Terms and Conditions for Vendors

This Chill.com Marketplace Vendor Agreement (the “Agreement”) constitutes our Standard Terms of Business (“Standard Terms”) for vendors wishing to list their products for sale on the Chill.com website (the “Website”).

1. CHILL.COM MARKETPLACE

Chill Brands Group, including its various affiliates and assigns (“Chill’) owns and operates an e-commerce product sales website on the Chill.com domain and wishes to sell products from external companies (“Third-Party Brands” or “Sellers”) as an intermediary.

2. TERM AND TERMINATION

• Terms and Conditions shall become effective upon Brand Agent publishing a Product listing on the Website and shall continue in force until terminated by either party for any reason by providing not less than thirty (30) days’ prior written notice to the other party of its intention to terminate (“Term”). These Terms and Conditions shall terminate thirty (30) days following receipt of such notification and except for obligations set forth in Section 2(b) and those obligations that survive termination of these Terms and Conditions as set forth  herein, neither party shall have any further obligation to the other party.

• Upon termination of Terms and Conditions, Chill shall issue a final Report to Seller and make any payments due to Seller in accordance with the terms of Section 15. Upon notice of termination, Chill shall have no obligation to accept any Customer orders and shall not be responsible for any Customer orders placed after the date of such notice of termination. Upon termination of these Terms and Conditions, any license or other rights granted by Chill to Seller shall terminate and Seller shall have no rights to use any Chill Property, the Storefront, or the Website.

3. THE SERVICES

• Through the Website and provision of the Services, Chill provides a platform to enable Sellers who comply with these Terms and Conditions, to offer and sell their Products directly to Customers. By offering Products on the Website, each Seller agrees to be bound by these Terms and Conditions and authorizes and appoints Chill as its commercial agent to directly negotiate and/or conclude the sale and/or purchase of Products between Seller and Customers via the Services, and Chill accepts this appointment subject to these Terms and Conditions.

• Following commencement of the Term, Chill will establish a storefront specific to the Seller whereby the Seller’s Products shall be listed on the Website (“Storefront”). Chill will provide the Services for the Term with reasonable skill and care, and will use reasonable endeavours to restore any faults in the Services as soon as reasonably practicable. Seller acknowledges that the Services may not be provided entirely free of fault at all times.

• Chill reserves the right to revise or alter the Services at any time on notice to Seller. Any variation in the Services will be subject to these Standard Terms and each individual Chill.com Vendor Agreement.

4. SELLER’S OBLIGATIONS AND REPRESENTATIONS

• Seller acknowledges that:

1. Any contract to sell and buy Products is made only between Seller and Customer, and Chill is not a party to any such contract and Chill shall have no obligations nor liability under any such contract;
2. Products offered for sale through the Website are neither owned nor come into the possession of Chill at any time;
3. Seller is solely liable for any refund, shipping, customer support and other arrangements and activities with respect to its business and/or the Products  and/or Customers.

• Seller hereby agrees to ensure all products to be made available for sale comply with any laws or regulations which apply to the marketing and sale of the Products in the Territory and that the Seller has appropriate licenses and permits in places for the sale of the Products in the Territory. The Seller is solely responsible for this clause 4(b).

• Seller shall provide all information requested by Chill, including, without limitation, information about Seller, Seller’s Products, pricing, shipping, labeling, logos, and Product descriptions (collectively, “Seller Information”).

•  Seller shall ensure that all Seller Information provided about Seller and Seller’s Products is and remains true, accurate, current and complete and shall notify Chill in advance of any prospective material changes to price, shipping or return/refund policy relating to any Seller’s Product.

• Without prejudice to Seller’s obligation to comply with these Terms and Conditions or any other policies of Chill, Seller represents and warrants to Chill that:

1. No Seller Information will be false, inaccurate, misleading, offensive, indecent, obscene, pornographic, menacing, abusive or defamatory.
2. No Seller Information or any other information or materials provided to Chill or uploaded to the Website contains any virus, harmful code, or other malicious materials.
3. Seller Information does not and will not infringe upon any third party’s intellectual property rights, or other proprietary rights or rights of publicity or privacy.
4. Seller is in compliance with, and at all times during the Term will comply with all applicable laws or regulations, including, without limitation, laws or regulations governing e-commerce, distance selling, data protection, export control tax, consumer protection, advertising and requirements, data, privacy, and processing of personal or other protected information.
5. Seller will take no action that adversely affects the reputation of Chill, the Chill brand, trademarks, trade dress, or other intellectual property of Chill and all goodwill associated therewith;
6. Seller Information does not and will not create or be likely to create any liability for Chill or cause, directly or indirectly, any of Chill’s service providers, suppliers, or distributors to terminate their relationship with Chill.
7. Seller Information (including the Products) will not be fraudulent, counterfeit, stolen, or otherwise misappropriated from any thirdparty.
8. Seller and Seller Information will not cause the Website or its functionality to be interrupted, damaged or impaired in any way.

• Seller shall at all times during the Term establish and maintain a valid, operative, and continuous connection to the internet in accordance with these Terms and Conditions.

• Seller shall ensure that the content provided for uploading to Seller’s Storefront (including, without limitation, Product images) is of a high standard of presentation and complies with these Terms and Conditions and any other applicable policies and guidelines provided to Seller by Chill from time to time.

5. SELLER’S PRODUCTS

• Seller covenants that all Products to be marketed and sold on the Website are of a reasonable and merchantable quality, are reasonably fit for purpose, and are legal for sale in the territories in which they will be marketed.

• Seller shall indemnify, defend, and hold harmless Chill and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all Losses arising out of: (a) products liability claims relating to any Product, whether arising out of warranty, negligence, strict liability (including manufacturing, design, warning, or instruction claims), or any other product based statutory claim; and (b) any third party claim alleging that the Seller’s intellectual property and Marks used in the promotion of the Products hereunder infringes any intellectual property rights of any third party. In no event shall Seller enter into any settlement without Representative’s prior written consent.

6. INSURANCE

Sellers, at all times of this Agreement and for one (1) year after its expiration or termination, shall maintain insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with appropriate limits of coverage with financially sound and reputable insurers. Chill may request that such policies shall include the Representative as an additional insured. Sellers shall provide Certificates of Insurance to Chill.

7. STOREFRONT

• Subject to these Terms and Conditions, Chill, in its sole discretion, shall determine the content, appearance, and look and feel of the Website (including all Storefronts and Storefront content) as well as to the inclusion, positioning, location, and all other presentation of Seller Information.

• Chill, in its sole discretion, shall have the right to remove any Seller Information (including any Product) at any time, and for any reason, without advance notice to Seller.

• Chill shall use reasonable efforts to upload Product photographs, Product information, and any other Seller Information on the Website within thirty (30) days of Seller providing same to Chill.

• Any failure of Seller to provide a suitably high standard of content in accordance with these Terms and Conditions, including, without limitation, the requirements of Section 4, may result in the deactivation of any Product page and/or the entire Storefront. Chill may maintain any deactivation initiated pursuant to this Section 7(d) until such time that Seller has submitted content that, in Chill’s sole discretion comply with all standard requirements set forth in these Terms and Conditions.

8. INVENTORY

•  Seller agrees to:

1. have no delay and/or buffering of Seller’s current inventory for all Products offered on the Storefront.
2. immediately notify Chill in writing once the final piece of stock of any Product has been sold and is no longer be available or otherwise within Seller’s inventory.
3. work cooperatively with Chill to enable its Products to be uploaded onto the Storefront.

•  Seller will (i) use commercially reasonable efforts to provide Chill with an errorfree updated inventory feed at least twice a day for those Products where inventory levels have changed since the last inventory feed provided for such Product, and (ii) provide Chill with a daily inventory feed for all Products.

• Chill has the right, in its sole discretion, to remove any Product from the Storefront that is awaiting stock for prolonged periods (four weeks or more) or otherwise backlogged until such time that such Product becomes readily available for shipment to Customers.

•  Seller is solely responsible for the traceability of any consumable Products (e.g., ingestible, food, pharmaceutical) in the case of a recall of any such Product. Seller will immediately notify Chill in writing if Seller receives or otherwise had knowledge of any governmental or quasi-governmental agency or department of a recall request, or the occurrence of any voluntary withdrawal, discontinuance, or removal of any Product from sale to Customers (“Recall”). Seller will provide Chill with a copy of the Recall and all other relevant or requested documents or information related to the Recall. Upon receiving notice of any Recall (whether from Seller, a third-party, or Chill’s own investigation), Chill will remove of any recalled Products from sale on the Website. Seller shall be responsible for all costs associated with the Recall, including, without limitation, Chill’s costs incurred in connection with its cooperation with any such Recall, and all costs and fees incurred in connection with the return of Products, including, issuing credits or refunds for any recalled products to Customers.

9. PRODUCT LISTING AND PRODUCT PROMOTION

• Seller will provide to Chill information for all Products that Seller intends to sell on the Storefront. Seller will ensure that all Product information and or Product listings submitted to Chill comply with all applicable laws, these Terms and Conditions, and any other policies of Chill. The Product listings will include all material information from the Product packaging, including, without limitation, warning labels, fact panels, supplemental panels and any other information included with the Product regarding product ingredients and allergens. Chill may adjust descriptive Product listing information, including, without limitation, images and alternative images, web description, and product title. Seller is responsible for immediately providing to Chill any updates or supplements to any Product information or listings to ensure the Product information, listings, and inventories are always accurate.

• Seller will not submit Product listings for any Product that Seller either (i) does not currently have in stock, or (ii) is not available for shipment.

• Seller agrees that all Products offered for sale through Storefront shall have a SKU, UPC or unique identification marker.

• The Services allow Seller to offer their Products on the Website as part of an online catalog containing categories. Seller acknowledges that failure to abide by these Terms and Conditions may subject Seller to penalties and legal liability, and that Chill may reject, remove or censor any Product listings for any reason, in Chill’s sole discretion. Chill may, in its sole discretion, where relevant and appropriate and without changes to and misuse of facts and medical data and other similar parameters relating to a Product, select a Product for inclusion in a number of categories on the Website.

• Seller shall permit Chill to promote or market its Products, in such form and manner as Chill deems appropriate, whether directly through the Website or through websites or social networks or offline publications not produced, owned or operated by Chill, including, without limitation, by developing, expanding or managing any email, social and other campaigns and by promoting or offering its Products jointly with other brands, goods, and products, including any competing brands, goods, and products and any brands, goods, and products of the same nature of a similar kind.

• Chill may from time to time run promotions on all or part of the Website. Any such promotions may involve offering Customers promotional activity relating to some or all Products on the Website. Such promotional activity may involve any crosspromotional activity with offering some or all Products of a Seller jointly with other brands, goods, and products, including any competing brands, goods, and products and any brands, goods, and products of the same nature of a similar kind, within the same promotional activity irrespective of its form, nature, and other parameters. Chill shall, where relevant and applicable to Seller and/or its Products, inform Seller of the nature and terms of any such promotion and, Chill, at its sole discretion, may decide to carry the costs of any such promotion or where Chill requires Seller to bear the costs of any such promotion, Seller shall inform Chill in writing whether or not it wishes to participate in the relevant promotion.

• Seller shall permit Chill to use, replicate, quote, mention, refer to Seller’s social accounts in Chill’s social accounts for promotional purposes.

10. PRICING

• The purchase price of each Product offered on the Storefront (“Purchase Price”) shall be consistent with the purchase price available to Seller’s other authorized retailers and Seller’s own store (whether physical or online), if applicable. Seller agrees to maintain parity between the Products Seller (or any third-party active on Seller’s behalf) offer for sale to end consumers through any of Seller’s (or thirdparty’s) websites or stores (“Seller Channels”) and the Purchase Prices listed on the Storefront. Seller shall ensure that the Purchase Price and all other economic terms related to Seller’s terms of sale offered or sold via Seller Channels are at least as favorable as the terms of offered or sold via the Storefront to Customers. In the event that Seller discounts the purchase price of an item (the “Discounted Price”) on any other Seller Channel or with any retailer, then Chill shall be immediately permitted to offer the products or services through the Storefront at the applicable Discounted Price.

• The Seller’s prices must be fully inclusive of all taxes and additional charges. The exception to this is shipping and packaging costs, which, if such charges apply, Seller will show separately.

• Seller has complete discretion over how it wishes to price its Products. However, the prices of Products must be in line with Seller’s pricing policy (including any discounts, reductions and offers) on its own website or where offered for sale through channels other than the Website.

11. LEGAL COMPLIANCE AND TAXES

• Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with applicable law.

• Seller will timely pay and discharge all applicable income taxes, taxes measured by income, gross income, or similar assessments. Seller agrees and acknowledges that Seller is responsible for the collection of sales taxes due for the selling or offering of Seller’s Products for sale on or through the Website. Seller will collect the amount of sales tax due from any Customer who makes a purchase from Seller and remit it to the taxing authorities. If a taxing authority requires Chill to pay any taxes on account of Seller’s sales, Seller will promptly reimburse Chill for any such amounts. Seller acknowledges and agrees that tax related data may be provided through Chill’s third-party service provider(s) and Seller acknowledges and agrees that Chill and its provider(s) do not provide tax advice. As a condition of receiving any tax data from Chill or its third-party service providers, Seller hereby fully and forever waive any liabilities against Chill, its employees, contractors, agents, representatives, or third-party service providers arising from or related to Seller’s use of and reliance on such tax data and Seller will defend, indemnify, and hold Chill, its employees, contractors, agents, representatives, or third-party service providers harmless from liabilities arising from such use or reliance.

12. SALES TO CUSTOMERS

• All transactions with Customers are between Seller and the Customer, and Seller will be seller of record. Customers will place orders using the Storefront checkout system.

• Seller acknowledges and agrees that following acceptance of an order by Chill or by the Website, such an acceptance is also deemed to be an irrevocable instruction by Seller to Chill to conclude a contract of sale between the Seller and the Customer. The contract of sale between Seller and the Customer is concluded when Chill (acting as the commercial agent of Seller) sends an order confirmation email to the Customer, and Chill has no responsibility for the performance of any such contract.

• Once an order is accepted, Seller will have 48 hours to ship each order placed by the Customer.

• Once Chill has transmitted the order information to Seller, Seller will, at its own expense, be solely responsible for, and bear all liability for, the fulfillment of the applicable order in compliance with these Terms and Conditions, including, without limitation, all aspects of picking, shipping, packaging, tagging, labeling and packing of the Products in compliance with these Terms and Conditions and applicable law.

• Seller is responsible for including packing slips within each shipment. Seller shall be responsible for its own costs related to packing slip design. Seller is responsible for properly specifying tracking number details for each order, and shipping options for all Products through the Website and Seller will provide Chill with the shipping, handling and any other charges for each Product as required by the Website or as otherwise requested by Chill.

• Seller will not substitute any item(s) for the ordered Products. Title to and risk of loss of the ordered Product will remain with Seller until delivery to Customer. Chill will not have title to, or be deemed the legal owner of, any Products at any time. Seller will be responsible for shipping all Products purchased by Customers in accordance with the time frame advertised or the processing time specified for such Products through the Website (whichever time frame is shorter) or, if no time frame is advertised or specified, within 48 hours after Seller has received the order (the “On-Time Ship Standard”). Seller is responsible for all shipping charges and for any costs or charges related to shipping-related problems, including damaged or lost Products, late shipments, misdelivery, or service adjustments.

• Chill may cancel any Customer order that fails for any reason to ship within the On-Time Ship Standard, and Chill will have no duty to compensate Seller for any such canceled orders. Seller will monitor all orders and ensure all shipments are made within the timeframes required by these Terms and Conditions. If Seller cannot ship within 48 hours for any Product, Seller will provide the Customer with email notification of such delay and include information requested by Chill in that notification. Seller will be solely liable for all costs related to any duplicate or inaccurate shipments based upon Seller’s retransmission of order files through the Website. Seller will only send a shipment confirmation notice to a Customer following shipment of an order.

• Seller acknowledges and agrees that the terms and conditions relating to any Customer order placed on the Website shall comprise all terms and conditions required hereunder, including, without limitation, the email confirmation relating to the Customer’s order, and the applicable details on the relevant Product Storefront page. Seller agrees to be bound by all such provisions.

• Seller is responsible for any non-delivery, delivery error, mistake, theft or act regarding the fulfillment and delivery of any Product sold on the Website.

• Seller shall use its best efforts to respond to Chill concerning any Customer inquiries or Customer complaints within one (1) day of being informed of the same by Chill.

13. RETURNS AND REFUNDS

• Seller will process all Customer cancellations, returns, refunds and/or service price adjustments. Seller will ensure that Customers do not return any Products to any Chill facility, distribution center, or other Chill location. Seller will ensure that the packing slip included in each order specifies the proper return policy and Seller return address, if applicable. Seller will stop or cancel any order if requested by Chill; provided, that if Seller has transferred a Product to a delivery carrier, Seller will use commercially reasonable efforts to stop and or cancel delivery by such delivery carrier. Seller’s return and refund policies for Products sold through the Website will comply with any cancellation or return policies of Chill and will be no less favorable to Customers than Seller’s most favorable policies offered on Seller’s own website (or other third-party retailer website) for such Products. Seller will notify Chill of any material changes to Seller’s return, refund or price adjustment policies at least five (5) days prior to Seller’s implementation of such changes.

• Seller is responsible for all refunds and exchanges. If Seller or Chill determines a Customer is due a cash refund, Seller will provide the cash refund to the Customer via Chill’s current payment processor to the Customer’s original payment method (e.g., credit or debit card) promptly upon receipt of such request or such notice by Chill, but in no event shall such refund be provided more than seven (7) business days after any refund request or notice. Seller shall notify Chill of any requested refund, provided that Chill will have no liability for refunds offered by Seller.

• Chill may process a refund for a Product as Seller’s payment agent to a Customer where:

1. Seller sends a written request to Chill to process such refund to a Customer from funds of Seller held by Chill; or
2. if Seller does not respond to a Customer’s request for a refund within forty-eight (48) hours after Chill has notified Seller of such a request pursuant to Section 13(b), in which case Chill shall be reimbursed from funds of Seller held by Chill or Seller shall be obliged to reimburse Chill for such refund within two (2) days of Chill issuing such refund to the Customer.

• All refunds or exchanges must be for unopened and/or unused Products. Seller may not issue a refund or exchange, or otherwise accept return of any open or used Product without the prior written consent of Chill.

14. CHANGES TO CUSTOMER ORDERS

• Customers can make changes to an order up until the order confirmation is provided by Chill to the Customer. Any change order received by Seller shall be immediately forwarded to Chill, and Chill, in its sole discretion, shall determine whether to accept or reject such change order.

• Chill shall promptly notify Seller of any change order received by Chill, and Seller agrees to take all efforts necessary to effectuate such changes requested by Customer.

• Chill shall have no liability to Customer or Seller for any change order or failure to fulfill any change order, whether requested by Customer or Seller.

15. FEES

• Seller agrees to pay to Chill a commission rate equal to an amount prescribed in each Seller’s Chill.com Vendor Agreement (the “Commission”) of the (the “Purchase Price”) of every Product purchased by a Customer through the Website. For each purchase, following confirmation of timely shipment and delivery of the applicable Product(s) to the Customer, Chill will remit to Seller an amount equal to the Purchase Price, less:

1.  the Commission,
2. discounts
3. Returns Repayments (defined below), and
4. any fraudulent credit card transactions (collectively, the “Balance”), in accordance with Section 15(b).

• “Exclusions” to the Purchase Price include gift wrapping, additional delivery services, special handling outside of the Product price, taxes, service fees, and base level shipping. For the avoidance of doubt, (x) the Purchase Price is the amount Chill receives from the Customer for Customer’s purchase of the Product(s) and does not include any other fees or amounts collected, including, but not limited to the Exclusions and (y) Chill retains the full amount of all Exclusions.

• Chill shall prepare sales reports (“Reports”) monthly and shall submit the Report to Seller no later than the 7th working day of the succeeding month. These Reports shall contain information concerning the sales of Seller’s Products, as well as the applicable Balance, with respect to the month to which such Report pertains. Chill shall remit the Balance to Seller by ACH transfer within thirty 7 working days of delivery of the Report.

• If Chill makes any repayments to Customers for returned items pursuant to Section 13, Chill may set off any repayments or other amounts owed to Chill (“Returns Repayments”) against the next Balance owed to Seller while also retaining Chill’s Commission on the initial sale. If no Balance is due within thirty (30) days for any reason, then Seller will instead reimburse Chill pursuant to Section 13(c)(ii).

• For the avoidance of doubt, a Commission remains earned and due to Chill once Chill confirm the order to Customer whether or not a Product is cancelled, returned, failed to be provided, defective, etc.

16. INTELLECTUAL PROPERTY RIGHTS

• For purposes of these Terms and Conditions, “Intellectual Property” shall mean patents, trademarks, photographs, service marks, trade and business names (including internet domain names and e-mail address names), copyrights, database rights, design rights, registered designs, customer lists, illustrations, works of authorship as defined by the U.S. Copyright Act of 1976, trade secrets, techniques, know-how, ideas, concepts, designs, and other content or media and all applications for any of those rights.

• In order for Chill to perform its obligations hereunder, Seller hereby grants to Chill a limited, non-exclusive and non-sublicensable, royalty-free license during the Term to use the (i) Seller trademarks, as well as any other promotional or marketing materials provided by Seller hereunder, whether owned by Seller or its licensors (collectively, the “Seller Marks”) and (ii) all other Intellectual Property relating to the Seller Marks and the Products, in each case in connection with the distribution, sale, marketing and promotion of Products and the operation of the Storefront during the Term.

• Seller represents and warrants that Seller has a valid right to use all of the rights to the materials and Intellectual Property provided to Chill for incorporation on the Website and Storefront, and that the use of such materials and Intellectual Property by Chill, its affiliates and/or their respective contractors, agents, or service providers will not infringe upon or violate the rights of any third-party.

• Chill and Seller shall each retain ownership of, and all right, title and interest in and to, their respective, pre-existing Intellectual Property, as well as any Intellectual Property individually developed or created by either Party during the Term of these Terms and Conditions that is not related to the promotion of any Storefront contemplated herein.

• Seller acknowledges that: Chill shall own and retain all right, title, and interest, including all Intellectual Property rights, to (i) any know-how, software, process improvements and all technologies related thereto, including any and all algorithms, processes, data, artwork, art, literature, plan or strategy invented, developed, conceived, created or discovered by Chill, its affiliates, their applicable employees, contractors, consultants or agents acting in their capacity and any Creators, in each case pursuant to these Terms and Conditions and all derivatives, modifications, or improvements of or to any of the foregoing, whether or not created or developed in connection with the services relating thereto, and (ii) any content created by Chill in performance of the Services, subject to Seller’s license of the Seller Marks pursuant to this Section 16. Title to the Website and Seller Storefront created and operated by Chill remain vested in Chill.

• Seller agrees and acknowledges that any and all goodwill generated by the Storefront and any of Chill’s other Intellectual Property inures to the sole and exclusive benefit of Chill.

• This Section 16 shall survive any expiration or termination of these Terms and Conditions.

17. CONFIDENTIALITY

Each party agrees to regard and preserve as confidential all information related to the business and activities of the other party, its customers, clients, suppliers and other entities with whom such other party does business, which may be obtained by such party from any source or may be developed as a result of the relationship contemplated by these Terms and Conditions, including, without limitation, information with respect to each party’s pricing, customers, marketing plans, trade secrets, proprietary or competitive information, financial information, the specific terms of the agreement between the parties as contemplated herein, past and present operations, future plans and strategy; or the manner in which each party conducts its business (the “Confidential Information”); provided, however, that information shall not be considered Confidential Information to the extent that such information (i) is or becomes publicly available through no breach of the receiving party, (ii) is or was acquired by the receiving party from another without restriction or obligation of confidentiality or (iii) is or was independently developed by the receiving party without use of or reference to Confidential Information of the other party. Each party agrees to hold the Confidential Information of the other in trust and confidence and shall not disclose such information to any person, firm or enterprise, or use (directly or indirectly) any such information for its own benefit or the benefit of any other party. Each party shall, in advance, by agreement, instruction or otherwise, ensure that each individual who obtains or is in a position to obtain Confidential Information of the other party, understands and has agreed to comply with the obligations in this Section 17. Each party shall use the confidential information of the other party solely for purposes of exercising its rights and performing its obligations hereunder. The foregoing restrictions shall not apply to the extent a party is required by law or a binding court or governmental order to disclose confidential information. At the request of either party and/or upon the termination, cancellation or expiration of these Terms and Conditions, both parties shall return to the other party (or destroy) all Confidential Information in each party’s possession or control.

18. INDEMNIFICATION

Seller (as “Indemnifying Party”) shall indemnify, hold harmless, and defend Chill and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, that are incurred by Indemnified Party (collectively, “Losses”), arising out of any third-party or direct claim alleging: (a) breach or non-fulfillment of any representation, warranty, or covenant under these Terms and Conditions by Indemnifying Party; (b) any negligent or more culpable act or omission of Indemnifying Party (including any reckless willful, or fraudulent misconduct) in connection with the performance of its obligations under these Terms and Conditions; (c) any bodily injury, death of any person, or damage to real or tangible personal property caused by any Product or the negligent or more culpable acts or omissions of Indemnifying Party (including any reckless or willful misconduct); (d) any claim that any Indemnifying Party’s Intellectual Property (including the Seller Marks) infringes or otherwise misappropriates the intellectual property rights of any third-party; or (e) any failure by Indemnifying Party to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under these Terms and Conditions.

19. FORCE MAJEURE

Chill shall not be liable for any delay or failure in performance under these Terms and Conditions or for any interruption of Services, which result directly or indirectly from acts of God, civil or military authority, act of public enemies, war, accidents, fires, explosions, earthquakes, floods, pandemics, epidemics, labor shortages, supply chain issues, or any other similar cause beyond the reasonable control of Chill.

20. WAIVER

No waiver of any right, remedy, power, or privilege under these Terms and Conditions (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under these Terms and Conditions are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.

21. SEVERABILITY

The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.

22. NOTICES

Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile or email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses provided by such party to the other party from time to time in accordance with this Section 22.

The parties hereto shall execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated hereby.

These Terms and Conditions, along with the counterpart Chill.com Vendor Agreement signed by each Seller, contain the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter.

25. ASSIGNMENT

Seller may not directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under these Terms and Conditions, voluntarily or involuntarily, including by change of control, merger (whether or not Seller is the surviving entity), operation of law, or any other manner, without the prior written consent of Chill. Any purported assignment in violation of this Section shall be null and void. These Terms and Conditions are binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.

26. LEGAL FEES

In the event that any party institutes any legal suit, action, or proceeding against the other party arising out of or relating to these Terms and Conditions, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court costs.

27. EQUITABLE RELIEF

Seller acknowledges that a breach or threatened breach by Seller of any of its obligations under these Terms and Conditions would give rise to irreparable harm to Chill for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Chill shall, in addition to any and all other rights and remedies that may be available to Chill in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

28. GOVERNING LAW AND JURISDICTION

These Terms and Conditions and all matters arising out of or relating to these Terms and Conditions are governed by, and construed in accordance with, the laws of Delaware, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to these Terms and Conditions in the federal or state courts in each case located in Wilmington, Delaware. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) [WAIVES ANY RIGHT TO TRIAL BY JURY.