Any person or entity (“Vendor”) who wants to supply Products (as defined in Section 1) to Raw Thoughts Services LLC or its affiliates (collectively, “Raw Thoughts”) must accept these Vendor Terms and Conditions (“Agreement”) without change. BY ACCEPTING THIS AGREEMENT, YOU (A) ON BEHALF OF YOURSELF AND THE ENTITY THAT YOU REPRESENT, AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE; AND (B) CERTIFY THAT YOU ARE AN OFFICER OF VENDOR WHO IS AUTHORIZED TO BIND VENDOR TO THIS AGREEMENT, INCLUDING THE GUARANTIES CONTAINED IN SCHEDULE 2.
Purchase Orders; Pricing and Taxes: This Agreement governs Raw Thoughts purchase of Products from Vendor. “Products” means all goods, including labeling and packaging, provided to Raw Thoughts. Raw Thoughts is not obligated to purchase Products, and Vendor is not obligated to sell Products, until Vendor accepts a purchase order (“PO”). Vendor will not substitute Products or combine or consolidate POs without Raw Thoughts consent. Documents that Raw Thoughts signs acknowledging receipt of Products do not constitute acceptance of the Products. Raw Thoughts may modify or cancel POs without penalty before Vendor delivers Products to the carrier. The PO provides Product prices and payment terms, excluding discounts or rebates. Prices include any commissions and other charges, unless otherwise noted. Except as otherwise provided in this Section, Vendor may charge Raw Thoughts any applicable taxes that Vendor is legally obligated to charge purchasers of the Products, if the tax amounts are stated separately on Vendor’s invoice for the Products. Vendor is responsible for other fees, taxes and duties, including any taxes Vendor may owe on payments Vendor receives under the Agreement. If Vendor requests (or Raw Thoughts provides to Vendor) a resale certificate for the state in which Raw Thoughts is registered for sales and use taxes, then Vendor will not charge or collect from Raw Thoughts any taxes covered by such certificate.
Product Images/Information: Vendor will make available to Raw Thoughts (including permitting Raw Thoughts to collect from Vendor’s website) all textual materials or metadata requested by Raw Thoughts for each Product (“Product Information”), including product name, UPC, brand, list price, fabric content (if the product is a textile product), and country of origin. At Vendor’s sole discretion, Vendor may choose to provide Raw Thoughts with Promotional Materials. “Promotional Materials” means any logos, publicity images, and other content or materials Vendor makes available to Raw Thoughts. Vendor grants Raw Thoughts a non-exclusive, worldwide, perpetual, irrevocable and royalty-free license to: (a) use, copy and display the Product Information and Promotional Materials on or in connection with any website (or similar ecommerce channel); (b) convert to digital electronic form, excerpt, reformat, adapt or otherwise create derivative works of the Product Information and Promotional Materials; (c) use all trademarks or tradenames included in the Product Information and Promotional Materials; and (d) sublicense any of the foregoing rights to parties participating in Raw Thoughts “minions” affiliates program and other similar programs where the users are subject to similar restrictions.
Warranties: Vendor represents, warrants and covenants that: (a) the Products are genuine and free from defects; (b) all materials and other items incorporated into the Products are new (not refurbished or reconditioned, without Raw Thoughts prior written consent), unless Vendor has received Raw Thoughts prior written consent otherwise; (c) the Product Information and Promotional Materials are accurate and complete, and Raw Thoughts exercise of its license rights in this Agreement will not violate any third party’s rights; (d) Vendor will comply with all laws and rules relating to the Products, and the Products, Product Information, Promotional Materials and import documentation (if applicable) comply with all applicable laws and rules; (e) the Products may be lawfully marketed, sold and distributed throughout the U.S. without restriction (e.g., no required disclosures, licenses, or registrations) other than any specific restrictions or prohibitions disclosed by Vendor and consented to by Raw Thoughts in writing; (f) no Product contains ingredients that are regulated by U.S. Drug Enforcement Administration as a controlled substance or listed chemical; (g) no Products will be provided to Raw Thoughts that are subject to U.S. Department of Transportation regulations as hazardous materials without Raw Thoughts prior written consent; (h) no Products were produced, manufactured, assembled, or packaged by forced, prison or child labor (defined as age 15 or the minimum working age within the applicable jurisdiction, whichever is older); and (i) Vendor possesses clean and clear title to, and has the unencumbered right to sell, each and every one of the Products supplied or to be supplied to Raw Thoughts. If Vendor provides any Product to Raw Thoughts that is subject to the requirements of the Textile Fiber Products Identification Act, the Fur Products Labeling Act, or the Wool Products Labeling Act, then Vendor provides to Raw Thoughts the continuing guaranty set forth in Schedule 2(a). If Vendor sells, has sold, or otherwise provides any Product to Raw Thoughts that is a “pesticide” or “pesticide product” as those terms are defined in the Federal Insecticide, Fungicide, and Rodenticide Act or its implementing regulations, then Vendor provides to Raw Thoughts the continuing guaranty set forth in Schedule 2(b).
Product Returns; Effect of Remedies; Product Recalls: Raw Thoughts may return at Vendor’s expense any Product that (a) is damaged or defective, (b) does not conform to agreed specifications or to samples, (c) is subject to recall, (d) was not ordered in the applicable PO, or (e) does not comply with this Agreement. Title and risk of loss for all products returned under this Agreement will pass to Vendor upon delivery by Raw Thoughts to the carrier. Payment of an invoice does not limit Raw Thoughts remedies. Vendor will provide Raw Thoughts immediate written notice of any recall. Vendor is responsible for costs Raw Thoughts incurs in a recall.
Vendor Defense and Indemnification: Vendor will defend Raw Thoughts Services, LLC, its affiliated companies, and their respective officers, directors, employees, and agents (the “Raw Thoughts Parties”) against any claim that arises, directly or indirectly, from: (a) any death of or injury to any person, damage to any property or any other damage or loss due to any defect in or use of any Product; (b) any Product recall; (c) any infringement or misappropriation of any proprietary right by Products, Product Information, Promotional Materials, or other content Vendor provides to Raw Thoughts; (d) Vendor’s negligence, strict liability or intentional misconduct; (e) Vendor’s breach of this Agreement; or (f) Vendor’s failure to state accurate Product descriptions, adequate warnings, or instructions (individually, a “Claim”, and collectively, the “Claims”). Vendor will indemnify and hold harmless each Raw Thoughts Party against any liability, loss, damage, cost or expense (including reasonable attorneys’ fees) incurred by that Raw Thoughts Party relating to any Claim, except to the proportional extent the liability is caused by the negligence or intentional misconduct of that Raw Thoughts Party as determined by a final, non-appealable order of a court having jurisdiction. Vendor will not consent to the entry of a judgment or settle without the Raw Thoughts Parties’ prior written consent, which may not be unreasonably withheld. Vendor will use counsel reasonably satisfactory to the Raw Thoughts Parties, and the Raw Thoughts Parties will cooperate in the defense at Vendor’s expense. If any Raw Thoughts Party reasonably determines that any Claim might have an adverse effect, that Raw Thoughts Party may take control of the defense at its expense (without limiting Vendor’s indemnification obligations). Vendor’s obligations under this Section 5 are independent of its other obligations under this Agreement.
Limitation of Liability: RAW THOUGHTS IS NOT LIABLE TO VENDOR FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR OPPORTUNITIES.
Shipping: The parties will agree which party is responsible for managing and paying for transportation of Products to Raw Thoughts. When Raw Thoughts pays for transportation, Vendor will deliver the Products to the Raw Thoughts-designated carrier and title and risk of damage or loss for the Products will pass to Raw Thoughts when Vendor delivers the Products to the carrier. When Vendor pays for transportation, title and risk of damage or loss for the Products will pass to Raw Thoughts when Raw Thoughts accepts the Products. If Raw Thoughts is the importer of any Products, Vendor will prepare and submit all documents required to enter those Products into the United States, and will pay any additional fees or charges due to insufficient documentation. Vendor will be the importer, at its expense, of any Products Raw Thoughts returns to Vendor to a location outside the United States.
Insurance; Proprietary Products; Consignment: Vendor will comply with Schedule 1. If the parties agree that Vendor will manufacture Products according to Raw Thoughts designs or specifications, then Vendor will comply with Schedule 3 for such Products. If the parties agree that Vendor will provide Products for consignment to Raw Thoughts, Vendor will comply with Schedule 4 for such Products.
Confidential Information: Vendor will (a) protect Raw Thoughts information that is identified as confidential or that reasonably should be considered confidential; (b) use this information only to fulfill its obligations under this Agreement; and (c) promptly return to Raw Thoughts or destroy this information when this Agreement terminates. Section 9 covers all confidential information regardless of when Vendor receives it. Vendor will not use any trademark, service mark, commercial symbol, or other Raw Thoughts proprietary right; issue press releases or other publicity relating to Raw Thoughts or this Agreement; or refer to Raw Thoughts in promotional materials.
Miscellaneous: Either party may terminate this Agreement with 60 days’ prior written notice, subject to Vendor fulfilling all POs it accepts before the effective date of termination. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including representations, warranties, the Product Information and Promotional Materials license, indemnification, insurance, confidentiality, payment obligations, choice of law and jurisdiction, remedies, and guaranties) will survive termination. Any Raw Thoughts affiliate may issue a PO under this Agreement, and POs are the separate obligation of the affiliate that issues the PO. Vendor will not assign this Agreement, or any obligation or right (including any right to payment) in the Agreement, without Raw Thoughts prior written consent. This Agreement is governed by Washington state law, without reference to any applicable conflict of laws rules or the Convention on Contracts for the International Sale of Goods. Vendor irrevocably consents to exclusive jurisdiction of King County, Washington courts for disputes arising out of this Agreement. Raw Thoughts estimates or forecasts are non-binding. Raw Thoughts may either withhold and setoff, or demand payment of, any sums Vendor owes to Raw Thoughts, including any taxes that Raw Thoughts is legally required to withhold from amounts Raw Thoughts pays to Vendor. Raw Thoughts may conduct a reasonable audit of Vendor’s records related to this Agreement. If Vendor does not respond within a reasonable period after receiving an audit claim, Raw Thoughts will deduct the claim from Vendor’s next remittance. The parties’ rights and remedies under this Agreement are cumulative. Either party’s failure to enforce any provision will not be a waiver of the party’s rights to subsequently enforce the provision. If any provision is held to be invalid, then that provision will be modified to the extent necessary to make it enforceable, and any invalidity will not affect the remaining provisions. This Agreement incorporates, and Vendor will comply with, the terms, conditions, policies, guidelines, rules and other information (“Program Policies”) that Raw Thoughts makes available to Vendor, including any updates to such Program Policies from time to time. To the extent there is a conflict between this Agreement and the Program Policies, the terms of the Agreement will control. Vendor may use standard business forms or other communications (such as invoices, confirmations or shipping documents), but use of these forms is for convenience only and will not alter or supersede the provisions of this Agreement. This Agreement is the entire agreement between Raw Thoughts and Vendor for the purchase and sale of Products, and supersedes all prior agreements and discussions.
Revisions; Continued Use: Raw Thoughts reserves the right to change any of the terms and conditions contained in this Agreement, including any Program Policies incorporated herein, at any time and in its sole discretion. Any changes will be effective upon the earlier to occur of: (a) emailing the revised terms, conditions or Program Policies, or notice of such changes, to Vendor at Vendor’s e-mail notice address; or (b) posting of the revised terms, conditions or Program Policies on Raw Thoughts website. Vendor is responsible for reviewing any revised terms, conditions, policies, guidelines, and information, and any notices of revisions. VENDOR’S CONTINUED ACCEPTANCE OF PURCHASE ORDERS FOLLOWING RAW THOUGHTS E-MAILING OR POSTING OF ANY REVISED TERMS, CONDITIONS, OR PROGRAM POLICIES, OR ANY NOTICE OF ANY SUCH REVISIONS, WILL CONSTITUTE VENDOR’S ACCEPTANCE OF THE REVISIONS. IF VENDOR DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, VENDOR MUST NOT CONTINUE TO ACCEPT PURCHASE ORDERS, AND MUST GIVE RAW THOUGHTS NOTICE IN ACCORDANCE WITH SECTION 10 ABOVE.
If Vendor provides to Raw Thoughts any Product other than books, music, video, DVD, videogames or software, then Vendor will obtain and maintain, at its expense, commercial general liability insurance coverage (which must include products liability coverage) of at least $1 million per occurrence and $2 million aggregate. However, if the Products include any Specified Products (as defined below), then the limits of Vendor’s insurance coverage will be at least $1 million per occurrence and $5 million aggregate. Vendor must maintain its insurance coverage for 12 months after the expiration or termination of this Agreement. “Specified Products” means: children’s or infant’s clothing and/or sleepwear, excluding shoes; baby carriages, walkers and strollers; scooters, mini-bikes, mopeds, tricycles, wagons and other ride-on toys; allterrain vehicles; children’s sports and hobby equipment; electric trains, cars, and related accessories; projectile or flying toys; toy chests and boxes; BB guns, BBs and pellets (gas, air or spring loaded) and similar Products; automotive brakes and related accessories; seasonal decorations; perishable consumable Products; over-thecounter medications; medical devices and health-care equipment; power tools, including welding and soldering tools; alarms and escape equipment; heating Products (including stoves, heaters, furnaces) and accessories; indoor or outdoor lighting Products and accessories; power lawn and landscaping equipment (including lawn mowers and chain saws); automatic doors and door openers; fertilizers, pesticides and chemicals; life safety equipment for recreational sports and activities; and inflatable Products for water skiing, tubing and surfing.
Vendor’s required minimum limits of insurance may be satisfied by any combination of primary and excess/umbrella liability insurance policies. Each of these policy coverages shall be primary and non-contributory to any such coverage carried by Raw Thoughts. Vendor will name “Raw Thoughts Services LLC and its affiliates and their respective officers, directors, employees and agents” as additional insureds on each insurance policy required by this Schedule and will provide Raw Thoughts with 30 days’ advance notice of cancellation, significant modification or expiration of each policy.
Within 30 days after the effective date of this Agreement (and at each policy renewal thereafter), Vendor will provide a certificate of insurance for each insurance policy required by this Schedule to Raw Thoughts Risk Management, Attn: Risk Management, P.O. Box 81226 Seattle, Washington 98108-1300, fax no. (206) 266- 2015. Raw Thoughts approval of Vendor’s insurance does not relieve Vendor of any obligations, including but not limited to its defense and indemnity obligations, even for claims over Vendor’s policy limits. If Vendor fails to perform any of its obligations in this Schedule, Raw Thoughts may withhold payments owed to Vendor until Vendor meets these obligations.
Vendor certifies that the statements in this Schedule 2 are true and correct.
Vendor guarantees that all textile fiber, fur or wool Products now being sold or which may hereafter be sold or delivered to Raw Thoughts are not, and will not be misbranded nor falsely nor deceptively advertised or invoiced under the provisions of the Textile Fiber Products Identification Act, the Fur Products Labeling Act, the Wool Products Labeling Act, and the rules and regulations under any of these acts. Vendor acknowledges that furnishing a false guaranty is an unlawful, unfair, and deceptive act or practice pursuant to the Federal Trade Commission Act and certifies that Vendor will actively monitor and ensure compliance with the Textile Fiber Products Identification Act, the Fur Products Labeling Act, the Wool Products Labeling Act, and the rules and regulations under any of these acts during the duration of this guaranty.
Vendor guarantees that the pesticide Products comprising each shipment or other delivery made previously or hereafter to or on the order of Raw Thoughts are either (a) lawfully registered with the United States Environmental Protection Agency and compliant with all requirements of the Federal Insecticide, Fungicide, and Rodenticide Act as of the date of such shipment or delivery, or (b) exempt or excluded from the registration requirements of the Federal Insecticide, Fungicide, and Rodenticide Act.
If the parties agree that Vendor will manufacture Products according to Specifications (“Proprietary Products”), then Vendor and Vendor’s subcontractors will comply with this Schedule; otherwise, this Schedule will not apply. “Specifications” means the specifications, designs, and related documentation that Raw Thoughts provides to Vendor or is otherwise accepted by Raw Thoughts in writing. When developing and manufacturing Proprietary Products, Vendor will comply with any Raw Thoughts social compliance, product quality, product safety and schedule requirements made available by Raw Thoughts to Vendor (“Compliance Requirements”). Vendor will not modify the Proprietary Products’ materials, components, or manufacturing processes unless Vendor has submitted the modifications to Raw Thoughts and Raw Thoughts approves the modifications in writing. Vendor may not rely upon any instructions, directions, or documentation provided by a third party, unless Raw Thoughts notifies Vendor in writing that the third party is authorized to provide such instructions, directions, or documentation.
If requested by Raw Thoughts, Vendor will provide Raw Thoughts with samples, if any, of proposed proprietary products. Upon 2 business days’ notice, Raw Thoughts will have the right to review and inspect: (a) each of the Proprietary Products, at any stage of their development; (b) Vendor’s production facilities; and (c) any materials or documentation relating to, or incorporated in, the Proprietary Products. At Vendor’s expense, and as requested by Raw Thoughts from time to time, Vendor will permit a third party selected by Raw Thoughts to audit Vendor’s compliance with any social and safety compliance requirements. Vendor will implement any corrective actions required by Raw Thoughts.
Before starting full production, Vendor will produce an Raw Thoughts-designated quantity of finished Proprietary Products. At Raw Thoughts option, Vendor will either conduct laboratory tests and retests to ensure that these Proprietary Products comply with the Specifications and Compliance Requirements or permit a third party designated by Raw Thoughts to conduct these tests at Vendor’s expense. The tests must, at a minimum, demonstrate that finished Proprietary Products match the Specifications and Compliance Requirements and, if applicable, any Raw Thoughts approved samples in all respects. If any Proprietary Products do not match the Specifications, Vendor will mark these Proprietary Products as defective. Vendor will provide Raw Thoughts with all data and documentation related to the tests and inspections, including a detailed, accurate and complete written description of any defect discovered during any tests and inspections. Vendor will advise Raw Thoughts about potential remedial actions for defective Proprietary Products. Raw Thoughts will determine the remedial actions that Vendor must take to cure defects and ensure that Proprietary Products comply in all respects with the Specifications and Compliance Requirements (including any changes to Specifications and Compliance Requirements resulting from the initial tests set forth above).
Vendor will start full production to fulfill an open PO only after Raw Thoughts directs the Vendor to do so in writing. Unless otherwise directed by Raw Thoughts, each time Vendor ships Proprietary Products to Raw Thoughts, Vendor will open an Raw Thoughts-designated number of cartons on a random basis before shipping to Raw Thoughts (a) to check Proprietary Products and packaging for compliance with Specifications and (b) to photograph Proprietary Products and carton markings. Vendor will immediately provide Raw Thoughts with a written report that includes the number of cartons inspected by Vendor and all data, photos, information and related documentation regarding the inspection.
Raw Thoughts reserves all rights in the information and materials, including Specifications, provided to Vendor by Raw Thoughts or Raw Thoughts authorized third party. Except as expressly set forth in this Schedule, Raw Thoughts does not grant to Vendor any license, right, title or interest in, to, under or with respect to any trade secrets, designs, patents, trademarks, copyrights, inventions, data or any intellectual property held by Raw Thoughts (“Raw Thoughts Intellectual Property”). Upon Raw Thoughts request, Vendor will provide Raw Thoughts with all information and documentation that is known to Vendor relating to Raw Thoughts Intellectual Property. Vendor will assist Raw Thoughts in any related proceeding or litigation, and will promptly execute and deliver to Raw Thoughts or its legal representative any papers, affidavits and declarations and take such other action as Raw Thoughts requests to apply for, obtain, maintain and enforce Raw Thoughts rights in the Raw Thoughts Intellectual Property.
If Raw Thoughts directs Vendor to mark or label Proprietary Products with a trade name, trademark, logo, service mark or design (“Raw Thoughts Identification”), Vendor will apply this marking or labeling only on the quantity and in the manner specified. If Raw Thoughts directs Vendor to mark Proprietary Products with Raw Thoughts Identification, Raw Thoughts grants Vendor a non-exclusive, non-transferable, royalty-free, non-assignable and revocable right and license during the term of the Agreement to reproduce and display, without alteration of any kind, the Raw Thoughts Identification solely on the Proprietary Products and solely as directed by Raw Thoughts. Vendor will comply with any trademark guidelines made available by Raw Thoughts (as may be updated from time to time), including any trademark guidelines or updates that Raw Thoughts posts online. Vendor may not transfer, assign or sublicense these rights or otherwise permit any other party (including a party affiliated with Vendor) to use the Raw Thoughts Identification. Vendor will not market, sell or dispose of Proprietary Products that include Raw Thoughts Identification (or Proprietary Product components that include Raw Thoughts Identification) to anyone other than Raw Thoughts. If Raw Thoughts does not accept delivery of Proprietary Products, Vendor will not dispose of these Proprietary Products without removing labels, or markings and destroying Raw Thoughts Identification.
All Proprietary Products will meet all import and industry certification requirements, and all package shipping labels will indicate where and when such Proprietary Products were manufactured. All shipments originating outside the U.S. will be shipped Free on Board (“FOB”) or Free Carrier (“FCA”) origin, and all references to delivery terms in this Schedule will be references to Incoterms revision 2000 issued by the International Chamber of Commerce. In Raw Thoughts discretion, Vendor will clear the Proprietary Products for export either at the port of departure or at Vendor’s factory. Title and risk of loss for shipments originating outside the U.S. will pass to Raw Thoughts after Vendor has cleared the Proprietary Products for export. If Raw Thoughts returns any Proprietary Products under Section 4 of the Agreement, Vendor will pick up these Proprietary Products at Raw Thoughts facility and will ship such Proprietary Products FOB or FCA origin. If Raw Thoughts specifies dates on the PO for Raw Thoughts receipt of the applicable Proprietary Products (“Ship Window”), then, in addition to Raw Thoughts other remedies, for each calendar day that Vendor misses the Ship Window Vendor will pay Raw Thoughts liquidated damages in the amount of 1% of the amount of the PO, up to a maximum of 25% of the amount of the PO (as a reasonable prospective estimate of losses Raw Thoughts would incur).
If there is a conflict between the terms of this Schedule 3 and the terms of the Agreement, the terms of this Schedule 3 will control.
If the parties agree that Vendor will provide Products for consignment to Raw Thoughts, Vendor will comply with this Schedule; otherwise, this Schedule will not apply. Raw Thoughts may request consignment Products with a PO. Unless otherwise agreed by the parties, the price on the consignment PO will be the price charged by Vendor and paid by Raw Thoughts following Raw Thoughts purchase, if any, of the consignment Products from Vendor and Raw Thoughts sale of consignment Products to its customers. All terms of the Agreement apply to consignment Products, except to the extent otherwise provided in this Schedule.
Title to each unit of Product transfers to Raw Thoughts at the time Raw Thoughts purchases it from Vendor. Raw Thoughts will pay Vendor the amount properly payable at the end of each month for consignment Products sold in the previous month. Risk of loss for consignment Products will transfer to Raw Thoughts only after Raw Thoughts accepts the Products.
Raw Thoughts will store accepted consignment Products until (a) Raw Thoughts purchases such consignment Product from Vendor, (b) Raw Thoughts returns the consignment Product, or (c) the Agreement is terminated for any reason. Raw Thoughts may store consignment Products in any facility it chooses. If there is loss of or damage to any consignment Product while stored by Raw Thoughts, Raw Thoughts liability is limited to the price that Raw Thoughts agreed to pay Vendor for the consignment Product in Section 1 of this Schedule.
Vendor will pay all personal property taxes assessed on consignment Products, including taxes assessed during the period Raw Thoughts holds the Products. Vendor has no security interest, lien or other claim in or to the proceeds that Raw Thoughts receives from Raw Thoughts sale of consignment Products. If an Raw Thoughts customer returns consignment Product, Raw Thoughts may retain title to such returned Product or return such Product to Vendor. All Products ordered on a consignment basis will constitute true consignments of the consignment Products and not the purchase and sale of merchandise by Raw Thoughts.