uBid Direct Dropship Vendor Program Agreement

Welcome to the uBid Direct Dropship Vendor Program! Any vendor who wishes to become a uBid Direct dropship vendor to offer goods in uBid Direct Auctions on uBid.com (the "Site") or to use our other services on the Site must accept the terms and conditions of this Direct Dropship Vendor Program Agreement, without change. BY PRESSING THE "ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.

uBid, Inc. (hereinafter "uBid" or "uBid.com") reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Site or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING UBID'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.

Certain Definitions

"Confidential Information" means all non-public information concerning either party, its subsidiaries and affiliates, and their respective officers, agents, employees, consultants, licensors, suppliers and customers, including but not limited to business plans, systems configurations, technologies, marketing and auction techniques and logic, pricing and merchandising strategies, order handling, processes and procedures, contractual structures and techniques, data files, reports, projections, initiatives, user data and site usage data.

"Customer" means any individual or entity that purchases Product (hereinafter defined) on the Site.

"Item" means any merchandise, product, good, equipment, item, service or experience offered for sale, including the Products.

"Net Sales" means amounts actually paid by Customers to uBid and recognized by uBid as revenues in connection with the sale of Product on the Site during the Term, less reasonably incurred and documented (i) credit card processing fees; (ii) credits, chargebacks and refunds for returned or cancelled goods and services, allowances, bad debt, collection fees, or fraud, (iii) amounts collected for applicable sales, use, excise, import or export, value added, or withholding taxes (other than income taxes) or other similar taxes or duties associated with such sales, (iv) warranty, appraisal, and escrow costs, (v) shipping, delivery, insurance and handling charges, (vi) quantity and cash discounts; and (vii) out-of-pocket transactional costs and similar items.

"Products" means the Vendor's products offered for auction in the uBid Direct Dropship Vendor Program.

"Vendor Marks" shall mean the name, tradenames, trademarks, service marks, logos and other distinctive brand marks of Vendor adopted by the Vendor or used in or relating to Vendor's business from time to time, whether or not in connection with its performance of this Agreement.

"Auction Manager" means uBid's order processing and sales analysis interface between uBid vendors and uBid ERP system.

Eligibility
Participation in the uBid Direct Dropship Vendor Program is limited to parties that lawfully can enter into and form contracts under applicable law.

Term
The term of this Agreement (the “Term”) shall commence on the date hereof and continue in full force and effect until terminated in accordance herewith.

Product
Upon acceptance of your application to become a uBid vendor, Product may be offered for auction by Vendor in the uBid Direct Dropship Vendor Program, on the terms and conditions of this Agreement. Any additional or different terms proposed by the Vendor are hereby objected to and rejected unless expressly assented to in writing by uBid. The parties shall cooperate to jointly select the optimal assortment of Products to be offered on the uBid Site from time to time during the Term. Vendor shall only list Product inventory that is currently in stock at Vendor's location and ready to be shipped. Under no circumstances shall out of stock, back-ordered, next available or not currently in stock Products be included in any of Vendor's auction listings. Products may be listed only in appropriate product categories, as determined by uBid from time to time. Upon listing of Product for auction in the uBid Vendor Program, Vendor may not (i) change Product specifications, or (ii) substitute Products or cancel orders for products by Customers. Under no circumstances shall Vendor employ or otherwise subcontract any third-party dropship vendor in connection with the performance of its obligations hereunder.

Pricing; Auction; Policies and Guidelines
Vendor acknowledges and understands that uBid prefers, but does not require, that auction items in the uBid Direct Dropship Vendor Program be listed "without reserve", i.e., there is no floor price below which the auctioned item would not be sold. Vendor must honor all auctions for its Products and shall fulfill all orders and deliver the auctioned Product to the highest bidder that meets or exceeds the minimum price or the reserve price, as the case may be. uBid does not guarantee a minimum price and Vendor hereby acknowledges that below-cost sales can and do occur on the Site. To preserve the integrity of the auction format to uBid Customers, Vendor hereby agrees to honor all sales to winning bidders at all final auction price(s) irrespective of the final auction price(s)(subject, however, to reserve prices), and shall ship Product to the winning bidders, in accordance with this Agreement, even if sold below Vendor's cost. uBid retains the right, in its sole discretion, to immediately halt any auction and to remove any Product listing from the Site, whether as a result of Vendor's failure to comply with any of the terms of this Agreement or for any other reason.Vendor acknowledges and understands that its performance in the uBid Direct Dropship Vendor Program shall be measured by reference to the uBid Direct Dropship Policies and Guidelines, as adopted by uBid from time to time, and that Vendor’s continued participation in the program shall be conditioned upon Vendor’s compliance with such uBid Direct Dropship Policies and Guidelines, among other things.

Payment Terms
uBid will pay to Vendor an amount equal to the winning bid amounts collected by uBid on each closed Vendor auction, less a success fee in the amount of ten percent (10%) of winning bid amount (product sale price and freight charge) collected by uBid. Applicable sales taxes for Illinois will be collected and remitted by uBid.

Shipment; Delivery; Risk of Loss
Within twenty-four (24) hours of Vendor's receipt of any order for Product, Vendor agrees to ship such Product to Customers through the Auction Manager and submit to the Auction Manager applicable shipment tracking numbers. Time is of the essence. Vendor agrees to ship all products only with (i) a uBid-approved carrier (Federal Express, UPS or USPS), or (ii) a valid uBid Shipping Account Number (if provided by uBid), or (iii) in the event Vendor's actual Federal Express, UPS or USPS shipping costs exceed those set in uBid's shipping table, uBid's Special Shipping Option, as in effect from time to time. Vendor shall not be entitled to payment for Products shipped by means other than a uBid-approved carrier unless uBid shall have provided prior written approval of an alternate shipment method. In the event Vendor uses uBid's Special Shipping option, the maximum shipping charge permitted shall be $5.99 + $0.89/ lb. (subject to adjustment by uBid from time to time upon not less than 30 days prior written notice). Vendor shall include a uBid packing slip with each shipment. Vendor shall bear all risk of loss on the purchased Products until their delivery. Claims for damaged Product are to be submitted by the Vendor to the carrier for reimbursement in accordance with its policies and procedures. All materials required for shipment of Products, including but not limited to all boxes, packages, packing materials, tape, and labels shall be provided by Vendor at its own expense, and all such materials shall be compliant with the uBid Direct Dropship Policies and Guidelines. Vendor shall not include with any shipment of Product any materials advertising, marketing or otherwise promoting Vendor or any other person, entity or Item. uBid shall have full recourse against Vendor to recover all damages (including costs and attorney fees) reasonably incurred by uBid and its Customer(s) as a result of Vendor's failure to ship Product in accordance with this Section. In the event that Vendor fails to ship Product within the time period required hereunder, Vendor shall reimburse uBid for any shipping charges paid by uBid upon that order.

Customer Care
Vendor shall make a representative of its company available to respond to uBid customer service vendor support phone call or e-mail inquiries concerning orders. Vendor shall contact a uBid representative within twenty-four (24) hours of any urgent matter pertaining to fulfillment of any order for Product on the Site. Vendor shall provide uBid with Vendor contact information, and shall have a continuing obligation to provide updated contact information, as and when such information changes. Contact information shall be provided to uBid by email at vendorsupport@ubid.com.

Returns and Cancellation
Vendor understands and agrees that uBid may, on occasion, authorize Product returns and/or cancellations to maintain customer satisfaction.

(a) Vendor will accept any returns of Product authorized by uBid, in its sole discretion, for full credit. If uBid authorizes a Customer return of any Product, uBid shall notify Vendor of such return authorization, and Vendor shall thereupon issue a Return Authorization Number. Vendor shall notify uBid Vendor Support Operations of its receipt of returned Product within forty-eight (48) hours thereof, together with the following information: (i) Customer name, (ii) Customer full order number, (iii) Product SKU, (iv) manufacturer part number or Product description (as applicable). Vendor shall pay the cost of freight on all returns. uBid shall exhaust all avenues of resolution with the Customer before authorizing a return. Notwithstanding the foregoing, if any of the Products fail to meet the warranties contained in this Agreement (a "Defective Product"), Vendor, upon notice thereof from uBid, shall promptly correct or replace such Defective Product at Vendor's expense. After notice to Vendor, all such Defective Products will be held at Vendor's risk. Any payment for such Defective Products shall be refunded by Vendor unless Vendor promptly corrects or replaces such Defective Products at its expense.

(b) uBid shall have the right to purchase Vendor’s products, either directly or through its employees or other agents, for quality assurance and inspection purposes, and shall have the absolute right to return such items. Vendor will accept any such returns of Product purchased by or on behalf of uBid pursuant to this paragraph, for full credit.

(c) Vendor will accept all cancellations of orders for Product authorized by uBid. Notices of cancellation, if any, will be delivered to Vendor by uBid Customer Care or Vendor Support Operations by means of email or the uBid Auction Manager interface on a daily basis. Within twenty-four (24) hours of receipt of any notice of cancellation, Vendor shall advise uBid as to whether the cancelled order has been shipped and, if so, provide uBid with the applicable shipment tracking number. If the order has not theretofore been shipped, (i) the order shall be deemed cancelled and removed from the Auction Manager, and (ii) Vendor shall not thereafter ship the subject Product. In the event Vendor ships Product under a cancelled order, (i) Vendor will be solely responsible for all shipping costs associated therewith (including shipment to the Customer and return shipment from the Customer to the Vendor). In all instances of cancelled orders, the Customer will be advised by uBid that that they may refuse the shipment. Any credit or coupon issued by uBid to a Customer to satisfy late or improper Product shipments will be charged back to Vendor.

Patents, Trademarks, Copyrights, Proprietary Rights
Vendor warrants that Products offered for sale in the uBid Vendor Program do not infringe the patents, trademarks, copyrights, or any other proprietary rights of any third parties, whether or not claims have yet arisen, or are known or unknown. Vendor agrees to hold uBid harmless from any infringement claims or demands arising from the distribution, sale, or use of such Products, and to pay all of uBid's attorneys' fees in connection with any such claims or demands, whether or not litigated. Vendor undertakes and agrees to defend at Vendor's own expense, with attorneys acceptable to uBid, all suits, actions, or proceedings in which uBid, or the users of any of the Products are made defendants for alleged infringement of any U.S. or foreign letters patent, trademark, copyright or other proprietary right, resulting from the use or sale of the Products and further agrees to pay and discharge any all judgments, decrees, or settlements which may result from any such suit, action or proceeding against such defendants therein. uBid shall have the right to have any such litigation monitored by its own counsel at Vendor's expense.

License to Use Marks
Subject to the terms and conditions of this Agreement, Vendor hereby grants to uBid a limited, non-transferable, fully-paid, worldwide, non-exclusive right and license to use, reproduce, adapt (but only pursuant to its rights under this Agreement), incorporate, integrate and distribute the Vendor Marks on the Site, during the Term, solely as necessary to market the Products and perform its obligations under this Agreement.

Product Warranties
Vendor warrants to uBid (a) that the Vendor has good title, free from any liens or charges unknown to the uBid, to all Products to be offered in the uBid Vendor Program hereunder; (b) that such Products are free from defects in material and workmanship and of good quality; and (c) that such Products are merchantable and suited for the particular purposes of uBid and its Customers, of which the Vendor is aware or should be aware. Vendor shall be solely responsible for any and all warranty or other Product claims, and shall be fully liable for any direct or consequential damages resulting from breach of the warranties contained herein and of any additional representations or warranties given to uBid by Vendor.

Inspection and Acceptance
Acceptance of the Product by uBid or any Customer shall not relieve Vendor from any of its obligations and warranties hereunder. In no event shall payment be deemed to constitute acceptance.

Termination
uBid may at any time terminate this Agreement and Vendor's ability to participate in the uBid Vendor Program, with or without cause and without notice. In no event shall any termination of this Agreement relieve either party of any obligation or requirement imposed upon such party before the effective date of such termination, including but not limited to Vendor's obligation to fulfill orders for Products listed for auction prior to the effective date of termination and uBid's obligation to make payment therefore. It is expressly understood and agreed that the rights of termination set forth above are absolute and that both parties hereto have considered the making of expenditures in preparing for performance under this Agreement and possible losses incident and resulting to them in the event of its termination. Therefore, in agreeing to said terms of termination, it is with full knowledge of such possibilities and either party hereto shall not be responsible to the other for damage, or otherwise, by reason of the fact of termination of the Agreement.

Upon expiration or other termination of this Agreement, any and all licenses granted by one party to the other hereunder shall immediately terminate, and the parties shall immediately cease the use of the other party’s marks, material or content provided in connection with this Agreement. Each party shall return to the other any Confidential Information of the other party. In no event shall any termination of this Agreement relieve either party of any obligation or requirement imposed upon such party before the effective date of such termination, including but not limited to Vendor’s obligation to fulfill orders for Products listed for auction prior to the effective date of termination and uBid’s obligation to make payment therefor in accordance herewith. It is expressly understood and agreed that the rights of termination set forth above are absolute and that both parties hereto have considered the making of expenditures in preparing for performance under this Agreement and possible losses incident and resulting to them in the event of its termination. Therefore, in agreeing to said terms of termination, it is with full knowledge of such possibilities and either party hereto shall not be responsible to the other for damage, or otherwise, by reason of the fact of termination of the Agreement.

Confidentiality
It is expressly understood that, under the terms of this Agreement, the Vendor may be exposed to uBid Confidential Information, including but not limited to Customer data necessary to fulfill orders for Product. Vendor agrees that any Confidential Information will be held in confidence by Vendor, will not be disclosed by Vendor to any third party, and will be used by Vendor only for the purpose of fulfilling its obligations under this Agreement. Vendor agrees that any breach of this confidentiality obligation would result in significant damage, not completely compensable monetarily, and agrees that uBid shall be entitled to injunctive relief in a court of appropriate jurisdiction in the event of the breach or threatened breach. Vendor will not oppose any such application on the basis that damages would be satisfactory or sufficient remedy and consents to the entry of any order enjoining it from using Confidential Information in violation of this Agreement to prevent further and continuing damage. This confidentiality obligation shall survive forever and shall survive with equal force after the termination of this Agreement.

Indemnification
Vendor will defend, indemnify and hold uBid, its officers, directors, agents, employees and consultants (collectively, the "uBid Indemnified Parties") harmless from and against any third party claims against uBid for all liabilities, claims, actions, damages, losses, settlements, and costs, and expenses (including, without limitation, reasonable attorneys' fees) relating to or arising out of (i) Vendor's breach of its warranties, representations, responsibilities or covenants hereunder and (ii) any Products offered for sale, sold, purchased in the uBid Vendor Program or otherwise used by uBid customers, including but not limited to warranty claims and product liability claims.

No Bidding
Neither Vendor nor its employees, affiliates or agents, or immediate family members and/or those living in the same household of each, shall place bids or cause bids to be placed on uBid for any Product supplied by Vendor hereunder or otherwise for the purpose of increasing or otherwise manipulating the bidding process on uBid or the bid price of any Product listed on uBid and influencing user behavior on uBid.

Direct Transactions
Vendor shall not knowingly sell any Products to any Customer with whom Vendor first had contact as a result of uBid's activities under this Agreement other than by means of the Site, and shall not include in any product listing on the Site any link to, or other reference to, any website. uBid's customer data is considered Confidential Information hereunder and is subject to the section entitled "Confidentiality" above. Vendor shall not use such Customer data for any purpose whatsoever, including but not limited to marketing Vendor's products or services directly to any Customer.

Independent Contractors
Vendor and uBid shall be independent contractors. Neither uBid's approval of Vendor for participation in the uBid Vendor Program nor any transaction relating to the Site creates a principal-agent or partnership relationship between them and neither one may legally commit the other in any matter. All financial obligations associated with Vendor's business are the sole responsibility of Vendor. uBid shall not assume any obligation on behalf of Vendor for any purpose whatsoever.

Assignment
No right or obligation of Vendor under this Agreement may be assigned, subcontracted or otherwise delegated without the prior written consent of uBid. Any attempted assignment or delegation without such consent shall be wholly void and totally ineffective for all purposes.

Set-Off
uBid may deduct from any payment due to Vendor or set-off against any claim by Vendor any amount which is due to uBid by Vendor for any reason, including, among other reasons, any excess transportation charges caused by deviation from uBid's shipping instructions or the shipping of partial shipments.

Compliance with Laws
Vendor shall comply with all laws, regulations and policies applicable to it by any jurisdiction and shall obtain all permits needed to complete this Agreement.

Waiver; Remedies
uBid may waive performance of any condition, but waiver by uBid of a condition shall be considered a waiver of that condition for exceeding performance. None of uBid's remedies hereunder shall exclude its pursuit of other legal remedies at law or in equity.

Entire Agreement
This Agreement constitutes the entire Agreement between the parties on this subject. All prior representations, negotiations or agreements on this subject matter are superseded by these terms and shall not form a basis for interpretation of these terms. All amendments to these terms must be agreed to in writing by uBid.

Applicable Law
THE LAWS OF THE STATE OF ILLINOIS GOVERN THIS USER AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS. VENDOR AGREES THAT ANY ACTION AT LAW OR IN EQUITY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS SHALL BE FILED ONLY IN STATE OR FEDERAL COURT LOCATED IN CHICAGO, ILLINOIS, AND YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.