Terms and Conditions for Kotis Warehouse, Fulfillment and Online Services (9/18/22)
THESE TERMS AND CONDITIONS (“TERMS“) GOVERN YOUR ACQUISITION AND USE OF KOTIS DESIGN WAREHOUSE, FULFILLMENT AND ONLINE SERVICES.
BY ACCEPTING THESE TERMS, EITHER THROUGH EXECUTING AN AGREEMENT THAT REFERENCES THESE TERMS OR CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THESE DETAILS OF THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE PHRASES “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT EXECUTE AN AGREEMENT OR OTHERWISE ACCEPT THESE TERMS AND MAY NOT USE THE KOTIS ONLINE SERVICES.
You may not access the Kotis Online Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Kotis Design Online Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
These Terms were last updated on September 18, 2022. It is effective between You and Us as of the date You executed the applicable Agreement.
1. DEFINITIONS
“Agreement” or “Agreements” means the signed contracts or agreements for the Warehouse, Fulfillment, and Online Services, including addenda thereto, that are entered into between You and Us from time to time. Agreements shall be deemed incorporated herein by reference.
“Inventory” means physical goods owned by Client that are put into Kotis custody, for the purpose of safekeeping until each item is shipped to the destination of Client’s choosing.
“Warehouse” means the physical geographic property under Kotis control which is used to receive, maintain, and ship Inventory.
“Inventory Management” means the administrative section online provided to Client’s designated main contacts which allow them to oversee and manage Inventory and Portals.
“Portal” or “Portals” means the web site interface that allows general users to order Inventory and, depending on Client’s requirements, provide payment information and other relevant information related to the order.
“Kotis Online Services” means the Portals, Inventory Management, and related applications and services provided by Kotis Design.
“We”, “Us”, “Our” or “Kotis” means Kotis Design LLC
“You”, “Your” or “Client” means the company or other legal entity for which you are entering into an Agreement, and affiliates of that company or entity which have entered into Agreements.
“Inventory” means physical goods owned by Client that are put into Kotis custody, for the purpose of safekeeping until each item is shipped to the destination of Client’s choosing.
“Warehouse” means the physical geographic property under Kotis control which is used to receive, maintain, and ship Inventory.
“Inventory Management” means the administrative section online provided to Client’s designated main contacts which allow them to oversee and manage Inventory and Portals.
“Portal” or “Portals” means the web site interface that allows general users to order Inventory and, depending on Client’s requirements, provide payment information and other relevant information related to the order.
“Kotis Online Services” means the Portals, Inventory Management, and related applications and services provided by Kotis Design.
“We”, “Us”, “Our” or “Kotis” means Kotis Design LLC
“You”, “Your” or “Client” means the company or other legal entity for which you are entering into an Agreement, and affiliates of that company or entity which have entered into Agreements.
2. KOTIS RESPONSIBILITIES
2.1. Host Portals at a mutually agreeable URL under the kotisdesign.com domain, with a basic layout and Client logo displayed in header.
2.2. Implement Portals within 30 days after the later of (i) receiving all agreed upon setup fees, or (ii) receiving a full and accurate inventory list if Client is sending Kotis pre-existing inventory.
2.3. Receive Inventory at its Warehouse, and make them available for ordering in the Kotis Online Services, subject to the timelines in the Warehousing & Fulfillment Standards.
2.4. Maintain Inventory at its Warehouse, subject to the conditions in the Warehousing & Fulfillment Standards.
2.5. Ship Inventory from its Warehouse, subject to the timelines in the Warehousing & Fulfillment Standards.
2.6. Use commercially reasonable efforts to make the Kotis Online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (which Kotis shall schedule to the extent practicable during the weekend hours from 5:00pm Pacific Time Friday to 3:00am Pacific Time Monday), or (ii) any unavailability caused by circumstances beyond Our reasonable control, such as but not limited to, acts of God, acts of government, Internet service provider failures or delays, or denial of service attacks.
2.7. Be responsible for the security of Personally Identifiable Information (“PII”) that is input into the Kotis Online Services.
2.8. When applicable, collect sales tax on purchases to all US States that have a sales tax, and report/remit the taxes to their respective Departments of Revenue.
2.2. Implement Portals within 30 days after the later of (i) receiving all agreed upon setup fees, or (ii) receiving a full and accurate inventory list if Client is sending Kotis pre-existing inventory.
2.3. Receive Inventory at its Warehouse, and make them available for ordering in the Kotis Online Services, subject to the timelines in the Warehousing & Fulfillment Standards.
2.4. Maintain Inventory at its Warehouse, subject to the conditions in the Warehousing & Fulfillment Standards.
2.5. Ship Inventory from its Warehouse, subject to the timelines in the Warehousing & Fulfillment Standards.
2.6. Use commercially reasonable efforts to make the Kotis Online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (which Kotis shall schedule to the extent practicable during the weekend hours from 5:00pm Pacific Time Friday to 3:00am Pacific Time Monday), or (ii) any unavailability caused by circumstances beyond Our reasonable control, such as but not limited to, acts of God, acts of government, Internet service provider failures or delays, or denial of service attacks.
2.7. Be responsible for the security of Personally Identifiable Information (“PII”) that is input into the Kotis Online Services.
2.8. When applicable, collect sales tax on purchases to all US States that have a sales tax, and report/remit the taxes to their respective Departments of Revenue.
3. INVENTORY EXCLUSIVITY
Kotis will be the exclusive Inventory provider for items displayed and sold on the Kotis Online Services, unless Kotis cannot match another vendor’s price or specifications. Client must provide Kotis with the other vendor’s formal quotation and be given the opportunity to match the price and specifications. If any Inventory is purchased from other vendors by Client outside these terms, Kotis has the right to refuse receipt of those items and not display them on the Kotis Online Services.
4. PAYMENT TERMS
4.1. Fees. Setup fees are billed and due prior to any work being done. All other fees are billed quarterly and due on net thirty (30) terms from invoice date, unless otherwise specified.
4.2. Overdue Charges. All outstanding undisputed amounts owed after the due date will be assessed a late fee calculated at the lower of (i) monthly interest rate of 5% on the outstanding amounts owed, including accrued interest, or (ii) the highest amount allowed by law, until payment is received.
4.3. Suspension of Kotis Online Services. Kotis may suspend access to the Kotis Online Services with 15 days’ notice to Client if Client is past due on any undisputed invoices by more than 30 days. Kotis shall reactivate Kotis Online Services within two business day after all past due amounts have been paid in full.
4.4. Taxes. On any invoices to be paid by Client, Client agrees to pay all applicable sales, use or service taxes, if any, imposed by any state tax authority on the services or payments provided hereunder. Any such tax due is in addition to fees specified in any Agreements and will be listed separately on invoices.
4.5. Credit Cards and Quarterly Statement. When end users purchase items from Portals via credit card, if Client has selected that option, the funds shall be collected by Kotis. At the end of each quarter, Kotis will provide (i) a summary of all orders from the quarter, (ii) a summary of associated fees from that quarter, and (iii) a check for the amount collected from end users, less any remaining fees. If Client has any past due invoices, Kotis may deduct the past due invoices from the amount to be paid to Client. Client may also request that Kotis apply the balance to current invoices, or as a credit towards future invoices.
4.2. Overdue Charges. All outstanding undisputed amounts owed after the due date will be assessed a late fee calculated at the lower of (i) monthly interest rate of 5% on the outstanding amounts owed, including accrued interest, or (ii) the highest amount allowed by law, until payment is received.
4.3. Suspension of Kotis Online Services. Kotis may suspend access to the Kotis Online Services with 15 days’ notice to Client if Client is past due on any undisputed invoices by more than 30 days. Kotis shall reactivate Kotis Online Services within two business day after all past due amounts have been paid in full.
4.4. Taxes. On any invoices to be paid by Client, Client agrees to pay all applicable sales, use or service taxes, if any, imposed by any state tax authority on the services or payments provided hereunder. Any such tax due is in addition to fees specified in any Agreements and will be listed separately on invoices.
4.5. Credit Cards and Quarterly Statement. When end users purchase items from Portals via credit card, if Client has selected that option, the funds shall be collected by Kotis. At the end of each quarter, Kotis will provide (i) a summary of all orders from the quarter, (ii) a summary of associated fees from that quarter, and (iii) a check for the amount collected from end users, less any remaining fees. If Client has any past due invoices, Kotis may deduct the past due invoices from the amount to be paid to Client. Client may also request that Kotis apply the balance to current invoices, or as a credit towards future invoices.
5. INDEPENDENT CONTRACTOR RELATIONSHIP
These Terms constitute a contractual agreement wherein neither of the parties is a fiduciary to the other nor a master or servant, employer or employee, franchisor/franchisee, nor a partner nor joint venturer. Neither party, nor its employees or representatives, shall have authority, either express or implied, to contract or to obligate the other in any manner except as expressly provided herein.
6. OWNERSHIP
Kotis retains all right, title, and interest in and to the Kotis Online Services, including all software and intellectual property related thereto.
7. TRADEMARKS, TRADE NAMES
Nothing in these Terms shall give Kotis any interest in any Trademarks or Trade Names owned by Client. Client hereby grants Kotis the non-exclusive, temporary right to use Client’s Trademarks or Trade Names on the Portals, subject to Client’s prior approval, and represents that it has the legal right to use, and allow Kotis to use, all trademarks, designs and logos used by Client and provided to Kotis. Client takes full responsibility for the use of trademarks, designs and logos in the form provided to Kotis. Kotis has no obligation to verify the accuracy or completeness of any information provided to it by Client.
8. NON-DISCLOSURE OR USE OF CONFIDENTIAL AND PROPRIETARY INFORMATION
In connection with the provision of the Kotis Online Services, each party may disclose Proprietary Information to the other party. “Proprietary Information” means information in a tangible form that bears a “confidential”, “proprietary”, “secret”, or similar legend and discussions relating to that information whether those discussions occur prior to, concurrent with, or following disclosure of such information. Each receiving party agrees to keep such Proprietary Information confidential. Each receiving party may only use the disclosing party’s Proprietary Information to the extent necessary to provide the Kotis Online Services. Notwithstanding the foregoing, receiving party will not be liable for the disclosure of Proprietary Information which is: (i) generally made available publicly or to third parties by the disclosing party without restriction on disclosure; (ii) rightfully received from a third party without any obligation of confidentiality; (iii) rightfully known to the receiving party without any limitation on disclosure prior to its receipt from the disclosing party; (iv) independently developed by the receiving party; or (v) required to be disclosed in accordance with applicable laws, regulations, court, judicial or other government order, provided that the receiving party shall give the disclosing party reasonable notice prior to such disclosure and shall comply with any applicable protective order. Each party acknowledges that any breach of this section may result in irreparable harm to the other party for which the other party may seek immediate injunctive relief, in addition to other remedies.
9. INDEMNIFICATION; INSURANCE
Each party shall indemnify and hold the other (including directors, officers, and employees) harmless from any third-party claim, demand, loss, liability, damage or expense including court costs and reasonable attorneys’ fees, arising from such party’s breach of these Terms, or such party’s negligence or willful misconduct. Kotis shall maintain commercial general liability insurance and products/completed operations insurance of not less than $1,000,000 per occurrence and $2,000,000 in aggregate. Kotis will maintain property insurance to include business personal property of others, including inventory, on a replacement cost basis. Such property insurance will be written on an All Risk form cause of loss. Client must provide Kotis with the value of all Inventory that was not produced by Kotis, otherwise Kotis will not insure it.
10. COMPLIANCE WITH LAWS AND REGULATIONS
Client and Kotis agree that in their respective performance of these Terms and in their activities related thereto they will comply fully with any and all applicable laws, rules, and regulations adopted or promulgated by any local, state or federal agency or regulatory body. Upon any claimed violation, the party alleged to be in non-compliance shall proceed promptly to endeavor to cure or otherwise resolve the situation, by any reasonable measures, including but not limited to the filing of any protests, suits or challenges deemed in good faith to be justified. The parties agree that these Terms do not constitute a franchise or business opportunity as regulated by statute or regulations, and these Terms will not be construed in a manner, which may cause it to be classified as a franchise agreement or business opportunity agreement. Any provisions which cause these Terms to be classified as a franchise agreement or business opportunity agreement under applicable statutes or regulations shall be automatically null and void, and stricken from the Terms.
11. PROCESSING OF PERSONAL INFORMATION
Kotis will have access to Client PII in connection with the Kotis Online Services. As it relates to the General Data Protection Regulation (“GDPR”) by the European Union, Kotis acts as a Processor, and Client is the Controller; under the California Consumer Privacy Act (“CCPA”) by the State of California, Kotis is a Service Provider, and Client is a Business; for any other jurisdictions, Kotis and Client will have roles that are substantially similar to those held under GDPR and CCPA. Kotis will process PII solely for the purposes of providing the Kotis Online Services, and will not process it for any other purpose. If requested by Client, Kotis agrees to sign a Data Processing Addendum and/or post Client’s Privacy Policy on its Portals. If end users submit data requests to Kotis, Kotis will forward them to Client, and Client takes sole responsibility for responding to the requests.
12. TERMINATION
Client may terminate these Terms and its associated Agreements at any time upon written notice. Kotis may terminate these Terms and its associated Agreements with 60 days written notice. Kotis will return all Client-owned merchandise to Client and invoice Client for all associated shipping costs within 15 days of the later of (i) the termination of the Agreements, or (ii) when there are no past due invoices and no outstanding invoices for Warehouse, Fulfillment and Online Services fees. If Client terminates the Agreements, for any reason other than due to breach by Kotis, Kotis will also invoice Client for labor costs to package and prepare Inventory for shipping. Any Platform Fees owed will be prorated based on the number of days the Agreement was active.
13. NOTICES
Any notice given in connection with these Terms shall be given in writing and shall be delivered either by personal service, certified mail, email or overnight commercial courier service to the other party at the party’s address stated herein. Notice by email will only be considered delivered after the receiving party responds confirming receipt, and in the case of Kotis should go to notices@kotisdesign.com. Any party may change its address stated herein by giving notice of the change in accordance with this paragraph.
14. CHOICE OF LAW
Any dispute under these Terms or related to these Terms shall be decided in accordance with the laws of the State of Washington without regard to its conflict of law or choice of law principles. Venue and jurisdiction for any court or other dispute resolution proceeding shall be exclusively in King County, Washington. Both parties hereby irrevocably submit to the personal jurisdiction of the courts situated in King County, Washington.
15. ATTORNEYS FEES AND COSTS
In any legal proceeding or any other dispute resolution proceedings arising from these Terms, the substantially prevailing party shall be entitled to recover costs and reasonable attorney’s fees.
16. ASSIGNMENT
Neither party may assign any of its rights or obligations hereunder without prior written consent of the other party (not to be unreasonably withheld); provided however that either party may assign its rights and obligations hereunder without such consent to any of its affiliates, or in connection with the sale of substantially all of its assets or identifiable parts of its business. After such assignment, the assignor shall have no further liability hereunder, and these Terms shall inure to and bind the permitted heirs, successors, and assigns of the parties.
17. SEVERABILITY
If any portion of these Terms is held unenforceable, the rest of these Terms will nonetheless remain in full force and effect. Any portion of these Terms held unenforceable shall be deemed modified so as to be in conformity with the ruling of any court or tribunal rendering the order or decree in question.
18. MODIFICATION TO TERMS
To the maximum extent permitted and enforceable under applicable law, we reserve the right to modify these Terms at any time, effective upon the posting of an updated version of these Terms provided Kotis gives Client a minimum of 60 days advance notice. During this notice period Client may cancel the Agreements with no advance notification. Continued use of the Kotis Online Services after any such changes shall constitute your consent to such changes.
19. ENTIRE AGREEMENT
These Terms and their associated Agreements embody the entire Agreement between the parties as to the subject matter herein, and no oral representation or promises have been made by Kotis or Client.