HomeMy WebLinkAboutEx 39 QVC Agreement.pdfTF 108402CONFIDENTIAL021.001QVC,INC. DROP SHIP AGREEMENT This DROP SHJP AGREEMENT is entered into on this jJ_ day of May, 2016 (the "Effective Date"), between QVC, INC. ("QVC"), a Delaware corporation with an address at Studio Park, 1200 Wilson Drive, West Chester, Pennsylvania 19380, and TRACFONE WIRELESS, INC. ("Vendor"), a Delaware corporation with an address at 9700 NW 112 Avenue, Miami, Florida 33178. A. QVC markets and promotes consumer products and/or services through various means and media, including, without limitation, ce11ain televised and other electronic shopping services. B. Vendor manufactures, sells, and/or distributes certain products on a drop ship basis. C. Vendor desires to provide such products for marketing and promotion by QVC tlu·ough certain televised and/or other electronic shopping services developed or to be developed by QVC and through other means and media (QVC's marketing and promotion hereunder sometimes referred to as "Promotional Activities"). D. QVC desires that, to the extent that Vendor provides such products, Vendor does so in accordance with this Agreement so that, among other things, QVC's reputation for customer service and timely delivery of quality products is preserved. E. QVC and Vendor desire to set fmih the terms and conditions which govern the supply by Vendor of products on a drop ship basis. In consideration or the mutual promises in the Agreement, QVC and Vendor, intending to be legally bound, agree as follows: I. As used in the Agreement, the following terms shall have the meanings described below: a. "Affiliate" of a pmty means any entity controlling, controlled by or under common control with such party. b. "Agreement" means this Drop Ship Agreement and all Exhibits and Schedules attached to this Drop Ship Agreement, including, without limitation, the Master Terms (as defmed below) and any and all documents, exhibits and schedules refen·ed to in this Drop Ship A!:,rreement or in any such documents, exhibits or schedules. c. "Delivery Instructions" means any written or electronic instructions issued by QVC to Vendor under the Agreement. d. "Master Terms" mean the Drop Ship Agreement Master Terms and Conditions attached to this Drop Shop Agreement as Exhibit "A". e. "Merchandise" shall mean all products and/or services offered for sale by Vendor generally as set fmih and described on Exhibit "B" attached hereto. If Vendor intends to cease sales of any particular item of Merchandise promoted and marketed by QVC pursuant to the Agreement, Vendor shall provide QVC with at least thirty (30) days prior written notice of the unavailability of such item(s) ofMerchandise. f. "Promotional Material" means any promotional, advertising or similar material supplied by Vendor or Vendor's authorized agent for use in connection with the Merchandise. g. "QVC Service" shall mean any televised or other electronic shopping service owned, operated or controlled by QVC or any of its Affiliates whereby a person or entity offers any product or service for sale. 2. Vendor hereby grants to QVC and its Affiliates the following license, rights, and privileges: Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108403CONFIDENTIAL021.002a. The non-exclusive right to market and promote the sale of the Merchandise by means of any QVC Service or through any other means and media. b. The right to use, perform, play, display, synchronize, and/or demonstrate, as applicable, the Merchandise, its contents, and/or any Promotional Material with any QVC Service or through any other means and media. c. The right to use, in print, graphic, electronic or other form, any and all trade names, trademarks, service marks, patents and copyrights registered, owned or used by or licensed to Vendor in connection with the Merchandise or developed by QVC or Vendor in connection with the Merchandise. d. The right to use, in promoting the sale of the Merchandise, the names, images, likenesses, voices and/or biographies of any individuals performing in or otherwise associated with the production of the Merchandise as contained in the Merchandise, its contents and/or any Promotional Material. e. QVC acknowledges that, with respect to the intellectual property Vendor has authorized QVC to use pursuant to this Agreement, Vendor's authorization does not convey to QVC any ownership interest in the intellectual property and the good will associated therewith. Nothing in this Agreement shall be construed as an assignment or grant by Vendor to QVC of any right, title, or interest in or to Vendor's intellectual property, except as specifically provided for in this Agreement. 3. a. Orders of Merchandise under the Agreement shall be initiated by QVC's issuance of Delivery Instructions. Upon receipt of Delivery Instructions for Merchandise, Vendor agrees to ship such Merchandise, as listed on and in the quantity specified in the Delivery Instructions, directly to the purchasers in accordance with the terms of the Agreement, including, without limitation, the Master Terms and the Delivery Instructions. The Delivery Instructions shall describe the Merchandise ordered and the quantities thereof, shall set forth prices, shall provide shipping instructions, and such other terms and conditions as are applicable to the transaction. In the event of an express inconsistency between the terms of this Drop Ship Agreement and the Master Terms, the terms of this Drop Ship Agreement shall control. In the event of an express inconsistency between the terms of this Drop Ship Agreement and the Delivery Instructions, the Delivery Instructions shall control. Reimbursement by QVC for shipping and handling charges incurred by Vendor in shipping Merchandise to purchasers, if any, shall be made in accordance with Section 4.C. of the Master Terms and Exhibit "C" to this Drop Ship Agreement. b. QVC may change the Master Terms by giving Vendor prior written or electronic notice no less than sixty (60) days before the effective date of such change. Such changes shall be effective on the date specified in the notice. If Vendor does not accept a change, Vendor must inform QVC in writing before the effective date. If Vendor sends such written notice for receipt by QVC before the effective date, any such change will not apply to Vendor. Absent QVC's receipt of such notice, Vendor shall be bound by the change/revised Master Terms. Notwithstanding the foregoing, if the Agreement is renewed pursuant to paragraph 4 of this Drop Ship Agreement, then all changes not already effective shall become effective as of the commencement date of the renewal term immediately following the effective date of the change, regardless of any notice from Vendor. 4. The initial term ("Initial Term") of the Agreement shall be for a period of one (I) year commencing on the date of this Drop Ship Agreement, and shall thereafter automatically renew for additional consecutive one-year terms, unless and until either party provides the other with written notice of termination at least ninety (90) days prior to the expiration of the Initial Te1m or any renewal term (the Initial Term and any renewal terms, if any, collectively, the "Term"). 5. The exact items of Merchandise and their unit cost(s) (i.e., the cost remitted by QVC to Vendor) shall be mutually agreed to by QVC and Vendor, and confirmed in writing. Changes to the previously agreed upon unit cost(s) shall be mutually agreed to by QVC and Vendor and confumed in writing and, unless othe1wise provided in such writing, (i) shall take effect no earlier than thirty (30) days from receipt by the non-requesting party of the writing requesting the change and (li) shall not affect Delivery Instructions issued prior to the effectiveness of such change. QVC shall remit to Vendor an amount equal to "Net Sales" of Merchandise as provided in the Master Terms. -2-Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108404CONFIDENTIAL021.003~·· 6. QVC makes no representations regarding the number of times, if any, that Merchandise will be marketed or promoted by QVC or the amount of Merchandise which will be purchased by consumers. 7. Vendor shall, at its own cost and expense, cooperate with and assist QVC and use its best efforts to promote the sale and distribution of the Merchandise on any QVC Service and through any other means and media. Without limiting the generality ofthe foregoing, Vendor shall: a. Supply QVC with Promotional Material and any technical or other manuals or other information relating to the Merchandise; b. Designate an information coordinator and at least one alternate (in either case, "Account Representative") familiar with the promotion, sale and use of the Merchandise. The Account Representative shall serve as QVC's contact for ordering Merchandise and otherwise fulfilling Vendor's obligations under the Agreement; and c. Provide QVC with inventory updates of Merchandise, specifying the quantities available for sale through the marketing and promotion activities conducted by QVC, as requested from time to time by QVC. In the event that Vendor anticipates any shortages of Merchandise, Vendor shall immediately notify QVC orally, followed by prompt written confu·mation. 8. Vendor shall not issue any publicity or press release regarding QVC, the Agreement or QVC's activities hereunder, without the prior written approval and consent of QVC to such release. Vendor shall not use any trade name, trademark, service mark, patent or copyright belonging to QVC, without the prior written consent of QVC. 9. Except as expressly provided in the Agreement, the Agreement may not be varied, modified, or waived unless in writing signed by the parties. No modification shall be effected by QVC's acknowledgment or acceptance of any invoices, shipping documents or other documents containing terms or conditions at variance with or in addition to those set forth in the Agreement. No delay or failure on the part of any party hereto in exercising any right or remedy under the Agreement, and no partial or single exercise thereot: shall constitute a waiver of such right or remedy or of any other right or remedy. The rights and remedies provided in the Agreement shall be in addition to, and not in lieu of, any rights or remedies provided under applicable law. 10. The Agreement and the rights and obligations hereunder are not assignable by Vendor without the prior written consent ofQVC, and any such attempted assignment shall be null and void at the election ofQVC. 11. The Agreement shall be governed and construed according to the substantive laws of the Commonwealth of Pennsylvania. Each of QVC and Vendor hereby consents to the exclusive jurisdiction of the state courts of the Commonwealth of Pennsylvania, Chester County, and the United States Courts for the Eastern District of Pennsylvania in all matters arising out of the Agreement. Vendor irrevocably consents to service of process by cettified mail, return receipt requested, to its registered agent. If for any reason QVC is unable to effectuate service of process through Vendor's registered agent, Vendor irrevocably consents to service of process by certified mail, return receipt requested, to its address set fmth in paragraph 14 below. 12. The Agreement supersedes all prior communications between the parties, whether oral or written, and constitutes the entire understanding of the parties with respect to the subject matter contained in the Agreement. The patties acknowledge and agree that any agreement between QVC and Vendor governing the promotion of any merchandise (including, without limitation, the Merchandise) via QVC's televised programs (including, without limitation, any provisions governing exclusivity or non-competition contained in such agreements) shall remain in full force and effect. As of the Effective Date, this Agreement supersedes the prior agreement between the parties dated Janumy 13,2016. 13. If any term or condition of the Agreement or the application thereof shall be illegal, invalid or unenforceable, all other provisions hereof shall continue in full force and effect as if the illegal, invalid or unenforceable provision were not a part of the Agreement. 14. Except for the Delivery Instructions, supplying of the inventory levels, and shipment confu·mation, which may be electronically transmitted or transmitted via telefax, all notices and other communications provided for under the -3-Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108405CONFIDENTIAL021.004Agreement shall be in writing and shall be sent via ce1tified mail, return receipt requested, postage prepaid, or via reputable overnight carrier, postage prepaid. Such notices and communications shall be addressed to the parties at their respective addresses set forth below or such other address as either party may by notice as aforesaid designate: lftoQVC: With a copy to: If to Vendor: With a copy to: QVC,lnc. 1200 Wilson Drive West Chester, PA 19380 Attn: Senior Vice President, Merchandising Fax: (484) 701-1000 QVC, Inc. 1200 Wilson Drive West Chester, P A 193 80 Attn: General Counsel Fax: (484) 701-1021 TracFone Wireless, Inc. 9700 NW 112 A venue Miami, FL 33178 Attn: Senior Officer National Retail Sales Fax: TracFone Wireless, Inc. 9700 NW 112 Avenue Miami, FL 33178 Attn: Legal Department Email: tracfonelegal@tracfone.com 15. Nothing in the Agreement shall be construed to create a partnership between the patties to the Agreement and neither party shall have the power to obligate or bind the other in any manner. Each of the parties hereto agrees that in performing their duties under the Agreement, they shall be in the position of independent contractors. 16. Taxes. a) As pa1t of the Promotional Activities, QVC shall collect from purchasers of Merchandise all sales and any other applicable taxes, surcharges, and fees (collectively, the "Tax" or "Taxes") on behalf of Vendor and QVC shall pass the Taxes to Vendor so that Vendor may remit the Taxes to the appropriate authorities in a mutually agreed format. In order for QVC to accurately collect Taxes on behalf of Vendor, the parties agree that QVC shall utilize a nationally recognized tax solutions software (the "Software" and the Tax rates that the Software generates, the "Rate List"). QVC represents and warrants that it shall update the Rate List by the first day of every month and shall collect Taxes in accordance with the Rate List and, after any applicable Rate List Notice Period (as defined in subparagraph b) below), any applicable Rate List Modification (as defined in and permitted by subparagraph b) below). b) Vendor may update or modify the one or more rates set forth on the Rate List (a "Rate List Modification") in its sole discretion upon seven ((7) days' prior written notice for a Minor Rate List Modification and thirty (30) days' prior written notice for a Major Rate List Modification (Vendor shall send such notice in accordance with paragraph 14 and also via email to the following QVC personnel: scott.m.gandert@qvc.com and terry.halteman@gvc.com) to QVC (the "Rate List Notice Period") and QVC agrees that it will implement and charge the most cwTent Taxes by expiration of the applicable Rate List Notice Period based on the most current Rate List as amended by any applicable Rate List Modification. Vendor shall indemnifY, defend, and hold hal'mless QVC from any and all charges, losses and/or other claims that it incurs as a result of its collection of Taxes in compliance with any the Rate List Modification. For purposes of this Agreement, a "Minor Rate List Modification" is one requiring changes to five or fewer Data Rows in connection with any applicable Rate List, a "Major Rate List Medication" is one requiring changes to more than five Data Rows in connection with any applicable Rate List and a "Data Row" is a single row of data contained on a Rate List containing information such as: country; state; county; city; district name; tax area ID; amount; total tax; and total rate. QVC shall have no -4-Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108406CONFIDENTIAL021.005obligation to effectuate more than one Minor Rate List Modification and one Major Rate List Modification in any calendar month. 17. Net Sales of Merchandise and Audit Rights. QVC shall remit Net Sales of Merchandise as defined in and in accordance with the Master Terms along with documents in support of the same (Net Sales of Merchandise and supporting documents collectively, the "QVC Statement"). Each QVC Statement shall become binding on Vendor and Vendor shall, absent fraud on the part of QVC, neither have nor make any claim against QVC with respect to such QVC Statement, unless Vendor shall advise QVC, in writing, of the specific basis of such claim within one ( 1) year after the date Vendor receives the applicable QVC Statement. Vendor may, not more than once during any calendar year, but only once with respect to any QVC Statement rendered hereunder, audit QVC's books and records related to the Merchandise for the purpose of dete1mining the accuracy of the same. If Vendor wishes to perform any such audit, Vendor will be required to notifY QVC at least thirty (30) days before the date when Vendor plans to commence such audit. Vendor shall not be entitled to examine any records which do not report sales or disposition of Merchandise. All audits shall be made during regular business hours upon reasonable notice, and shall be conducted on Vendor's behalf by an independent Certified Public Accountant or other professional representative of Vendor. Each examination shall be made at Vendor's own expense at QVC's regular place of business where the books and records are maintained; provided, however, that if any such audit reveals an under payment of Net Sales of Merchandise of greater than five percent (5%), QVC shall pay all such past due amounts plus reasonable expenses of Vendor's audit including reasonable professional fees. 18. Service Subscriptions. Vendor represents that it will administer any and all of the services associated with the use of the Merchandise and will have full responsibility for fulfilling any and all of the obligations to purchasers with regard to such services including all pre-paid minutes that arrive with the Merchandise and are subsequently redeemed by the purchaser ("Minutes") and QVC will not be a party thereto and will have no obligations thereunder. following any expiration or termination ofthis Agreement, Vendor will continue to administer, and will honor all of its obligations with regard to any Minutes. IN WITNESS WHEREOF, the parties have duly executed the Agreement as ofthe date fll'st written above. ::C, IN;(!!# :~CFO LESS, INC. Tit!" if .2 L ~ y '*''< Tit!" (2>( L [NOTE: Must be signed by a Vice President or above if a Attachments (Exhibits "A", "B" and "C") 175722.25 corporation; a General Partner if a partnership; the Principal if a sole proprietorship; or equivalent authorized signatory if an LLC or LLP] -5-Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108407CONFIDENTIAL021.006EXHIBIT"A" MASTER TERMS AND CONDITIONS BY EXECUTION OF THE ATTACHED DROP SHIP AGREEMENT, VENDOR REPRESENTS AND AGREES AS FOLLOWS: 1. Merchandise furnished under the Drop Ship Agreement, including the Master Terms and Conditions ("Drop Ship Agreement") ("Merchandise") shall be shipped by Vendor, directly to the purchasers, In accordance with (a) the Drop Ship Agreement, (b) ave, Inc. ("aVC")'s Drop Ship Operational Guidelines (the "Guidelines"), which are fully Incorporated herein by reference, and (c) QVC's written or electronic Instructions to Vendor ("Delivery Instructions"). To the extent required for individual shipments directly to the purchasers, partial shipments under the Drop Ship Agreement are hereby authorized. Partial shipments shall not cause Vendor's obligations to become severable. Vendor shall bear the risk of loss to the Merchandise until deliver~d to and received by the purchasers, at which time title shall pass directly from Vendor to the purchasers. At no time will ave take title to the Merchandise. 2. Time Is of the essence, Within forty-eight (48) hours of Vendor's receipt of Delivery Instructions from ave (excluding Saturdays and Sundays) or by such other date as may be specified in the Delivery Instructions, Vendor shall (a) tender conforming Merchandise to the carrier and (b) forward electronic shipment confirmation to aVC's designated drop ship coordinator. Notwithstanding the foregoing, Vendor agrees that it will ship via an Expedited Shipping Method (as hereinafter defined) all orders from ave customers who have selected an Expedited Shipping Method on the same day the Delivery Instructions for such orders are received by Vendor, provided that such Delivery Instructions are received by Vendor prior to 1:30 p.m. (Eastern Time). For such orders, Vendor shall, on the same day as shipment, forward electronic shipment confirmation to avc•s designated drop ship coordinator. For orders from ave customers who have selected an Expedited Shipping Method where the Delivery Instructions are received by Vendor on or after 1:30 p.m. (Eastern Time), Vendor agrees to ship the order, via an Expedited Shipping Method, and forward the electronic shipment confirmation to aVC's designated drop ship coordinator, within twenty-four (24) hours of Vendor's receipt of Delivery Instructions for such order. If Vendor falls or refuses to perform any of its obligations under the Expedited Shipping Method program, In addition to any other rights or remedies ave may have, ave may immediately terminate the Expedited Shipping Method program for Vendor's Merchandise. For purposes of this Section, "Expedited Shipping Method" shall mean shipping via a next day delivery or second day delivery service, as requested by QVC's customers and set forth in the Delivery Instructions. 3. Merchandise shall be shipped in such manner, by such method, and at such times as ave shall determine, as set forth in the Drop Ship Agreement, the Guidelines and the Delivery Instructions. Shipping charges (Including insurance) with respect to shipments hereunder shall be prepaid by Vendor, unless ave, In Its sole discretion, requires Vendor to utilize the shipper Identification number of any courier designated by ave, In which event ave shall be billed directly by such courier. ave shall reimburse Vendor for any prepaid shipping charges only in accordance with Section 4.0. below. 4.A. ave shall remit to Vendor an amount equal to Net Sales of Merchandise as provided herein. "Net Sales" shall mean Vendor's gross sales pursuant to the Drop Ship Agreement (calculated by multiplying the quantity of units of Merchandise sold and confirmed as shipped to the purchasers, by the unit price mutually agreed to by QVC and Vendor in writing), less the aPiatforms Deduction (as defined in Section 4.8. below) and adjusted for any credits, debits, purchaser returns, refunds, allowances and amounts previously remitted by ave for Merchandise shipped to purchasers, but not received by such purchasers. Such calculation of "Net Sales" shall exclude shipping and handling charges, surcharges or fees collected from purchasers. Remittances hereunder shall be due forty-five (45) days from the Tuesday after the date on which ave shall have received shipping confirmatlon(s) from Vendor. Vendor's failure to comply with the terms and conditions set forth herein or In the Guidelines or the Delivery Instructions, or In avc•s regulations, avc•s supplier code of conduct and ave's return policies, in each case, as In effect from time to time (collectively, the "Regulations"), or any applicable standards provided by ave to Vendor from time to time, including, without limitation, QVC's standards regarding the use of "conflict minerals" as defined in the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. § 5301 et seq.) (collectively, the "Standards"), which Regulations and Standards are Incorporated herein by reference, may, at QVC's option, result in the Imposition of a charge as set forth In such documents. In addition, any breach by Vendor of the provisions of Section 7(d) hereof shall result In the Imposition of charges upon Vendor for all costs incurred by ave as a result of such breach (including, without limitation, the -6-cost of customer refunds and all administrative costs). Any charges assessed as set forth herein may be taken by QVe as a credit against all amounts due or which may become due to Vendor. Vendor acknowledges that current copies of the Guidelines, Regulations and Standards may be accessed on avc•s vendor portal located at https://vendorportal.qvc.com/my.policy and are available to Vendor upon written request to QVC. aVO's obligation to remit amounts to Vendor for Vendor's Net Sales hereunder shall be conditioned upon the sale and shipment of Merchandise to the purchasers In accordance with the Drop Ship Agreement and upon the receipt by ave of written confirmation of such sale and shipment. 4.B. In addition to any other charges due to ave from Vendor under the Drop Ship Agreement, ave will recoup from Vendor a charge equal to 0. 75% of the ave Order price for each unit of such Merchandise shipped to avc•s customer(s) (each, a "aPiatforms Deduction"). aPiatforms Deductions will be recouped by ave regardless of the subsequent disposition of the Merchandise including, without limitation, any and all returns of such Merchandise to Vendor for any reason, without credit or refund to Vendor. 4.C. At such time as remittances to Vendor are made under Section 4.A., above, ave agrees to remit as sole reimbursement for shipping and handling charges Incurred by Vendor In shipping Merchandise to the purchasers, those amounts, if any, set forth on Exhibit "C" to the Drop Ship Agreement. Notwithstanding the foregoing, In the event avc·s Delivery Instructions shall provide for courier shipment, since ave will be billed directly by such courier, ave shall have no obligation to pay any monies to Vendor on account of the shipment of Merchandise covered by such Delivery Instructions. 5. Vendor, at its sole expense, shall maintain for the life of the Merchandise, with carriers acceptable to ave, a comprehensive general liability policy, Including full product liability, infringement and advertising Injury coverage, in the amounts set forth in the Guidelines, Regulations and Standards, unless otherwise specified in the Drop Ship Agreement, Including broad form Vendor's coverage in favor of ave, and naming ave as an additional Insured. Within seven (7) days of execution of the Drop Ship Agreement by Vendor, Vendor shall provide ave with a certificate of insurance evidencing that such insurance coverage Is in place and naming ave as an additional insured. If Vendor does not provide such certificate of insurance within the aforementioned time period, ave may terminate the Drop Ship Agreement or any Delivery Instructions, at QVC's option, with no further liability. If, for any reason, any such policies are changed, modified or canceled, Vendor shall immediately notify QVC in writing. 6. For purposes of the Drop Ship Agreement, "Confidential Information" shall mean the Drop Ship Agreement and any other agreement between ave and Vendor, all information In whatever form transmitted relating to the past, present or future business affairs, Including, without limitation, the sale of merchandise and/or services, actual and prospective purchaser lists and other purchaser information, and research, development, operations, security, broadcasting, merchandising, marketing, distribution, financial, programming and data processing Information of ave or another party whose information ave has in its possession under obligations of confidentiality, which is disclosed by QVC, its subsidiaries, affiliates, employees, agents, officers or directors to Vendor or which Is produced or developed during the working relationship between the parties. Confidential Information shall not include any information of ave that Is lawfully required to be disclosed by Vendor to any governmental agency or Is otherwise required to be disclosed by law, provided that, before making such disclosure, Vendor shall give ave an adequate opportunity to interpose an objection or take action to assure confidential handling of such Information. Vendor shall not disclose any Confidential Information to any person or entity except employees of Vendor and the applicable carrier for delivery purposes as required In the performance of their employment-related duties In connection with the Drop Ship Agreement, nor will Vendor use or permit any other person or entity to use the Confidential Information for any purpose other than those purposes expressly contemplated herein. Vendor shall not use any Information obtained from QVC's customers (e.g., through warranty cards or otherwise) to offer for sale to such customers any goods or services. Vendor shall not include with any Merchandise any information that promotes, or would enable aVC's customers to acquire, either directly or indirectly, any additional merchandise from persons other than ave without first obtaining avc•s written consent. In the event of a breach or threatened breach of this Section by Vendor, ave shall be entitled to obtain from any court of competent jurisdiction, preliminary and permanent injunctive relief, including, without limitation, temporary restraining orders, which remedy shall be cumulative and In addition to any other rights and remedies to which ave may be entitled. Vendor agrees that the Confidential Information referred to In this Section is valuable and unique and that Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108408CONFIDENTIAL021.007disclosure or use thereof in breach of this Section will result in immediate Irreparable injury to QVC. Vendor shall inform those persons or entitles having access or exposure to Confidential Information hereunder, of Vendor's obligations under this Section. 7. In addition to and without prejudice to any and all other warranties, express or implied by law, Vendor represents, warrants and covenants to QVC that: (a) Vendor possesses all licenses, permits, rights, powers and consents required to enter into and perform the Drop Ship Agreement, to sell the Merchandise and to grant to QVC the rights granted in the Drop Ship Agreement; (b) Vendor's performance hereunder does not violate any agreement, instrument, judgment, order or award of any court or arbitrator; (c) all Merchandise furnished under the Drop Ship Agreement, Including the production, sale, packaging, labeling, safety, testing, importation and transportation thereof, and all representations, advertising, prices, and allowances, discounts or other benefits made, offered or authorized by Vendor In connection therewith, shall at all times comply with all applicable federal, state, local, industry and foreign statutes, laws, rules, regulations and orders, standards and guidelines (collectively, "Laws"); (d) all claims concerning the Merchandise made by Vendor and its agents are, and will be, true and correct at the time such claims are made and supported by data which comply with applicable Laws; (e) where applicable, reasonable and representative tests as prescribed by Laws or governmental authorities have been performed or will be performed before shipment from Vendor to the purchasers; (f) all Merchandise furnished hereunder shall be new, first quality merchandise and conform to ali representations by Vendor, instructions, specifications, and samples, shall be free from ali defects (including latent defects) in workmanship, material and design, and shall not be reworked, rebuilt or refurbished merchandise; (g) all manufacturers' warranties are effective and enforceable by both QVC and the purchasers; (h) ail trade names, trademarks, trade dress, service marks, designs, logos, patents, copyrights and/or other intellectual property rights (collectively, the "IP Rights") which are part of or appear in connection with the Merchandise and/or any promotional, advertising or similar material supplied by Vendor or Vendor's authorized agent for use in connection with such Merchandise, including promotional materials on Vendor's website(s) ("Promotional Material"), and/or any component thereof, are valid and genuine, and the sale, promotion, marketing, use and performance of the Merchandise, andlor Promotional Material, and/or any component thereof, will not Infringe upon any domestic or foreign IP Rights, rights of privacy or publicity and/or any other third party rights, or cause QVC to be liable to Vendor or any third party for any additional fees, costs or expenses; (i) the title of Vendor to the Merchandise is good and free and clear of all encumbrances and liens, and Its transfer from Vendor directly to purchasers rightful; 0) neither the Merchandise nor any component part thereof is subject to any Import quota restriction, rule or regulation preventing or forbidding the Importation, use, promotion for sale or sale of the Merchandise or any component part thereof, or any duty, tariff, or penalty In connection therewith, eKcept as previously disclosed In writing by Vendor to QVC; (k) the Merchandise and similar goods are not, and have not been, subject to actual or alleged product liability claims, and Vendor is not aware of any facts or circumstances that could reasonably be expected to give rise to any such claims, except as disclosed to QVC in writing; (I) intentionally omitted; and (m) at QVC's request, Vendor shall supply, at Vendor's sole expense, a product spokesperson subject to reasonable availability. Vendor agrees to provide QVC with any and all documents requested or required by QVC at any time and from time to time to support the representations, warranties and covenants herein contained. In the event QVC reasonably determines that any Merchandise contains any defect and/or violates any Laws, QVC may, in its sole discretion, subject to applicable law, determine (a) whether a voluntary recall or other corrective action is necessary or appropriate, (b) the scope of any such voluntary recall and/or other corrective action, and (c) the course of action to be taken (which will be at Vendor's sole expense) to effect such voluntary recall or other corrective action (including the determination as to whether QVC's customers will be offered a replacement item of Merchandise or a refund of their purchase price and shipping and handling charges), The rights of QVC in the foregoing sentence shall be in addition to any and all rights of QVC contained In this Drop Ship Agreement. 8. Vendor hereby agrees to protect, defend, hold harmless and Indemnify QVC, Its parents, subsidiaries and affiliates, and each of their respective programming and other distributors, employees, agents, officers, directors, successors and assigns, and purchasers of Merchandise furnished hereunder, from and against any and all claims, actions, suits, costs, liabilities, damages and expenses (including, without limitation, all direct, special, incidental, exemplary and consequential damages and losses of any kind (Including, without limitation, present and prospective lost profits and lost business) and reasonable attorneys' fees) based upon or resulting from: (a) any alleged or actual infringement of the IP Rights, rights of publicity or privacy and/or any other third party rights arising from the sale, promotion of the sale, use and/or performance of the Merchandise, its contents and/or the Promotional Material; (b) any alleged or actual defect In any of the Merchandise; (c) any alleged or actual injury or death to person or damage to property arising out of the furnishing, use or performance of the -7-Merchandise; (d) any breach by Vendor of any representations, warranties or covenants; (e) any alleged or actual violation by Vendor and/or the Merchandise of any applicable Laws and (f) any other breach by Vendor of the provisions of the Drop Ship Agreement. In the event QVC notifies Vendor in writing of a claim, demand, action, suit or other matter ("Claim") to which the foregoing Indemnity applies, Vendor shall provide prompt assurance of its ability to so Indemnify QVC, to QVC's reasonable satisfaction, and Vendor shall commence to defend such Claim, at its sole cost and eKpense, within five (5) days after receiving QVC's written notice. If Vendor falls to provide such assurance or falls to commence such defense within such five (5)-day period, QVC may, at its option, assume the defense or settlement of such Claim In Its own name and at Vendor's expense. All recoveries from such Claim shall belong to QVC. In the latter event, which shall be In addition to any and all other rights QVC may have at law or In equity, QVC may elect counsel to represent it, and Vendor shall be solely responsible for the payment or reimbursement, at QVC's option, of counsel fees. In any event, Vendor shall be solely responsible for the payment or reimbursement, at QVC's option, of all fees and costs Incurred in defending such Claim, for any and all damages arising thereunder, and for any and all amounts paid by QVC In settlement thereof. In addition, Vendor shall be responsible for all costs of any kind incurred by QVC In responding to any discovery or legal process served upon QVC, its subsidiaries and/or affiliates in connection with litigation between a third party and Vendor (or any person or entity affiliated with Vendor), which costs shall be charged to Vendor or deducted from amounts due to Vendor, at QVC's option. The rights and remedies granted to QVC under this section are in addition to, and not In lieu of, any and all other rights and remedies granted to QVC under the Drop Ship Agreement and otherwise available to QVC under law or in equity. 9. QVC reserves the right to cancel the Drop Ship Agreement or any Delivery Instructions, or any part thereof, at QVC's option, with no liability or obligation to Vendor, In the event: (a) QVC Is notified that any Merchandise or IP Right infringes or is alleged to infringe upon any third party rights; (b) Vendor breaches or Is anticipated to breach the Drop Ship Agreement; (c) fire, flood, windstorm, earthquake, war, act of terrorism, strike, or any other casualty or occurrence of a similar nature substantially and adversely affects QVC's premises or business: or (d) any substantial change to QVC's business (for whatever reason) occurs. 10. Merchandise furnished hereunder (a) which is not in compliance with the Drop Ship Agreement, the Laws, the Guidelines, the Delivery Instructions, the Regulations or the Standards, (b) which is returned by any of the purchasers for any reason, (c) which fails to meet QVC's or QVC's carrier's quality control, drop or other tests, or (d) which Is or may be used In conjunction with merchandise and/or services furnished and rejected (or acceptance thereof revoked) under another agreement or order, may be rejected (or acceptance thereof revoked) and, where practicable, returned to Vendor. In the case where the applicable Merchandise is perishable or not reusable (with or without reconditioning), rejected Merchandise may not be returned to Vendor. All expense of unpacking, eKamining, repacking, storing and reshipping any Merchandise rejected (or acceptance of which has been revoked) as aforesaid shall be at Vendor's expense and risk. With respect to such returned Merchandise, QVC shall, at Its option, receive a credit or refund of amounts remitted to Vendor under the Drop Ship Agreement for such Merchandise. In the event that QVC shall opt to receive a refund, Vendor shall pay QVC in immediately available funds within ten (10) days of QVC's request. In the event that QVC shall opt to receive a credit, QVC may apply such credit toward any amounts due or which may become due to Vendor. Returned or rejected Merchandise is not to be replaced by Vendor without the prior written approval of QVC. Vendor acknowledges and understands that defects, imperfections or nonconformity with any representations, warranties or covenants set forth In the Drop Ship Agreement may not be discovered until Merchandise shall have been received by purchasers and returned to QVC after such purchasers examine their purchases. Vendor agrees that Merchandise rejected or returned for any reason pursuant to the terms of the Drop Ship Agreement, whether or not disputed by Vendor, will not be resold or otherwise distributed by Vendor, unless all labels and other characteristics Identifying QVC and/or displaying any trade name, trademark, trade dress or service mark of QVC have been first removed. Vendor shall, within five (5) days of QVC's request therefor, supply QVC with a return authorization and other Information as required by QVC to facilitate return of Merchandise for any Merchandise QVC elects to return to Vendor. QVC's Inspection, discovery of a breach of warranty, failure to make an Inspection or failure to discover a breach of warranty shall not constitute a waiver of any of QVC's rights or remedies whatsoever. 11. All claims for money due or to become due from QVC shall be subject to deduction by QVC for any set-off, recoupment or counterclaim arising out of the Drop Ship Agreement or any other of QVC's agreements or orders with Vendor, whether such set-off, recoupment or counterclaim arose before or after any assignment by Vendor. Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108409CONFIDENTIAL021.00812. UntJI date of shipment of the Merchandise to purohaser(s), Vendor shall meet Its lower prices and tha lower prices of legitimate oompetltlan, or accept cancellation at QVC's option. QVC, In Its sole discretion, shall determine the price at which Merchandise shall ba offered for sale to prospective pui'Chasers and shall have the right to collect all sums pay11ble by purchasers, Including all handling and shipping charges. 13. Vendor and QVC expressly exclude the application of the United Nations Convention on Oontraots for the International Sale of Goods, If applicable. Notwithstanding any legal presumption to the Clontrilry, the Clovenants, conditions, representations, Indemnities, and warranties contained In the Drop Ship Agreement, Including, without limitation, Sections 6, 6, 7, 8, and 10 hereof, shall aurvlva Inspection, delivery, acceptance, pa·yment and termination, shall be binding upon Vendor and Ita successors and permitted assigns, and shall run In favor of QVC and Ita successors end assigns. Revised 10/2014 .g. Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108410CONFIDENTIAL021.009EXIDBIT "B" MERCHANDISE Description: Cellular phones and any other products mutually agreed to by QVC and Vendor. -9-l-1 Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)
TF 108411CONFIDENTIAL021.010EXIITBIT "C" SHIPPING AND HANDLING REIMBURSEMENT Shipping and handling reimbursement (if any) will be negotiated on an individual item basis, as it may vary from product to product. -10-11 Confidential Taxpayer Information – Not Subject to Public Disclosure Per RCW 42.56.230(4)