This agreement (the “Agreement”) is entered into as of the date hereof (the “Effective Date”) by and between you (the “Supplier”) and Zabilo.
Whereas The Supplier is engaged in the development, manufacture, marketing, distribution, and sale of certain products (the “Products”);
Whereas Zabilo is a web-hosting provider of the marketplace www.zabilo.com (the “Website”) that provides the ability to third parties (the “Clients”) to purchase online several products and to suppliers to sell such products to Clients; and
Whereas the Supplier is a registered user of the Website, as a supplier for the promotion, marketing, distribution and sale of the Products to the Clients through the Website, subject to the terms and conditions herein.
Appointment and Exclusivity
1.1 Zabilo hereby appoints you as its supplier of the Products and the Supplier hereby accepts such appointment.
1.2 Except as otherwise agreed by the Parties in writing, the Supplier shall not:
i) sell the Products (or resell the Products in order to be sold) in the State of Israel (the “Territory”) by way of the internet except through the Website;
ii) sell the Products (or resell the Products in order to be sold) on its own website in the Territory at a price lower that the price agreed between the Parties for the supply of the Products on the Website (the “Price”); and
1.3 Any sale of Products to third parties notwithstanding the provisions of Section 1.2 above shall entitle Zabilo (i) to receive from the Supplier liquidated damages representing 200% of the value of such sale and, at its sole discretion (ii) to terminate this Agreement by providing written notice to the Supplier with immediate effect.
2. Purchase Orders and Delivery
2.1 In order to purchase Products, Zabilo shall submit to the Supplier purchase orders through the Website’s online ordering system (the “Purchase Orders”).
2.2 Following a Purchase Order, all ordered Products shall be delivered to Zabilo within two (2) Business Days upon receipt of such Purchase Order (the “Delivery”). “Business Day” shall mean a day (other than a Friday, Saturday or a public holiday in the Territory) when Zabilo is open for business.Any breach by the Supplier of the delay stated herein shall entitle Zabilo, at its own discretion, (i) to receive liquidated damages representing 150% of the value of the sale under the relevant Purchase Order (ii) to immediately terminate this Agreement and (iii) to immediately remove the Supplier from its quality of registered user of the marketplace under the Website.
2.3 The Supplier shall bear all costs related to the Delivery of all Products purchased under this Agreement.
2.4 The purpose of the Purchase Orders is for specifying the Products required. No terms and conditions of the Purchase Orders, or any other document or instrument of the Supplier shall be binding upon Zabilo, or amend or modify this Agreement in any manner, and all Purchase Orders shall be governed exclusively by the terms and conditions of this Agreement, unless expressly otherwise agreed between the parties in writing.
2.5 Notwithstanding the provisions of Section 2.2 above, the Supplier may elect to deliver the Products to Zabilo prior receiving any Purchase Order, and hereby requires form Zabilo to store such Products (the “Stored Products”). In such event:
i) all storage costs of the Stored Products shall be borne by the Supplier on a monthly-basis rent that shall be defined between the Parties;
ii) such monthly storage rent shall be paid in full by the Supplier upon delivery of the Stored Products to Zabilo;
iii) any costs and expenses related to the delivery of the Stored Products to Zabilo shall be borne by the Supplier.
2.6 In addition with the provisions of this Section, the Parties may agree in writing (including by email) that the Supplier will deliver the Products directly to the Clients.
3. Recalls and Guarantee
3.1 If there is a voluntary or mandated recall or other withdrawal of any of the Products, the Supplier shall take all actions necessary to promptly execute the recall or withdrawal, and co-operate with Zabilo for such purpose.
3.2 The Supplier shall reimburse Zabilo for all reasonable direct costs and expenses, if any, incurred by any recall or other withdrawal, including without limitation the repurchase of any Products subjected to a recall that are in Zabilo’s possession.
4. Risk and Title
4.1 Risk of loss and damage regarding the Products purchased by Client shall pass to Zabilo upon Delivery. With regard to the Stored Products, or in the event that the delivery to Clients shall occur in accordance with Section 2.6 above, the risk of loss and damage shall remain with the Supplier until final delivery to Clients, if any.
4.2 Title to such Products or Stored Products, shall pass directly to Clients upon satisfaction of full payment of such Product or Stored Product.
5. Prices and Terms of Payment
5.1 As consideration for the Products sold thought the Website, the Supplier shall be entitled to receive the Price minus the commission of Zabilo agreed in writing between the Parties for such Product.
5.2 Zabilo shall pay the Supplier for the Products purchased in each Purchase Order in NIS, by way of a wire transfer to a bank account as shall be designated by the Supplier to Zabilo, or by way of cheque, at the latest at the beginning of the month following presentation by the Supplier of its invoice.
5.3 Any payment made by Zabilo hereunder shall be subject to set off against any sum that may be due by the Supplier to Zabilo under this Agreement.
6. Zabilo’s Cooperation
Zabilo shall cooperate with the Supplier in order to enable the latter to satisfy its obligations under this Agreement, especially, without limitation, by providing it with clear Purchase Order in due course.
Representations and Warranties
7.1 Each Party represents to the other that (i) it has all the corporate powers required to enter into this Agreement, (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of the Agreement and the performance of its obligations hereunder; (iii) the Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation of such Party and is enforceable against it in accordance with its terms and (iv) entering into this Agreement and the performance of its obligations in accordance with its terms will not cause such Party to breach any obligation it has towards any third party.
7.2 The Supplier hereby further warrants that, for a period of twelve (12) months from the date of Delivery (the “Warranty Period”), the Products shall meet the specifications set forth on their packaging (the “Warranty”). In the event that during the Warranty Period Zabilo discovers that the Products do not meet the specifications set forth on their packaging (the “Defective Product”), it shall submit a written complaint to the Supplier describing the defects together with a sample of the Defective Product. Under the Warranty, the Supplier’s sole liability shall be, at its sole discretion, to replace Defective Products or credit Zabilo for the Price thereof, free of any additional charge.
7.3 The Supplier further represents and warrants that it has appropriate product liability insurance coverage for the Products and that such insurance coverage shall be valid for claims in the Territory throughout the duration of this Agreement.
7.4 The Supplier further represents and warrants that, in its quality of registered user of the marketplace of the Website, it has read and agreed with the Website terms and conditions applicable to suppliers.
8. Term and Termination of the Agreement
8.1 This Agreement shall be effective as of the Effective Date and shall remain in force six (6) months (the “InitialTerm”). At the end of the Initial Term, the Agreement shall automatically be renewed for successive periods of six (6) months each (the “Additional Terms” and together with the Initial Term the “Term”). Either Party may decide not to renew the Initial Term or any following Additional Term, upon thirty (30) days prior written notice to the other Party.
8.2 Except where otherwise agreed by the Parties under this Agreement, if either Party is in default of any material provision of this Agreement, and such default is not corrected within 30 days after receipt of written notice specifying the default, this Agreement may be terminated immediately thereafter by the non-defaulting party. Nothing contained herein shall be construed to limit or waive any rights or remedies available to the parties hereunder, or under applicable law by reason of any such failure or breach.
8.3 Upon termination in accordance with the provisions of this Agreement, the Supplier shall retrieve, at its own expense, any and all Stored Products within the end of the month of termination.
9. General Provisions
9.1 This Agreement may not be assigned by the Supplier without the prior written consent of Zabilo. Zabilo may freely assign this Agreement.
9.2 Nothing contained in this Agreement shall be deemed to create a joint venture, partnership, employment, agency or similar arrangement by and between the Parties. Neither Party shall possess the power or authority to bind the other, or to assume or create any obligation or responsibility, expressed or implied, on behalf of the other. Neither Party shall represent to anyone that it possesses such power or authority.
9.3 This Agreement shall be governed in all respects by the laws of the State of Israel without regard to any conflict of law provisions, and the courts of the Tel Aviv-Yafo, Israel district shall have exclusive jurisdiction.
9.4 Any provision hereof which is found to be invalid, illegal or unenforceable under any applicable provision of law, shall be amended to the extent required to render it valid, legal and enforceable (or deleted if no such amendment is feasible), and such amendment or deletion shall not affect the enforceability of the other provisions hereof.
9.5 This Agreement represents the entire agreement between the Parties on the subject-matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them. No modification of this Agreement will be effective unless in writing, signed by both Parties.
9.6 The Parties agree that failure of either Party at any time to require performance by the other Party of any of the provisions herein shall not operate as a waiver of the right of that Party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.
9.7 Notice as required herein shall be delivered by hand, by fax, by email, by courier service or by registered or certified mail, return receipt requested, postage prepaid. A notice shall be addressed to the other Party at the address listed above, or to another address which may subsequently be specified in writing by a party. A notice shall be effective immediately after being delivered by hand, courier service, email or by fax, and five (5) Business Days after being sent by registered or certified mail.