Thingtesting Supplier Agreement

Last Updated as of March 6, 2023

Introduction

These terms and conditions (the “Thingdrop terms”) apply to your participation in any program (a “Thingdrop”) created and/or managed by us to promote and/or facilitate the purchase and sale of your Products to Customers (each, as defined below). When we say “Supplier”, “you” or “your” in these Thingdrop terms, we mean the brand, entity or business that you represent. When we say “Thingtesting”, “we”, “our” or “us”, we mean Thingtesting, Inc. and our affiliates. When we say “affiliate” we mean, with regard to a party, an entity or firm, controlling, controlled by, or under common control, whether directly or indirectly, with that party.

These Thingdrop terms are meant to be read in conjunction with, and are subject to, Thingtesting’s Terms of Use and Sale for Businesses.

Your participation in a Thingdrop is, at all times, conditional on you agreeing to these Thingdrop terms. So, if at any time you do not agree, or cannot comply, with these Thingdrop terms, you must not participate in a Thingdrop.

You agree to these Thingdrop terms by doing one or more of the following: (a) clicking a box or button confirming that you agree to these Thingdrop terms (or a similar confirmation); (b) signing or accepting a quote, order form or similar document which refers to these Thingdrop terms; or (c) paying or accepting an invoice for a subscription to a Thingdrop.

Overview

Definitions

“Agreed Shipping Time” means seven (7) days, or such other time as mutually agreed in writing by you and Thingtesting.
“Confidential Information” means information, whether written or oral, disclosed by either you or Thingtesting (the “Disclosing Party”) and received by the other (the “Receiving Party”) that relates to the Disclosing Party and is not generally available to the public, or which would reasonably be considered confidential and/or proprietary, or which is marked “Confidential” or “Proprietary” by Disclosing Party. Without limiting the generality of the foregoing, Confidential Information includes, without limitation, (i) information relating to research, development, inventions, information systems, software code, software applications, pricing, customer lists, financial or other economic information, accounting, engineering, personnel relations, marketing, merchandising, and selling, (ii) potential sources of financing; and (iii) all analyses, compilations, forecasts, studies or other documents prepared in connection with the Thingdrop. In the event Confidential Information is the basis of, is incorporated into, or is reflected in other documents, whether separately or jointly generated by you and us, such other documents will be deemed Confidential Information subject to these Thingdrop terms.
“Customer” means the final purchaser that has paid for and acquired your Products.
“Payment Gateway” means the third-party payment processor and inventory management service known as Violet, together with such other third-party payment processor and inventory management service selected by Thingtesting in its sole discretion.
“Prices” has the meaning set out in Section IV below.
“Products” means those products that are identified by you and us within the Thingdrop Platform, as may be amended from time to time upon the mutual agreement of you and us.
“Thingdrop Platform” means the portion of our Website within which you have elected to participate in a Thingdrop.
“Website” means www.thingtesting.com, or such other e-commerce website as may be selected by Thingtesting.

Sale and Shipping of Products

By initiating a Thingdrop, Supplier hereby authorizes Thingtesting to make available and sell Supplier’s Products displayed on the Website to Customers during the Term (as defined below) in accordance with these Thingdrop terms. Thingtesting reserves the right to approve or deny any Products submitted by Supplier. Nothing contained in these Thingdrop terms will restrict Thingtesting from having the right to sell any other products, goods, or services through its Website, including products that may compete with the Products.
Supplier agrees to ship orders for Products on behalf of Thingtesting to Customers. When a Customer order is placed on the Website, order information will be promptly communicated by the Payment Gateway to Supplier. Upon receipt of such communication, Supplier agrees to ship Products within the Agreed Shipping Time.
Unless otherwise agreed to by you and Thingtesting, Supplier will pay for all shipping and delivery costs and expenses for all Products purchased, returned, or exchanged through the Website.

Obligations of Supplier and Thingtesting

During the Term, Supplier will (a) provide any necessary information, documentation, material, and support as Thingtesting may reasonably request regarding the marketing, advertising, promotion, and sale of Products, in each case, free of charge to Thingtesting, (b) engage with and agree to such third-party terms and conditions as required by the Payment Gateway, and (c) comply with all policies and procedures listed on the Website or provided by Thingtesting to Supplier, including, without limitation, onboarding procedures.
During the Term, Thingtesting will (a) list Supplier’s applicable Products on the Website, subject to these Thingdrop terms, and (b) accurately describe and depict such Products, along with Customer or other third-party reviews, ratings or related feedback as Thingtesting may determine in its sole discretion.

Pricing and Margin

Supplier will provide Products for sale via the Website at no cost to Thingtesting. Supplier is solely responsible for all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, taxes, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Products. Without limiting the generality of the foregoing, Supplier acknowledges and agrees that Supplier will be solely responsible for remittance of any and all sales tax due and owing to any governmental authority in respect of the sale of any Products via the Website, regardless of whether or not the Net Proceeds (as defined below) include such sales tax amounts.
Supplier agrees that, in consideration of the services to be provided by Thingtesting pursuant to these Thingdrop terms, Thingtesting will be entitled to receive an upfront fee in the amount set forth on the Thingdrop Platform, which upfront fee will be payable by Supplier within ten (10) days of the date you registered to participate in a Thingdrop (the “Effective Date”). Additionally, to the extent set forth within the Thingdrop Platform, Thingtesting may be entitled to deduct from each sale and receive a specific percentage wholesale margin for sales made of Supplier’s Products on the Website (the “Margin”). Supplier and Thingtesting agree that the sales proceeds will be collected from each order using the Payment Gateway, and will consist of the Supplier’s Price plus applicable shipping charges and sales taxes collected, if any, less an amount equal to the Margin (collectively “Net Proceeds”). Net Proceeds will be transferred to Supplier through the Payment Gateway and deposited into a bank account designated by Supplier to receive the Net Proceeds from each order (the “Supplier’s Account”). Upon mutual written agreement by you and Thingtesting, Thingtesting may adjust the Margin by delivering written notice to Supplier.
Upon completion of an order and once the applicable Product is marked as shipped with a tracking number, Supplier will promptly receive a payment from the Payment Gateway in an amount equal to Net Proceeds.

Term and Termination

The initial term of your Thingdrop will be one (1) year commencing on the Effective Date (the “Initial Term”). Upon expiration of the Initial Term, your Thingdrop will automatically be renewed for successive one-year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either you or we provides written notice of non-renewal to the other at least sixty (60) days in advance of the end of the then-existing Term.
Either you or we may terminate your Thingdrop at any time for any reason by providing the other with ninety (90) days’ advance written notice of such termination.
Thingtesting may terminate your Thingdrop without penalty upon thirty (30) days written notice upon any breach of these Thingdrop terms by Supplier, including, without limitation, failure by Supplier to properly fulfill Customer orders.
Upon any termination, each party will pay the other party all monies owed, whether or not then due, within thirty (30) business days, and each party will return all property and Confidential Information of the other party in its possession and will immediately purge such property and Confidential Information of the other party that may be stored in that party’s systems or files.

Returns

Supplier agrees to accept all returns and exchanges for any Product requested by Customers based on Supplier’s return policy as provided by Supplier to Thingtesting for inclusion in each order confirmation email, Supplier’s failure to ship Products within the Agreed Shipping Time, or as set forth in such other documentation made available to Supplier.
Supplier agrees not to list any Products on the Website that are non-refundable or final sale items with restricted return provisions, unless otherwise approved in writing by Thingtesting, in which case Supplier will provide to Thingtesting a list of all Products that are subject to final sale, and such final sale items will be subject to Thingtesting’s return policy. Supplier agrees that Thingtesting may deduct from Net Profits any costs or expenses incurred by Thingtesting for any Product returns or exchanges, including, without limitation, shipping costs.

Customer Service and Escalation Procedure

Customer issues in connection with returns, exchanges, refunds, late or lost deliveries, defects, or any other Customer questions or requests will be forwarded to Supplier’s customer service teams. Supplier agrees to provide prompt support to all Customers.
Supplier agrees to copy, whether via cc or bcc, Thingtesting’s support team on any support tickets that require escalation and will promptly answer any questions from Thingtesting arising from or related to the resolution of escalated support tickets.
Supplier assumes all responsibility and liability for all unfulfilled Products that do not reach the Customer. Thingtesting will not be responsible for missing, damaged, defective, late, or incorrect Products.
Supplier agrees to notify Thingtesting of any rejected or canceled Customer orders within 24 hours of such rejection or cancellation.

Intellectual Property

Supplier hereby authorizes Thingtesting to display and use any of Supplier’s logos, copyrights, trademarks, images and digital assets (“Supplier IP”) on the Website. Supplier also authorizes Thingtesting to advertise Products on the Website as reasonably necessary to promote digital sales. In furtherance of the foregoing, Supplier hereby represents and warrants to Thingtesting that Supplier has all rights, title and interest in and to such Supplier IP, and Thingtesting’s display and use of such Supplier IP on the website will not infringe the rights of any third-party.
Each of Supplier and Thingtesting hereby grants to the other a non-exclusive, non-sublicensable, limited, royalty free license to use its trademarks, service marks, logos or trade names applicable to the performance of the Thingdrop solely for such purpose, and only for the Term of the Thingdrop. All such use will be in accordance with the trademark owner's policies regarding advertising and trademark usage as reasonably established from time to time and communicated in writing.
Thingtesting reserves the right to de-select, modify or change images displayed on the Website based on Thingtesting’s design parameters.

Confidentiality

The Receiving Party, for a period beginning with the Effective Date, and continuing for three (3) years or through the Term, whichever is later, will maintain and protect the confidentiality of the Confidential Information with the same degree of care as is normally used in the protection of its own confidential and proprietary information but in no event with less than a reasonable standard of care; provided, however, the Receiving Party will keep (i) any personally identifiable information such as names, addresses, dates of birth, credit card or other payment information, telephone numbers, email addresses, and similar information (“PII”) confidential in perpetuity; and (ii) any trade secrets of the Disclosing Party confidential as long as such information is deemed a trade secret. The Recipient further agrees not to use Confidential Information for any purpose, except for the purposes of its performance in connection with the Thingdrop.
The Receiving Party will limit access to the Confidential Information to those of its employees, consultants, advisors and agents (“Representatives”) who need to know such information solely for the purpose of that party’s performance under the Thingdrop and who are subject to substantially similar confidentiality obligations.
These restrictions will not apply with respect to Confidential Information which the Receiving Party can clearly demonstrate (i) is already available to the public; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (ii) becomes available to the public through no fault of the Receiving Party or its Representatives; (iii) is already known to the Receiving Party on a non-confidential basis, as shown by written records in its possession at the time that the Confidential Information was received; (iv) becomes available on a non-confidential basis from a source that, to the best of the knowledge of the Receiving Party, is not under an obligation to the Disclosing Party; or (v) is independently developed by the Receiving Party without regard to the Confidential Information of the Disclosing Party.
In the event the Receiving Party is required by law, regulation, or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (i) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (ii) limit the disclosure to minimum amount that is legally required to be disclosed.
Receiving Party acknowledges that remedies at law may be inadequate to protect the Disclosing Party against any actual or threatened breach of these Thingdrop terms, and without prejudice to any other rights and remedies otherwise available, the Receiving Party agrees that the Disclosing Party will be entitled to seek injunctive or other equitable relief as a remedy for any such breach. Such a remedy will not be deemed to be the exclusive remedy for a breach of these Thingdrop terms but will be in addition to all other remedies available at law or equity.

Product Warranties

Supplier represents and warrants to Thingtesting that (i) each Product is fit and safe for use consistent with and will conform with the specifications, descriptions, and documentation provided with the Product or listed on the Website, and each will be free from significant defects in material, design and workmanship; (ii) no claim, lien, or action exists or is threatened against Supplier that would interfere with the marketing, use or sale of the Products; and (iii) no Products, nor the manufacture, marketing, sale, and use of the Products, nor anything in or contemplated by Supplier’s participation in the Thingdrop, infringes on any third-party intellectual property rights.
If Supplier, Thingtesting, or any governmental authority determines that any Products sold to Customers are defective and a recall campaign is necessary, either party may implement such recall campaign. Thingtesting will provide reasonable assistance in the event of a recall, provided that Supplier will pay all of Thingtesting’s recall-related expenses.

Indemnification. Supplier will indemnify, defend, and hold harmless Thingtesting and its Representatives against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification hereunder, arising out or resulting from any claim of a third party alleging: (a) breach of these Thingdrop terms or non-fulfillment of any order by Supplier, (b) any act or omission by Supplier or its personnel, (c) any bodily injury, death or damage to real or tangible personal property caused by any Product or the acts or omissions of Supplier, (d) any defective Product or use or misuse of any Product, (e) actual or alleged infringement or misappropriation of any copyright, patent, trademark, trade secret, right of confidentiality or other intellectual property right, (f) any failure by Supplier to comply with applicable laws or (g) Supplier’s failure to remit sales tax to any governmental authority.
Limitation of Liability. In no event will either party be liable to the other for any losses or damages, including without limitation, any act or omission of the payment gateway or any lost profits, loss of business, loss of use, or other direct, indirect, incidental, special, consequential (except indemnification obligations), or other damages, even if the party has been informed of the possibility thereof. Thingtesting’s total liability under or in connection with the Thingdrop, regardless of the form of action or legal theory, will be limited to the aggregate fee and Margin received by Thingtesting in connection with the Thingdrop.
Notice. Any notice you send to Thingtesting must be sent to [email protected]. Any notice from Thingtesting to you will be sent to the email address associated with the administrator of the business account for Supplier.
Miscellaneous

Assignment. The Thingdrop and these Thingdrop terms will not be assignable by either party without the express written consent of the non-assigning party; provided, however, that Thingtesting may assign its rights and/or obligations without the prior written consent of Supplier, to any affiliate or to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of Thingtesting.
Force Majeure. If either party is prevented from performing any of its obligations hereunder because of an event beyond its reasonable control, such as, but not limited to, a strike, act of God, fire, flood, war, insurrection, riot, plant breakdown, embargo, explosion, government order or decree, the affected party will be excused from performance for the duration of the event.
Governing Law; Venue. These Thingdrop terms will be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Thingdrop terms, in any forum other than the applicable courts of the State of New York, and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
Amendment; Waiver. No amendment, waiver, or discharge of any provision of these Thingdrop terms will be effective unless made in writing and signed by each party. The failure or omission by either party to insist upon or enforce any part of these Thingdrop terms will not be deemed a waiver of such terms.
Entire Agreement. Except for any executed agreements between the parties in connection with affiliate sales, whitelisting or marketing services, these Thingdrop terms represent the entire agreement between you and Thingtesting concerning the subject matter hereof.