THIS AGREEMENT is effective on the date Supplier registers as a supplier on the KWIPPED website and is between Supplier and KWIPPED, Inc., a North Carolina corporation with its principal place of business at 228 North Front St. Suite 301 Wilmington, NC 28401 ("KWIPPED").
WHEREAS, KWIPPED operates an on-line marketplace (the "Website") where potential equipment renters or leasees can request bids from potential equipment suppliers for the rental or lease of equipment;
WHEREAS, Supplier desires to be listed on the Website as a supplier of its equipment for rent or lease and desires to participate in bids for renting and leasing of its equipment to potential customers;
NOW, THEREFORE, in consideration of the promises hereinafter made by the parties hereto, it is agreed as follows:
- Distribution Right. The Supplier hereby grants KWIPPED, Inc. ("KWIPPED") the nonexclusive right to list the equipment identified by Supplier ("Equipment") for rent or lease on KWIPPED's on-line marketplace (the "Website"). Supplier represents and warrants that this grant of promotion rights will not conflict with any other promotion or distribution rights that Supplier has otherwise granted or any other agreement to which Supplier is a party.
- Listing Equipment for Rent or Lease. Supplier may list its Equipment for rent or lease on the Website either by submitting bids through KWIPPED's bidding system (described more fully in Section 2(a) below) or by uploading to the Website Equipment available for rent or lease (described more fully in Section 2(b) below).
- Bid System. Upon receipt by KWIPPED through the Website of a request from a potential renter or leasee for a quote on the rental or leasing of equipment of the type that Supplier has included in its profile registered with KWIPPED, KWIPPED will forward such request to Supplier at the contact information on file with KWIPPED. Supplier understands and agrees that such referrals are not exclusive to Supplier, and will may be sent to all suppliers registered with KWIPPED who have such equipment available for rent unless the request originates directly from Supplier's profile on the KWIPPED website. Promptly following receipt of the request for a quote, Supplier may submit a quote to the potential customer through the Website.
- Equipment Upload. Supplier may also upload to the Website information about the Equipment that it has available to rent or lease, along with a rental rate, for potential renters to review or the sale price in the case of a lease. Supplier will use commercially reasonable efforts to maintain up-to-date information on its Equipment available for rent or lease through the Website.
- Rental Agreement. Supplier agrees to use the form rental agreement available on the Website with all renters of Equipment. Supplier acknowledges that it has had the form rental agreement reviewed by its own counsel and has determined it is appropriate for Supplier.
- Billing and Collection.
- Rental Payment and Fees. Supplier acknowledges and agrees that all rental payments made by renters under the terms of the form rental agreement will be billed and collected by KWIPPED using credit card information provided by each renter. Supplier further understands and agrees that KWIPPED is only providing billing and collection services to Supplier, and is not a party to the rental agreement between Supplier and renters nor responsible for any obligations of Supplier or renters under the rental agreement. Upon receipt of rental payment from a renter, KWIPPED will pay to Supplier the rental fee set forth in the rental agreement, less the service charge payable to KWIPPED in an amount specified in Supplier's account profile registered with KWIPPED. Payments to Supplier will be made by KWIPPED within 14 days of receipt of the rental payment from each renter.
- Cancellations, Disputes and Chargebacks. Supplier shall be responsible for all cancellations by Renter of Equipment Rentals, and resolving all disputes with Renters related to rental payments for Equipment rentals, including any chargebacks that may occur with respect to Renters' credit card companies. KWIPPED shall use commercially reasonable efforts to assist Supplier with respect to any cancellations, disputes and chargebacks. Supplier shall refund to KWIPPED any payments made for Equipment rentals that are subject to any cancellation, the successful dispute of the charges by a Renter, or subject to any chargeback of such payment by a Renter, and, if requested by KWIPPED, Supplier agrees to provide to KWIPPED Supplier's credit card information and authorizes KWIPPED to charge Supplier's credit card for all refunds due KWIPPED resulting from cancellations, disputes or chargebacks related to rentals of Supplier's Equipment.
- Non-circumvention of Service Charge Obligation. Supplier will not use the Website to find a Renter or Leasee and then complete a transaction independent of the Website in order to circumvent the obligation to pay any service charges related to KWIPPED's provision of the services or for any other reasons. Supplier agrees that KWIPPED shall be entitled to its service charge on all violations of this Section 4 in addition to any other remedies available to KWIPPED.
- KWIPPED Reservation of Rights. KWIPPED retains the right to determine the content, appearance, design, functionality and all other aspects of the Website (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Website and any element, aspect, portion or feature thereof, from time to time). KWIPPED, in its sole discretion, may withhold for investigation, refuse to process, and/or cancel any of Supplier's rental or lease transactions.
- Right to Use Trademarks and Tradenames. Supplier hereby authorizes KWIPPED to use, reuse, and to grant others the right to use and reuse, without any further compensation to Supplier, the trademarks, tradenames and logos of Supplier in any media now known or developed in the future. Such uses will be in a customary and commercially reasonable manner for marketing, promotional and other purposes reasonably related to the Website and business of KWIPPED and its affiliates, in the good faith judgment of KWIPPED as to each such use.
- Title to Equipment. For rentals on KWIPPED, Supplier shall retain title to all Equipment and the parties agree that the title to any Equipment shall never be in the name of KWIPPED nor shall KWIPPED ever take possession of any Equipment.
- Equipment Warranty and Indemnity. Supplier warrants to KWIPPED that any Equipment rented or leased through the Website will be fully operational and free from defects in material or workmanship under normal use and service for the period of any rental. Supplier agrees that with respect to any shipping services that Supplier may engage through the KWIPPED White Glove Shipping solution as described on the Website, that KWIPPED has no liability to Supplier or renter using such shipping solution, and that a Supplier's sole remedy with respect to the shipping solution is with the shipping company providing the shipping. Supplier shall indemnify and defend KWIPPED and its affiliates, shareholders, directors, officers, employees, attorneys and agents(the "KWIPPED Indemnified Parties"), and hold each of them harmless from and against any and all actual out-of-pocket losses, damages, claims, demands, expenses, fines, penalties, suits and liabilities, including without limitation, reasonable attorneys' fees ("Liabilities") that the KWIPPED Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from rental or leasing of Equipment by Supplier to any customer or use of the form rental agreement or use of the White Glove Shipping solution. If any claim is commenced against a KWIPPED Indemnified Party for which such party is entitled to indemnification hereunder, notice of the claim shall be given to Supplier as promptly as practicable. If, after such notice, Supplier shall acknowledge that this Section applies with respect to such claim, then Supplier shall be entitled, if it so elects, in a notice promptly delivered to the KWIPPED Indemnified Party, but in no event less than fifteen (15) days prior to the date on which a response to such claim is due, to immediately take control of the defense and investigation of such claim and to employ and engage attorneys reasonably acceptable to the KWIPPED Indemnified Party to handle and defend the same, at the Supplier's sole cost and expense. The KWIPPED Indemnified Party shall cooperate, at the cost of Supplier, in all reasonable respects with Supplier and its attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that the KWIPPED Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim pursuant to this Section that involves a remedy other than the payment of money by the Supplier and the full release of the KWIPPED Indemnified Party shall be entered into without the consent of the KWIPPED Indemnified Party, which consent shall not be unreasonably withheld. If Supplier does not assume full control over the defense of a claim as provided in this Section, Supplier may participate in such defense, at its sole cost and expense, and the KWIPPED Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate, at the cost and expense of Supplier.
- Insurance. Supplier shall carry all insurance coverage and amounts reasonably required by, and commensurate with, a company operating and renting equipment in Supplier's industry, including without limitation general commercial liability insurance. If requested by KWIPPED, Supplier shall (i) name KWIPPED as an Additional Insured under such coverage, and (ii) provide to KWIPPED a Certificate of Insurance documenting such coverage, by uploading such Certificate to KWIPPED through the Website.
- Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OTHER THAN FOR INDEMNIFICATION CLAIMS PURSUANT TO SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR DATA, INCURRED, WHETHER IN AN ACTION OF CONTRACT OR TORT OR BASED ON A WARRANTY, IN CONNECTION WITH OR UNDER THIS SERVICE AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Resolution of Customer Complaints; Supplier Standards. If KWIPPED receives any complaints from a customer with respect to any Equipment, KWIPPED shall promptly forward such complaint to Supplier. Supplier agrees to use its best efforts to resolve the complaint expeditiously. Supplier further understands and has reviewed the Standards of Conduct for Suppliers. Supplier agrees to use its best commercial efforts to meet or exceed the Standards of Conduct at all times, and understands that KWIPPED will solicit customer reviews of Supplier's performance and may remove Supplier from KWIPPED's list of eligible suppliers for any failure to meet such Standards or based on adverse customer reviews.
- The term of this Agreement shall commence on the date Supplier registers with KWIPPED, and may be terminated by either party upon ten (10) days' notice to the other.
- Upon termination of this Agreement all further rights and obligations of the parties shall cease, except that (i) Supplier shall fulfill any Equipment rentals or leases obtained through the Website that are in effect as of the termination date, (ii) KWIPPED shall pay Supplier monies due Supplier through the termination date, and for rentals or leases continued under subsection (i) after the termination date, and (iii) each party shall fulfill any other obligation set forth in this Agreement which is to take effect after the date of termination.
- Notice or Communication. Any notice or communication required or permitted hereunder (other than notices of options to bid on rentals, which shall be sent via e-mail) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid or by overnight delivery with a nationally recognized overnight courier and, if sent to Supplier, sent to the contact information in Supplier's account profile with KWIPPED, and if sent to KWIPPED, to 228 North Front St. Suite 301 Wilmington, NC 28401, attention President. Any such notice or communication mailed via registered mail or by overnight courier shall be deemed delivered and effective when actually delivered and an adult signature is obtained.
- Independent Contractors. The parties are independent contractors, this Agreement does not create a partnership or joint venture, and neither party shall have any right, power or authority in any way to act as agent of or bind the other party except as expressly stated in this Agreement.
- Assignment. Neither party may assign this agreement without the written consent of the other party.
- Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes all prior understandings of the parties relating to the subject matter of this Agreement. Any amendment or modification of this Agreement shall be in writing and shall be executed by duly authorized representatives of each party in the same manner as this Agreement. The provisions of this Agreement are severable, and if any one or more such provisions are determined to be illegal or otherwise unenforceable, in whole or in part, under the laws of any jurisdiction, the remaining provisions or portions hereof shall, nevertheless, be binding on and enforceable by and between the parties hereto.
- Applicable Law and Forum. This Agreement shall be governed by and construed according to the laws of the State of North Carolina, irrespective of any conflicts of law rules related thereto. The parties consent to exclusive jurisdiction and venue in the state and federal courts sitting in Wilmington, North Carolina. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens, and accept service of all summons, complaints, and other process of such court(s).
STANDARD EQUIPMENT LEASING PROVISIONS
KWIPPED requires all suppliers desiring to enter into a Lease (as defined below) through the KWIPPED website to accept the terms set forth below, which shall govern the Supplier's financial relationship with the financial institutions with which KWIPPED partners (each a 'Financing Company') to provide the leasing platform to Supplier. All of the terms and definitions included in the Supplier Promotion Agreement between Supplier and KWIPPED (the 'Promotion Agreement') shall apply to the Supplier's listing of its Equipment available for lease (each a 'Lease').
- Third Party Beneficiary; Right to Assign. The Supplier and KWIPPED hereby agree that the Financing Company shall be a third-party beneficiary to these terms and conditions and that KWIPPED shall have the right to assign its rights and obligations hereunder to the Financing Company.
- Credit Decisions. Supplier agrees to provide information (including Supplier and/or Customer credit information) to KWIPPED as may be requested from time to time. Supplier also agrees that KWIPPED may provide any such information to the Financing Company in order to allow it to conduct a credit investigation. The Financing Company may notify Supplier directly as to final approval or rejection. All credit approvals will be made at the sole discretion of the Financing Company and are subject to the terms of such Financing Company's purchase order and the terms of this Agreement. Approvals shall be valid for a period of sixty (60) days from the date of the approval, subject to this paragraph.
- Conditions to Payment by Financing Company. Payment for the Equipment is not earned by Supplier until the following conditions are satisfied, and if payment is made in advance, it shall be refunded immediately upon demand if any condition is not met: (1) all Equipment shall have been delivered, installed and accepted without reservation or notice of complaint by the Customer, and (2) as of the date of acceptance of the Equipment by the Customer, (a) there shall be no material adverse change in the business or financial condition of the Customer or any guarantor or in the value or condition of the Equipment or any collateral, (b) all documentation required by KWIPPED or the Financing Company shall have been properly signed by authorized representatives of the Customer and all conditions specified in this Agreement and any credit approval have been met, (c) all information supplied by Supplier or the Customer shall be correct, and (d) neither Supplier nor the Customer shall be in default under any agreement with the applicable Financing Company. The immediately-preceding sentence supersedes anything to the contrary in this Agreement, in any purchase order or credit approval, or in any other past, present or future agreement between Supplier and KWIPPED or Supplier and the Financing Company (excluding a writing specifically amending this Agreement). If the Financing Company determines that any condition will not be satisfied, the Financing Company may withdraw any credit approval.
- Rate and Terms. The rates and programs provided by the Financing Company will change from time to time and may be changed with respect to transactions not approved prior to such change. KWIPPED or the Financing Company will use commercially reasonable efforts to promptly communicate any changes to Supplier.
- Payment. Subject to the conditions stated in this Agreement and the credit approval, KWIPPED will provide an invoice to the Financing Company for the Equipment on the date that all of the following items have been completed:
The KWIPPED invoice shall be payable by the Financing Company within five (5) business days (the 'Payment Date'). The Financing Company shall pay the amount due to Supplier directly to Supplier.
- The Financing Company has received its lease signed correctly by the Customer,
- Any advance rental payment to the Financing Company required by the lease has been made by the Customer,
- An itemized invoice from Supplier to the Financing Company for the Equipment,
- A verbal and/or written confirmation from the Customer that the Equipment has been delivered and has been accepted (and such has been inspected by the Financing Company if desired), and
- All other documentation or information the Financing Company have identified as reasonably required is in the possession of the Financing Company.
- Shipping. Equipment shall be shipped at Supplier's expense to the Customer FOB Customer's destination. Return shipping (if any) shall be paid for by the Customer or Financing Company, FOB Supplier's destination.
- Cancellation of Lease; Refunds; Returns. Any Lease consummated under the terms of this Agreement can be terminated by a Financing Company within 45 days of the Payment Date if (a) any advance payment made by the Customer under the lease agreement bounces; (b) Customer fails to make the first lease payment to the Financing Company when due; or (c) the Financing Company becomes aware of any fraud, forgery or misrepresentation in connection with the Lease. In the event of termination of a Lease pursuant to this Section, the Financing Company shall be entitled to a full refund of the purchase price upon return of the Equipment in good working condition to Supplier, subject to the shipping terms for return of Equipment set forth in Section 6 above.
- Responsiveness to Customers. Supplier agrees to respond promptly to all Customer complaints concerning the performance of the Equipment and to comply with and fulfill all Supplier's warranties, express or implied, relating to the Equipment (and to permit any such warranties to be transferred to and be enforceable by the Customer during the term of the Lease). Supplier agrees to perform all maintenance and/or service covering the Equipment required under any maintenance or service agreement entered into by Supplier with a Customer or with the Financing Company. Supplier will notify the Financing Company promptly of any Customer complaints. In the event a lease is terminated and Supplier has entered into any such maintenance agreement, Supplier shall, within thirty (30) days of termination, return any amounts paid for maintenance service not yet provided at the termination of the Lease.
- Supplier's Representations and Warranties. In addition to the representations and warranties made by Supplier in the Promotion Agreement, Supplier represents and warrants to KWIPPED that whenever it provides a quote for Equipment to be leased that:
- Unless otherwise indicated as 'used' on the quote, the Equipment is new when delivered by Supplier to the Customer. Supplier has clear title to the Equipment and it is sold free of any liens or encumbrances.
- All quotes Supplier submits to KWIPPED are true and correct and accurately reflect a detailed description, actual shipping date, and fair price for the Equipment.
- Supplier has no agreements with the Customer or anyone else regarding the Lease or the Equipment.
- Unless otherwise disclosed to KWIPPED in writing, Supplier has acted solely on its own behalf and has not acted as a broker for another equipment vendor. No transaction may be split between various funding sources unless otherwise disclosed by Supplier to KWIPPED in writing.
- Should the Customer trigger any method of default under the Lease or Finance Agreement, Supplier agrees to suspend service to the Customer upon request of the Financing Company within three (3) business days.
- All executed documents Supplier submits to KWIPPED will be (i) duly authorized, executed and delivered by all authorized officers of all parties thereto, (ii) in full force and effect and no party to the documents will be in default, (iii) valid, binding upon and enforceable in accordance with its/their terms. All copies will be true and correct copies.
- This Agreement is Supplier's legal, valid and binding obligation enforceable against Supplier in accordance with its terms. There is no claim, action, litigation or proceeding before any court, governmental body or agency pending or threatened against Supplier or, to Supplier's knowledge any the Customer, guarantor, or the Equipment except as disclosed in writing to KWIPPED.
- Indemnity and Remedies. In addition to Supplier's indemnification obligations under the Promotion Agreement, Supplier agrees to indemnify, defend and hold KWIPPED harmless from and against any and all claims, causes of action, liabilities, losses, costs, damages and/or expenses in law or equity (including, without limitation, attorneys' fees and expenses) of every kind and nature whatsoever arising out of or in connection with this Agreement, including, but not limited to, a breach of any of the representations, warranties or promises made by Supplier herein, any claimed defect in the Equipment or in Supplier's performance of Supplier's services to the Customer, Supplier's acts or conduct, whether it is intentional or otherwise. The parties agree that all remedies contained in this Agreement are cumulative and not exclusive, and that all parties shall be entitled to exercise any and all rights afforded by applicable law and in equity in the event of a breach by the other party or parties.
- No Agency. Supplier is not authorized to make any contract, agreement, warranty or representation on behalf of KWIPPED or the Financing Company or to create any obligation, express or implied, on behalf of the either. Supplier will not act or represent itself as an agent, partner, or joint venture of KWIPPED or the Financing Company.
Confidentiality. Any information or material which is transmitted by KWIPPED or the Financing Company to Supplier shall be treated as confidential except for information which is or becomes available to the public other than as a result of the disclosure by Supplier, or is required to be disclosed under applicable law.