Rumbleship Financial, Inc. SUPPLIER TERMS OF SERVICE
(Last updated November, 2016)
These Supplier Terms of Service describe the terms and conditions upon which Rumbleship Financial, Inc., (referred to as “we”, “us” or “our”), offers you access to and use of our web-based platform, which provides a solution to help you manage invoices and payments for the sale of your products (“Products”) and/or services (including any related deliverables) (“Services”). The terms and conditions contained in these Supplier Terms of Service will be referred to as this “Agreement.” By accessing and using our platform, along with any updates, additions or expansions to our platform, you accept, without limitation or qualification, this Agreement. We may, at any time, modify this Agreement by revising it on our platform or our website via a link available at www.rumbleship.com. Your continued use of our platform constitutes acceptance of any revisions to this Agreement for future transactions under this Agreement. This is a legally enforceable contract.
You must complete a Billing Authorization Letter before using our platform. The terms of your Billing Authorization Letter are considered part of this Agreement. The Billing Authorization Letter will specify the billing arrangement for your customers who have indicated that they will have their invoices handled through our platform (“Customers”). The Billing Authorization Letter will also specify any applicable payment terms and additional fees with respect to your use of our platform to manage and track Customer’s invoices. All terms and conditions in this Agreement are applicable to your use of our platform unless your Billing Authorization Letter specifically states otherwise.
License Rights. Subject to your compliance with this Agreement, we grant to you a limited, revocable, non-exclusive, non-transferrable license, without the right to sublicense, to access and use our platform for the sole purpose of selling your Products and/or Services in accordance with this Agreement during the term of this Agreement.
Restrictions. You may not translate, reverse engineer, decompile, disassemble, modify, alter, rent or make any other unauthorized use of our platform or any software located on or in our platform. You may not obtain or attempt to mine any information from our platform through any means that we do not intentionally make available through our platform. In addition, you may not use our platform in a way that makes available any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party.
Ownership. We own our platform (excluding certain third party content and data in our platform). Except for the limited license granted under this section, nothing in the Agreement confers in you any right of ownership in our platform.
Customer purchase orders will be communicated to you either through our platform or by any other method by which you typically receive purchase orders. You retain the final approval right of all sales transactions of your Products and Services. You agree to provide Products or Services to fulfill all approved purchase orders. We will purchase the Product or Service specified on a Customer purchase order from you with the intention of immediately reselling it to the Customer. We will provide the accounts receivable-related services described in this Agreement or on our platform for the Customer purchase orders. All invoices processed through our platform may be paid via check or ACH/Electronic check directly from the Customer’s bank account. In addition, you may choose to have us accept credit card payments for your invoices processed through our platform by specifically selecting this option in your Billing Authorization Letter. Our acceptance of credit card payments will be subject to your compliance with the additional terms and payment of applicable fees as described in your Billing Authorization Letter. You will provide all customer support services, technical support services and logistics support services to us or Customers as requested. These services will be professional quality services performed consistent with general industry standards for the performance of similar services.
Product and Service Information
You agree to provide accurate current product and pricing information to Customers. This information will include the following:
The list price or other then-current price offered by you to Customers for each Product and Service (“List Price”).
Product inventory levels.
Any other published Product specifications or descriptions of the Services.
You will also supply us with all required invoice data for Customers. The invoice data will be accurate, timely and provided by the method specified in your Billing Authorization Letter. You will be solely responsible for the contents and accuracy of the information you provide to us or input into our platform.
Term and Termination
Term. The term of this Agreement begins on the effective date indicated in your Billing Authorization Letter or your access to or use of our platform, whichever occurs first. The term of this Agreement will continue until it is either terminated under its terms or you are no longer processing any orders, invoices or payments through our platform from Customers or using our platform in any other way.
Suspended Use and Termination. We reserve the right, at anytime, to suspend your access to our platform or terminate this Agreement. We will have no further liability to you upon termination other than as indicated in this Agreement. You may discontinue use of our platform or terminate this Agreement at any time with sixty (60) days’ prior written notice to us.
Effect of Termination. The termination of this Agreement or suspension of your access to our platform will not (1) affect any remedy either of us may have against the other for breach of this Agreement or (2) relieve either of us of any responsibility arising prior to the effective date of termination. Any provision of this Agreement that by its terms or by its nature is intended to survive termination, including your obligation to supply Products and provide Services for accepted purchase orders and to process refunds or replacements, will survive termination.
You will deliver Products and/or Services to fulfill Customer purchase orders received through our platform or other method authorized by this Agreement. Products and Services will be delivered to Customers according to the shipping and delivery terms indicated in their purchase order. Title for Products will pass to us at the time you ship the Product.
The payment terms for amounts payable to you are specified in your Billing Authorization Letter. We will provide you with the ability to withdraw, from a designated account, the undisputed amounts payable to you under this Agreement. Your right to withdraw any amounts made available to you will expire one year after the expiration of the applicable payment term. Payment will be in U.S. Dollars. We may withhold amounts that you owe us from amounts that we owe you. If your Billing Authorization Letter indicates that you are offering early payment discount terms, we may choose to pay you earlier than the specified payment due date in exchange for the agreed upon discount to the full amount that we owe to you. We may also offer you the option to withdraw the amount payable to you prior to the end of the payment term in exchange for you providing a discount to the full amount we owe. The details of any early withdrawal option will be presented to you prior to you exercising this option. We may offer this early withdrawal option whether you have agreed to offer us early payment discount terms or not. Any early payment discounts described above are in addition to the Discount to Invoice described below. Customers invoiced for a Product or Service through our platform are required to pay us for those Products or Services. We will take the risk of loss associated with Products and risk of non-payment for Products and Services under Customer purchase orders only if you specifically elect in your Billing Authorization Letter to utilize our guaranteed payment services. If you so elect to receive guaranteed payment services, your Billing Authorization Letter will indicate a discount to the List Price of Products and Services (“Discount to Invoice”). In consideration of the guaranteed payment service described in your Billing Authorization Letter, you agree to sell each Product and Service to us at this Discount to Invoice. If you do not elect to receive guaranteed payment services in your Billing Authorization Letter, you will receive payments from us for invoices processed through our platform only as the applicable Customer makes payment to us. We may assign to you our right to payment for Products and Services if we have not received payment for the Product or Service from any Customer for an extended period of time and we have a reasonable expectation of a payment default. If we assign this right to payment to you, you will promptly credit or refund us any amounts we have paid for those Products or Services. Any payment obligations we have to you for the Products or Services will be fully satisfied upon us assigning this right to payment to you. For customers who have indicated that they will have their invoices handled through our platform, any order by those Customers will be deemed a purchase order made under this Agreement, no matter how they place those orders. You will invoice us for all of those Customers’ orders as specified in your Billing Authorization Letter (rather than invoicing the Customer directly).
You will pay all sales, use, or other taxes or expenses that may be imposed from the sale, transfer, shipment or provision of the products or services. You will pay all duty tax, customs fees, and shipping cost to the U.S., and will include these costs into the sales price of any Product or Service.
Unless specified differently in your Billing Authorization Letter, you will provide and maintain during the term of this Agreement, at your expense, comprehensive general liability insurance, including product and contractual liability insurance covering bodily injury and property damage to third parties arising out of the use or handling of Products or Services, with a limit of not less than $3,000,000 for any one occurrence for bodily injury and property damage. You will provide us with written documentation that you are a certificate holder of this coverage. If you do not have comprehensive general liability insurance with a limit of at least $3,000,000 as required by this Section, you must specify this deficiency on your Billing Authorization Letter.
Warranties and Disclaimer
You warrant that:
the Services will (1) be of professional quality, consistent with generally accepted industry standards for the performance of similar services and (2) comply in all respects with their descriptions on our platform or otherwise provided by you;
the Products will: (1) comply in all respects with their specifications set forth on our platform or otherwise provided by you; (2) be free from any material defects or errors; and (3) be fit for the normally intended uses for the Products;
you have the right to deliver all Products and provide all Services and you will transfer good title to all Products, free and clear of all liens and encumbrances; and
the provision and use of all Products and Services will not infringe or otherwise misappropriate any third party intellectual property rights.
You agree that all warranties provided under this Agreement will pass from us to customers that purchase Products or Services and we will have no responsibility to customers for those warranties. All warranties shall survive the termination of this Agreement.
Except as otherwise specifically indicated in this Agreement, the warranties set forth in this Agreement are in place of all other warranties, express or implied, in fact or in law, and neither party makes any other warranties in connection with this Agreement or its products and services, including any warranty of merchantability, title, non-infringement, or fitness for a particular purpose. All other warranties are hereby disclaimed. You agree that your use of our platform is at your sole risk. Our platform is provided on an "as is" and "as available" basis for your use. We do not represent or warrant that the functions contained in our platform will be uninterrupted or error-free or that our platform or the server that makes our platform available are free of viruses or other harmful components. We do not make any warranties or representations regarding the use of the materials in our platform, or with respect to any products or services offered by suppliers or invoiced to customers through our platform.
Confidential Information and Data
“Confidential Information” means any and all written or oral confidential or proprietary information of the other party disclosed before or during the term of this Agreement.
“Rumbleship Financial, Inc. Data” means any of our data that you have access to under this Agreement or any data that you access or generate in connection with your use of our platform. All Rumbleship Financial, Inc. Data is Confidential Information owned by us.
Restrictions. From time to time under this Agreement, we may disclose Confidential Information to you, and you may disclose Confidential Information to us. During the term of this Agreement and for a period ending five (5) years after termination, we will each keep Confidential Information in confidence and not disclose Confidential Information to any third party or use it for any purpose except as permitted by the terms of this Agreement. We will each be responsible to the other for any breach of this section by any party to whom either of us is permitted to disclose the other’s Confidential Information. If either of us is compelled to disclose the other’s Confidential Information by law or governmental order, then the compelled party will, unless legally prohibited, provide the other party with prompt notice of the circumstances to allow the other party a reasonable opportunity to contest the disclosure. You will immediately notify us after discovering (1) any unauthorized disclosure, possession, use or modification of any of our Confidential Information or any attempted breach of your security measures; and (2) the corrective action taken in response to this event. Each of us will not use and shall return or destroy all Confidential Information of the other (along with all copies of Confidential Information), after the termination of this Agreement or within 30 days of receiving a written request from the disclosing party.
Exceptions. These confidentiality restrictions will not apply to:
information that is or becomes publicly available through no fault of the receiving party;
information that is legally obtained from a third party not bound by any confidentiality obligation to the disclosing party;
information that is developed by or for a party independent of and without reliance on Confidential Information; and
information that is in a party’s possession before the effective date of this Agreement that was not received under any confidentiality obligation.
Use of Names and Trademarks
You hereby grant us a paid-up, royalty-free, nontransferable worldwide right and license to use your name, logos, trademarks and description of Products and Services, as applicable, during the term of this Agreement but only for the purpose of our sale of Products and Services to customers, including our marketing on our platform and billing and collection efforts in connection with those sales. You will not make any oral or written statement or perform any act indicating that we endorse or approve you or your products or services. Other than the rights granted in the prior paragraph, nothing in this Agreement confers any right to use in advertising, publicity or other promotional activities any name, mark or other designation of a party without the prior written approval of the party.
“Claims” means any and all losses, liabilities, damages, actions, suits or claims (including amounts paid in settlement and reasonable attorneys’ fees and disbursements).
Our Indemnification of You. We will indemnify and hold you and your affiliates and your respective representatives harmless from and against any and all third party Claims to the extent arising out of (1) infringement of any third party intellectual property rights by our platform when accessed and used in compliance with this Agreement, or (2) our fraud, gross negligence, or intentional or willful misconduct in the performance of our obligations described in this Agreement. In the event of a claim under subsection (1) above, we may, at our option and expense, procure for you the right to continue using our platform, replace our platform with a non-infringing equivalent, modify our platform so that it becomes non-infringing, or discontinue the infringing portion of our platform. This paragraph states our entire liability for any Claims related to infringement involving our platform.
Your Indemnification of Us. You agree to defend, indemnify and hold us and our affiliates and our respective representatives harmless from and against any Claim related to (1) a breach of any representation or warranty made in this Agreement, including the failure of any Product or Service to meet the applicable specifications or descriptions; (2) infringement of any third party intellectual property rights in connection with your performance under this Agreement or any Product, Service, Product specification, Service description or process used to manufacture any Product; (3) your (or your representatives’) fraud, gross negligence, intentional or willful misconduct in the performance of your obligations described in this Agreement; or (4) claims by or on behalf of your employees, affiliates, representatives or permitted subcontractors for payment of wages or benefits or relating to occupational safety and health, workers’ compensation or other applicable legal requirements.
Indemnification Procedures. If any Claim is brought that would entitle an indemnified party to indemnification under this section, the indemnified party must notify the indemnifying party in writing promptly after receiving notice of the Claim. The indemnifying party will have the right to control the defense and discretion to settle or otherwise dispose of the Claim but the indemnified party, at its own expense, may participate in the defense of the Claim and all negotiations for settlement or other disposal of the Claim. The indemnifying party may not enter into (1) any non-monetary settlement, (2) any settlement that requires the indemnified party to admit fault, or (3) any settlement that does not contain an unconditional release of the indemnified party without the reasonable prior written consent of the indemnified party.
Corrective Action. If a Claim prevents or threatens our sale of a Product or Service or a customer’s use of a Product or Service, you will (1) obtain the right for us to continue to use, distribute and sell the Product or Service or (2) modify or replace the Product or Service to comply with all warranties described in this Agreement. In addition, you will be responsible for all expenses related to return of any non-conforming Products to you or the re-performance of any non-conforming Services. Your obligations described in this paragraph are in addition to your indemnification obligations and will be provided at no cost to us or customers.
Limitation of Liability
In no event will we be liable for any special, incidental, direct, indirect, punitive or consequential damages arising from or related to this agreement or the access, use, or performance of our platform, even if we have been advised of the possibility of such damages. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions our liability will be limited to the fullest extent permitted by law.
Our total liability in any matter arising from or related to this Agreement is limited to an amount equal to the total of all (1) discounts to invoice provided and (2) other amounts paid to us and Customers by you during the term of this Agreement.
Excusable Delays. We are not responsible for any delay or failure to perform due to any cause beyond our reasonable control. Those causes include: strikes, acts of God, your own acts, transportation interruptions, inability to obtain necessary labor, materials or facilities, another supplier’s default, war, or action of any governmental authority.
Entire Agreement. You acknowledge that you have read these Supplier Terms of Service and will be bound by them. You further acknowledge that this Agreement, including the Billing Authorization Letter and other terms specifically incorporated into this Agreement by reference, is the complete and exclusive statement of the agreement between you and us. It supersedes all previous and contemporaneous proposals, whether oral or written, and all other communications between you and us relating to this Agreement’s subject matter, including any terms and conditions on any purchase order, confirmation, invoice or similar document.
Amendment. No modification, deletion, addition or waiver of the terms of this Agreement will be binding on either party unless made in writing and signed by a duly authorized representative of each party. This Agreement controls between the parties over additional or different terms in any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties.
Governing Law and Venue. The laws of the State of Nevada apply to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. English will be the governing language of the Agreement. The federal and state courts located within Clark County, Nevada will have exclusive jurisdiction over any dispute arising out of or related to this Agreement. It is specifically agreed that this Agreement will not be covered by or construed in accordance with the terms of the United Nations Convention on Contracts for the International Sale of Goods.
Enforcement. Since we would suffer irreparable harm in the event of a breach of any provision of the “License”, “Confidential Information and Data”, “Orders” or “Use of Names and Trademarks” sections and money damages or other legal remedies would not be an adequate remedy for the breach, you acknowledge that we will be entitled – in addition to any other remedies we may have – to equitable relief to protect from such harm, including specific performance and injunctive relief, in the event of any breach or threatened breach by you of those provisions.
Assignment; Binding Effect. We may assign this Agreement. We may assign the representations and warranties provided under this Agreement to Customers and those provisions will be enforceable directly by Customers as third party beneficiaries to this Agreement. You may not assign this Agreement or any interest in it, whether directly, by merger, operation of law or otherwise, without our prior written consent. This Agreement is binding on and will inure to the benefit of each party’s successors and assignees when properly assigned under this paragraph.
Headings; Construction. Headings are for convenience only and do not affect the interpretation of this Agreement. Any presumption or other rule requiring construction of this Agreement against the party that drafted it will not be applied to this Agreement and is waived by the parties. Unless the context requires otherwise, the term “including” means “including but not limited to.”
Non-Waiver. If a party fails to enforce the provisions of this Agreement at any time, that failure will not waive the party’s right to exercise the same or any other provisions in the future.
Severability. If any part of this Agreement is for any reason held to be unenforceable, the rest of it remains fully enforceable and the application of the remaining part will be interpreted in a way that reasonably effects the intent of the parties to this Agreement. Each party also agrees to replace the unenforceable part of this Agreement with a valid and enforceable part that will achieve, to the extent possible, the economic, business and other purposes of the unenforceable part.
Independent Contractors. The parties are independent contractors. No provision of this Agreement makes either party a partner, joint venturer, agent or other representative of the other party or grants either party any rights, power or authority to act or create an obligation on behalf of the other party unless specified otherwise in this Agreement.
Compliance with Laws. Each party will comply with all applicable federal or national, state or regional and local or municipal laws, regulations, ordinances, permits and orders in connection with its performance of or other actions relating to this Agreement.
Notices. Any notice required or permitted by this Agreement will be in writing and will be delivered by registered or certified mail, postage prepaid, return receipt requested or by email at the address shown below (which address may be updated by the notice procedures in this paragraph):
If to Us:
Attn: Legal Dept
Rumbleship Financial, Inc., Inc
1035 Pacific Ave San Francisco CA 94133
If to You:
The primary address you provided when registering for your account. Notice will be considered to have been given on the date of receipt or refusal if mailed or the date of transmission if sent by email.