Excess Inventory Returns Liquidation Admin

                                                        B-STOCK SUPPLY EUROPE SERVICES AGREEMENT

(Last Revised: March 30, 2022)

This B-Stock Supply Services Agreement (“Agreement”) is by and between B-Stock Solutions, Inc., a Delaware corporation (“B-Stock”), provider of auction based marketplace services, and the company that desires to sell Inventory (defined below) through B-Stock’s services (“Company”), and is entered into and effective as of the date on which Company consents to this Agreement by providing click-wrap consent (the “Effective Date”). This Agreement is in addition to the B-Stock Terms of Use, which also governs Company’s use of the B-Stock Site and B-Stock Supply Services.

PLEASE READ SECTION 2.5 (DISPUTES) CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS OR DISPUTES WILL BE RESOLVED.

Recitals

A. B-Stock offers technology and services that facilitate online, business-to-business sales of various tangible items (“Goods”); and

B. Company desires to list and sell certain goods through a B-Stock owned and operated website located at www.bstocksupply.com and/or www.bstocksupply.eu (the “Sites”).

Terms and Conditions

1. DEFINITIONS.

1.1 “B-Stock Marks” means the B-Stock trademarks, trade names, service marks, taglines, logos and the Site’s branding elements.

1.2 "Buyer" has the meaning given to it in Section 2.1 of this Agreement.

1.3 “Buyer Data” means all Personal Data submitted by a Buyer in connection with the use by the Buyer of the B-Stock Supply Services.

1.4 “B-Stock Supply Services” means the auction based marketplace services available on the Site, which B-Stock configures, operates, hosts and manages for the purpose of allowing Buyer's to browse, bid on, and purchase Inventory.

1.5 “B-Stock Technology” means all present and future technology, works of authorship, inventions, ideas, know-how, expertise and software (including any copyrights, patents, database rights, trademarks and other intellectual property rights related thereto, in each case where registrable or not, and including all applications and right to apply for any of the foregoing rights anywhere in the world, and the right to sue for past infringements of any of the foregoing rights) associated with the B-Stock Supply Services and the Site.

1.6 “Company Marks” means the Company’s trademarks, trade names, service marks, taglines and logos.

1.7 “GMV or Gross Merchandise Volume” means the actual sale price (i.e., the winning bid or purchase price) at which the Inventory is sold, excluding amounts paid for shipping or similar charges, sales taxes and other additional transaction charges.

1.8 “Inventory” means the Goods offered through B-Stock Supply Services.

1.9 "Inventory Content"   means any product information, descriptions, quantities, weights, location, shipping charges, pictures (if available) and any other information relating to the Inventory submitted by Company to Services.

1.10 "Personal Data" means any information relating to an identified or identifiable natural person. 

2. THE B-STOCK SUPPLY SERVICES.

2.1 General. B-Stock, on behalf of Company, will post details about the Inventory for potential sale to companies or individuals, who desire to bid on, browse or purchase any Inventory (“Buyer(s)”). B-Stock will host and maintain the B-Stock Supply Services made available on the Site. B-Stock reserves the right to improve, enhance and modify the B-Stock Supply Services at any time; provided such improvements, enhancements and/or modifications do not materially degrade the current feature availability of the B-Stock Supply Services.

2.2  Buyer Registration; Support. The B-Stock Supply Services will enable Buyers to register on the Site and require them to submit the information necessary to participate in bidding and purchasing Inventory. B-Stock will manage the technology underlying the B-Stock Supply Services and address, respond to, and manage any bona fide Buyer's questions related to the use of the B-Stock Supply Services. For specific Inventory or shipping related questions, B-Stock will forward such questions to Company and Company agrees to promptly address, respond to and manage such questions.

2.3  Listing Creation. B-Stock will create and place listings on www.bstocksupply.com for Company using Company’s Inventory Content and other information provided by Company to B-Stock. Company will provide B-Stock with truthful and accurate Inventory Content that will help potential Buyers evaluate the Inventory. Company is solely responsible for the accuracy of this information.

2.4 Funds Collection, Shipping and Payment of Proceeds to Company. Following the completion of an auction, B-Stock will prepare on behalf of Company and transmit to each Buyer an invoice for Inventory for which the Buyer is the winning bidder of such Inventory. Each invoice will include the VAT Identification Number provided to B-Stock by the Buyer. B-Stock will use commercially reasonable efforts to collect the amounts due from Buyers following each auction, including the applicable GMV, shipping charges, VAT (or equivalent  tax) and Buyer’s Premium. Company will ship the applicable Inventory within seven (7) days of the end of the auction. Company will invoice B-Stock for the appropriate amount after Company ships the applicable Inventory. B-Stock shall not be responsible for any non-payment by Buyers. Company appoints B-Stock as its limited agent solely for the purpose of collecting the GMV for the applicable Inventory  and any shipping charges (if applicable) from Buyers for Inventory sold by Company through the Site. B-Stock’s receipt of such payment shall be considered the same as a payment to Company, extinguishing a Buyer’s payment obligation to Company as if the Buyer had paid Company directly, even if the proceeds of the payment are not received by Company from B-Stock.

2.5 DISPUTES. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS OR DISPUTES WILL BE RESOLVED. IF YOU OFFER FOR SALE OR SELL INVENTORY THROUGH THE B-STOCK SITE (EACH A “TRANSACTION”), ANY CLAIM OR DISPUTE THAT ARISES OUT OF OR RELATES TO THE TRANSACTION, WHETHER BETWEEN YOU AND B-STOCK OR BETWEEN YOU AND A BUYER (AS APPLICABLE), SHALL BE RESOLVED IN ACCORDANCE WITH THE DISPUTE RESOLUTION PROCEDURES SET FORTH IN THE ALTERNATIVE DISPUTE RESOLUTION POLICY 

WITH RESPECT TO ANY OTHER CLAIM OR DISPUTE BETWEEN YOU AND B-STOCK, SUCH CLAIM OR DISPUTE WILL BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA, AND YOU AND B-STOCK EACH AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED WITHIN THE STATE OF CALIFORNIA FOR PURPOSES OF LITIGATING ALL SUCH CLAIMS OR DISPUTES, AND WAIVE ALL OBJECTIONS TO PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA.

2.6  Reporting. B-Stock will provide Company, on a periodic basis, with reporting on transactions to facilitate fulfilment.

2.7 Restrictions.

2.7.1 Company shall not access, copy, download, install, adapt, reverse engineer, publicly display or perform or in any way alter or use the B-Stock Technology for any purpose, including, without limitation, for purposes of interoperability, except to the extent expressly permitted by applicable law that cannot be excluded by agreement between the parties. Company shall not, and shall not authorize or encourage any third party to, employ any robot, spider, data miner, wanderer, crawler or other automatic device or manual process to copy or monitor the B-Stock Supply Services or Site. Company shall not make any representations, warranties or other terms to any third parties related to the availability, or performance, of the B-Stock Supply Services.

2.7.2  Company shall not: (i) offer or deliver Inventory that in any way, violates or infringes upon the intellectual property, personal or proprietary rights (including, but not limited to copyrights, trademarks, patents, database rights, trade secrets or confidentiality obligation) of any third party (including, without limitation, counterfeit Goods); (ii) offer or deliver Inventory that is illegal in any jurisdiction where the Inventory is offered or delivered; (iii) engage in any other illegal or fraudulent activities; and/or (iv) engage B-Stock’s buyers from the marketplace in transactions outside of the marketplace as a way to circumvent payment to B-Stock of fees associated with the B-Stock Supply Services.

2.7.3 Company shall not (i) bid on its own Inventory; or (ii) encourage, induce or otherwise allow Company’s employees, directors, contractors or affiliates (and their respective affiliates and family members) to bid on Inventory with the intent (as solely determined by B-Stock) to artificially raise the price or desirability of Company’s listings. The foregoing shall apply to the employee’s family members.

2.7.4 Company acknowledges that in addition to any rights B-Stock has under law or equity, to the extent Company violates this Section 2.7 or any other restrictive covenants on Company, B-Stock may (i) seek injunctive relief in a court of competent jurisdiction and (ii) notify law enforcement or any government agencies to the extent Company violates any rules, law or regulation (e.g., the offer or sale of counterfeit Goods).

3. LIMITED RIGHT TO ACCESS AND USE; INTELLECTUAL PROPERTY OWNERSHIP

3.1 Access Rights. Subject to the terms of this Agreement, and provided that Company is in compliance with this Agreement, B-Stock grants Company a limited, non-transferable, non-exclusive, and personal right to access and use the Site and receive the B-Stock Supply Services. Such access and use must be made in conformance with the functionality available on the Site and any instructions provided by B-Stock to Company.

3.2. B-Stock Technology. B-Stock retains all right, title and ownership in and to the B-Stock Supply Services, including the B-Stock Technology and any and all technology developed by B-Stock or licensed to B-Stock by its third-party service providers pursuant to or in connection with this Agreement and the transactions contemplated hereby. By way of clarification and not limitation, Company acknowledges that all the intellectual property rights, including but not limited to, copyrights, patents, database rights, trademarks, service marks and trade secret underlying all or a part of the B-Stock Supply Service shall belong exclusively to B-Stock and its third-party suppliers. There are no implied licenses under this Agreement, and any rights not expressly granted to Company hereunder are reserved by B-Stock or its third-party suppliers. Company will not exceed the scope of the licenses granted hereunder. 

4. INVENTORY CONTENT; LICENSE 

4.1 Inventory Content.  Company is solely responsible for its own Inventory Content and assumes all risks associated with use of any Inventory Content, including any reliance on its accuracy, completeness or usefulness, or any disclosure of Company’s Inventory Content. Company will not submit third-party content unless Company has the consent of the applicable third-party owner of such content. Company may not state or imply that Inventory Content is in any way provided, sponsored or endorsed by B-Stock. Company acknowledges and agrees that B-Stock is not responsible for verifying the accuracy or truthfulness of any Inventory Content and B-Stock makes no warranties, guarantees or other terms regarding the accuracy, currency, suitability, or quality of any Inventory Content.

4.2 License to Inventory Content. By submitting any Inventory Content,  Company grants B-Stock a worldwide, non-exclusive, royalty-free license (sublicensable through multiple tiers) to use, reproduce, display, modify, transmit, perform, distribute, and promote such content and information in any form, in all media now known or hereinafter. Without limiting the foregoing, Company acknowledges that B-Stock may modify Inventory Content as necessary to provide the B-Stock Supply Services to Company. The license granted in this paragraph shall survive the expiration or termination of this Agreement.

5.   DATA PROTECTION AND PRIVACY 

For the purposes of this Section 5: "Applicable Privacy Laws" means all applicable privacy and data protection laws and regulations anywhere in the world; and the terms "data controller", "data processor", "process" and "processing" shall have the meaning given to them in Applicable Privacy Laws.

5.1. B-Stock Data:  Company acknowledges and agrees that all information, metrics and data generated or tracked by the B-Stock Services as a result of Company’s use of the B-Stock Services shall belong exclusively to B-Stock ("B-Stock Data"), and B-Stock shall be an independent data controller (where Applicable Privacy Laws recognise such concept) of such data and may use B-Stock Data for any purpose, commercial or otherwise.  By way of example and not limitation, B-Stock may track general purchase information about Buyers (e.g., average price of purchased Goods), and B-Stock may exploit such information for any purpose. B-Stock shall comply with Applicable Privacy Laws and this Section 5 (Data Protection and Privacy) when processing B-Stock Data as a data controller.

52. Personal Data:  In the course of the Agreement, each of B-Stock and Company (a "Disclosing Party") may provide or make available to the other party (a "Receiving Party") Personal Data (including, but not limited to, Buyer Data).  Where Disclosing Party discloses such Personal Data to Receiving Party, such disclosure will be on a data controller to data controller basis (where Applicable Privacy Law recognises such concepts).  As such, each of B-Stock and Company shall be an independent data controller of any such Personal Data that it processes (or appoints any third party to process), and responsible for its own compliance with Applicable Privacy Laws. Each party shall comply with Applicable Privacy Laws in respect of any Personal Data it processes as a data controller.

5.3 Data Transfers from EEA (including UK) and Switzerland:  A Receiving Party shall not process Personal Data relating to data subjects who reside in the European Economic Area (including the United Kingdom)("EEA") and/or Switzerland in a country not recognised by the European Commission as having an adequate level of protection for Personal Data unless it has taken all such measures as are necessary to ensure an adequate level of protection for such Personal Data in accordance with the requirements of Applicable Privacy Laws. Such measures shall include entering into the standard contractual clauses for the transfer of Personal Data from the European Union to data controller's established in third countries (controller-to-controller transfers), as set out in the European Commission's Decision 2004/915/EC of 27 December 2004 (as amended, replaced or updated) and available here http://ec.europa.eu/justice/data-protection/international-transfers/files/clauses_for_personal_data_transfer_set_ii_c2004-5721.doc  ("Model Clauses").  The Model Clauses are incorporated by reference and form and integral part of this Agreement.   For the purposes of the Model Clauses, the Disclosing Party shall be the "data exporter" and Receiving Party shall be the "data importer" (notwithstanding the fact that Disclosing Party may be located outside the EEA).  Each data importer will process personal data in accordance with the processing principles set forth in Annex A of the Model Clauses and Appendix A of this Agreement shall take the place of Annex B of the Model Clauses. In the event B-Stock is the Receiving Party and adopts an alternative data export solution recognised by Applicable Privacy Laws, then the parties agree that the Model Clauses will cease to apply as between Company (as data exporter) and B-Stock (as data importer) with effect from the data B-Stock implements such new data export solution (but only to the extent the new solution extends to the territories to which Personal Data is transferred). In the event of any conflict between the terms of this Agreement and the Model Clauses, the Model Clauses shall prevail.

5.4 B-Stock Obligations. To the extent B-Stock processes any Personal Data under the Agreement as a data processor for and on behalf of Company, B-Stock shall only process such Personal Data in accordance with Company's lawful instructions, except where otherwise required by Applicable Privacy Laws. For these purposes, Company instructs B-Stock to process such Personal Data for the purposes of performing the Agreement and the B-Stock Supply Services.

6.   FEES AND PAYMENT

6.1 Credit Card Authorization. Company will provide B-Stock with valid, up-to-date credit card or other payment information. Company authorizes B-Stock to charge its credit card or other payment method for fees Company incurs from using the B-Stock Supply Services as they become due and payable. Company is responsible for maintaining up-to-date payment information. If B-Stock cannot charge Company for fees when due because Company’s payment information is no longer valid, or if B-Stock does not receive payment when due, Company acknowledges that B-Stock may make the B-Stock Supply Services unavailable to Company and neither B-Stock nor its third-party service providers will be responsible for any failure to provide services associated with those fees.  All fees paid via the B-Stock Supply Services are non-refundable. 

6.2  Monthly Service Fee. B-Stock will charge Company a monthly service fee as set forth in the Summary of Charges (the “Summary of Charges” which are incorporated herein by reference). B-Stock will bill the monthly service fee to Company’s valid credit card. The first charge will be assessed upon the Effective Date and recur each thirty (30) days thereafter until Company notifies B-Stock of the termination of the Agreement in accordance with Section 7 below. All charges are non-refundable.

6.3 Buyer’s Premium. B-Stock will charge Buyers an amount equal to fifteen percent (15%) of the GMV (the “Buyer’s Premium”) on each completed auction of Inventory. B-Stock will retain the Buyer’s Premium before remitting the net proceeds to Company. 

6.4 Other Fees. Auction listings are non-cancellable without the prior approval of B-Stock (which can be withheld or conditioned in B-Stock’s sole discretion). Company is solely responsible for ensuring that its Inventory summary is completely accurate in all respects. In the event Company, for any reason, becomes unable to complete a transaction as promised by its listing and must request the cancellation of such listing before its end time, B-Stock will charge Company a cancellation fee as outlined in the Summary of Service Charges; provided that B-Stock approves the cancellation request (such approval may be withheld or conditioned in B-Stock’s sole discretion). In the event Company cancels a transaction after the completion of a listing with a winning bidder, B-Stock will charge Company an order cancellation fee as disclosed in the Summary of Service Charges agreed to by Company. In either case, B-Stock may terminate this Agreement with notice to Company. Company will indemnify and hold B-Stock harmless against any claims from a Buyer arising from the cancellation of a listing by Company.

6.5 Taxes. Company acknowledges and agrees that it shall hold harmless and indemnify B-Stock for any sales, use, excise, import or export value-added or similar tax or duty associated with the Inventory not based on B-Stock’s net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, including reasonable legal fees and expenses.

7. TERM AND TERMINATION. 

7.1 The term of this Agreement shall commence on the Effective Date and continue until either party delivers notice of termination (the “Term”); provided however that Company may not terminate the Agreement until after the expiration date of any of its outstanding listings of Inventory. Notwithstanding the foregoing, B-Stock may terminate this Agreement immediately, without notice; (i) if Company breaches this Agreement; (ii) to comply with applicable law; or (iii) to avoid or mitigate any potential liability owed to third parties; provided that B-Stock provides notice of such termination promptly after exercising such immediate termination right. On the termination date (a) B-Stock will cease placing listings on Company’s behalf and (b) Company will complete any pending transactions per the terms of their respective listings unless B-Stock instructs otherwise. Those sections of this Agreement which by their nature should survive the termination of this Agreement shall survive (e.g., confidentiality, limitation of liability, warranty disclaimers, reservation of rights in B-Stock Technology). Moreover, B-Stock may suspend your access to the B-Stock Services if B-Stock has a bona fide good faith belief that (i) you are violating this Agreement, (ii) such suspension is necessary to reduce exposure to third party claims or (iii) a suspension is necessary to comply with any applicable law.

8. CONFIDENTIALITY

8.1 Definition. A party’s “Confidential Information” is defined as any information of a party which is disclosed to the other party in writing that is (i) marked confidential or (2) that should reasonably be understood to be confidential to the disclosing party given the circumstances surrounding the disclosure. The terms of this Agreement shall be deemed the Confidential Information of B-Stock.

8.2 Restrictions. Each party will hold the other party’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform under this Agreement. Such known restrictions will not apply to Confidential Information which (i) is already known by the recipient; (ii) becomes publicly known through no act or fault of the recipient; (iii) is received by recipient from a third party without a restriction on disclosure or use; (iv) is independently developed by recipient without reference to the Confidential Information; or (v) is allowed pursuant to this Agreement. The restriction on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or similar disclosure requirement, provided that recipient will first notify the disclosing party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order. The parties’ respective obligations hereunder will survive the expiration or early termination of this Agreement for a period of three (3) years.

8.3 Termination. Upon termination of this Agreement, upon the request of the disclosing party, the receiving party will destroy or return to the disclosing party all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.

8.4 Notice. Without limiting the foregoing, and subject to compliance with applicable law, each party agrees to notify the other in the event any element of this Agreement may need to be disclosed pursuant to any regulatory or other disclosure requirement, and to further seek confidential treatment requested by the other with respect to certain confidential elements of the Agreement and any documents related thereto (including information relating to fees, payments and integration) in any governmental or public filings.

9. WARRANTIES AND INDEMNITIES

9.1 Mutual Representations. Each party represents and warrants to the other that (a) it has full power and authority to enter into this Agreement and to grant the licenses provided herein, and (b) this Agreement has been duly authorized, executed and delivered by such party.

9.2 Company Representations. Company represents and warrants to B-Stock that (i) it owns, or has obtained all necessary rights to distribute and make available the Inventory (and its Inventory Content) made available to Buyers in connection with this Agreement; (ii) the Inventory, and sale thereof, does not infringe or violate the rights of any third-party, including any third-party’s copyrights, trademarks, services marks, trade dress, patents, or personal or proprietary rights. Company further represents and warrants that, except as otherwise expressly provided herein, B-Stock is not responsible for: (i) any errors or omissions arising from the listing of Inventory through the B-Stock Supply Services; (ii) losses or damages arising from the use of Inventory by any third party; or (iii) any Inventory provided through or in conjunction with the B-Stock Supply Services, including without limitation any failures, delays or interruptions in the delivery of the Inventory.

9.3 Indemnification.

9.3.1 B-Stock Indemnification. B-Stock will defend, indemnify and hold Company harmless from and against any and all claims, losses, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”) which Company may incur as a result of any third-party actions arising from or relating to (i) breach of any of B-Stock’s representations, warranties or covenants herein; and/or (ii) misappropriation of any third party trade secret or infringement by any B-Stock Mark or B-Stock Technology, of a U.S. or U.K. patent, copyright, trademark right or other intellectual property right of a third party.

9.3.2  Company Indemnification. Company will defend, indemnify and hold B-Stock harmless from and against any and all Claims which B-Stock may incur as a result of any third-party actions arising from or relating to: (i) breach of any of Company’s representations, warranties or covenants herein; (ii) sale or display of the Inventory (or its Inventory Content); (iii) use of the Inventory and any damages resulting therefrom; (iv) any Claims that any portion of the Inventory infringes or violates any third-party rights, including, but not limited to, any intellectual property, privacy, moral or proprietary rights; and (v) any breach of law by Company or its employees, contractors or affiliates.

9.3.3 Qualifications. The foregoing obligations are conditioned on the indemnified party: (i) giving the indemnifying party notice of the relevant claim; (ii) cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (iii) giving the indemnifying party the right to control the investigation, defense and settlement of any such claim, except that the indemnifying party will not enter into any settlement that affects the indemnified party’s rights or interest without the indemnified party’s prior written approval. The indemnified party will have the right to participate in the defense at its own expense.

9.4  DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1 ABOVE, B-STOCK DOES NOT MAKE ANY OTHER WARRANTY OR OTHER TERM IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, AND THE B-STOCK SUPPLY SERVICES AND B-STOCK TECHNOLOGY ARE PROVIDED “AS-IS” AND WITHOUT OTHER WARRANTY OR TERM OF ANY KIND. WITHOUT LIMITING THE FOREGOING, B-STOCK DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR PURPOSE OR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET ENJOYMENT AND ACCURACY. B-STOCK DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THE B-STOCK SUPPLY SERVICE, OR B-STOCK TECHNOLOGY WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE. BY PREPARING AND TRANSMITTING VAT INVOICE(S) TO THE BUYER UNDER PARAGRAPH 2.4 OF THIS AGREEMENT, B-STOCK IS MERELY FACILITATING THE ISSUE OF INVOICES ON THE BEHALF OF THE COMPANY, AND THE COMPANY SHALL BE SOLELY LIABLE TO COLLECT AND ACCOUNT FOR THE CORRECT AMOUNT AND RATE OF VAT (OR EQUIVALENT TAX) ON ANY SALE OF THE INVENTORY. B-STOCK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL LOSES OR LOSS PROFIT OR REVENUE RESULTING FROM B-STOCK PREPARING ANY SUCH INVOICE.

10. LIMITATION OF LIABILITY 

10.1 NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES OR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, A PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING THE MODEL CLAUSES, AS APPLICABLE) WILL NOT EXCEED A SUM EQUAL TO $10,000; PROVIDED HOWEVER THAT SUCH LIABILITY CAP SHALL NOT APPLY TO ANY INFRINGEMENT OF B-STOCK’S INTELLECTUAL PROPERTY BY COMPANY. THIS LIMITATION OF EACH PARTY’S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE MODEL CLAUSES, WHERE APPLICABLE) BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. NOTWITHSTANDING THE FOREGOING, THIS SECTION 10 SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

11. GENERAL

11.1 Governing Law. This Agreement will be construed in accordance with and governed exclusively by the laws of the State of California applicable to agreements made among California residents and to be performed wholly within such jurisdiction, regardless of such parties’ actual domiciles.

11.2. Independent Contractors. This Agreement does not create, and nothing contained in this Agreement will be deemed to establish a joint venture between the parties, or the relationship of employer-employee, partners or principal-agent. Further, neither party will have the power to bind the other without the other’s prior written consent nor make any representation that it has any such power.

11.3 Severability; Headings. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

11.4 Force Majeure. If performance hereunder is interfered with by any condition beyond a party’s reasonable control, such as an act of God, the affected party will be excused from such performance to the extent of such condition.

11.5 Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile. Notices will be sent to a party at its address set forth above or such other address as that party may specify in writing pursuant to this Section.

11.6 Entire Agreement; Waiver. This Agreement, including all agreements referred to herein, sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event of a conflict between this Agreement and any exhibits attached hereto, the terms in the Agreement shall control. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Subject to Section 10, each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

11.7 Changes to this Agreement. B-Stock may alter the terms of this Agreement at any time by providing you thirty (30 days) written notice of such change. Company’s continued use of the service after such notice will constitute acceptance of such change. If Company does not wish to be bound to such changes, it must terminate this Agreement in accordance with Section 7.

11.8 Service Providers. Company acknowledges that B-Stock is entitled to subcontract any of its contractual obligations related to the provision of services described herein to third parties selected by B-Stock. In addition, Company acknowledges and agrees that the B-Stock servers on which the B-Stock Supply Services are hosted are located at the facilities of third parties in the U.S.

11.9 No Third Party Beneficiaries. Except as otherwise expressly provided for in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement. No person who is not party to this agreement shall have any right to enforce any term of this Agreement.

 

APPENDIX A

(1) DESCRIPTION OF THE TRANSFER (WHERE B-STOCK IS RECEIVING PARTY / DATA IMPORTER)

Data subjects:

Past, potential, present and future Buyers
Company (and its own end users of the services)
Purposes of the transfer(s):

For the purposes described in this Agreement and the B-Stock Privacy Policy

Categories of data

Identification and contact data (name, address, title, contact details),
Financial information (credit card details, account details, payment information)
Employment details (employer, job title, geographic location, area of responsibility)
IT information (IP addresses, usage data, cookies data, location data)
Recipients:

The categories of recipients identied in the section headed "How We Share Your Information" in the B-Stock Privacy Policy

 

Sensitive data (if appropriate): Not anticipated.

(2) DESCRIPTION OF THE TRANSFER (WHERE COMPANY IS RECEIVING PARTY / DATA IMPORTER)

Data subjects:  Past, potential, present and future Buyers

Purposes of the transfer(s): To enable Company to complete and fulfil Buyer's order for Inventory and any related enquires, services and marketing.

Categories of data:

Identification and contact data (name, address, title, contact details),
Financial information (credit card details, account details, payment information)
Employment details (employer, job title, geographic location, area of responsibility)
IT information (IP addresses, usage data, cookies data, location data)
Recipients: `Data importers affiliates and service providers involved in the provision of Inventory and related services to Buyers.

Sensitive data (if appropriate): Not anticipated.

Not anticipated.

(3) CONTACT POINTS FOR DATA PROTECTION ENQUIRIES

B-Stock Solutions:

Email: cseurope@bstocksolutions.com
Post: F.A.O Legal Department
PO Box 561, San Carlos, CA 94070
Company:

Contact details provided in data exporters online privacy policy.
I Agree to the B-Stock Supply Europe Services Agreement, Summary of Charges, and Terms of Use
Excess Inventory Returns Liquidation Admin

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