Last Updated: 12/29/2022
These Standard Terms (these “Terms”) supplement and govern the Consignment Specifics entered into by and between Fuze Technology Inc., a Delaware corporation (“Fuze”) and the Merchant identified in the Consignment Specifics (“Merchant”).
These Terms, the Consignment Specifics and any supplemental terms or exhibits thereto collectively form the “Agreement” between Fuze and Merchant. Capitalized terms used, but not defined, in these Terms are defined in the Consignment Specifics. If any term in these Terms conflicts with the Consignment Specifics, the Consignment Specifics control.
1.Modifying the Agreement.
(a)The Consignment Specifics may only be modified by a written document signed by Fuze and Merchant.
(b)Fuze may change these Consignment Terms from time to time, and will post any such changes at www.chargefuze.com/consignment-standard-terms with the revised ‘Last Updated’ date above. These changes will only take effect as to Merchant thirty (30) days after the changes are posted.
2.Rental. Fuze grants Merchant the right to possess the Stations at the Venue(s) during the Term on the terms of the Agreement for the purpose of facilitating Rentals. Merchant acknowledges and agrees that, when not in use by End Users, the Stations may display content, including third-party advertisements, placed by Fuze that is consistent with Fuze’s Ad Guidelines, available at https://www.chargefuze.com/shop-ad-guidelines/ (“Screen Content”).
4.Expenses. Merchant is solely responsible for providing and paying for all electricity necessary for the operation of the Stations at the Venue(s). Upon expiration or termination of the overall Agreement, Merchant agrees to pay Fuze a one-time uninstallation and return shipping fee at market cost not to exceed $1,500 per Merchant Venue. Fuze is solely responsible for all expenses relating to the delivery of the Stations to and from the Venue(s).
5.Intellectual Property. At all times during and after the Term, Fuze will retain title to the physical Stations and all right, title and interest in and to all related software, technology (including hardware, products, processes, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), and other intellectual property owned or licensed by Fuze (the “Intellectual Property”). Merchant acquires no property or ownership rights in the Stations or Intellectual Property. Merchant will not sell, mortgage, pledge or otherwise convey an interest in the Stations, or subject them to any lien, encumbrance or legal process. As between the parties, Merchant retains all right, title and interest in the screen content it provides and hereby grants to Fuze all rights necessary to display the screen content on the Stations during the Term.
6.Security and Privacy. Fuze has implemented and will maintain commercially reasonable technical and organizational security measures, in accordance with industry standards, to protect the Stations, their software and any End User information processed thereby against unauthorized disclosure or access by unauthorized third parties.
(a)Each party represents and warrants that: (i) it has all requisite power and authority to enter into this Agreement and (ii) with respect to any Screen Content it provides hereunder, it owns or has all rights necessary to provide the Screen Content to the other party, and no such Screen Content will (1) infringe upon the intellectual property or other rights of any third party or (2) be deemed obscene, defamatory or otherwise illegal under applicable law.
(b)Unless otherwise stated elsewhere in the Agreement, Fuze agrees, represents and warrants that: (i) it is solely responsible for all Rental transactions with End Users; (ii) the Stations and Intellectual Property do not and will not violate any third party proprietary rights, such as registered intellectual property rights; and (iii) it is solely responsible for all costs, and risk of loss, arising from the delivery of the Stations to and from the Venue(s).
(c)Unless otherwise stated elsewhere in the Agreement, Merchant agrees: (i) to maintain the Stations in their condition as delivered, ordinary wear and tear excepted; (ii) to notify Fuze in the event of any loss or damage to the Stations; and (iii) upon the expiration or termination of the Agreement for any reason, to surrender the Stations by providing Fuze access to and assistance in the Venue(s) in order to uninstall and remove them.
(a)”Confidential Information” of a party means all technical or business information (including all data), and all intellectual property of such party, its affiliated entities, or other third parties doing business with such party that: (i) is disclosed to, accessed by or otherwise learned by the other party; and (ii) is marked or indicated as confidential (or with similar words) or would reasonably be expected to be confidential given the nature of the information or the circumstances around its disclosure. Merchant agrees that Fuze’s technology, software and data used or processed in connection with the Stations constitute Fuze’s Confidential Information.
(b)During the Term and thereafter, each party will not: (i) access or use the Confidential Information of the other party except as necessary to perform its obligations or exercise its rights under the Agreement; or (ii) disclose or otherwise knowingly allow access to the Confidential Information of the other party to any individuals or third parties except as provided in clause (c) below. In addition, each party will protect the Confidential Information of the other party with at least the same level of care as it protects its own similar confidential information, but not less than a commercially reasonable level of care.
(c)Either party may disclose relevant aspects of the other’s Confidential Information to the officers, directors, employees, professional advisors (including accountants and attorneys), contractors and other agents of it to the extent such disclosure is necessary for the performance of their obligations to such party; provided, however, that the disclosing party causes the Confidential Information to be held in confidence by the recipient to the same extent and in the same manner as required hereby. In addition, either party may disclose Confidential Information of the other party to the extent required to comply with any laws or court orders; provided, however that such party provides the other party with prior notice of any such disclosure.
(d)The restrictions on use and disclosure in this section will not apply to Confidential Information that: (i) is already known to the receiving party, as demonstrated by prior existing records, when it was disclosed by the other party; (ii) is or becomes known to the public through no fault of the receiving party or its employees, agents or contractors; (iii) is lawfully received by a party from a third party where the third party has not required that party to maintain the information in confidence; or (iv) is developed by the receiving party independently of disclosure by or receipt from the other party.
(e)Upon a party’s request and as directed by such party, the other party will promptly return all Confidential Information of the requesting party and all written materials that contain, summarize or describe any such Confidential Information. Each party will immediately notify the other of any unauthorized possession, use or knowledge of the other’s Confidential Information of which such party is aware.
9.Indemnification. Each party will defend, indemnify and hold harmless the other party, and its employees, associates, successors, designees, licensees and assigns (collectively, “Indemnitees”), from and against any loss, liability (including settlements, judgments, fines and penalties) or costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any third party action, suit or proceeding against any such Indemnitees that arises from: (a) the breach or alleged breach by the indemnifying party of the Agreement; or (b) the gross negligence, recklessness or willful misconduct of the indemnifying party. Additionally, Fuze will defend, indemnify and hold harmless Merchant and its Indemnitees from any Losses arising from death or personal injury to the extent caused by any Stations placed and used in accordance with the terms of this Agreement.
10.Disclaimer of Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THE AGREEMENT, THE STATION(S), CHARGERS AND ALL RELATED INTELLECTUAL PROPERTY DELIVERED UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND FUZE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO. ALL CONDITIONS, WARRANTIES, AND REPRESENTATIONS, EXPRESS OR IMPLIED, ARE EXCLUDED, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES RELATING TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11.Limitation of Liability.
(a)NEITHER PARTY SHALL HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY (WHETHER IN TORT, EQUITY, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY IN ACCORDANCE WITH APPLICABLE LAW) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, OR LOST BUSINESS OR PROFITS INCURRED BY MERCHANT, FUZE OR ANY OTHER PERSON, RELATING TO THE AGREEMENT OR THE STATION(S) OR CHARGERS PROVIDED UNDER THE AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b)EXCEPT WITH RESPECT TO (i) A PARTY’S INDEMNITY OBLIGATIONS, (ii) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, or (iii) CLAIMS ARISING DUE TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (“Excluded Claims”), THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL CLAIMS, LOSSES, COSTS, FINES, SETTLEMENTS, PENALTIES OR DAMAGES, INCLUDING COURT COSTS AND REASONABLE OUTSIDE ATTORNEYS’ FEES, ARISING OUT OF OR RELATED TO THE AGREEMENT (“Losses”), SHALL NOT EXCEED $50,000.
(c)WITH RESPECT TO EXCLUDED CLAIMS, THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL LOSSES SHALL NOT EXCEED $250,000.
12.Arbitration. In the event that the parties are unable to resolve any controversy or claim arising under this Agreement informally, the controversy or claim must be submitted to final and binding arbitration. The arbitration will be initiated and conducted according to either the JAMS Streamlined Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure or its successor in effect at the time the request for arbitration is made (the “Arbitration Rules”). The arbitration may only be conducted in a county embracing the Venue(s) or Los Angeles County, CA, before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator will follow California law and the Federal Rules of Evidence in adjudicating the dispute. However, the parties agree that disclosure shall be limited in any such arbitration to no more than two (2) depositions per party, each no more than four (4) hours in length; no more than ten (10) written requests for documents; no more than ten (10) requests to admit; and no more than five (5) written interrogatories. The parties waive the right to seek punitive damages and the arbitrator will have no authority to award such damages. The arbitrator will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction. The party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered.
(a)Entire Agreement/Waiver. The Agreement contains the entire understanding between the parties and supersedes all prior agreements, representations and undertakings whether oral or written. It may only be modified, supplemented or altered by a writing signed by both parties. No failure or delay on the part of either party in insisting on compliance herein or in exercising any right, power or remedy under the Agreement will operate as a waiver or modification thereof; nor will any single or partial exercise of any such right, power or remedy under the Agreement, preclude any other or further exercise or any other right, power or remedy under the Agreement.
(b)Validity of Agreement. In case any term of the Agreement is held invalid, illegal, or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of any other terms will be affected thereby.
(c)Choice of Law. The Agreement is governed by the laws of the State of California without regard to its jurisprudential or statutory conflicts of laws rules. Any claim, dispute or disagreement with respect to the relationship between the parties or the Agreement will be submitted for arbitration under Section 12 above; provided, however, that Section 12 does not restrict a party’s ability to seek preliminary injunctive relief to the federal courts in the district embracing the Venue(s) or in Los Angeles, California.
(d)No Joint Venture. The Agreement creates no partnership, employment, joint relationship, joint venture, master-servant, or mutual responsibility on behalf of one party for the debts or liabilities of the other. The parties agree that Fuze is acting as an independent contractor of Merchant. Neither party has the power to bind nor obligate the other.
(e)Electronic Signatures. The parties agree that this Agreement may be executed electronically. As such, the parties agree that electronic signatures, including those delivered by PDF or signed through an electronic signature system (e.g., DocuSign or PandaDocs), have the same effect as a handwritten signature. The parties waive any and all rights to object to the enforceability of the Agreement based on the form or delivery of signature