THIS SUPPLIER ACCESS AGREEMENT (this "Agreement") is entered into as of the date first appearing on the order form (the "Effective Date") by and between Radial, Inc. ("Radial," “us” or “we”), and the supplier identified on the order form ("Supplier" or “you”). Radial and Supplier are each individually referred to as a "Party" and collectively as the "Parties."
1. RADIAL SYSTEM
1.1 Access. Subject to the terms and conditions set forth herein, Radial shall provide you access to the Radial Drop-Ship System (the “System”) under the option selected by you in the order form.
1.2 Service Fee. In consideration for your access to the System, you shall pay the applicable fees as set forth on the Order Form and the System Option and Pricing Information form and all other amounts due hereunder (the “Access Fee”). Radial reserves the right to modify the Access Fee and to introduce new charges at any time, with ninety (90) days' prior notice to you, which notice may be provided by e-mail. The Access Fee does not include any foreign, federal, state or local sales, use, value added, or other similar taxes, however designated, levied against the licensing, delivery or use of the System. You shall pay, or reimburse Radial for, all such taxes imposed on you or Radial, provided, however, that you shall not be liable for any taxes based on Radial's income.
1.3 Payment. Payment must be made by one of the methods set forth in the order form. You agree to provide complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and the name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information Supplier has provided is false or fraudulent, we reserve the right to terminate your access to the System in addition to any other legal remedies. If you provide credit card information for payment of the Access Fees, you hereby consent to Radial charging your credit card for any and all fees and amounts due hereunder throughout the term of this Agreement. If you believe your bill is incorrect, you must contact us in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
1.4 Independent Contractors. The relationship of Radial and Supplier established by this Agreement is that of independent contractors.
2. LIMITED WARRANTY
2.1 Warranty. Radial warrants that the System will be provided in a professional and workmanlike manner and in accordance with all applicable laws, rules and regulations in connection with the provision of the System.
2.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, RADIAL DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES RELATING TO THE SYSTEM, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
3. OBLIGATIONS OF SUPPLIER
3.1 Activity; Compliance with Laws. You are responsible for all activity occurring under your accounts and shall abide by all applicable laws, rules and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
3.2 Supplier Security. You shall be solely responsible for protection of your transmission facilities, premises, equipment, the integrity of its data, and its ID(s), password(s), user names and the like, or any other third party it provides with access to the System under this Agreement, from all unauthorized access or use. You shall use reasonable measures, commensurate with accepted industry standards, for such protection. Radial does not own the data, information or material that Radial submits to you through the System or data, information or material that you submit to Radial through the System. You recognize that such data and information may be owned by our mutual retail client(s). All requests for additional changes or deletion of your password must be in writing. You acknowledge that the Internet, or any wide-area communication network that may be utilized (hereinafter “WAN”) is not a secure or an error free network and that transmissions made on the WAN may not be completed or may contain errors or omissions. The WAN, or portions thereof, may also become inaccessible or inoperable, in whole or in part, at any time or from time to time.
4. TERM AND TERMINATION
4.1 Term. This Agreement begins on the Effective Date and continues on a month-to-month basis until either Party provides the other Party with a minimum of thirty (30) days prior written notice of termination. If at any time you are delinquent in payment, Radial may notify the retail client and suspend your access to the System with fifteen (15) days prior notification. If your access to the System is suspended by for non-payment, a reactivation fee of $150.00 will be charged to you when access to the System is reinstated.
4.2 Survival. Sections 2.2, 4.2, 5, 6 and 7 shall survive the termination of this Agreement for any reason.
5. IP RIGHTS; CONFIDENTIALITY
5.1 Intellectual Property Rights. You hereby recognize that Radial retains all of its intellectual property rights in or related to System and any related documentation.
5.2 Confidentiality. “Confidential Information” means all nonpublic information relating to a party, its retail client or its affiliates that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Each party will take reasonable measures designed to protect the Confidential Information of the other party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature. Each party will: (i) use such Confidential Information solely for the purposes for which it has been disclosed; and (ii) provide such Confidential Information only to those of its employees, agents, consultants, and others who have a need to know the same for the purpose of performing this Agreement and who are informed of and agree to a duty of nondisclosure. The receiving party may also disclose Confidential Information of the disclosing party to the extent necessary to comply with applicable law, rule, regulation or legal process.
6. LIMITATION OF LIABILITY. RADIAL'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY THE SUPPLIER FOR ACCESS TO THE SYSTEM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL RADIAL BE LIABLE TO SUPPLIER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. GENERAL PROVISIONS
7.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to conflicts of law principles.
7.2 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Party to be charged.
7.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, email, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid, to Supplier at the address listed on the Order Form and to Radial at 1903 S. Congress Ave., Suite 460, Boynton Beach, FL 33426, with a copy sent simultaneously to the attention of its General Counsel at 935 First Avenue, King of Prussia, PA 19406 or to the addresses as otherwise specified in writing by each Party from time to time.
7.4 No Assignment and Binding Effect. Neither Party may assign this Agreement nor any rights and/or obligations hereunder without the prior written consent of the other party; provided, however, that a Party may assign this Agreement without the prior written consent of the other party (i) to its affiliate, (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, or (iii) any entity to which such party transfers all or substantially all of its business or assets. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the Parties hereto and their successors and permitted assigns.
7.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
7.6 Force Majeure. Neither Party shall be liable for any loss resulting from a cause over which it does not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions.