Retail Management Agreement Terms and Conditions
1. Scope.Subject to the terms of this Agreement, including the Order Form and b8ta’s Terms of Service, which are incorporated by reference herein in their entirety, b8ta will provide retail management services (the “Services”) for certain of Brand’s consumer products (the “Product(s)”), and Brand shall comply with and perform its obligations with respect to the Services and Products. This Agreement begins on the Effective Date and expires at the end of the Services Term, unless earlier terminated in accordance with this Agreement.
2. Placement Services.
a. Placements. b8ta shall manage the placements (each, a “Placement” and together, the “Placements”) of Products in b8ta retail locations and b8ta’s and its affiliates’ e-commerce site(s) (each a “Location” and, collectively, the “Locations”), all subject to the terms and conditions set forth in this Agreement. b8ta will determine all details for each Placement, including, without limitation, Location(s) based on the “Placement Details” in the Order Form, size, merchandising, components, display elements, listing content and appearance. For in-store Locations, Brand’s designated project leader will engage with b8ta during the design phase so that the in-store customer experience is aligned with Brand’s existing branding materials. For ecommerce Locations, Brand shall engage with b8ta’s ecommerce team to develop appropriate listings for the Products, including providing current and accurate Product descriptions, technical data, warranty information, applicable legal and regulatory notices, Product photographs, and reproducible trademarks and product names, throughout the applicable Term. b8ta’s standard retail fixtures and technology will be utilized in Placements. Custom display fixtures or technology may be available at additional cost, subject to mutual written agreement.
i. The initial term during which b8ta will provide the Services in a particular Location (the “Initial Term”) begins on the launch date set forth in the Order Form (the applicable “Launch Date”), runs (a) for the “Term Length” set forth in the Order Form or (b) if an end date is specified in the Order Form, until such end date (the applicable “Term Period”) and, unless otherwise set forth in the Order Form, automatically renews for consecutive additional equivalent Term Periods (each a “Renewal Term”) unless and until terminated in accordance with this Agreement (the Initial Term and each Renewal Term collectively for an individual Location a “Term,” and the duration from the earliest Launch Date for any Location to the end of the latest-ending Term for any Location, the “Services Term”)). Launch Dates may be delayed by b8ta in the event that Brand fails to complete onboarding tasks. Notwithstanding anything else herein, (I) for any Location for which Brand is paying a Placement Fee indicated on the Order Form as “Non Standard” (a “Non Standard Placement Fee”) or no Placement Fee, b8ta has no obligation to begin providing Services in such Location, (II) b8ta may suspend and/or restart the Services in such a Location at any time and from time to time during the Term, without notice and (III)if the Initial Term or any Renewal Term would otherwise end on December 31st of a year, such term shall be extended by one (1) month and will end on January 31st of the following year and Brand shall be charged accordingly and the next Renewal Term, if applicable, will begin on February 1st of such following year.
ii. Where Placement Details and/or Fees are indicated on the Order Form as effective only if and when determined by b8ta, such Placement Details and/or Fees shall not be effective unless and until b8ta notifies Brand (email acceptable) that b8ta has determined, in its sole discretion, to launch such Placement in-store and, upon delivery of such notification, such Placement Details and/or Fees, with any modifications as then mutually agreed to by the parties, shall become effective and shall continue until the Term of such Placement expires or such Placement is terminated.
c. Platform. b8ta shall grant to Brand basic access and use of the b8ta web-based retail management platform (“Platform”) during the Services Term, subject to the terms and conditions of this Agreement, including without limitation, the platform terms and conditions at b8ta.com/legal/platform-terms. Additional features and access are available at additional cost and, if agreed to, will be reflected on the Order Form.
d. Products; Demo Units.
i. The Product(s) to be included in the Placement(s) will be as mutually agreed by b8ta and Brand in writing (email accepted). The parties agree that the Products must be the latest version of the applicable Product with the most advanced features and capabilities available, and if applicable, shall be the most popular variations of such Product. Brand shall make available to b8ta for sale with the Products all requisite accessories and consumables provided by Brand, including but not limited to power or charging cables, data cables, spare parts, batteries, and the companion software or apps. If Products include pre-owned items, such items are subject to prior written approval by b8ta. Brand hereby represents and warrants that any such pre-owned items are not counterfeit, are labeled accurately, and were created by the maker whose identifying information and/or registered trademark appears on the item’s label.
ii. At least fifteen (15) business days prior to the first Launch Date, and from time to time thereafter if and as new Locations are added, Brand shall provide for each Location, at no cost to b8ta, at least two (2) units per Placement of each Product, which will be displayed in the applicable Placement and used for promotion, demonstration and replacement purposes (the “Demo Units”). The Demo Units must be the latest version of the applicable Product with the most advanced features and capabilities available, and if applicable, shall be the most popular variations of such Product. Brand shall include all requisite accessories and consumables with each Demo Unit, including but not limited to power or charging cables, data cables, spare parts, batteries, and the companion software or apps, free of charge throughout the Services Term. Brand shall refresh or replace the Demo Units and related components as reasonably requested by b8ta to address wear and tear and to maintain the Demo Units in an attractive, demonstrable and marketable condition. Brand shall deliver the Demo Units in accordance with the routing guide provided by b8ta. At Brand’s request and expense, b8ta shall return the Demo Units to Brand in “AS-IS” condition, and Brand acknowledges b8ta has no obligation to refurbish, repair or replace the Demo Units, in whole or part, and such Demo Units are unlikely to be fit for resale or any other use. This Section (2)(d)(ii)(Demo Units) is not applicable to e-commerce Placements.
e. Staff. Unless otherwise specifically set forth in the Order Form and only during the time period where the Services are performed in a brick-and-mortar Location, b8ta will provide retail staff sufficient for store operations at the applicable Locations, including customer assistance, product demonstrations, transactions, workshops and special events during regular operating hours as published on b8ta’s applicable website(s).
f. Training. Unless otherwise specifically set forth in the Order Form and only during the time period where the Services are performed in a brick-and-mortar Location, Brand shall provide reasonably detailed training and documentation describing the features, functionalities and use cases for each Product at such time, place and format as mutually agreed between the parties. Brand shall promptly provide updates to all materials and training information upon the release of substantially new or different Product features.
g. Marketing. Unless otherwise specifically set forth in the Order Form and only during the time period where the Services are performed in a brick-and-mortar Location, Brand shall engage with b8ta’s team to develop and execute b8ta’s basic joint marketing plan. Additional marketing offerings, which may include social media campaigns, press releases, direct marketing, filming and photo shoots featuring the Product(s), and other tools to advertise the parties’ relationship and the Product(s), are available at additional cost and, if agreed to, will be reflected on the Order Form.
3. Transaction Services.
i. For Placements for which Brand is paying a deposit and/or a fixed monthly Placement Fee (a “Standard Placement Fee”), Brand may elect to have b8ta resell the Product(s) at the Location(s) by delivering the Inventory (as defined below) to b8ta in accordance herewith.
ii. For Placements for which Brand is paying a Non Standard Placement Fee or no Placement Fee, b8ta agrees to resell the Product(s) in accordance with this Agreement and Brand agrees to timely deliver the Inventory in accordance with all Consignment Orders (as defined below) and this Agreement.
b. Consignment. All Inventory provided to b8ta hereunder shall be provided on a consignment basis. Ownership and title to all Products shall remain exclusively with Brand unless and until a Retail Transaction (as defined below) is executed with a consumer, at which time ownership and title shall pass to b8ta and then immediately to such consumer. In the event of a conflict between this Agreement and any Consignment Order (as defined below), this Agreement will govern.
c. Inventory.At least ten (10) business days prior to the Launch Date for a Location, Brand shall provide b8ta with inventory of the Product(s) (including any variations) (the “Inventory”) in sufficient quantity to satisfy approximately forty-five (45) days’ sales volume in the applicable Location or otherwise as mutually agreed by b8ta and Brand. Thereafter during the Services Term, b8ta shall prepare and deliver to Brand an order which identifies the quantity, description and delivery date of all Inventory to be delivered to b8ta by Brand (the “Consignment Order”). b8ta shall use commercially reasonable efforts to move inventory on a first-in, first-out (FIFO) basis. Brand agrees to provide b8ta with the latest generation of Products, including new versions, updates, variations, and special/limited editions as released by Brand from time to time, and b8ta will return all excess, superseded, and/or aged inventory (collectively, the “Excess Inventory”) to Brand at Brand’s expense.
d. Prices. Brand shall be in control of the recommended sale price of each Product, and may update such price in its reasonable discretion at any time in accordance with b8ta’s standard processes. Brand shall use reasonable commercial efforts to set a price competitive with its other retailers, but in no event higher than the price(s) advertised for the applicable Product(s) on Brand’s own website or Brand’s own e-commerce portal. Notwithstanding the foregoing, unless otherwise agreed by the parties, b8ta shall have the right to price-match all promotions, discounts, coupons and other offerings published by Brand on its own website or e-commerce portal (the “Price Match Price”), and such adjustment will be reflected on Brand’s Remittance Statement (as defined below). Furthermore, b8ta reserves the right to adjust the actual sale price to any price in the event of a b8ta storewide sale or similar b8ta promotion; provided that, in accordance with Section 5(b) below, b8ta shall bear the cost of any discount to the Price Match Price.
e. Returns. b8ta offers, and Brand hereby agrees to honor, during and after the Services Term, regardless of any conflict with the terms of Brand’s warranties or disclaimers, the Return Policy quoted below. b8ta shall process all Product returns made by consumers (each a “Return”) in accordance with the Return Policy and report to Brand all opened, used and/or defective Product returns (B-stock).
Return Policy: Customers may return most products in the complete, original retail packaging accompanied by a copy of the receipt within thirty (30) days of the purchase date for a full refund. Rideable items (skateboards, scooters, bikes, etc.) may only be returned in new, unopened condition. Excludes all gift cards, service vouchers or subscriptions. b8ta reserves the right to refuse returns that show unreasonable wear, consumption, misuse, or damage. The refund will be applied to the original payment method used or b8ta store gift card.
f. Delivery & Return Logistics. Brand shall be responsible for all costs of delivering and receiving Products under this Agreement, including but not limited to any tariffs, taxes, customs duties or freight charges, and shall comply with the routing guide provided by b8ta. Brand shall provide its preferred shipping account and/or prepaid return labels for handling reverse logistics of Excess Inventory and B-stock customer returns (collectively “Product Returns”). In the event Brand does not provide such return authorizations within thirty (30) days of b8ta’s written request (email acceptable) b8ta shall have the right, in its sole discretion, to A) ship Product Returns to Brand via ground/economy service and deduct the actual shipping cost from any amounts due Brand hereunder (or if no amounts are due Brand hereunder, Brand agrees to promptly reimburse b8ta for such shipping costs); or B) sell, auction, discard, recycle, scrap, or otherwise dispose of any Product Returns in a manner determined by b8ta its sole discretion; in either case without further obligation or liability to Brand whatsoever.
4. Termination.Either party may terminate a Term by providing written notice to the other party at least sixty (60) days prior to the end of such Term and such termination shall be effective on the last day of such Term (such termination by Brand, a “Brand Placement Termination”). b8ta may at any time terminate the Term for any Placement for which Brand is paying Non Standard Placement Fees or no Placement Fees by providing written notice (email acceptable), with such termination effective immediately.
5. Fees; Payment Terms; Remittance.Brand shall pay to b8ta fees for the Services (the “Fees”), as set forth on the Order Form and in accordance with the terms and conditions of this Agreement.
a. Placement Fees; Deposit. Brand shall pay b8ta the “Placement Fees” indicated on the Order Form as follows:
i. for Standard Placement Fees (1) pay the deposit set forth in the Order Form (the “Deposit”) on the earlier of: (y) a date that is within ten (10) days of the Effective Date and (z) a date that is prior to the first Launch Date at any Location, which Deposit shall, unless otherwise set forth in the Order Form, be held on account and will be applied to Placement Fees due for the final month (or months, if and as applicable) of the final Term hereunder; and (2) provide within ten (10) days of the Effective Date valid, current electronic payment account information (ACH) and authorization for b8ta to charge the balance of the Placement Fees to. b8ta shall process the monthly Placement Fees in advance on the first day of each calendar month during the Services Term in accordance with the Order Form and subject to Section 5(a)(i)(1) above; and/or
ii. for Non-Standard Placement Fees, such Fees will be determined in accordance with the “Placement Details” as set forth on the Order Form and payment terms for such Fees will be as set forth on the Order Form as well.
iii. For clarity, Placement Fees are due and payable in accordance herewith and continue to be payable throughout the Services Term regardless as to whether (1) Brand has fulfilled its obligations to deliver Brand Collateral and/or Demo Units, and/or (2) Brand has opted to deliver, or actually delivered, Inventory to b8ta.
iv. b8ta reserves the right to increase the Placement Fees (a “Fee Increase”) no more than once at the end of each Term upon ninety (90) days prior written notice (email acceptable) to Brand, which notice shall include the new Placement Fees. In the event of such a Fee Increase in accordance herewith, this Agreement shall be deemed amended accordingly, without any further action by b8ta or Brand.
6. Transaction Fees; Remittance.Brand shall pay the fees identified as “Transaction Fees” in the Order Form in accordance herewith. b8ta shall remit to Brand the actual sale price received by b8ta for a Product and Additional Discount (as defined below), if any, (collectively, the “Remittance Price”) resulting from the in-store sales transaction or e-commerce sales transaction, as applicable, in which such Product is sold (collectively, “Retail Transactions”), subject to the terms and conditions of this Agreement. During the Services Term, b8ta shall, on or before the 20th of each calendar month, provide an itemized report of all Retail Transactions occurring during the immediately preceding month (the “Remittance Statement”) and remit to Brand the aggregate of all Remittance Prices, exclusive of taxes and less all Transaction Fees and Returns (the “Remittance Payment”); provided that, the final Remittance Statement and Remittance Payment due pursuant to this Agreement may be provided up to two (2) months after the end of the Services Term in consideration of the customer Return Policy and the last Inventory reconciliation. b8ta will collect all applicable sales taxes in compliance with the local, state and federal tax authorities and remit such sales taxes directly to the controlling jurisdiction. If Brand has any unpaid Fees, b8ta may elect in its sole discretion to withhold any Remittance Payment(s) until Brand has paid b8ta in full for all outstanding Fees, including any interest owed for late payments. For the avoidance of doubt, the withholding of Remittance Payment shall not be deemed payment from Brand for unpaid Fees. “Additional Discount” means (i) if there is a Price Match Price, and the actual sale price is lower than the Price Match Price, the difference between the actual sale price and the Price Match Price or (ii) if there is no Price Match Price, and the actual sale price is lower than the recommended sale price, then the difference between the actual sale price and the recommended sale price.
a. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law, including, without limitation, through Concord Worldwide, Inc’s e-signature technology) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes
b. Entire Agreement. This Agreement, including the Terms and Conditions, the Order Form, b8ta’s Terms of Service and all exhibits, schedules, agreements and attachments referenced and/or incorporated herein or therein, contains the entire agreement between the parties hereto and supersedes all prior and contemporaneous agreements, arrangements, negotiations and understandings between the parties hereto, relating to the subject matter hereof. There are no other understandings, statements, promises or inducements, oral or otherwise, contrary to the terms of this Agreement.