Last updated February 8, 2019

 

INTRODUCTION

 

“MemberBox”, “MemberBoxes”, “Buyer”, “we” or “us” means Memberbox LLC

“Seller”, “Brand” or “you” means the applicable seller, supplier, brand or vendor.

 

Please carefully review and make sure you understand this entire document (this “Seller Guide”). Our objective is to satisfy our Memberbox customers with quality products, sourced responsibly, and delivered in a timely and quality manner. Accomplishing this requires your assistance and adherence to the timelines and standards set forth in this Seller Guide.

 

The Terms and Conditions set forth as CHAPTER IV of this Seller Guide (“Terms and Conditions”) govern the Purchase Documents (which, together with the Terms and Conditions, will be referred to herein as your “Agreement”). Nothing in the other Chapters of this Seller Guide is intended to limit any of MemberBox’s rights or Seller’s obligations under your Agreement, unless explicitly stated.

 

General Items of note:

 

 

 

CHAPTER I: SHIPPING INSTRUCTIONS

 

Please note that MemberBox is not responsible for paying for any shipping, handling or other fees or charges (including freight) unless explicitly stated in your Agreement. All time periods stated below are our standard requirement – you are responsible for complying with the time periods stated in your Agreement, if different.

 

MBX-Ship Services

 

1. MBX-Ship Standards. If Seller is providing MBX-Ship Services, Seller shall:

 

  1. Ensure Products are shipped via Seller preferred and paid transportation methods to arrive at MemberBox Ship-to location on or before the arrive-by date. Any Product arriving more than three (3) days prior to arrive-by date as specified on the purchase order needs approval from MemberBox;

  2. Ensure that each individual unit of Product purchased under a Purchase Order contains an accessible, accurate UPC barcode capable of being scanned;

  3. Include a complete and accurate packing list with each shipment; and

  4. Ship each Purchase Order separately – 1 (one) purchase order per pallet (or carton if shipping small parcel).

 

2. Product and Carton Guidelines

 

  1. Seller shall ensure no unethical practices in the chain of custody, in the manufacturing process and all sourcing performed by Seller (including, but not limited to child labor, counterfeit ingredients, misrepresentation of origins, etc.) Buyer may require Seller to provide documentation verifying all products purchased by Buyer are in alignment with Buyer’s mission;

  2. Seller shall ensure no Genetically Modified Organisms (GMOs) including the use of Glyphosate will be sold to Buyer. Buyer may require Seller to provide specific documentation verifying all products purchased by Buyer are in alignment with Buyer’s mission;

  3. Seller shall make all attempts to provide Product unit packaging which shall contain only recyclable materials, and no plastics or other non-naturally occurring materials;

  4. Seller shall ensure that whatever claims are made by seller on, but not limited to, labels, product descriptions, testimonials, images, videos and beyond are compliant with the laws and governing bodies of Seller’s products including but not limited to the USDA, FDA, FTC, and the EPA.;

  5. Seller shall ensure that no unit of Product needs to be re-labeled or re-packaged for resale and delivery to customers, other than in connection with outbound shipping materials (e.g. a box, bag or envelope);

  6. Seller shall clearly label each master carton of product with all information necessary to identify the product contained within such carton, including the Purchase Order #, applicable UPC(s) (as barcodes and text), colors and size information, quantity(ies), country of origin, expiration date, lot code, and date of manufacture, where applicable, thereof (and such labeling must be clearly visible and facing outbound upon pick-up);

  7. Each master carton of product shall contain a label affixed to the upper right side of the carton;

  8. Seller shall provide full carton quantities. Each carton of product with the same UPC must include the same number of units of Products per carton; provided that, if one carton is a partial, then (i) such carton must be marker as “partial” using a bright colored label that is clearly visible and facing outward upon pick-up, and (ii) such carton must be on the top layer of the pallet;

  9. Each master carton may contain no more than 6 UPCs; provided that, (i) if the Product is apparel, each master carton may contain no more than 1 UPC and (ii) if the Products are footwear, each master carton may contain no more than 12 UPCs. If master carton contains multiple UPCs, carton must be marked “mixed” using a bright colored label that is clearly visible and in the upper right corner or the carton;

  10. All cartons with mixed UPCs must contain inner packs and individual packing slips per master carton; and

  11. All carton seams must be taped and sealed.

 

3. Pallet Guidelines:

 

  1. All product must be stacked and shrink-wrapped on standard 48” x 40” pallets;

  2. All pallets must be built to a maximum height of 58”;

  3. All pallets must be sorted in such a way that pallets contain the smallest number of different styles/colors of products; and

  4. All pallets must include clearly visible and outward-facing labels, to include # of cartons, UPC(s), product description(s) and quantity(ies).

 

4. Freight Pre-Paid Shipment Scheduling:

 

  1. Seller shall contact MemberBox account manager to set up a delivery appointment within three (3) business days after MemberBox issues a Purchase Order;

  2. All purchase orders must arrive at MemberBox Ship-to location on or before the Arrive-by date as specified in Purchase Order Document. If Arrival is expected three (3) days or more prior to arrive-by date Seller must contact MemberBox for approval; and

  3. Seller shall provide Buyer with the following information upon shipment (i) BOL # / PO # / Carrier name (ii) # of containers / # Pallets per container / or if container is floor loaded (iii) Requested delivery time slot.

 

CHAPTER II: INVOICES AND CUSTOMER SUPPORT

 

1. Invoices:

 

Once your shipment arrives at the MemberBox ship-to location, the Purchase Order will become available for invoicing. Each Monday, our invoicing team will submit an invoice for all units shipped during the prior week from Monday through Friday. Once the invoice for a given week has posted you will receive an email notification to the financial contact you provide to us. For payment inquiries, you can contact your account representative. All payment terms are net 60 days unless otherwise specified in your agreement.

 

2. Customer Support:

 

  1. We may ask Seller to provide information and/or answer questions about the products. Seller shall provide such information and answer any questions promptly upon request by MemberBox;

  2. Links to any websites by Seller, other than MemberBox are expressly not permitted; and

  3. Customer questions and concerns should be directed to your account manager at MemberBox. In the event a customer reaches out to the Seller’s customer support team, please direct the customer to [email protected].

 

CHAPTER III: NON-COMPLIANCE COST RECOVERY

 

When Products are prepared, labeled, packaged, delivered, or otherwise processed in a manner that is out of compliance with, or otherwise in breach of, this Seller Guide or MemberBox instructions, MemberBox may incur losses or expenses as a result of such non-compliance or breach (including with respect to customers, carriers and warehouse providers). Therefore, in the event of noncompliance or breach, Seller understands and consents that MemberBox reserves the right to deduct from payments due to Seller (or Seller will pay MemberBox, if applicable) to offset certain damages.

 

CHAPTER IV: TERMS AND CONDITIONS

 

1. General Terms and Conditions

 

  1. These Terms and Conditions (“Terms and Conditions”) govern each “Purchase Order”, “Consignment Order” or other document to which they are attached or are otherwise specifically referenced and are effective (i) upon execution of the Option to Purchase by Seller (the “Option to Purchase Effective Date”), as to the Option to Purchase and each Purchase Order issued thereunder (if any); or (ii) if no Option to Purchase is executed, upon execution of a Purchase Order by Seller (the “Purchase Order Effective Date”); or (iii) upon execution of a Consignment Order by Seller (the “Consignment Order Effective Date”). These Terms and Conditions, together with the Option and Purchase Documents and any other terms and conditions expressly incorporated by reference herein, constitute the entire agreement between Buyer and Seller. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Option and Purchase Documents.

  2. “Buyer” shall mean MemberBox, LLC

  3. “Seller” shall mean the seller, supplier, Brand or vendor identified in the Option and Purchase Documents

  4. Seller agrees that the Option, Purchase, or Consignment Documents (“Purchase Documents”) define, among certain other things: (i) the scope of the products, materials or other items to be provided by Seller (“Products”) and the services to be performed by Seller (including, but not limited to, delivery obligations identified in the Option and Purchase Documents) (“Services”); and (ii) the prices(s) to be paid by Buyer to Seller if a Purchase Order is issued by Buyer.

 

2. Resale of Products

 

  1. Seller acknowledges and agrees that Buyer shall have the right, in its sole discretion, to market and resell the Products through MemberBox.com (the “Website”), other distribution channels owned, controlled or operated by Buyer (including without limitation, emails, mobile applications or other types of electronic offerings) and/or other platforms or distribution channels owned, controlled or operated by Buyer’s affiliates or third party business partners, and that Buyer will establish its own resale pricing and terms.

  2. Within five (5) business days after the Purchase Order effective date, Seller will provide Buyer with the following: (i) a Certificate of Origin attesting to the country of manufacture of the Products; (ii) at least one high quality, high resolution, digital image of the Products for each UPC set forth in the Purchase Documents, in a form acceptable to Buyer, which does not infringe, misappropriate or otherwise violate and intellectual property right or right of privacy or publicity of any third party, and which Seller has the right to provide to Buyer and to authorize Buyer to use in connection with the promotion and resale of the Products as set forth herein; (iii) an electronic copy of any warranty included with the Products.

  3. Upon Buyer’s request, Seller shall provide Buyer with provenance documentation to verify the sourcing and authenticity of the Products, including but not limited to a full invoice chain evidencing the purchase of the Products from the manufacturer or an authorized distributor thereof.

 

3. Purchase and Consignment Orders

 

  1. Buyer shall have the right to modify, change or suspend a Purchase or Consignment Order or any written instructions, including, but not limited to, the scope of services, the quantity of Products subject to Purchase or the delivery dates, upon written notice to Seller. The parties acknowledge and agree that certain matters such as material and product releases, changes in delivery dates, delivery or shipment instructions, variances in orders and other similar matters may be sent by Buyer to Seller via email. The parties further acknowledge and agree that such communications and any provision of Product or Services thereunder, shall be incorporated by reference into the applicable Purchase Documents and shall be subject to these Terms and Conditions.

  2. During the execution of the Purchase Documents, Seller shall not make any changes in the design, material, process, procedures or practices affecting Products or Services to be furnished by Seller without the prior written consent of Buyer.

  3. Any and all modifications or amendments to these Terms and Conditions shall be in writing and signed by an authorized representative of Buyer. Buyer expressly rejects any additional or inconsistent terms and conditions offered by Seller at any time and not agreed to in writing and signed by Buyer, notwithstanding any payment by Buyer.

 

4. Seller Guide

 

  1. Seller agrees to and will comply with all of the terms of the Seller Guide of which these Terms and Conditions are set forth. Buyer reserves the right, in its sole discretion, to modify any part of the Seller Guide at any time. Any changes to the Seller Guide will be effective upon the next Purchase Order effective date.

 

5. Payment Terms and Delivery

 

  1. Buyer shall remit to Seller the aggregate, undisputed amount due under a Purchase or Consignment Order, within 60 days or as set forth in the Purchase Documents under “Payment Terms” if applicable after: (i) Buyer’s receipt of Goods upon delivery for Purchased Products; (ii) sale and shipment to MemberBox customers for Consignment Products

  2. Buyer shall deduct payment transfers from Seller’s account if Buyer’s customer: (i) returns Seller’s product to buyer; (ii) receives a refund for Seller’s product; and/or (iii) customer disputes the payment authorized for Seller’s products;

  3. Unless otherwise set forth in the Purchase Documents, the unit price set forth in the Purchase or Consignment Order Documents includes all applicable taxes and fees chargeable to Buyer (including, without limitation, any value-added taxes or consumption taxes), except sales taxes which shall be shown separately where applicable. Buyer shall not incur any charges for packing, crafting, freight, shipping, handling, local cartage, or any other charges unless expressly identified in the Purchase Documents. Seller is responsible for clearing the Products for import, if applicable, and paying any applicable duties, taxes and other fees in connection therewith. Seller is responsible for carriage and insurance costs to the delivery destination.

  4. Seller shall furnish only the Products and Services identified in the Option and Purchase Documents and these Terms and Conditions in accordance with the stated price(s) and shipment and delivery schedule. Seller shall meet Buyer’s requirements and comply with the Buyer’s schedule. Seller shall notify Buyer immediately in writing of any actual or potential delay or threat to delay the timely performance of the Option and Purchase Documents, including with respect to any customer or Buyer.

  5. Seller will deliver the Products to Buyer at the “Ship-to” location set forth in the Purchase Documents. Seller will pay for such shipment directly (“Freight Prepaid”) to arrive at Buyer “Ship-to” location on or before the “Arrive-by” date specified in the Purchase Documents.

 

6. Invoicing

 

Invoices will be issued in accordance with the instructions set forth in Chapter II of the Seller Guide. Unless otherwise agreed to in writing by the parties, subject to the other provisions of the Option and Purchas Documents and these Terms and Conditions, payment shall be due to Seller after Buyer’s or its customers (as applicable) receipt of the Products and Services ordered, the items set forth in the Option and Purchase Documents, and/or Seller’s complete and accurate invoice. Seller shall be paid in the currency set forth in the Option and Purchase Documents. Payment of the amounts due is subject to (A) Seller’s fulfilling its obligations under the Purchase Documents and (B) inspection and acceptance of the Products and Services by Buyer or its customers and adjustments for shortages or defective Products or Services. Buyer reserves the right to seek reasonable assurances of Seller’s financial stability at any time during the period beginning on Option or Purchase order effective date, and ending 180 days thereafter, including through bank reference notes and credit reports.

 

7. Samples; Packaging; Shipping; Records and Tracking

 

  1. With respect to any sample Products provided to Buyer, Seller represents and warrants that it has full right, title and interest in and to the Samples (prior to Buyer’s receipt thereof) and Seller’s submission thereof does not and will not violate the rights of any third party. Seller acknowledges and agrees that (i) title to the Samples passes (or passed) from Seller to Buyer upon receipt thereof by Buyer; (ii) Buyer may use the Samples in its sole discretion for any purpose whatsoever; (iii) Seller has not and will not submit any samples which cannot be replaced, or which Seller desires to be returned; and (iv) Buyer is not responsible for the handling, arrival or return or any Samples and has no obligation, liability or responsibility to return, pay for or otherwise compensate Seller for any Sample sent to Buyer.

  2. Seller shall not charge Buyer for packaging or storage. All Products shall be packaged, marked and otherwise prepared in accordance with the requirements specified by Buyer (in the Seller Guide and otherwise) and, at all times, good commercial practices.

  3. Buyer shall notify Seller as to where and under what conditions the Products are to be made available and delivered, if different than set forth in the Option and Purchase Documents. Seller shall at all times comply with Buyer’s written instructions. Any deliveries or shipments that do not comply with the Seller Guide and Buyer’s written instructions may be returned or held by Buyers at Seller’s risk and expense.

  4. Following issuance of a Purchase Order by Buyer, title to, and risk of loss of the Products shall pass from Seller to Buyer upon Seller’s delivery of the Products to Buyer and subsequent confirmation and receipt of Products by Buyer.

  5. Following issuance of a Consignment Order by Buyer, title to, and risk of loss of Products shall pass from Seller to Buyer upon Buyer’s sale and subsequent shipment of Product to Buyer’s customer. Buyer will maintain accurate inventory records and favorable condition of Products while housed in Buyer’s fulfillment locations awaiting sale to Buyer’s customer. Consignment Products not sold will be returned to the Seller by the Buyer.

 

8. Audit and Inspection

 

All Products and Services shall be subject to inspections and acceptance by Buyer before, during and after shipment, delivery or performance. Without limiting any of Buyer’s rights or Seller’s obligations hereunder, inspection by a customer of Buyer upon or after shipment or delivery of the Products or before, during or after performance or the Services shall constitute inspection for purposes of these Terms and Conditions. If Products are found to be out of compliance with the Option or Purchase Documents, Buyer shall have the right to return such Products to Seller for correction, replacement, credit, or refund as Buyer directs and at Seller’s expense in the event Products.

 

9. Term and Termination

 

  1. The term of these Terms and Conditions shall commence on the date of the earliest Option and Purchase Documents and, unless terminated earlier in accordance with these Terms and Conditions, shall expire upon Seller’s completion of its obligations under the Option and Purchase Documents and Buyer’s payment to Seller of all undisputed amounts due;

  2. Buyer may terminate any Option and Purchase Documents in whole or in part at any time upon written notice to Seller; and

  3. Sellers’ obligations under these Terms and Conditions intended or required to survive the termination or expiration shall survive.

 

10. License

 

Seller hereby grants to Buyer a nonexclusive, worldwide, royalty free, fully paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: Seller’s name, logos, trademarks, service marks, domain names, graphics and any other content provided, specified, recommended, or directed to use by Seller.

 

11. Confidentiality

 

Seller agrees to keep (and ensure that each third-party and/or Subcontractor keeps) Buyer “Confidential Information” confidential. The term “Confidential Information” shall collectively refer to all information and material heretofore or hereafter disclosed or provided to Seller or Seller’s businesses, affiliates, directors, officers, employees, agents or representatives whether written, electronic, oral, or any other medium concerning any aspect of the business or affairs of Buyer or its subsidiaries, including without limitation, any information or material pertaining to any economic data, forecasts, pricing schedules, trade secrets, research or business strategies, financial or contractual information, purchasing, financial, investments, real estate development, or sales information, manufacturing requirements, designs, customer lists, methods, applications, processes, technology, know-how, specifications, drawings, techniques, or materials, including modifications, improvements, or extensions thereof whether or not marked or designated as “Confidential,” “Proprietary”, or the like, in any form. Confidential material shall not include information that (a) is publicly available or becomes publicly available (other than information that becomes publicly available through the action or fault of Seller in violation of the terms of you Agreement); (b) was already in Recipient’s possession or known to Recipient prior to being disclosed or provided to Recipient by or on behalf of the Company, whether disclosed by the Company before or after the execution of this Agreement; (c) was or is obtained by Recipient from a third party, provided that such third party was not bound by a contractual, legal, or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or material; or (d) is an analysis or other document prepared by the Recipient without use of the Confidential Information as reflected in writing in Recipient’s files. In no event will Seller use less than the degrees of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care, to prevent the unauthorized disclosure of the Buyer Confidential Information to third parties.

 

12. Intellectual Property Rights

 

Seller acknowledges and agrees that, as between the parties, Buyer owns all right, title and interest in and to the Website, Buyer trade names, logos, trademarks, service marks, domain names, social media handles, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, or any other content created by or owned by Buyer.

 

13. Representations and Warranties

 

In addition to all other express or implied warranties, Seller warrants that Seller conveys full right, title and interest in and to the Products, free of any liens or encumbrances, upon delivery of the Products to the applicable Buyer ship-to location.

 

14. Indemnification

 

Seller shall indemnify, defend and hold harmless Buyer, its affiliates and its and their respective directors, officers, managers, shareholders, members, employees, agents, successors, assigns and customers and users of the Products from and against any and all claims, causes of action, suits, actions, costs, expenses, penalties, liabilities, judgments or losses of any kind directly or indirectly arising.

 

15. Remedies; Limitation of Liability

 

In no event shall Buyer be liable under any theory to Seller or Seller’s employees, agents or subcontractors, or any third party, for any incidental, indirect, special, exemplary, punitive or consequential damages (including, without limitation, lost profits) arising out of or in connection with these Terms and Conditions or the Option and Purchase Documents, whether or not Buyer was advised of the possibility of such damage. Notwithstanding anything herein or in the Option and Purchase Documents to the contrary, in no event shall Buyer’s liability hereunder or under the Terms and Conditions exceed the aggregate purchase price of the Products and Services.

 

16. Compliance with Law; Gratuities

 

Seller warrants that the Products furnished, and the Services performed under the Option and Purchase Documents, shall be manufactured, sold and performed in compliance with all applicable laws, including, but not limited to, the Fair Labor Standards Act. Without limiting the foregoing, Seller represents and warrants that it is familiar with and shall comply with: (i) the U.S. Foreign Corrupt Practices Act, which prohibits providing a payment of money or anything of value to a foreign government official, public international organization official, foreign political party, foreign political party official or candidates for such offices, either directly or indirectly, for the purpose of influencing official acts and decisions (including failures to act and decide) in order to assist in obtaining or retaining business or directing business to any entity, and any provisions of local law and Buyer’s policies and procedures related thereto; and (ii) all applicable laws

 

17. Insurance

 

Seller shall carry and maintain insurance coverage at all times sufficient to cover Seller’s obligations under the Option and Purchase Documents and these Terms and Conditions.

 

18. Waiver; Severability

 

  1. Any waiver of a provision of these Terms and Conditions or the Option and Purchase Documents must be in writing, expressly identify the provision to be waived and signed by an authorized representative of Buyer. Buyer’s failure, whether single or repeated, to exercise a right hereunder shall not be deemed to be a waiver of that right and Buyer’s delay in exercising a right shall not be deemed a waiver of that or any future right.

  2. If any of the provisions of the Option and Purchase Documents or these Terms and Conditions are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court’s ruling. All remaining portions of the Option and Purchase Documents or these Terms and Conditions shall remain in full force and effect.

 

19. Assignment

 

Seller may not transfer or assign any rights or obligations due or to become due under these Terms and Conditions or the Option and Purchase Documents (including, without limitation, in connection with a change-in-control) without the prior written consent of Buyer. Buyer may transfer or assign these Terms and Conditions and the Option and Purchase Documents to a present or future affiliate or pursuant to a merger, consolidation, reorganization, change-in-control, or sale of all or substantially all of the assets or business to which these Terms and Conditions and the Option and Purchase Documents relate, or by operation of law, without notice to Seller.

 

20. Nonexclusive Order

 

This is not an exclusive agreement. Buyer is free to engage others to perform Services and/or provide Products the same as or similar to Seller’s.

 

21. Governing Law and Venue; Disputes

 

Your Agreement shall be construed, performed, and enforced in accordance with, and governed by, the internal laws of the State of Michigan, without giving effect to the principles of conflicts of law thereof. Buyer and Seller hereby agree unless otherwise indicated by Buyer, any action arising from or relating to your Agreement shall be brought exclusively in the County of Grand Traverse for State Court matters or the Western District of Michigan, Grand Rapids, if a federal matter. Should any provisions of your Agreement be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity and enforceability of the remaining provisions of your Agreement shall not be affected or impaired thereby. The waiver by either party of a breach of any provision of your Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the other party. Your Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

 

22. Interpretation

 

The headings in the Option and Purchase Documents and these Terms and Conditions are inserted for convenience of reference only and are not to be considered in the interpretation or construction of the provisions thereof and herein.

 

23. Multiple Counterparts; Electronic Transmission

 

The Option and Purchase Documents and these Terms and Conditions may be executed in one or more counterparts, each of which may be executed and transmitted by electronic method, and each of which shall be deemed an original, but both of which shall constitute one and the same instrument.

 

24. Payment Claims

 

Any claim arising out of or relating to any payment paid or owed by buyer in connection with any Option or Purchase Document must be made in writing within 60 days after the earlier of: (A) initial payment by Buyer in connection with the applicable Products and Services, or (B) Seller’s first knowledge of the grounds for such claim, and all such claims not so made shall be deemed waived by seller.

 

25. Transfer of Accounts Receivable

 

If at any time prior to payment by Buyer, Seller assigns its accounts receivable associated with the Products, Seller shall immediately provide notice to Buyer of such assignment either directly or through its financing or factoring agent. For the avoidance of doubt, Buyer shall have no responsibility to any party other than Seller to provide any kind of notice required under this Agreement. Buyer’s responsibility shall be solely to Seller. Seller agrees and acknowledges that it shall be responsible for any and all notifications to its financing or factoring agent.