Supplier Agreement
Updated: April 15, 2021
PLEASE READ THE FOLLOWING SUPPLIER AGREEMENT (THE "AGREEMENT"). THE AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE STORE AND YOUR SALE OF GOODS TO GUEST HOUSE AND ITS CUSTOMERS. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT INCLUDING ANY EXHIBITS ATTACHED TO, AND INCORPORATED INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE STORE.
IN THE AGREEMENT, "YOU" ARE REFERRED TO AS "SELLER". GUEST HOUSE IS REFERRED TO AS "GUEST HOUSE". IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY AND ITS AFFILIATES TO THE TERMS OF THE AGREEMENT, IN WHICH CASE THE TERM "SELLER" SHALL REFER TO ALL SUCH LEGAL ENTITIES AND THEIR AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE SERVICES.
YOU MAY NOT ACCESS THE SERVICES, OUR SITE, OR USE THE STORE IF YOU ARE OUR DIRECT COMPETITOR. YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THE AVAILABILITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND GUEST HOUSE AS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT BY SIGNGING A DOCUSIGN OR CLICKING ON THE "ACCEPT" BUTTON BELOW (THE "EFFECTIVE DATE").
Sale of Goods. This Agreement sets forth the terms and conditions on which the parties may transact for the purchase and sale of Goods ordered through Guest House's online store (the " Store"). Seller may offer for sale on the Store those products and accessories approved by Guest House (the " Goods"), for the benefit of end customers, in the quantities and at the prices and upon the terms and conditions set forth in this Agreement, pursuant to orders placed by Guest House directly, or a Guest House end customer (such end customer, a " Custome r") through the Store (for Customers) or through an order form (for Guest House) (each, an " Order"). All sales are subject to our terms and conditions, although if there is any conflict between this Agreement and the terms and conditions, this Agreement shall control. At all times Seller shall comply with the then-current Guest House handbook for makers, which may be updated by Guest House at any time upon notice to Seller.
Platform.
Platform Rights. Subject to the terms and conditions of this Agreement, Guest House hereby grants to Seller, during the term of the Agreement a non-exclusive, non-sublicensable right to access and use the Platform for Seller's internal business purposes in connection with its sale of Goods through the Store. Guest House and its licensors reserve all rights in and to the Platform. Guest House may suspend Seller's use of the Platform at any time. " Platform" means Guest House's proprietary platform that provides for the uploading of content and information to the Store, and the tracking of orders.
Restrictions. Seller shall not (a) reproduce, display, download, modify, create derivative works of or distribute the Platform or Staged Photos, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Seller; (c) permit any party, other than the then-currently authorized users to independently access the Platform; (d) use the Platform or Staged Photos in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; or (e) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
Content Uploads. Seller will not upload any Seller Content to the Platform without Guest House's prior written consent in each instance. If Seller is authorized by Guest House to upload Seller Content to the Platform, once uploaded, Seller not materially modify any Seller Content without the prior written consent of Guest House. Seller shall be responsible for any failure or delay in its uploading or updating of Seller Content. Guest House may make immaterial changes to the Seller Content: (a) for size and fit reasons; (b) to fit with Guest House's branding; or (c) to correct grammatical or other mistakes. Seller warrants that it will not upload any content or information to the Platform that is not directly related to the sale of its Goods through the Store. Seller shall ensure that all Seller Content is grammatically correct, and follows Guest House's then current style guide and Store policies. Seller hereby grants Guest House non-exclusive, fully paid up, transferable, royalty-free, worldwide right and license to copy, modify, display, perform, distribute, and otherwise use the Seller Content in connection with promotion of Guest House's business.
Staged Photos. If your Goods are used by Guest House for staging, Guest House may (but has no obligation to) provide you with photos of such Goods as staged. To the extent you receive any photos of your Goods as staged (the " Staged Photos", Guest House grants you a limited, non-exclusive, non-transferable, non-sublicenseable right and license to use the Staged Photos for your own personal use as part of your portfolio. Seller may not sell, license, transfer, or resell the Staged Photos. Seller shall not disclose any identifying details about the staged home or its owners, and shall cease use of the Staged Photos upon Guest House's request.
Order Fulfillment
Order Fulfillment Requirements. Seller shall deliver the Goods in the quantities and within the estimated lead times as agreed in writing by the parties. Seller will maintain stock of adequate inventories of Goods so as to minimize lead times. If Seller does not or will not be able to deliver conforming Goods within the specified lead times, Guest House reserves the right (on behalf of itself and its Customer) to cancel the Order and reject any late delivery at no cost to Guest House or Customer. All Goods shall be delivered to the address specified in the Order unless otherwise instructed by Guest House (the " Delivery Location"), which may be the address of Guest House, a Guest House staging location, or a Customer's location.Seller shall properly pack, mark and ship Goods as instructed by Guest House and otherwise in accordance with applicable law and industry standards. If applicable Seller agrees to label goods with warnings as required by California Proposition 65 and to provide Guest House with up-to-date information for all products containing chemicals addressed by California Proposition 65.
Shipping Terms. Seller shall ship Goods at Seller's expense, although Seller may pass through the actual cost of shipping to Guest House (for Guest House direct Orders) or Customer (for Customer Orders through the Store). Upon shipment of Goods, Seller shall promptly update the shipment status in the Platform, and shall input all tracking information into the Platform. Seller shall also update the Platform upon receipt of any delayed, returned, or other shipment related information. Upon request, Seller shall provide Guest House all documents requested by Guest House related to the shipment of Goods. Title to Goods passes to Guest House or Customer (as applicable) upon the earlier of (a) payment or (b) delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
Consigned Goods. Seller may, at Seller's expense, provide Guest House with certain Goods on consignment, as agreed by the parties (the " Consigned Goods"). Seller shall provide the Consigned Goods to Guest House without charge. If Guest House sells any Consigned Goods to a Customer, Guest House shall pay Seller the Commission as set forth in this Agreement. Guest House may determine the resale price for Consigned Goods in its sole discretion, and shall not have any obligation to sell any Consigned Goods if such goods are damaged or otherwise in unsaleable condition as determined by Guest House. Seller shall be responsible for all damage and risk of loss to the Consigned Goods, and shall be responsible for obtaining and maintaining insurance on all Consigned Goods, and shall name Guest House as an additional insured on its insurance policies. Seller shall be responsible for all shipping costs associated with Consigned Goods. Seller may request the return of Consigned Goods at any time, although Guest House shall not have any obligation to return any actively staged Consigned Goods until such time as such Consigned Goods are no longer actively staged. Guest House may direct Seller to pick up the Consigned Goods at any time if Guest House no longer wishes to consign such Consigned Goods, and Seller shall promptly comply. If Seller does not retrieve such Consigned Goods within a timely manner, Guest House may charge Seller storage and/or disposal fees. All costs associated with the pick-up, return, or disposal of Consigned Goods shall be at Seller's expense.
Cancellation Fee. If Seller is unable to fulfil any order for Goods within the time frames set forth herein for any reason, Seller shall pay Guest House a cancellation fee equal to three percent (3%) of the total price of the Goods (the " Cancellation Fee"). Guest House may deduct any Cancellation Fees owed to it from any fees otherwise due to Seller. If no fees are due to Seller, Seller shall pay Guest House any cancellation fees within fifteen (15) days of request.
Inspection and Rejection of Nonconforming Goods. In addition to any other rights of return or cancellation, Guest House, or Customer, as applicable, has the right to inspect the Goods within ten days after delivery, and may reject all or any portion of the Goods if it respectively determines the Goods are nonconforming or defective. If Guest House rejects any portion of the Goods, Guest House has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety and receive a refund of the Order amount in its entirety; or (b) reject the Goods and require replacement of the rejected Goods. If Guest House requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. Any inspection or other action by Guest House under this Section shall not reduce or otherwise affect Seller's obligations under this Agreement, and Guest House shall have the right to conduct further inspections after Seller has carried out its remedial actions. Customer shall have the right to return the Goods as set forth in the Product Data (the " Customer Return Policies") and Seller shall promptly comply with its Customer Return Policies.
Data and Assets Seller agrees to provide up-to-date, accurate, and complete data to Guest House, in a format and at a frequency specified by Guest House. The data shall state current pricing and availability by SKU, return policies, payment policies and such other product information, metrics and figures as requested by Guest House (the " Product Data"). Seller may include digital assets regarding Products, or other visual content intended for display by Guest House on Guest House's website, such as photographs, images, or representations of Products (" Digital** Assets ", and together with the Product Data, the " Seller Content**"). Seller shall ensure that the Seller Content is complete, accurate, and current.
Pricing. Guest House and its Customers may purchase the Goods from Seller at the prices set forth in each Order, which shall not exceed the pricing (if any) listed on the Store or Seller website. Pricing and SKUs are subject to periodic review and amendment by the parties. Except where set forth on the Order, the Prices include all packaging, insurance, shipping, customs duties and fees and applicable taxes.
Payment Terms
Payment Terms for Guest House Orders. For orders placed by Guest House itself, Guest House will provide a valid credit card number with each order as payment for the Goods. Seller agrees to charge the specified credit card as part of the Order placement process and refund that card in the event of returns. Seller shall promptly ship the Goods after order placement. For Returns, as specified below, in the event that Guest House has made payment to Seller for Goods that are later returned, Seller shall fully refund Guest House within ten (10) days of receiving the Returns. If at any time Seller is unable to fulfill an order for any reason, it shall pay Guest House three percent (3%) of the amount of such order as a termination fee as consideration for Seller's time and expense incurred processing such cancellation.
Payment Terms for Customer Orders. To the extent Customers make any purchases of Goods (including Consigned Goods) through the Store, Guest House (or its third party providers) shall collect all fees and costs for the Goods (the " Customer Fees") and shipping. Seller shall promptly ship the Goods after order placement. Guest House shall remit the amounts due to Seller within 15 days of delivery of the applicable Goods, less Guest House's Commission. For all sales of Goods (including Consigned Goods) to Customers, Guest House shall charge Seller a commission of thirty percent (30%) of Customer Fees (the "Commission") as consideration for the services provided by Guest House hereunder. For clarity, and notwithstanding anything to the contrary herein, if Guest House purchases any Goods directly under Section 7(a), it shall not have any obligation to pay Seller any fees or other amounts if Guest House later sells, loans, lends, or otherwise gives such Goods to a Customer or other third party. Additionally, in no event shall Seller be entitled to receive any amounts associated with the services Guest House provides to its customers, including without limitation any staging services. The only fees that Seller is entitled to are the Customer Fees and shipping for the initial sale of the Good to a Customer.
Generally. To the extent that a Customer returns any Goods including Consigned Goods) that Seller has already been paid for, Seller shall promptly refund the Customer Fees to Guest House. Any late payments not made by Seller hereunder are subject to interest in the amount of 1.5% per month (or less if required by law) as well as Guest House's costs of collection, including attorneys' fees. Seller shall be responsible for any chargebacks, refunds, credits, or other disputed payment, unless arising out of Guest House's gross negligence. If at any time Seller is unable to fulfill an order for any reason, it shall pay Guest House three percent (3%) of the amount of such order as a termination fee as consideration for Seller's time and expense incurred processing such cancellation.
Customer Support; Returns. Seller will provide customer support to Guest House and Customers in a manner consistent with industry standards and Seller's best practices. Without limiting the other provisions of this Section, except as set forth in the Customer Return Policies Seller will offer a minimum 30-day return policy and process such returns of goods (the " Returns"). Seller will promptly replace any Goods (including Consigned Goods) returned due to manufacture defects and/or damage. Seller will be responsible for all shipping charges associated with the return of the defective Goods and the delivery of the replacement Goods. A return authorization form (RMA) will be generated by Seller within 2 business days of notification of the return by Guest House or the applicable Customer. Seller will promptly notify Guest House of any Customer returns.
Warranties. Additionally, Seller warrants to Guest House and the Customer that, for a period ninety (90) days from the delivery date that all Goods will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Guest House; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; and e) be free and clear of all liens, security interests, or other encumbrances. Seller additionally warrants to Guest House and Customer that, except for Consigned Goods, all Goods will be in new and unused condition, and all Goods will conform to their description. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Guest House. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Guest House's discovery of the noncompliance of the Goods with the foregoing warranties. If Guest House gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Guest House. Seller warrants that (i) Seller has all necessary right, title, and interest in and to the data it provides, including any Seller Content, to Guest House and allow Guest House to use the Seller Content in the performance of this Agreement, (ii) Seller Content does not infringe or misappropriate any third-party's rights; and (iii) the Seller Content is original works of Seller. Guest House makes no, and disclaims all, warranties (express, implied, statutory, or otherwise) about the Platform and the Staged Photos, and the Platform and Staged Photos are provided as is and as available.
Publicity and Advertising. Seller shall not send unsolicited emails, direct mail, and advertisements to, or otherwise retarget or solicit the Customer. Seller shall not put any Customer email, address, phone number, or other personallyidentifiable information about a Customer ("Customer Information") into any Seller database or CRM systems and shall not transfer, distribute, license, sell, or provide any Customer Information to any third party. Seller may only use the Customer Information as necessary to fulfil orders made through the Store, and for no other purpose. Seller shall not reference the names, logos, trademarks or service marks of Guest House in marketing, advertising or other publications without the prior written consent of Guest House. Guest House shall not use the names, logos, trademarks or service marks of Seller without Seller's prior written consent. Seller hereby consents to Guest House's use and reference to Seller and any Seller-provided product listings as reasonably needed to promote the Goods and Store hereunder.
Compliance with Law. Guest House shall perform its obligations under this Agreement in accordance with applicable laws and regulations. Seller represents and warrants that Seller and the Goods are in compliance with and shall comply with all laws and regulations applicable to the Goods. Seller shall maintain in effect any licenses, permissions, authorizations, consents and permits that it may need to carry out its obligations under this Agreement. Seller assumes sole liability for, and shall promptly notify Guest House of, any product recalls or other legal matters affecting Goods ordered or delivered.
Indemnification; Indemnification Procedure. Seller shall indemnify, defend and hold harmless Guest House and its vendors, partners, suppliers, end customers (including Customers) against any and all losses, claims, damages, expenses, fees, settlements, penalties and attorneys' fees arising out of or resulting from any claim (i) relating to the Goods or Seller Content provided by Seller to Guest House, and/or (ii) the willful misconduct and/or intentional or negligent acts or omissions by Seller its employees, subcontractors or agents, and/or (iii) that the Goods or Seller Content violate or infringe upon any United States or foreign patent, copyright, trade secret or other intellectual property rights of any third party, or breach of any contract by which Seller is bound; (iv) or relating to Seller's breach of this Agreement. The provisions of this Section shall survive termination of the Agreement.
Term & Termination. This Agreement will commence on the Effective Date and, unless sooner terminated as set forth herein, will continue for a period of one (1) year, at which point it will continue to renew for successive one (1) year periods unless either party provides written notice of its intent not to renew at least thirty (30) days before the end of the then-current term. Either party may terminate the Agreement for its convenience, but not any outstanding Orders (other than rejected goods), upon 60 days' Notice to the other party. Guest House may cancel any Order after it is placed in accordance with this Agreement and further, at a minimum, Guest House may cancel any Order at no cost at any time before the later of (a) 24 hours from Order placement or (b) the shipment of the Goods (the start of production of the Goods ordered for Goods requiring production). If Guest House terminates this Agreement for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted by Guest House prior to the termination. Guest House will return any Consigned Goods upon termination of the Agreement, although it shall not be obligated to return any Consigned Goods that are actively being staged until such Consigned Goods are no longer actively staged. The confidentiality, indemnity, governing law/venue and Notices terms of this Agreement will survive termination of this Agreement for any reason, in addition to any obligations to make payments of amounts that are due under this Agreement and any other provisions which, by their express terms, survive termination.
Confidential Information. All non-public information of a party, such as specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by one party to the other party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement shall be treated confidentially. The receiving party may use such information solely for the purpose of performing this Agreement. Upon the disclosing party's request, the receiving party shall promptly return all documents and other materials received from the disclosing party. The disclosing party shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party.
Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other party at its address set forth on the Platform (or to such other address that the receiving party may designate from time to time in accordance with this Section); provided that a copy of all such communications from Seller shall also be sent to sellers@guesthouseshop.com. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid).
Severability. It is the intention of the parties that the provisions of this Agreement will be enforceable to the fullest extent permissible under applicable laws, and that the unenforceability of any provisions under such laws will not render unenforceable, or impair, the remainder of the Agreement. If any provisions hereof are deemed invalid or unenforceable, either in whole or in part, this Agreement will be deemed amended to delete or to modify, as necessary, the offending provisions and to alter the bounds thereof in order to render it valid and enforceable.
Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
Assignment. Neither party shall assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of the other party, however, notwithstanding the foregoing, Guest House may assign or transfer this Agreement to an affiliate or to a successor-in-interest in connection with a merger or acquisition. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or transfer shall relieve the Seller of any of its obligations hereunder. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
Governing Law. Any question, claim or controversy arising out of or related to this Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Colorado (without giving effect to principles of conflicts of laws) and shall be exclusively heard in the federal and state courts in the State of Colorado.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Relationship of the parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.