidefitter will not proactively index such negative Customer Input in search engines). Company can distribute such Customer Input as it sees fit, through multiple channels, including its social media accounts and Website and may offer financial incentives to Customers to create such Customer Input. Company has no right to use the Customer Input without the prior written consent of Guidefitter. As between Company and Guidefitter, all right, title and interest in and to the Customer Input shall be retained by Guidefitter.