Last Updated: 10/29/22
- Basic Agreement. SSO and NimbleStack agree to develop a computer interface for the purposes of conducting valid product order transactions. SSO will build and maintain a Shopify website. SSO will also conduct all marketing and merchandising efforts to promote the products from the App.. NimbleStack will be responsible for filling the orders and transmitting them to an appropriate fulfillment center that will pack and ship the orders directly to the customer.
- Exclusivity. NimbleStack does not need to be the exclusive supplier of products to the SSO and the SSO may engage with other dropshipping service providers at the same time.
- Pricing of Fulfillment Services. NimbleStack shall have the sole authority to set pricing for the products and services it provides. The pricing of Fulfillment Services shall equal the cost of the products provided through the App plus shipping and handling fees as defined and maintained on the App website.
- Collections and Tax Matters. The SSO shall be exclusively responsible for the collection of all payments for orders submitted through SSO’s website as well as the configuration of a payment processor that is in compliance with Shopify policies. As such, the SSO acknowledges that it or its agent is solely responsible for identifying and resolving sales and use tax collection issues for product orders, including the necessity of charging and collecting such taxes.
- Legal Compliance. The SSO shall be exclusively responsible for ensuring that the website and product listings are in compliance with all applicable laws and regulations, including but not limited to laws related to explicit material and age verification of visitors.
- Reports. The parties agree to provide each other such reports as are mutually agreed upon or as either party shall reasonably request during the performance of any Fulfillment Services.
- Payment Terms.
- Fulfillment Services – NimbleStack shall electronically charge the SSO for orders submitted through SSO’s website for the Fulfillment. The SSO agrees to maintain a valid payment method through the App for the purposes of paying fulfillment fees.
- Billing Disputes. SSO and NimbleStack shall use their best efforts to expediently resolve any disputed invoice through negotiations between each party’s Account Manager.
- Non-payment. NimbleStack shall not fulfill orders that are not paid for by the SSO but will notify the SSO of the payment issue via email.
- Books and Records.
- Recordkeeping. Both parties agree to keep complete and accurate books of account, records, and other documents with respect to this Agreement (“Books and Records”).
- Termination. This Agreement may be terminated at any time at the sole discretion of NimbleStack. The SSO may terminate this agreement at any time by simply uninstalling the App.
- Post-Termination Performance. Notwithstanding any termination by either party of this Agreement, NimbleStack shall continue to fulfill all orders from customers, and SSO shall continue to remit amounts due to NimbleStack under this Agreement, in connection with any product orders made prior to the effective date of such termination.
- Minimum Advertised Price. The SSO shall be exclusively responsible for ensuring that the website and product listings are in compliance with product minimum advertised price policies in place by product manufacturers.
- NimbleStack shall not make any other use of the Licensed Marks or any related marks or intellectual property of SSO.
- Relationship of the Parties
- Independent Contractors. The relationship created hereunder between NimbleStack and SSO shall be solely that of independent contractors entering into an agreement. No representations or assertions shall be made or actions taken by either party which could imply or establish any agency, joint venture, partnership, employment or trust relationship between the parties with respect to the subject matter of this Agreement. Neither NimbleStack nor SSO shall have any authority or power whatsoever to enter into any agreement, contract or commitment on behalf of the other, or to create any liability or obligation whatsoever on behalf of the other, to any person or entity.
- Customers. SSO will act as a marketer for the sale of products. SSO shall have sole and exclusive rights to the database and the use of the information contained in the database, except that SSO will share these rights with NimbleStack where it concerns fulfillment services. NimbleStack shall have no other rights to the database or the data contained therein.
- Representations and Warranties.
- Representations and Warranties of NimbleStack. With the knowledge that SSO is relying thereon in entering into this Agreement, NimbleStack hereby represents, warrants and covenants as follows:
- NimbleStack is a corporation duly organized, validly existing, and in good standing under the laws of the State of New Mexico.
- As of the Effective Date, NimbleStack has taken all corporate action necessary for the authorization, execution and delivery of this Agreement, and for the performance by NimbleStack of its obligations under this Agreement.
- Neither the execution and delivery of this Agreement nor the consummation or performance of any obligations hereunder shall, directly or indirectly (with or without notice or lapse of time) in any material respect, contravene, conflict with, or result in a violation or breach of any provision of, or give any person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any material contract to which NimbleStack is a party.
- NimbleStack is not and shall not be required to give any notice to or obtain any consent from any person in connection with the execution and delivery of this Agreement or the consummation or performance of any of its obligations hereunder.
- NimbleStack is, to its knowledge, and, at all times during the performance of Fulfillment Services under this Agreement, will remain in material compliance with all applicable laws, rules and regulations.
- NimbleStack is not currently in default under any material contract or agreement.
- Representations and Warranties of SSO . With the knowledge that NimbleStack is relying thereon in entering into this Agreement, SSO hereby represents, warrants and covenants as follows:
- SSO is a corporation duly organized, validly existing, and in good standing under the laws, and has the full power to grant the license rights set forth in this Agreement.
- This Agreement constitutes the legal, valid, and binding obligation of SSO, enforceable against SSO in accordance with its terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and except as enforcement may be limited by general principles of equity. As of the Effective Date, SSO has taken all corporate action necessary for the authorization, execution and delivery of this Agreement, and for the performance by SSO of its obligations under this Agreement.
- Neither the execution and delivery of this Agreement nor the consummation or performance of any obligations hereunder shall, with or without notice or lapse of time, in any material respect, contravene, conflict with, or result in a violation or breach of any provision of, or give any person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any material contract to which SSO is a party.
- SSO is not and shall not be required to give any notice to or obtain any consent from any person in connection with the execution and delivery of this Agreement or the consummation or performance of any of its obligations hereunder.
- Representations and Warranties of NimbleStack. With the knowledge that SSO is relying thereon in entering into this Agreement, NimbleStack hereby represents, warrants and covenants as follows:
- Indemnification, Insurance and Limitations on Liability.
- Indemnification by SSO . Subject to the limitations specified in this Section 12, SSO shall indemnify, hold harmless and defend NimbleStack and each person or entity that is a stockholder, officer, director, partner, employee, affiliate or agent of NimbleStack from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in settlement, incurred, or suffered by any such person arising out of or in connection with this agreement.
- Notice and Defense of Third-Party Claims. If a claim for indemnification hereunder arises from a claim or demand from a third party, the rights of the indemnified parties to be indemnified pursuant to this Agreement and any Schedule shall be governed by the following:
- Promptly after receipt by an indemnified party of notice of any claim, allegation or facts which may result in a claim for indemnification hereunder, an indemnified party shall give the indemnifying party prompt notice thereof. The failure to give such notice shall not affect the indemnified party’s ability to seek reimbursement unless such failure has materially and adversely affected the indemnifying party’s ability to defend the claims.
- The indemnifying party shall not be liable for any settlement of any such action effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such written consent, or if there be a final judgment against any indemnified party in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified parties to the extent provided above from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
- Limitations on Liability. IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
- Dispute Resolution. To be selected jointly by two mediators selected by the parties.
- If there is any controversy, dispute or claim arising out of or relating to interpretation or breach of this Agreement, the parties will endeavor to settle it promptly.
- If such a dispute cannot be resolved, the parties will promptly initiate and participate in good faith mediation of the dispute, with the mediator to be selected jointly by the parties or, if the parties cannot agree upon a mediator, by a mediator to be selected jointly by two mediators selected by the parties.
- If the dispute is not resolved through mediation, the parties will promptly submit such dispute to binding arbitration in accordance with the Commercial Arbitration Rules and regulations of The American Arbitration Association (“AAA”), with the arbitrator to be a retired federal or state court judge jointly selected by the parties or, if the parties cannot agree, by an arbitrator that satisfies such qualifications and that is jointly selected by two arbitrators selected by the parties. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.
- Nothing shall prevent either party from directly seeking injunctive or other equitable relief from any court of competent jurisdiction in situations where damages would not adequately compensate for an alleged breach of this Agreement.
- The prevailing party in any mediation, arbitration or legal action to enforce or interpret this Agreement shall be entitled to recover from the non-prevailing party all costs and expenses, including reasonable attorneys’ fees, incurred in such action or proceeding.
- General. As used herein, “Confidential Information” means (i) the terms and provisions of this Agreement and any related documents delivered concurrently herewith, and (ii) all computer hardware, all software, all data, reports, analyses, compilations, studies, interpretations, forecasts, records and other materials (in whatever form maintained, whether documentary, computer storage or otherwise) that contain or otherwise reflect information concerning SSO , NimbleStack , any of their subsidiaries or affiliates, or any portion thereof, that one party or its Agents may provide to the Receiving Party or its Agents in connection with this Agreement (“Provided Information”), together with all data, reports, analyses, compilations, studies, interpretations, forecasts, records or (ii) other materials (in whatever form maintained, whether documentary, computer storage or otherwise) prepared by the Disclosing Party receiving Provided Information or its Agents that contain or otherwise reflect or are based upon, in whole or in part, any Provided Information or that reflect the review of, interest in, or evaluation of all or any portion of the transactions contemplated by this Agreement and any related documents delivered concurrently herewith (“Derived Information”). As used herein, “Agents” means, collectively, the respective directors, employees, controlling persons or attorneys of the parties. As used herein, the term “person” shall be broadly interpreted to include, without limitation, any corporation, partnership, trust or individual; the term “Receiving Party” shall mean the person receiving Provided Information; and the term “Disclosing Party” shall mean the person delivering the Provided Information.
- Acknowledgement. The parties hereby agree that all Confidential Information shall be kept confidential and shall not, without the prior written consent of the Disclosing Party, be disclosed by the Receiving Party in any manner whatsoever, in whole or in part, other than to the Disclosing Party’s Agents, and shall not be used, directly or indirectly, for any purpose other than in connection with this Agreement and not in any way inherently detrimental to the other party. Moreover, the parties agree to reveal Confidential Information only to their Agents if and to the extent that such Agents, have a strict need to know such Confidential Information for the purpose of the Receiving Party satisfying its obligations under this Agreement and are informed of the confidential nature of the Confidential Information and agree to be bound by the terms and conditions of this Agreement. The parties shall each be responsible for any breach of this Agreement by their respective Agents (including Agents who, subsequent to the first date of disclosure of Confidential Information hereunder, become former Agents). Moreover, the parties shall take all reasonably necessary measures to restrain their respective Agents (and former Agents) from unauthorized disclosure or use of the Confidential Information.
- Exceptions. Notwithstanding anything in this Agreement to the contrary, Confidential Information shall not include any information which:
- at the time of disclosure to the Receiving Party is generally available to and known by the public (other than as a result of any disclosure made directly or indirectly or other action or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or transmitted any Confidential Information);
- becomes publicly available in the future (other than as a result of a disclosure made directly or indirectly or other action or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or have transmitted any Confidential Information);
- Was available to the Receiving Party or its Agents on a non-confidential basis from a source other than the Disclosing Party or any of its Subsidiaries or affiliates or any of their respective Agents providing such information (provided that to the best of the Receiving Party’s knowledge, after due inquiry, such source is not or was not bound to maintain the confidentiality of such information); or
- Has been independently acquired or developed by the Receiving Party without violating any of its obligations under this Agreement, provided such independent development can reasonably be proven by the Receiving Party upon written request.
- In the event that a party or any of such party’s Agents become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information of the other party, that party or person under the legal compulsion (the “Compelled Party”) from whom such information is being sought shall, unless prohibited by law, provide the party to whom such Confidential Information belongs with prompt prior written notice of such requirement so that it may seek a protective order or other appropriate remedy, or both, or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the Compelled Party agrees to furnish only such portion of the Confidential Information that the Compelled Party is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information. Notwithstanding the foregoing, to the extent required under applicable state and federal securities laws, either party may file this Agreement as an exhibit with federal and state securities filings, provided that each party shall use its best efforts to obtain confidential treatment of the portions of this Agreement that contain Confidential Information. In this regard, the party making such filing shall obtain the prior written consent of the other party, which consent shall not be unreasonably withheld.
- Use of Confidential Information. Each party shall be subject to the obligations under this Section 13 until the expiration of three (3) years following the termination of this Agreement. Other than as specifically provided in this Agreement, neither party shall duplicate the Disclosing Party’s Confidential Information for any purpose other than for the performance of its obligations under this Agreement and for the benefit of the Disclosing Party; or use the Disclosing Party’s Confidential Information for any reason or purpose other than as expressly permitted in this Agreement.
- Return of Confidential Information. Upon termination of this Agreement or if either party so requests, the Receiving Party shall return to the Disclosing Party or destroy all copies of the Confidential Information in its possession and the possession of its Agents and will destroy all copies of any Derived Information; provided, however, that this Agreement will continue to apply to the Confidential Information and/or Derived Information contained or reflected in such copies.
- Equitable Relief. The Parties agree that they would be irreparably injured by a breach of this Agreement by the other party or its Agents and that the other party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 13. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 13 by either party or their Agents, but shall be in addition to all other remedies available at law or in equity.
- All notices, demands, requests, approvals, consents or other communications to be given or delivered under this Agreement (“Notices”) will be in writing and will be deemed to have been given
- when delivered in person or by courier or confirmed email;
- upon confirmation of receipt when sent by certified mail, return receipt requested; or
- five (5) days after deposit in first class U.S. mail, as the case may be to the addresses indicated below:
NimbleStack LLC 320 Gold Ave. SW Ste. 620 PMB 2035 Albuquerque NM 87102
- Severability. Whenever possible, each provision of this Agreement and any Schedule shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
- Amendment and Waiver. This Agreement may be amended and updated at any time at the sole discretion of NimbleStack and will remain publicly posted on the website of the App. SSO will be notified of changes to this agreement and continued used of the App constitutes acceptance of the modified agreement.
- Complete Agreement. This Agreement, all Schedules and exhibits hereto and any related documents delivered concurrently herewith, contain the complete agreement between the parties relating to the Fulfillment Services and supersede any prior understandings, agreements or representations by or between the parties, written or oral, which may be related to the subject matter hereof in any way.
- Headings. Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
- Governing Law. The internal law, and not the law of conflicts, of the State of New Mexico will govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement.
- Assignment. This Agreement and all of the provisions will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interest or obligations set forth in each may be assigned by any party hereto without the prior written consent of the other party hereto, which shall not be unreasonably withheld. Notwithstanding the foregoing, SSO shall have the right to assign this Agreement to any wholly owned subsidiary of SSO.
- Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labor disputes, or any other cause beyond the parties’ reasonable control (each a “Force Majeure”), it being understood that lack of financial resources shall not to be deemed a cause beyond a party’s control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.