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October 18, 2024
<br />Quote Number: Q45098-2
<br />SB / SB
<br />v2024Mar26
<br />150 A St., Suite 103 ▪ Needham, MA 02494 www.bigbelly.com T: 888-820-0300 ▪ F: 781-444-5651
<br />TERMS AND CONDITIONS OF SALE
<br />Version 9.24.2018
<br />The following Terms and Conditions of Sale (“Agreement”) are applicable to any order placed by Customer pursuant to a valid Bigbelly Quotation (“Quotation”) that is acc epted by Bigbelly (“Order”).
<br />Acceptance by Customer of this Agreement, which shall be signified by Customer’s duly authorized signature on the face hereof, shall be required for Bigbelly’s acceptance of an Order.
<br />1.SCOPE OF AGREEMENT. Bigbelly, upon acceptance of an Order placed by Customer, will supply the products to be delivered (“Products”) and services to be performed (“Services”) as
<br />specified in the Quotation to Customer, pursuant to this Agreement and its attachments. Bigbelly’s acceptance of an Order is expressly limited to the terms and conditions of this Agreement
<br />notwithstanding any contrary provision contained in Customer’s purchase orders, acknowledgements or other documents. The details of the Products and Services (e.g. quantity, price, and product
<br />specifications) shall be set forth in the relevant Quotation.
<br />2.ON-SITE SERVICES. In the event any on-site services (such as installation, warranty repairs) are required as part of the Products and Services, the additional terms set forth in Attachment A
<br />attached hereto shall also apply.
<br />3.PRICE AND PAYMENT. (a) The prices payable by Customer for the Products and Services by Bigbelly under this Agreement will be specified in the applicable Quotation. Unless otherwise
<br />expressly stated in a Quotation, all prices exclude shipping and applicable taxes, all of which are at Customer’s expense. (b) Fees shall become payable upon Bigbelly’s acceptance of an Order, unless
<br />otherwise determined by Bigbelly and agreed to in writing, and all payments shall be made without offset or deduction. Any amounts due from Customer under this Quotation or any related invoice,
<br />may not be withheld or offset by Customer against amounts due to Customer by Bigbelly for any reason. All late payments made outside of the agreed upon payment terms will be subject to interest at
<br />the rate of the lesser of (i) eighteen percent (18%) per annum or (ii) the highest amount allowed under applicable law. Where upfront payment is required, Bigbelly further reserves the right to
<br />withhold shipment of the Products and delay performance of the Services until full payment is made. Any failure by Bigbelly to provide an invoice in a timely manner shall not affect Customer’s
<br />obligation to make payments. (c) Upon reasonable request by Bigbelly, Customer shall provide evidence of its financial capacity and such other information as Bigbelly reasonably requests to determine
<br />credit status or credits limits. (d) Customer shall provide notice within five (5) business days of the occurrence of any event which materially affects Customer’s ability to perform its obligations under
<br />this Agreement.
<br />4.SHIPPING AND DELIVERY. Unless otherwise specified and agreed in an Order, Products and Services will be delivered FOB Origin (Bigbelly’s manufacturing facility) and will be shipped to
<br />Customer at the address provided via carriers selected by Bigbelly at the Customer’s expense. The Parties shall mutually agree on any applicable delivery requirements for all Products and Services
<br />specified on an applicable Quotation before such Order will be processed. If no delivery requirements are otherwise specified and agreed, Bigbelly shall process any Order upon receipt of the signed
<br />Agreement and Customer’s fulfillment of any other order processing requirements set forth by Bigbelly in its sole discretion.
<br />5.INSPECTION AND ACCEPTANCE. Customer shall promptly inspect the Products and Services upon delivery or completion. In the event Products or Services are received damaged, defective
<br />or not to specification, Customer shall provide Bigbelly with prompt notice of the alleged deficiencies in the Products or performance of Services under the Quotation or this Agreement and Bigbelly
<br />shall have a reasonable opportunity to cure any such alleged non-conformance.
<br />6.SOFTWARE LICENSE. Customer’s use of the software provided as a Product and Service (“Software”) is subject to the CLEAN Software License Agreement that accompanies delivery of the
<br />Software. All applicable terms, provisions and agreements set forth in the CLEAN Software License Agreement are hereby incorporated herein by reference with the same force and effect as though
<br />fully set forth herein. To the extent that the terms set forth in this Agreement are inconsistent with the terms of the CLEAN Software License Agreement, the terms set forth herein shall apply.
<br />7.WARRANTY. Bigbelly warrants the Products and Services provided pursuant to a Quotation and this Agreement against manufacturer defects or defects in workmanship, under normal use
<br />and service, subject to the exclusions, limitations and conditions set forth in the Bigbelly Standard Limited Warranty.
<br />8.BREACH. In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Quotation or this Agreement, the non-breaching party
<br />shall have the right to: (a) terminate the Quotation immediately upon written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms
<br />of this Agreement. Failure to properly demand compliance or performance of any term of the Quotation or this Agreement shall not constitute a waiver of Bigbelly’s rights hereunder and prior to any
<br />claim for damages being made for non-conformance or breach, Customer shall provide Bigbelly with prompt notice of any alleged deficiencies in the Products or performance of Services under the
<br />Quotation or this Agreement and Bigbelly shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
<br />9.LIMITATIAON OF LIABILITY. IN NO EVENT SHALL BIGBELLY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN
<br />ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES. BIGBELLY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND ANY QUOTATION SHALL BE LIMITED TO THE TOTAL
<br />FEES PAID BY CUSTOMER UNDER THE QUOTATION UPON WHICH A CLAIM IS BASED.
<br />10.INDEMNIFICATION. In no event shall Bigbelly be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by
<br />Customer (including the use of information, artwork, logos, and/or trademarks provided by Customer). Neither party will be responsible for indemnifying another party hereto where the basis of the
<br />indemnity claim arises out of such other party’s own negligence or willful misconduct.
<br />11.CUSTOMER MATERIALS AND DATA. (a) Customer represents and warrants that any matter it furnishes for the Products or performance of the Services by Bigbelly does not infringe any
<br />copyright or trademark or other intellectual property rights of any third party nor does it otherwise violate any laws or infringe the rights of any third party. (b) Customer warrants that it has the right
<br />to use, and to have Bigbelly use on behalf of Customer, any data provided to Bigbelly by Customer, including specifically customer names, identifying information, addresses and other contact
<br />information and related personal information.
<br />12.INTELLECTUAL PROPERTY. Any and all inventions, discoveries, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, know-how, work product and
<br />information or other intellectual property embodying proprietary data existing and owned by Bigbelly as of the date of the Quotation, or made or conceived by employees, consultants, representatives
<br />or agents of Bigbelly during the term of this Agreement, shall be and remain at all times the sole and exclusive property of Bigbelly. Customer will obtain no rights thereto other than the limited rights
<br />set forth in this Agreement. Without limiting the generality of the foregoing, the parties agree that Bigbelly will own all Software, including all modifications, upgrades and enhancements thereto made
<br />during the term of this Agreement.
<br />13.FORCE MAJEURE. Any delay or failure of either party to perform its obligations (other than Customer’s payment obligation) shall be excused if such failure is caused by an extraordinary
<br />event or occurrence beyond the control of the nonperforming party, such as acts of God, fires, floods, windstorms, explosions, natural disasters, wars and sabotage. Each party shall promptly notify
<br />the other of the reason for the delay and use its best efforts in curing such cause and shall take all action practicable to minimize the adverse impact of the delay on the other party.
<br />14.GOVERNING LAW. Each Quotation and this Agreement shall be governed and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without
<br />reference to its conflicts of law principles. The Parties further agree (i) that any dispute, controversy or claim arising out of or related to this Agreement shall be brought and settled in the state or
<br />federal courts located in Boston, Massachusetts; (ii) to irrevocably submit to the exclusive jurisdiction of any such court; and (iii) to waive any right to a jury trial in any litigation arising out of or related
<br />to this Agreement.
<br />15.COMPLIANCE. Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
<br />16.ASSIGNMENT. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Bigbelly. Pursuant to a valid assignment, the terms and
<br />conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties.
<br />17.AMENDMENT AND WAIVER. This Agreement shall not be amended or modified in any way except by a subsequent written agreement signed by authorized persons of both Parties. Any
<br />amendment or waiver effected in accordance with this section shall be binding upon the Parties and their respective successors and assigns. The waiver by a Party of any breach by the other Party will
<br />not operate or be interpreted as a waiver of any other or subsequent breach, nor shall the failure or delay in exercising any right or seeking any remedy hereunder operate as a waiver thereof.
<br />18.SEVERABILITY. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, in whole or in part, such provision shall be
<br />interpreted to the maximum extent to which it is valid and enforceable, and the remaining provisions of this Agreement shall continue in full force and effect and not be affected thereby.
<br />19.SURVIVAL. In the event any provision of the Quotation or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or
<br />this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver,
<br />waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.
<br />20.NOTICE. Any notice required to be delivered pursuant to this Agreement shall be deemed given when personally delivered to recipient thereof or mailed by registered mail or certified
<br />mail, return receipt requested, to the addresses on the Quotation or to such address as either party may designate in the future.
<br />21.ENTIRE AGREEMENT. Each Quotation, together with this Agreement including the Attachments, constitute the entire agreement between the Parties regarding the subject matter hereof
<br />and merges and supersede all prior agreements, oral and written, understandings, commitments and writings. Any Order, purchase order or other ordering or acceptance document issued by
<br />Customer is for administrative purposes only and does not form part of this Agreement or amend the terms hereof. In the event of any ambiguity or conflict between any of the terms and conditions
<br />contained in this Agreement and the terms and conditions contained in an Order, the terms and conditions of this Agreement shall control. The Quotation or this Agreement may not be amended,
<br />supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.
<br />22.COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original and together shall constitute one instrument.
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