POWERED BY PEOPLE, CORP.
MAKER TERMS OF PURCHASE AND SALE
Last Updated: November 30, 2022
- The accompanying Purchase Order (defined below) and the Maker Terms together with all documents and other terms incorporated herein (collectively, the “Agreement”) govern your use of the Services and PBP’s purchase of Product from you, in response to a request for such Product submitted by a Buyer using the Services. You grant PBP the right to resell any Product we purchase from you, whether pursuant to a request submitted by a Buyer through the Services or otherwise, at any price determined in our sole discretion. For clarity, there is no purchase of Product from Maker by Buyer directly and no sale of Product from Maker to Buyer directly.
- The Agreement constitutes the entire agreement between you and us and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. The Maker Terms prevail over any of the Maker’s general terms and conditions of sale regardless of whether or when the Maker has submitted its invoice or such terms. Fulfilment of our Order (defined below) does not constitute our acceptance of any of your terms and conditions and does not serve to modify or amend these Maker Terms.
- The Agreement applies to any repaired or replacement Product provided by the Maker hereunder.
- We are not obligated to submit a minimum volume of Draft Orders (defined below) or purchase a minimum dollar value of Product under these Maker Terms.
2. Definitions and Interpretation
- In these Maker Terms, capitalized terms will, unless otherwise defined herein, have the following meanings:
- “Brand Imagery Guide” means the guidelines available at https://cdn.shopify.com/s/files/1/0525/1609/4140/files/Brand_Imagery_Guide.pdf?v=1623622351.
- “Business Day” means any day other than a Saturday, Sunday, or statutory holiday in the Province Ontario.
- “Buyer” means a retailer, wholesaler, designer, or brand who purchases Product from PBP through the Services for the purpose of resale.
- “Claim” means claims, causes of action, liabilities, damages, judgments, awards, losses, costs, expenses and fees of any kind or any nature, including reasonable legal and accounting fees.
- “Content” means text, graphics, images, music, software (excluding the Website), audio, video, media, data, information, or other materials.
- “Custom Product” means any Product developed and produced by the Maker upon request by a specific Buyer for ultimate purchase from PBP by such Buyer and generally not available to other Buyers.
- “Merchandising Guide” means the guidelines available at https://cdn.shopify.com/s/files/1/0525/1609/4140/files/Merchandising_Guide.pdf?v=1622840213.
- “PBP Guidelines” means the guidelines we establish in respect of Products, including the Brand Imagery Guide, Merchandising Guide, Product Photography Guide and any other guidelines we may publish or impose on Makers at any time in our sole discretion.
- “Product” means any goods produced by the Maker and made available through the Services for purchase by PBP and ultimate resale to the Buyer by PBP.
- “Product Content” means Content related to a specific Product and includes Product Photographs.
- “Product Photography Guide” means the guidelines available at https://cdn.shopify.com/s/files/1/0525/1609/4140/files/Product_Photography_Guide.pdf?v=1623622351.
- “Resale Value” means the estimated amount of money as determined in PBP’s sole discretion, acting reasonably, that a Buyer would be willing to pay to purchase the Non-Conforming Product through the Services.
- “Unplanned Interruption” means any circumstance which arises from, relates to, or may be necessitated by a public health crisis or natural disaster, including the COVID-19 pandemic, and includes any supply chain disruptions associated therewith.
- Throughout these Maker Terms, the word “include” or “including” means “including, but not limited to”.
3. Account Registration
- Maker Account. To sell Product through the Website, you must register and create an account with, and be approved by, us (“Maker Account”) through the process set out in the TOU (“Application Process”). As part of the Application Process, you may be required to enter into our then-current form of pre-authorized debit agreement with us, our aﬃliates or our third party payment processors to electronically debit your bank account to deduct all Commissions and fees due and owing from your payout amount and to settle and transfer funds to your bank account. Any references throughout these Maker Terms to information being transmitted through or made available on your Maker Account is deemed to include, as applicable, either transmission through e-mail (between Maker and PBP) or as otherwise set out in writing and accessible by Maker and PBP.
- Wholesale Relationships. We are aware that you may have existing relationships with Buyers that pre-date your use of the Services. If you register such pre-existing customers with us (“Pre-existing Customers”), we will not charge a Commission for Orders that arise as a result of such Pre-existing Customer submitting a request for a Product through the Services. You must register any Pre- existing Customers by emailing email@example.com and providing such information and documentation as may be required by us. For clarity, for any Orders that arise as a result of a pre-existing customer submitting a request for a Product through the Services, but you did not register such pre-existing customer with PBP as a Pre-existing Customer, such Orders will be subject to the Commission.
- Collection Page. Each Maker has its own dedicated store page on the Website featuring its Product (including descriptions, specifications and other pertinent information) (“Collection Page”) available for purchase by PBP for ultimate resale to the Buyer. We will create and design your Collection Page with the information you provide or we may, at our sole discretion, permit you to create and design your own Collection Page in whole or in part. You agree that we may adjust, edit or remove Content submitted for or displayed on your Collection Page in our sole discretion in order to comply with our internal specifications and requirements. We reserve the right to review and approve your Collection Page, in our sole discretion, before publishing the Collection Page to the Website. If we create your Collection Page, you must provide us with the following documents or information, as may be defined below: (i) Product Catalogue Summary; (ii) Product Photographs; (iii) Minimum Order Value; (iv) Average Lead Time; and (v) any other information we may reasonably require. We will notify you once we have created your Collection Page.
- Product Catalogue Summary. For each Product on your Collection Page, you must provide us with a Product catalogue summary containing but not limited to the following Product information: (i) Product name; (ii) individual or pack size; (iii) Product variations; (iv) pack/case quantity, dimensions and weight, as applicable; (v) wholesale price by region; (vi) suggested retail price; (vii) Product descriptions; and (viii) whether Product is fulfilled from the United States; and (ix) Product inventory level (the “Product Catalogue Summary”).
- Product Photographs. You must provide high-resolution photographs of Product in accordance with our Product Photography Guide (“Product Photographs”). Product Photographs that could reasonably be considered objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful or otherwise inappropriate are prohibited. You must submit all Product Photographs as indicated by us and we reserve the right, in our sole discretion, to select and use the best quality and most appropriate Product Photographs for your Collection Page. We reserve the right to reject any Product Photographs that violate these Maker Terms.
- Order Minimums. You may set a minimum quantity of Product that must be purchased in each Order (a “Minimum Order Value”) which will be displayed on your Collection Page. The Buyer will not be permitted to submit an Order for less than the Minimum Order Value.
- Estimated Timelines. You must establish a reasonable estimation of your actual lead time for shipping Product (“Average Lead Time”) to be displayed on the Collection Page. You must also provide an estimated date Product will be shipped to the Delivery Location (“Estimated Shipping Date”) following your acceptance of an Order.
5. Product Content License, Representations and Warranties
- License. You hereby grant us a non-exclusive, royalty-free, limited license to use, view, copy, adapt, modify, distribute, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, sublicense, and otherwise use the Product Content in connection with the Services, including our advertising, marketing and promotion of the Services and Product and other initiatives and events related to the Services and Product. We acknowledge and agree that we are merely a licensee of the Product Content and do not own and will not claim any ownership rights in the Product Content and nothing in these Maker Terms will be deemed to restrict any rights that you may have to use and exploit your Product Content. You hereby acknowledge and agree that we may, at our option and without your prior approval, grant a non-exclusive, non-transferable, non-sublicensable, royalty- free, limited sublicense to the Buyer to use your Product Content on their website for the sole purpose of promoting, advertising and selling Product for which the Product Content relates.
- Representations and Warranties. You acknowledge and agree that you are solely responsible for all Product Content that you make available through the Services. Accordingly, you represent and warrant that: (i) you are either the sole and exclusive owner of the Product Content or you have all rights, licenses, consents and releases necessary to grant to us the rights in such Product Content as contemplated under these Maker Terms; and (ii) neither the Product Content nor your posting, uploading, publication, submission or transmittal of the Product Content or any use of the Product Content by us or the Buyer will: (A) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (B) contain inaccurate, misleading, libelous, misleading or otherwise unlawful, abusive, harassing or obscene material; (C) contain any computer virus or other malware that could in any way affect the operation of the Services; or (D) result in the violation of any Applicable Laws. You agree that you will not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Product Content. You acknowledge and agree you are solely responsible for the Product Content you provide us, including its accuracy. We will not be liable to you and expressly disclaim any and all liability, for any Claims arising from, in connection with or in respect of any Product Content. You hereby remise, release and forever discharge us and the PBP Parties (defined below) from any and all Claims whatsoever which you ever had, now have or may hereafter have, whether at common law, in equity, by statute or otherwise, whether known or unknown, arising from, in connection with or in respect of the Product Content and agree to indemnify, defend and hold us and the PBP Parties harmless against any and all Claims arising from, in connection with or in respect of the Product Content.
6. Product Listing and Compliance
- Product Listing. You must provide us with a list and description of goods you intend to make available through the Services (“Product List”). We reserve the right to accept, revise, or reject and remove goods from the Product List and we have sole discretion as to Product available on your Collection Page.
- Product and Content Compliance. The Maker, Product and Product Content, as the case may be, must comply with our PBP Guidelines. We reserve the right to remove from the Website any Product and Product Content that does not comply with such guidelines and standards and we reserve the right to temporarily suspend or permanently terminate your Maker Account, at our sole discretion, if you fail to comply with such guidelines and standards. You will ensure all Product and Product Content on your Collection Page: (i) complies with all laws, rules and regulations, including, safety, labeling, testing, warning, import/export and other consumer protection law requirements applicable to the purchase and supply of Product (collectively, “Applicable Laws”); (ii) does not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; and (iii) does not provides any false, inaccurate or misleading information about Product, and you are responsible for ensuring: (v) you have all necessary rights, licenses, permissions and consents to offer for sale and sell Product, including ensuring that Product is allowed to be sold from your jurisdiction and into the Buyer’s jurisdiction. We reserve the right, in our sole discretion, to remove from the Website any Product or Product Content that does not follow, abide by, or comply with, the requirements or restrictions set forth in the Agreement and we reserve the right to temporarily suspend or permanently terminate your Maker Account if you fail to follow, abide by, or comply with, the requirements or restrictions set out in the Agreement.
- Pursuant to a request from a Buyer, we may request from you additional product safety, labelling and testing information beyond that required by Applicable Law (“Additional Product Information”). If you accept an Order for which Additional Product Information has been requested, you must provide PBP with timely and accurate Additional Product Information and PBP will provide such Additional Product Information to the Buyer.
- We will not be liable to you, and expressly disclaim any and all liability, for any Claims arising from, in connection with or in respect of any Maker, Product or Product Content not following, abiding by, or complying with, the requirements or restrictions set out in the Agreement, including Section 6(b) (i)-(v) or Section 6(c) above. You hereby remise, release and forever discharge us and the PBP Parties (defined below) from any and all Claims whatsoever which you ever had, now have or may hereafter have, whether at common law, in equity, by statute or otherwise, whether known or unknown, arising from, in connection with or in respect of any Maker, Product or Product Content that does not follow, abide by, or comply with, the requirements or restrictions set out in the Agreement, including Section 6(b) (i)-(v) or Section 6(c) above, and you agree to indemnify, defend and hold us and the PBP Parties harmless against any and all such Claims arising from, in connection with or in respect of your compliance with the Agreement, including Section 6(b) (i)-(v) or Section 6(c) above.
7. Inventory, Orders, Recalled Product
- Inventory, Lead Times and Estimate Shipping Date. Using your Maker Account or by notifying us of any changes or updates via e-mail, you must keep your Product Catalogue Summary and all information available on your Collection Page accurate, current and up-to-date, including Product availability, Average Lead Time and inventory levels. You must promptly remove or hide any Product on your Collection Page that is discontinued or out of stock. You must use best efforts to meet the Average Lead Time and Estimated Shipping Date associated with each Product. If you anticipate or experience a delay in meeting the Average Lead Time for an Order, you must immediately notify us and update the Estimated Shipping Date within your Maker Account or via e-mail. If the revised Estimated Shipping Date is more than 15 days later than the original Estimated Shipping Date, you must pay us, in accordance with the payment terms in Section 11 , a late fee of 0.5% of the Product Subtotal (defined below) per week for each additional seven days of delay from the original Estimated Shipping Date. You must maintain accurate inventory levels at all times for Product with a U.S. Shipping Designation such that such Product will ship within seven days of accepting the Order. Notwithstanding the foregoing, PBP may, in its sole discretion, permit Products with a U.S. Shipping Designation to ship more than seven days after accepting the Order in cases where the Order requires a longer lead time due to volume/quantity considerations, as applicable.
- Orders. The Buyer will submit a request for Product using the Services. We will notify and provide order details to you via e-mail and through your Maker Account each time the Buyer submits a request for Product (a “Draft Order”). You must refuse or accept the Draft Order within two Business Days of receiving the Draft Order. If you accept the Draft Order (an “Order”), you must confirm or revise certain Order details, including the Shipping Estimate (defined below) and Estimated Shipping Date within three Business Days of accepting the Order. In the case of Draft Orders for Custom Product: (i) you may revise the Draft Order by updating the cost, sample description, Average Lead Time and Shipping Estimate; (ii) you must refuse, accept, or revise a Draft Order for Custom Product within two Business Days of receiving such Draft Order; (iii) if you revise a Draft Order for Custom Product, the Buyer will be notified and must approve or decline your revised Draft Order; and (iv) If the Buyer approves your revised Draft Order, you will be deemed to have accepted the Draft Order. We reserve the right to withdraw and cancel the Draft Order at any time prior to your acceptance or refusal. The details and information pertaining to each Order will be set out in a purchase order (a “Purchase Order”) provided to you through your Maker Account or via e-mail.
- Right to Refuse. You may refuse any Draft Orders for any reason. If you refuse a Draft Order, you must provide us with a reason for such refusal. Consistent refusal of Draft Orders may result in the temporary suspension or permanent termination of your Maker Account, at our sole discretion. If you refuse a Draft Order, we reserve the right to fulfill the Buyer’s request through another supplier or maker using the Services or any other retail channel. You acknowledge and agree that consistent refusal of Draft Orders may impact your placement in search results on the Website and otherwise impact your visibility to Buyers through the Services.
- Recalled Product. If you, a governmental authority or other applicable authority in any jurisdiction determine that any Product sold to us is defective or must otherwise be recalled, you must immediately notify us and provide us with the following information: (i) Product name; (ii) SKU number or other identifying number; (iii) number of units in all Orders that included such Product; (iv) purpose of recall; and (v) any other information we may reasonably require to ensure such Product may be effectively and efficiently recalled from the Buyer. If a recall is initiated for any Product, we may elect, in our sole discretion, for you to either: (A) refund us the Final Payment (as defined below) for any such Product in accordance with the process set out in Section 9(c) (ii); or (B) replace such Product, in accordance with the process set out in Section 9(c) (iii). You must cooperate with us and the Buyer as applicable to ensure the Product subject to the recall is, at our option, either successfully obtained from Buyer or destroyed. You acknowledge and agree that you are liable for all costs and expenses incurred by us and the Buyer in association with the recall.
- Exclusivity. Once you receive a Draft Order for a particular Buyer, you must use the Services to provide any Product on your Collection Page to such Buyer. You will not influence the Buyer, or otherwise avoid our processes or the Services, by offering to transact directly with the Buyer outside of the Services. Failure to comply with this provision may result in temporary suspension or permanent termination of your Maker Account and your ability to use the Services in the future.
- Allocation of Goods. If shortages occur in your supply of Product directly or indirectly as a result of an Unplanned Interruption, we may direct your available supply of Product among Buyers in a manner and amount that is fair and reasonable in our sole discretion.
- Offline Mode. If, for any reason, you are unable to accept any Orders for a specified period of time, you may pause your Collection Page for up to 12 weeks (“Offline Period”) by contacting us at firstname.lastname@example.org. During the Offline Period, your Collection Page will not be visible to Buyers through the Website. For certainty, you must fulfill existing Orders and continue to comply with the terms of this Agreement during the Offline Period.
- Shipping Costs and Tracking. Unless otherwise negotiated with the Buyer, you are required to arrange for delivery of the Order to the Buyer’s specified location (“Delivery Location”) FOB Incoterms® 2020 (see https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-2020/) and pay for all shipping costs and any customs and/or duties on international orders incurred to ship the Order to the Delivery Location directly (“Shipping Expenses”). We will reimburse you for the Shipping Expenses. In the case of Product with a U.S. Shipping Designation, we will not reimburse you for any express shipping charges that must be incurred to meet the Estimated Shipping Date. For each Order, you must notify us through your Maker Account of an estimate of the Shipping Expense amount (“Shipping Estimate”). The Shipping Estimate must reflect your best estimate of the actual cost of shipping the Order to the Delivery Location (including customs and or duties) and cannot be inflated in any way. In the case of direct delivery to Buyer, you must ensure Buyer’s signature is required upon delivery of the Order as evidence of the Buyer’s receipt of the Order. Within 24 hours of shipping an Order, you must provide us with written notice of shipment and provide us with: (i) all shipping related documents containing the Order identification number and number of cartons/containers in the shipment, including the Forwarder’s Cargo Receipt (FCR) or commercial invoice and packing list used for export that confirms the value of Product shipped in the Order; (ii) your shipping account details; (iii) tracking information; and (iv) your Shipping Expenses. If an Order is shipped in multiple packages, you agree to provide the foregoing information for each package. We will notify the Buyer when an Order has shipped and provide the Buyer with the tracking information.
- Packaging. You must pack all Product for shipment: i) according to any instructions provided by us or the Buyer; ii) in a manner sufficient to ensure that Product is delivered in undamaged condition; and iii) in accordance with Applicable Law and industry standards. You must provide us and the Buyer with prior written notice if you require the Buyer to return any packaging material. Any return of such packaging material will be made at your sole cost and expense.
- Title and Risk of Loss. Title and risk of loss of Product passes to us at the time you ship the Order.
9. Non-Conforming Product, Damaged Product and Cancellations
- Non-Conforming Product. The Buyer must inspect its Order within ten days of the Order being delivered (the “Inspection Period”) and will be deemed to have accepted Product unless Buyer notifies us in writing of any Non-Conforming Product during the Inspection Period and provides us with such written evidence or other documentation as we may require (including picture or video evidence) to substantiate the claim of non-conformance (a “Non-Conformance Report”). The term “Non-Conforming Product” means only the following: (i) Product shipped is significantly different, in quality or quantity, than described or identified in the invoice; or (ii) Product is significantly different than a sample of Product previously received by the Buyer from you. We may, in our sole discretion, accept or reject the Non-Conformance Report. If we accept the Non- Conformance Report, we may: (A) authorize Buyer to contact you directly to resolve the issue and arrange for a discount, refund or replacement of Product (a “Buyer Direct Non-Conformance Claim”); or (B) resolve the issue with the Buyer directly and provide Buyer with a discount, refund or replacement Product to the Buyer, and Maker will in turn resolve the claim with PBP in accordance with Section 9(c) (“PBP Non-Conformance Claim”).
- Buyer Direct Non-Conformance Claim. In the case of a Buyer Direct Non-Conformance Claim, you acknowledge and agree that you alone are responsible for resolving the issue with the Buyer, including providing the Buyer with replacement Product or reimbursing the Buyer as required, to satisfactorily resolve the issue and you agree to indemnify, defend and hold us and the PBP Parties harmless against any and all Claims arising from, in connection with or in respect of any Non- Conforming Product. In the case of a Buyer Direct Non-Conformance Claim, if you agree to refund the Buyer or provide the Buyer with a replacement Product and such arrangement requires the return or exchange of the Non-Conforming product, you must arrange for return or exchange of the Non-Conforming Product with the Buyer at your sole cost and expense and at no additional cost to us or the Buyer, and the provision of any replacement Product to the Buyer will be subject to the terms of this Agreement, except PBP will not be required to reimburse you for any Shipping Expenses.
- PBP Non-Conformance Claim. In the case of a PBP Non-Conformance Claim, we may elect, in our sole discretion, to: (i) accept the Order and require you to reduce the price we paid for such Order by (A) at least 25% of the total amount paid by PBP for the Order; or (B) an amount equal to the difference between the Resale Value of the Order and the entire price we originally agreed to pay for the Order, whichever results in a greater discount to PBP; (ii) return the Order and require you to refund us the entire price we paid for the Order; or (iii) return the Order and require you to provide a replacement of the Order. In the case of (i), you must refund us the applicable discount and we reserve the right, at our sole discretion, to resell such Non-Conforming Product through any retail channel (including through the Services) and at any price. In the case of (ii), you must refund us the Final Payment for the Order and cooperate with us to arrange for return of the Non-Conforming Product at your sole cost and expense and at no additional cost to us. In the case of (iii), you must cooperate with us to arrange for return and replacement of the Non-Conforming Product at your sole cost and expense and at no additional cost to us or the Buyer and the provision of any replacement Product will be subject to the terms of this Agreement, except PBP will not reimburse you for any Shipping Expenses.
- Damaged or Missing Product. If Product is damaged during shipping or missing from the Order, the Buyer is solely responsible for: (i) notifying us of any shipping damage (a “Shipping Report”); (ii) taking a video of the shipment box while unboxing the Order and including such video in the Shipping Report; and (iii) providing us with such other images and documentation we may reasonably request to resolve the issue with the shipping provider. If the Buyer submits a Shipping Report, we may, in our sole discretion, accept or reject the Shipping Report. If we accept the Shipping Report (a “Shipping Claim”), we may elect, in our sole discretion, to: (A) accept the Order and require you to reduce the price we paid for such Order by (I) at least 25% of the total amount paid by PBP for the Order; or (II) an amount equal to the difference between the Resale Value of the Order and the entire price we originally agreed to pay for the Order, whichever results in a greater discount to PBP; (B) return the Order and require you to refund us the price we paid for the Order; or (C) return the Order and require you to provide a replacement of the Order. In the case of (A), you must refund us the applicable discount and we reserve the right, at our sole discretion, to resell such damaged Product through any retail channel (including through the Services) and at any price. In the case of (B), you must refund the Final Payment for the Order and cooperate with us to arrange for return of the damaged Product at your sole cost and expense and at no additional cost to us. In the case of (C), you must cooperate with us to arrange for return and exchange of the damaged Product at your sole cost and expense and at no additional cost to us and the provision of any replacement Product to the Buyer will be subject to the terms of this Agreement, except PBP will not reimburse you for any Shipping Expenses. If we accept a Shipping Report, we will provide you with any information contained in the Shipping Report that may assist you in making a claim with the shipping provider.
- Cancellation. In the event an Order is not shipped to the Buyer within four weeks following the Estimated Shipping Date, we have the right to cancel the Order. In the event an Order is cancelled, we may elect, in our sole discretion, to: (A) cancel the relevant Purchase Order in its entirety and require you to refund us the price we paid for the Order; or (B) reinstate the Order and require you to reduce the price we paid for such Order by (I) at least 25% of the total amount paid by PBP for the Order; or (II) an amount equal to the difference between the Resale Value of the Order and the entire price we originally agreed to pay for the Order, whichever results in a greater discount to PBP. In the case of (A), you must refund us the Final Payment for the Order. In the case of (B), you must refund us the applicable discount and we reserve the right, at our sole discretion, to resell such damaged Product through any retail channel (including through the Services) and at any price. Notwithstanding the foregoing, in the event an Order is cancelled after it has shipped, either due to (i) your delay in notifying us that the Order has shipped; or (ii) our delay in notifying the Buyer that the Order has shipped, we reserve the right, in our sole discretion, to have the Order delivered to us and to resell Product through any retail channel (including through the Services) and at any price. In the case of (i), if we do not elect to have the Order delivered to us, you will be solely responsible for contacting the Buyer and arranging for return of the Order and in any event, you will be solely liable for any additional shipping expenses incurred by us or the Buyer.
10. Product Pricing.
- Price. The price of each Product is determined by mutual agreement between Maker and PBP and is set out in your Maker Account, or otherwise set out in writing by PBP (the “Price”). For certainty, the price for Product as set out on a Maker’s Collection Page is not the price that PBP will pay to the Maker to purchase such Product. Unless otherwise specified in the Purchase Order, the Price excludes all shipping and excise taxes, harmonized sales tax, goods and services tax or state/provincial sales tax (“Tax(es)”. No increase in the Price is effective, whether due to increased material, labour or transportation costs or otherwise, without our prior written consent.
- Pricing Consistency and Most Favoured Nation (most favorable pricing). You represent and warrant to and covenant with us that the Price is the lowest price charged by you to any of your arm’s length buyers. If you charge any arm’s length buyer a lower price for a particular Product, you must apply that price to the relevant Product in your Maker Account. If you fail to comply with the foregoing, we may, in our sole discretion, temporarily suspend or permanently terminate your Maker Account.
- Price Audits. We may perform routine Price and Content audits of Product listed on your Collection Page. That includes reviewing for wholesale price consistency between your Collection Page and other platforms and markets where your goods are sold and reviewing discrepancies that are communicated to us from the Buyer. In the event a discrepancy is found, we may reach out to you and require certain action be taken to resolve the issue. If you fail to properly and/or timely respond to the discrepancy, we reserve the right to temporarily suspend or permanently terminate your Maker Account.
11. Payment Terms
- Acceptance of Payment Terms. By accepting these Maker Terms, you acknowledge and agree to the Commissions, Payment Guarantee Fee, other fees, calculations, payment schedule and other payment terms set forth in this Section 11 . You agree and authorize PBP and/or its payment processors to deduct the Commissions and other fees due and owing from your payout amount and to settle and transfer funds to your bank account.
- Commission & Payment Guarantee Fee. Unless otherwise agreed by PBP in writing, PBP charges (i) a commission of 15% (the “Commission”) plus a 5% payment guarantee fee (the “Payment Guarantee Fee”) on all Orders subject to the 60 Day Advance described in Section 11(i) . Fees are calculated at FOB Incoterms® 2020 (see https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-2020/) pricing unless Product has a U.S. Shipping Designation.
- Pre-existing Customers. In accordance with Section 3(b) , for Orders that arise as a result of your Pre-Existing Customers submitting a request for a Product through the Services, you are not required to pay a Commission on such Orders. Notwithstanding the foregoing, you must pay the Payment Guarantee Fee if you are eligible for and do not opt out of the 60 Day Advance for such Orders, as set out in Section 11(a) .
- Product Subtotal. The “Product Subtotal” is the maximum value between the value of Product with mark-up/discounts included and the value of Products without the mark-up/discounts added.
- Shipping Expense Reimbursement. We will reimburse you for the Shipping Expenses as set out Section 8(a) .
- Security/Collateral. For Orders that are subject to the Advance, the Maker will grant to PBP, prior to the date on which the first Advance is made, a security interest over the acquired inventory necessary to fulfil an Order and any proceeds thereof. As continuing security for the repayment of any Advance (and all amounts as described in these Maker Terms), all acquired inventory necessary to fulfil any Order will be transferred to PBP (the “Collateral”).
- Transaction Fee. The “Transaction Fee” includes bank charges borne by you for payments made by PBP to your bank accounts. The Transaction Fee ranges from $5 to $35 for all transfers, but is subject to change from time to time in PBP’s sole discretion.
- Calculation. Commissions are calculated based on the dollar amount of the Product Subtotal, excluding Shipping Expenses and Taxes, on the lower of FOB Incoterms® 2020 (see https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-2020/) and landed wholesale pricing. Any Orders that are subject to a PBP Non-Conformance Claim or a Shipping Claim are deducted from our payout to you. Notwithstanding the foregoing, PBP will charge the Commission on the full Order value. If you send a replacement Product for an Order that is subject to a PBP Non-Conformance Claim or a Shipping Claim, we will pay you the Product Subtotal for the replacement Product.
- PBP Payment = (Product Subtotal - 15% Commission - *Payment Guarantee Fee + Shipping Expenses). *Payment Guarantee fee is applicable if 60 Day Advance is selected
- Advance. PBP currently offers one type of advance payment (the “Advance”) at a cost of 5% on completion of our due diligence requirement. The Maker can receive a 60-day advance (the “60 Day Advance”) and if the Maker does not elect or is not eligible for the 60 Day Advance, all other payments by PBP to you will be processed 60 days from the date you confirm shipment of an Order. For Makers subject to the 60 Day Advance, amounts owed will be transferred to your chosen bank account upon acceptance of the Order. It is anticipated that the Advance or final payment amounts will appear in your bank account within 5 business days of being processed. PBP is not responsible for any actions taken by your bank that may result in some or all of the funds not being made available to you. PBP reserves the right to suspend payments to your bank account due to pending disputes, excessive chargebacks or refunds, and/or other improper or illegal activity.
- 60 Day Advance: 50% Advance for up to 60 days to shipment, guaranteed. 50% final payment to be made 60 days after shipment, unless otherwise negotiated with PBP at registration. For Final Payment calculations please see Section 11(j) below.
- Advance = 50% Product Subtotal – Transaction Fee.
- You may choose to opt-out of the 60 Day Advance, and choose to wait to receive your payment from PBP until we are paid by the Buyer, which may be up to 60 days from the date of shipment of the Order. If you are not eligible for or you opt-out of the 60 Day Advance, you will not be charged the Payment Guarantee Fee on your final payment amount. Invoice discounting is available for Orders that arise as a result of a select Buyers submitting a request for a Product through the Services.
- Final Payment. The final balance is automatically disbursed 60 days after the confirmed shipping date, guaranteed. Amounts owed will be transferred to your chosen bank account.
- Final Payment = (Product Subtotal - Advance, if any - 15% Commission - 5% Payment Guarantee fee) + Shipping Expenses - Transaction Fee
- Additional bank and transaction fees may apply and will be deducted from each payment.
- For the avoidance of doubt, we reserve the right to deduct any other fees, discounts or other amounts from the Final Payment as expressly identified in these Maker Terms, including any refunded amounts.
- Shipping Insurance. During the term of this Agreement, we may, in our sole discretion, require you to maintain and carry marine and shipping insurance with a financially sound and reputable insurer, at your own expense and naming PBP as an additional insured. Upon our request, you must provide us with a certificate of insurance from your insurer evidencing such coverage specified in this Section 12(a) . In the event of damage to an Order during shipment, you hereby assign the proceeds from the insurance to cover the cost of any financing provided by PBP under this Agreement. At our sole discretion, we may offer shipping protection on Orders subject to the 60 Day Advance.
- Product Insurance. For Orders over $10,000, you must, at your own expense, maintain and carry, with a financially sound reputable insurer, product liability insurance in a sum of no less than $1,000,000 per occurrence naming PBP as an additional insured. You must provide us with a certificate of insurance from your insurer evidencing the insurance covered specified in this Section 12(b) upon accepting Orders over $10,000 and any other relevant information we request.
13. Performance Standards
- Minimum Standards. In addition to all other timelines and standards set forth in this Agreement, you must comply with the following minimum standards in connection with the Services (collectively, the “Minimum Standards”):
- Accurately list and describe Product on your Collection Page;
- Fulfill and ship Orders in a timely manner and using a reputable shipping provider;
- Promptly and effectively respond to inquiries and communications from the Buyer and PBP;
- Act reasonably and in good faith when resolving Buyer Direct Non-Conformance Claims and when assisting PBP with resolving PBP Non-Conformance Claims and Shipping Claims.
- Performance Metrics. You acknowledge and agree that we will monitor, track and measure your compliance with the Minimum Standards, by using a variety of metrics, including collecting reviews and ratings from the Buyer and tracking the following information (“Performance Metrics”):
- accuracy of your Collection Page;
- completeness of Product Catalogue Summary;;
- how often Orders are shipped later than the Estimated Shipping Date;
- how often the Average Lead Time for an Order is exceeded;
- how often you provide a valid tracking number;
- how long it takes you to revise, accept or refuse Draft Orders;
- how often you refuse Draft Orders;
- how often your Orders are reported as damaged or missing;
- how often your Orders contain Non-Conforming Product;
- how often your Orders are mislabelled;
- how often Product is on backorder;
- how often your Orders are cancelled;
- how promptly and effectively you respond to the Buyer’s inquiries;
- how promptly and effectively you resolve Buyer Direct Non-Conformance Claims;
- how promptly and effectively you assist us with resolving PBP Non-Conformance Claims and Shipping Claims; and
- any other information obtained from your Maker Account or your use of the Services.
You represent and warrant to and covenant with us that at the time of shipment of an Order, all Product will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications specified in the Product Catalogue Summary; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy. These representations, warranties and covenants survive any delivery, inspection, acceptance or payment of or for Product by us or the Buyer. These representations, warranties and covenants are cumulative and in addition to any other warranty provided by law or equity. If we notify you of non-compliance with this Section 14 in respect of a Product, we may elect, in our sole discretion, for you to either: (A) refund us the Final Payment for any such Product in accordance with the process set out in Section 9(c) (ii); or (B) replace such Product, in accordance with the process set out in Section 9(c) (iii). You acknowledge and agree that you are liable for all costs and expenses incurred by us and the Buyer in association with your non-compliance with this Section 14 .
You agree to defend, indemnify, and hold PBP, and its parent, subsidiaries, aﬃliates, partners, successors, and assigns, and each of its and their owners, members, oﬃcers, directors, employees, agents, representatives, contractors, subcontractors, licensors, service providers and third party content providers (collectively, the “PBP Parties”) harmless from any Claims arising out of, relating to or occurring in connection with your violation of: (i) this Agreement; (ii) Applicable Laws; or (iii) the rights of a third party, including intellectual property rights.
16. Limitation of Liability.
Nothing in this Agreement will exclude or limit: (a) your liability under Section 14 Section 15 and Section 19(d) ; or (b) your liability for fraud, personal injury or death caused by your negligence or wilful misconduct. In no event will our aggregate liability arising out of, related to or in connection with this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid or payable to you in the 12-month period immediately preceding the event that caused the damage or that is the subject matter of the Claim.
17. Prohibited Uses
We have the right to investigate and prosecute violations of these Maker Terms to the fullest extent permitted by law. We may involve and cooperate with law enforcement authorities in prosecuting any Maker who violates these Maker Terms. You acknowledge and agree that we have no obligation to monitor your access to or use of the Service or Content, or to review or edit any Content. Notwithstanding the foregoing, we have the right to monitor your access to or use of the Service or Content, or to review or edit any Content, for the purpose of operating the Services, to ensure your compliance with these Maker Terms, to investigate a complaint or to comply with Applicable Law or the order or requirement of a court, administrative agency or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any Content that we, in our sole discretion, consider to be in violation of these Maker Terms or otherwise harmful to the Services. We reserve the right to cooperate fully with law enforcement, and to involve and share information with law enforcement, governmental agencies or other oversight bodies if we suspect illegal activity may be taking place.
- In addition to any remedies that may be provided under this Agreement or available at law, we may terminate this Agreement or temporarily suspend your Maker Account with immediate effect upon written notice to you, if you: (i) fail to pay any amount when due under this Agreement and such failure continues for 15 days after your receipt of written notice of nonpayment; (ii) have not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) become insolvent, file a petition for bankruptcy or commence or has commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- We reserve the right to revoke your access to and use of the Services at any time, with or without cause. In the event we terminate this Agreement or your Maker Account due to your breach, you will remain liable for all amounts due hereunder.
- You may terminate your Maker Account and this Agreement any time by contacting our support team at email@example.com or by the process that may otherwise be set out in your Maker Account. We will remove your Collection Page from the Website as soon as is practicable, and will close your Maker Account once there has been a full accounting of, and we have received, all monies due and owing to us under your Maker Account and all outstanding Orders have been fulfilled.
- Set-Off. Without prejudice to any other right or remedy it may have, PBP reserves the right to set off at any time any amount owing to it by the Maker against any amount payable by PBP to the Maker under this Agreement.
- Compliance with Law. You must comply with all Applicable Laws. You must maintain in effect all the licenses, permissions, authorizations, consents and permits needed to carry out your obligations under this Agreement. You must comply with all export and import laws of all countries involved in your sale of Product under this Agreement. You assume all responsibility for shipments of Product requiring any government export clearance. We may terminate this Agreement if any governmental authority imposes anti dumping or countervailing duties or any other penalties on Product.
- Waiver. No waiver by any Party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving.
- Confidential Information. All non-public, confidential or proprietary information of PBP, including plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by us to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential and may only be used by you in connection with exercising your rights or performing your obligations under this Agreement and may not be disclosed or copied unless authorized by us in writing. Upon our request, you must promptly return all documents and other materials received from us. We will be entitled to injunctive relief for any violation of this Section 19(d) . This Section 18(d) does not apply to information that: (i) is in the public domain; (ii) is known to you at the time of disclosure; or (iii) you rightfully obtained on a non-confidential basis from a third party.
- Assignment. You will not transfer or assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported transfer, assignment or delegation in violation of this Section 19(e) is null and void. No transfer, assignment or delegation relieves you of any of your obligations under this Agreement. We may at any time assign, transfer or subcontract any or all of our rights or obligations under this Agreement without your prior written consent.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
- Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Choice of Forum. Any legal suit, action or proceeding arising out of or relating to this Agreement will be instituted in the courts of the Province of Ontario in each case located in the City of Toronto and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Notices. All notices, request, consents, Claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and (i) addressed to the Parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving Party in writing; or (ii) sent through the Maker Account. Notices sent in accordance with this Section 19(i) will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by email or through the Maker Account if sent during the addressee’s normal business hours, and on the next Business Day if sent after the addressee’s normal business hours; or (iv) on the fifth day after the date mailed by certified or registered mail return receipt requested, postage prepaid.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Maker Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including the following Sections: 6 (Product Listing and Compliance), 9 (Non-conforming and Damaged Product), 14 (Warranty), 15 (Indemnity), 16 (Limitation of Liability), 19 (Compliance with Laws, Confidential Information, Governing Law, Choice of Forum and Survival).