A24 Consulting Retailer Agreement

Retail Services Agreement

This Retail Services Agreement (this “Agreement”) is entered into as of the date of purchase of the Certified Shopify Online Garden Center product (the “Effective Date”), by and between A24 Consulting, LLC, a Delaware limited liability company (“A24”), and the contact of record purchasing the Certified Shopify Online Garden Center (“Customer”). For purposes of this Agreement, A24 and Customer are referred to together as the “Parties” and individually as a “Party.”

WHEREAS, the Parties desire to enter into a written agreement with respect to the creation of an online storefront and electronic marketing services provided by A24 to Customer under the terms hereof; and

NOW, THEREFORE, in consideration of the good and valuable considerations hereinafter set forth and the mutual promises of the Parties, the Parties mutually agree as follows:

  1. Services. A24 shall provide to Customer the services (the “Services”) set out in Exhibit A. A24 shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement. Customer shall not enter into an agreement or receive substantially similar services to the Services during the Term (as hereinafter defined).
  2. Price. A24 shall determine prices of any products listed on Customer’s online storefront (the “Products”) based on discussions with the supplier(s) of any such Products.  A24 and such suppliers shall determine any sales or promotions for any Products in their sole discretion. Customer shall not disclose any planned sales or promotions until A24 authorizes in writing that Customer may disclose such planned sale or promotion. Customer may not change the price of any Product.
  3. Orders; Payments.

(a)        For any order placed on Customer’s online storefront, Customer shall receive as payment for such order (i) between 20% and 50% of the retail price of such Products, less (ii) any credit card transaction fees, and less (iii) 10% of the retail price of such Products, which shall be paid to A24. Customer shall submit wiring or other bank information for payment into the Shopify platform to receive such payment from Shopify.

(b)       In addition to the fee paid to A24 pursuant to Section 3(a), Customer shall pay to A24 per year the amount listed on the product purchase page during the Term of this Agreement with the first payment due on the Effective Date, and each subsequent payment due on the anniversary of the Effective Date. Customer shall make such payment via credit card, check, wire transfer or automatic clearing house pursuant to the written instructions provided by A24.

(c)        Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, A24’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Except for invoiced payments that Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.

  1. Warranties; Limitation of Liability. A24 warrants that each Product shall comply with its respective supplier warranties, provided that A24 provides no additional warranty with respect to the Products. Customer’s sole remedy with respect to the foregoing warranty by A24 is A24 shall use commercially reasonable efforts to pursue the applicable supplier under the supply agreement between A24 and such supplier. A24 warrants that it shall perform the Services (a) using personnel of industry standard skill, experience, and qualifications; and (b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar Services. OTHER THAN THE WARRANTIES SET FORTH IN THIS AGREEMENT, THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE FACE HEREOF OF ANY KIND, EXPRESS, IMPLIED OR BY OPERATION OF LAW, TRADE, USAGE OR COURSE OF DEALING BY EITHER PARTY.  EXCEPT FOR LIABILITY FOR INDEMNIFICATION, BREACH OF CONFIDENTIALITY, OR INFRINGEMENT OF INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS.  EXCEPT FOR LIABILITY FOR INDEMNIFICATION, BREACH OF CONFIDENTIALITY, OR INFRINGEMENT OF INTELLECTUAL PROPERTY, IN NO EVENT SHALL THE LIABILITY OF A PARTY TO THE OTHER PARTY ON ALL CLAIMS OF ANY KIND, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED TWO TIMES THE AMOUNT A24 IS PAID PURSUANT TO THIS AGREEMENT.  NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, A24 SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CLAIMS MADE BY THIRD PARTIES AGAINST CUSTOMER.
  2. Customer Obligations. Customer shall:

(a)        Utilize Shopify Bill Pay for all A24 transaction fee payments.

(b)       Permit A24 to upload Customer’s current email address list to the Customer’s designated Bloomreach account and to permit A24 to receive subsequent updates to the email list.

(c)        Cooperate in good faith with A24 in the creation and set up of Customer’s online storefront within forty five (45) days of the Effective Date.

  1. Delivery; Returns. A24’s supplier shall deliver the Products to the location designated in the end customer’s order.  The Products shall be subject to the return policy posted on the online storefront. A24’s supplier shall manage the processing, including, without limitation, restocking and replacement, if applicable, of any returns. In the event of a return, each Party shall refund their portion of the refund payment pursuant to the payment amounts set forth in Section 3(a); provided that Customer shall be responsible for refunding any credit card transaction fees to the end customer.
  2. Intellectual Property.

(a)        A24 acknowledges that (i) all Customer’s intellectual property rights are the sole and exclusive property of Customer and its licensors, (ii) A24 shall not acquire any ownership interest in any of Customer’s intellectual property rights under this agreement, and (iii) A24 shall use Customer’s intellectual property rights solely for purposes of performing under this Agreement and only in accordance with this Agreement.

(b)       Customer hereby grants to A24 a non-exclusive, royalty-free license to use Customer’s Trademarks during the Term solely to the extent necessary to provide the Services to Customer. A24 will promptly discontinue the display or use of any Trademark to change the manner in which a Trademark is displayed or used with respect to Customer’s online storefront, marketing communications, or the Products when requested by Customer. “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

(c)        A24 has entered into separate agreements for the use of its suppliers’ Trademarks in connection with the Products when creating Customer’s online storefront and in marketing materials. Notwithstanding the foregoing, Customer shall not obtain any rights in such Trademarks or other intellectual property of A24’s suppliers.

(d)       Except as set forth in Sections 7(a) and (b), A24 and its licensors are and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials that are delivered to Customer hereunder by or on behalf of A24 or developed or created in the course of performing the Services, including all Intellectual Property Rights therein. “Intellectual Property Rights” means (i) patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, data, data files, and databases and other specifications and documentation; (v) trade secrets; and (vi) all other intellectual property and industrial property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction in any part of the world.

  1. Term.

(a)        This Agreement shall commence as of the Effective Date and shall continue thereafter for a period of three years following the Effective Date unless sooner terminated pursuant to this Section 8 (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional one year terms unless either Party provides written notice of nonrenewal at least 60 days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (ii) becomes insolvent or admits its inability to pay its debts generally as they become due; (iii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) is dissolved or liquidated or takes any corporate action for such purpose; (v) makes a general assignment for the benefit of creditors; or (vi) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 

(b)            Upon expiration or earlier termination of this Agreement, (i) A24 shall cease its provision of Services under this Agreement, and (ii) each Party shall return or destroy, and certify to such destruction, any Confidential Information and any copies containing, reflecting, incorporating or based on the other Party’s Confidential Information.

  1. Indemnification.

(a)        Customer shall defend, indemnify and hold harmless A24, its affiliates, agents, officers, directors, shareholders, employees and distributors, from and against any and all liabilities, claims, suits, actions, losses and expenses (including reasonable attorneys’ fees and costs) based upon or arising out of the (i) Customer’s breach of this Agreement, (ii) any claim to the extent caused by the gross negligence or willful misconduct of Customer, or (iii) any claim by a third party against Customer or A24 that results from Customer’s actions.  

(b)       A24 shall defend, indemnify and hold harmless Customer, its affiliates, agents, officers, directors, shareholders, employees and distributors, from and against any and all liabilities, claims, suits, actions, losses and expenses (including reasonable attorneys’ fees and costs) based upon or arising out of A24’s material breach of this Agreement.  

  1. Independent Contractors. A24 shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. A24 is for all purposes hereunder an independent contractor and in no event will A24 be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.
  2. Waiver. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim, or right unless the waiver or renunciation is in writing signed by the aggrieved Party.
  3. Non-Disclosure and Confidentiality. All information pertaining to this Agreement and the other Party’s business that should reasonably be considered proprietary or sensitive (the “Confidential Information”) shall be maintained by the receiving Party in strict confidence and shall not be disclosed to any person or entity for any reason or used by the receiving Party except as necessary for it to perform its obligations hereunder. The terms of this provision will survive the termination of this Agreement.  The limitations contained in this Section will not apply to: (a) information which is in the public domain at the time of disclosure; (b) information that becomes part of the public domain after disclosure through no fault of the receiving Party; (c) information that was known by the receiving Party at the time of disclosure; (d) information which was supplied to the receiving Party by a third party or was independently developed by the receiving Party without reference to such information or (e) information required to be disclosed by legal authority but only to the minimum extent required by law.
  4. Assignment; Delegation. No right or interest in this Agreement shall be assigned by either Party without the written permission of the other Party, which permission will not be unreasonably withheld or delayed. A24 may assign this Agreement to any party purchasing more than fifty percent (50%) of A24’s assets without the written permission of Customer.  Any attempted assignment in violation of the foregoing shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph; provided that A24 may subcontract to third party service providers in connection with the Services.
  5. Dispute Resolution. In the event of a difference, controversy or claim arising out of, relating to, or having any connection with, this Agreement, including any question regarding its negotiation, existence, validity, interpretation, performance, or breach, will first be settled through mandatory discussions and negotiations between the Parties. Such discussions and negotiations will occur via telephone, web conference, and/or in-person meeting.
  6. Choice of Law; Venue; Jury Trial Waiver. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.  Any and all proceedings relating to the subject matter hereof shall be maintained in the state or federal courts of the State of Delaware, which court shall have exclusive jurisdiction for such purpose.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
  7. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to A24 hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall promptly give notice of the Force Majeure Event to the other Party. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Without limiting the foregoing, A24 shall not be liable or responsible to Customer, or deemed to have defaulted under or breached this Agreement, in the event any Shopify or BloomReach services are unavailable or impacted due to acts or reasons beyond A24’s reasonable control.
  8. Entire Agreement; Modification; Severability. This Agreement, along with any the return policy posted on the online storefront, states the entire agreement between Customer and A24 with respect to the subject matter hereof. This Agreement may be modified only by a writing duly signed by both Parties.  Each provision of this Agreement is severable and if any provision will be finally determined to be invalid, illegal or unenforceable (“Invalid”) in any jurisdiction, the remaining provisions will not be affected hereby, nor will said provision be Invalid in any other jurisdiction. The provisions, that in order to give proper effect of their intent, should survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement.
  9. Notices. All notices which concern this Agreement will be given in writing, as follows:  (a) by actual delivery of the notice into the hands of the Party entitled to receive it, in which case such notice will be deemed given on the date of delivery; (b) by a recognized express overnight carrier, in which case such notice will be deemed given the day after being timely deposited, freight prepaid, with such express overnight carrier; or (c) by electronic (e-mail) transmission, in which case such notice will be deemed given on the date it is sent, provided that such notice is also delivered via subsection (a) or (b).  Any Party to this Agreement may change its address for notice purposes, by providing written notice in the manner set forth above of the change of address to the other Party  All notices, which concern this Agreement, will be addressed to the Customer at the address provided at the time of purchase and by A24 at the following location:

To A24:  

A24 Consulting, LLC

Katie Elzer-Peters

407 Kelly Road

Wilmington, NC 28409

katie@a24-consulting.com

     _____________

 

Exhibit A

Services

Online Storefront

  • A24 shall create and curate an online ecommerce storefront fully merchandised with Products on the Shopify Plus platform for Customer where orders will be fulfilled by A24’s suppliers.
  • A24, in its sole discretion, shall select the Products to offer on Customer’s storefront.
  • The storefront shall be subject to Shopify’s online terms.
  • A24 shall respond to any technical issues with respect to the storefront within twenty-four (24) business hours (Monday-Friday 9am-6pm ET).

Marketing

  • Customer shall receive a BloomReach email account; provided that Customer shall permit A24 to connect Customer’s current email database and email newsletter system.
  • Customer shall receive [52 weeks] per year of managed marketing provided by A24 by BloomReach.
  • The email communications shall be subject to BloomReach’s online terms.

Customer Service

  • A24 shall respond to and handle, in its sole discretion, all customer service inquires received by Customer with respect to the Products, online storefront and marketing.
  • A24 shall provide Customer with an email and phone number to request service on behalf of Customer’s customers; provided that Customer shall place customer service information in in easily findable places such as near in-store registers.
  • A24 shall post its customer service email on the storefront and marketing communications.

Updated 10/11/24

by Katie Elzer-Peters