GENERAL TERMS
This Master Platform Agreement (“Agreement”) sets forth the terms and conditions governing your participation in programs and Services offered by Wayfair. This Agreement consists of these general terms (the “General Terms”) set forth below and incorporates any applicable Program Policies and associated Rate Cards that govern specific Services or business programs. By registering for, accessing, or using any Wayfair platform, or by participating in any Wayfair Services or Program Policy, you (on behalf of yourself or the business you represent) agree to be bound by this Agreement, including all applicable Program Policies and associated Rate Cards.
1. Relationship of Parties. You and Wayfair are independent businesses. Nothing in this Agreement creates a partnership, agency, or employment relationship between us, and neither of us may bind the other without prior written consent.
2. Order of Precedence. In the event of any conflict or inconsistency between these General Terms and any Program Policy or associated Rate Card, the terms of the applicable Program Policy or associated Rate Card will control with respect to the subject matter of that Program Policy or Rate Card.
3. Regions and Sales Channels. You will inform us in Partner Home, or by other Wayfair approved means, of the Region(s) and Subregion(s) in which your Products are legally compliant and authorized to be offered for sale. We may offer the Products for sale in any Sales Channel in such designated Region(s) and Subregion(s), unless otherwise agreed between you and us.
3.1. Perigold Sales Channel. If you are a Perigold supplier and you wish to limit Product sales to one or more Perigold Sales Channel, you must inform us of this request on Partner Home, or by other Wayfair approved means.
4. Financial Terms.
4.1. Standard Payment Terms. Unless the Parties otherwise agree in writing, we will pay you all undisputed invoiced amounts for Products within sixty (60) days of our receipt of an invoice. If you do not dispute the amounts we pay you (including amounts we withhold or setoff) within sixty (60) days of the payment voucher date, the payment amount will be deemed final and no further amounts will be payable. Wayfair and its Affiliates may set off or recoup any amounts owed to you against any amounts you owe to such entities. Additionally, you agree to provide Wayfair with a statement of all open balances due to you within thirty (30) days following the end of each calendar year. We will review and may propose changes to this statement to reflect our internal balances. If you do not dispute our proposed changes within thirty (30) days of receipt, the amount as validated or modified by Wayfair shall be deemed final and binding with respect to the applicable calendar year.
4.2. Platform Access Fee. The Wayfair Platform Access Pass is a program designed to make sure we can continue to provide the tools, features and insights that Suppliers need in order to cover the cost of maintaining and improving Partner Home, our Supplier-facing platform. As part of the Wayfair Platform Access Pass, Suppliers - unless otherwise eligible for an exclusion - agree to pay a monthly fee per Parent Supplier ID (SUID) as outlined in the program terms.
4.3. Financial terms, such as allowances, discounts, rebates, returns and other purchasing terms will be specified in separate terms on Partner Home or provided by other approved means and are incorporated herein by reference.
5. Products.
5.1. Product Information. In order to create a best-in-class merchandising experience for your Products, we require timely, accurate, and complete Product Information from you. You agree to provide us, on an ongoing basis and free of charge, all available Product Information. You represent and warrant that you have all necessary right to grant any rights or licenses to the Product Information set forth herein, that the Product Information is accurate and substantiated, and that the Product Information does not infringe any copyright, trademark, patent, or other intellectual property rights of a third party. Any documents, images, models or other information concerning the design of Products provided to you by Wayfair are not design specifications or requirements, but are instead only suggestions that you are free to reject. You are solely responsible for the design of the Products. You grant us and our Affiliates, in connection with any business, marketing, advertising, fraud-prevention, educational, or promotional activities, a non-exclusive, worldwide, perpetual, irrevocable and royalty-free license to: (a) use, copy, display, perform, and distribute the Product Information in any medium, including training or aiding our or any third-party artificial intelligence (AI) model; (b) excerpt, reformat, adapt or otherwise create or have created derivative works of the Product Information, including, without limitation, creating computer-aided design models; (c) use all trademarks or trade names included in the Product Information; and (d) collect, aggregate, and display product reviews, ratings, and other related information including those sourced from third-party services. The foregoing license will survive any termination of the Agreement solely to the extent that we require the license to exercise any rights or perform any obligations that arose during the Term of the Agreement.
5.2. Product Safety and Compliance.
5.2.1. Product safety and compliance is critically important to Wayfair and the safety and well-being of our customers is our top priority. Accordingly, you represent and warrant that you will comply with, and that each Product complies with, all Applicable Laws. It is your responsibility to promptly inform us in Partner Home or by other Wayfair approved means if a Product does not comply with Applicable Law, including, but not limited to, meeting all safety regulations, passing all necessary testing requirements, and maintaining all proper warnings, labels, licenses and/or Product certifications. Additionally, you must promptly notify us in Partner Home or by other approved means of any necessary warnings, disclaimers, or other notices required by any Applicable Law or any agreement you have entered into with any licensors, or that are customary in your industry. You represent and warrant that your Products are new, properly packaged and labeled in accordance with our policies, fit for the ordinary purposes they are intended to serve, and free from defects in design, materials, and workmanship. We reserve the right to suspend from sale, or cease the listing, advertisement, or promotion of any Product at any time and in our sole discretion.
5.2.2. Product Recalls. You agree that you are solely responsible for any Product Recall, including, but not limited to, payment or reimbursement for any and all costs, expenses, and fees associated with a Product Recall, and any customer refunds, replacements, repairs, Product repositioning, or administrative expenses incurred by Wayfair. Similarly, you agree that you will promptly notify Wayfair of (i) any material product defect and/or (ii) any Product Recall, provide any information requested by Wayfair in connection with any Product Recall, and promptly inform, cooperate, and liaise directly with any regulatory authority in connection with any material product defect, Product Recall, or other regulatory inquiry regarding the Products.
5.2.3. Supplier Audit. You must be able to certify and, if applicable, substantiate that you and the Products are in compliance with Applicable Laws and this Agreement, and you permit Wayfair to audit and verify such compliance. You agree to promptly respond to any such audit request and to provide free samples of Product(s) and any requested testing, labeling, import, or Product documentation at your cost and expense. As part of fulfilling this requirement, you also agree to provide Wayfair with access to any past, present, or future Product testing documentation, and hereby also authorize any third-party testing facility to disclose and transmit any existing or future reports to Wayfair concerning the Products.
5.2.4. Supplier Code of Conduct. You acknowledge that you read and agree to the Wayfair Supplier Code of Conduct, and that such Supplier Code of Conduct may be updated or amended from time to time in our sole discretion.
5.2.5. European Region–Waste Directives. If you sell Products into the European Region, you shall comply with Directive 2012/19/EU on waste electrical and electronic equipment and Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators and the corresponding national regulations, and Directive 94/62/EC on packaging and packaging waste and the corresponding national regulations.
5.2.6. Enforcement. In any legal action to enforce your obligations or representations contained in this Section 5, Wayfair shall be entitled to recover its attorneys’ fees and costs incurred in taking any such action.
6. User Accounts. You are responsible for providing and maintaining accurate, current, and complete information relating to your User Accounts. This includes creating and maintaining secure login identifiers and passwords. You are responsible for all activity associated with your User Accounts, including promptly notifying Wayfair of any unauthorized access. You represent and warrant that: (a) your business is duly organized, validly existing and in good standing under Applicable Laws; (b) you have all requisite right, power and authority to perform your obligations, and grant the rights, licenses, and authorizations under this Agreement; (c) you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United States Department of Treasury, the United States Department of Commerce, the European Union or its member states, the United Nations Security Council, or other applicable government authority; (d) you will comply with all Applicable Laws in performance of your obligations and exercise of your rights under this Agreement; and (e) you will not interfere with the proper working of any site, Partner Home, the Services, or their related systems, transmit any viruses, “Trojan horses” or other harmful code, or attempt to bypass any mechanism we may use to detect or prevent such activities.
7. Confidentiality. “Confidential Information” means all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered confidential. Confidential Information includes, without limitation, the terms of this Agreement, Program Policies, Rate Cards, business strategies, pricing, operations, systems, technology, and any Customer Information or service-related information. During the term of this Agreement and for a period of five (5) years following its termination, the Receiving Party shall (i) hold all Confidential Information in strict confidence; (ii) use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement; and (iii) not disclose the Confidential Information except to its or its Affiliates’ officers, directors, employees, attorneys, auditors, or subcontractors who need to know such information and are subject to confidentiality obligations at least as protective as those herein. Confidential Information does not include information that (i) was publicly available at the time of disclosure; (ii) becomes publicly available without breach of this Agreement, (iii) was lawfully known prior to disclosure; or (iv) is independently developed without reference to Confidential Information. The Receiving Party shall use at least the same degree of care in protecting the Disclosing Party’s Confidential Information as it uses to protect its own confidential information, but in no event less than a reasonable standard of care. Notwithstanding the above, the Receiving Party may disclose Confidential Information to the extent such disclosure is required by an Applicable Law, regulation, a valid order of a court or other governmental body of competent jurisdiction, or other legal requirement, including governmental investigation or enforcement proceedings. You are responsible for any breach of this Agreement by your representatives. Upon termination of this Agreement or upon the Disclosing Party’s request, the Receiving Party shall promptly return or destroy all materials containing Confidential Information, unless retention is required by Applicable Law. This Section survives termination of this Agreement. For clarity, if any Program Policy defines or restricts the use, handling, or treatment of specific categories of Confidential Information, the terms of that Program Policy will control with respect to such information.
8. Privacy and Security.
8.1. US Data Protection Laws.
8.1.1. Under applicable US Privacy Laws, you are designated as (i) a “service provider” or “processor” with respect to any Customer Information provided by Wayfair when you are fulfilling your obligations to Wayfair and its end-customer with respect to order fulfillment and (ii) an “independent business” or “third party” with respect to processing Customer Information for your own independent business purposes (including but not limited to business analytics, market analysis, product development, and decisions regarding participation in Wayfair offerings). In each case, you agree to (a) not sell, share, rent, disclose, or otherwise make available any Customer Information to any third party except as necessary to perform order fulfillment; (b) not retain, use, or disclose Customer Information for any purpose other than order fulfillment including not using Customer Information for your own commercial purposes or outside the direct relationship between you and Wayfair; and (c) assist Wayfair in responding to verifiable consumer requests made pursuant to applicable US Privacy Laws, including requests for access, deletion, correction, or opt-out of the sale or sharing of personal information.
8.1.2. You further agree to prohibit and prevent any access to bulk U.S. sensitive personal data (as defined in 28 C.F.R. Part 202, and subject to the applicable thresholds for each data category), by any individual or entity that is organized under the laws of, has its principal place of business in, or is located in, China, Hong Kong, Macau, Russia, Iran, North Korea, Venezuela, or Cuba, or any entity that is 50% or more owned by an individual or entity that meets the above criteria. If you are unable to comply with these requirements, you must immediately notify Wayfair.
8.2. GDPR and UK GDPR.
8.2.1. The Parties agree Wayfair is a Data Controller with respect to the Customer Information that it collects from customers and you are an independent Data Controller with respect to any Customer Information that is shared by Wayfair for purposes of order fulfillment, business analytics, and other business purposes. Each party independently determines its own processes and means of Processing the Customer Information.
8.2.2. For the avoidance of doubt, you are not acting as a Data Processor on behalf of Wayfair under either GDPR or UK GDPR when Processing the Customer Information received from Wayfair. You may Process the Customer Information received from Wayfair for your own legitimate independent business purposes, including but not limited to order fulfillment, analytics, business decision-making, and participation in Wayfair’s supplier programs.
8.2.3. Independent Compliance Obligations. Each Party shall be independently responsible for: (a) ensuring it has a valid legal basis for Processing Personal Data under the EU GDPR and UK GDPR; (b) providing appropriate transparency to Data Subjects regarding its Processing activities; (c) responding to and fulfilling Data Subject rights requests relating to Personal Data for which it acts as a Data Controller; and (d) notifying relevant supervisory authorities and affected Data Subjects of any Personal Data breach as required by Applicable Laws.
8.3. International Transfers.
8.3.1. Transfers Outside EEA. If and to the extent any Customer Information that is subject to the GDPR is transferred from one party (the “Data Exporter”) to the other party (the “Data Importer”) in a country outside the European Economic Area (“EEA”) that has not been deemed adequate by the European Commission, such transfer shall be governed by the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679, as set out in the Annex to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (the “SCCs”), Module One (Controller-to-Controller), Annex I, and Annex II, which are hereby incorporated by reference and part of this Agreement The auxiliary information to complete Annex I and II of the SCCs is set forth in the Addendum available here.
8.3.2. Transfers Outside UK. If and to the extent any Customer Information that is subject to UK GDPR is transferred from the Data Exporter to the Data Importer in a country outside the UK, the UK Mandatory Clauses shall apply and are incorporated by reference herein. Wayfair may end the UK Mandatory Clauses as set out in Section 19 of UK Mandatory Clauses.
8.4. Data Security Breach. In addition to the obligations above, you agree to:
8.4.1. maintain Confidential Information, and in particular any personally identifiable information, including Customer Information, in strict compliance with all applicable Privacy and Data Protection Laws;
8.4.2. promptly after discovery and in any event before notifying any regulatory authority, data subject or third party as required under Applicable Laws, notify Wayfair upon becoming aware of any unauthorized access to or use of any Confidential Information that compromises the security, confidentiality, or integrity of such information (such event, a “Supplier Data Security Breach”);
8.4.3. implement appropriate technical and organizational measures to protect the Confidential Information, including an incident response function capable of identifying and mitigating the effects of, and preventing the recurrence of any Supplier Data Security Breach;
8.4.4. cooperate with Wayfair to assist in the investigation, mitigation, and remediation of any Supplier Data Security Breach and provide Wayfair with sufficient information to allow Wayfair to meet any obligation to report or inform customers or other impacted parties of such event under applicable privacy and data protection laws; and
8.4.5. reimburse Wayfair for reasonable expenses incurred as a result of any Supplier Data Security Breach.
9. Supplier Defense and Indemnification. You will defend, indemnify, and hold harmless Wayfair, its Affiliates, and their respective officers, directors, employees, and agents (each, a “Wayfair Party”, and collectively, “Wayfair Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by a Wayfair Party arising out of or in any way relating to any third party claim, demand, action, lawsuit, or proceeding (each, a “Claim”) to the extent arising from or in connection with: (a) the design or manufacture of any Product, including any death of or injury to any person, damage to any property, or any other damage or loss actually or allegedly caused by a Product (whether or not title to such Product has transferred to Wayfair); (b) any Product Recall or safety issue; (c) any actual or alleged infringement or misappropriation of any third party intellectual property rights by you or any of your Products or Product Information; (d) your failure to provide, or any inaccuracy in, Product Information; (e) any pricing error arising from or relating to pricing information provided by you, including relating to cancellation of any customer order based on a pricing error caused by you; (f) your actual or alleged breach of Applicable Laws or your obligations, representations, or warranties under this Agreement; and (g) your gross negligence or willful misconduct. You will not consent to the entry of a judgment or settle any Claim without the applicable Wayfair Party’s prior written consent. You will use counsel reasonably satisfactory to the applicable Wayfair Party, which we will confirm in writing, and the applicable Wayfair Party will cooperate in the defense at your expense. If the applicable Wayfair Party reasonably determines that your handling of an indemnified Claim might have an adverse effect on a Wayfair Party, that Wayfair Party may take control of the defense at its expense (without limiting your indemnification obligations). Your obligations under this Section 9 are independent of your other obligations under this Agreement. Notwithstanding the foregoing, in the event that you fail to reasonably assure us that you will fulfill your indemnification obligations with respect to any Claim within five (5) days after notice by us thereof, then we shall have the right to defend or settle the Claim in our sole, reasonable discretion and either invoice you for the reasonable costs and expenses of such defense or settlement or deduct the reasonable costs and expenses of such defense or settlement from any amounts that we owe to you. In the event that the Wayfair Parties have to take legal action to enforce their rights under this Section, you will be liable for all legal fees and costs incurred by the Wayfair Parties in taking such action. To the extent that you have an indemnification obligation under Section 9(c) and the actual or alleged infringement or misappropriation attributable to you or your products is less than fifty (50) percent of the total Claim brought against the applicable Wayfair Party, Wayfair may at its discretion notify you in writing that Wayfair intends to control the defense relevant to your actual or alleged infringement or misappropriation (“Wayfair Managed Claim”). In the event of a Wayfair Managed Claim, you may participate in the defense or obtain advisory counsel at your own expense, in addition to your other obligations, including attorneys’ fees and other payment obligations, for the Wayfair Managed Claim.
10. Limitation of Liability. NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS OR FOR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, EXCEPT FOR THOSE ARISING IN CONNECTION WITH YOUR DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT.
11. Termination and Survival. Either Party may terminate this Agreement with sixty (60) days’ prior written notice without cause. A Party shall have the right to immediately cancel or terminate this Agreement if the other Party is in breach of this Agreement and the breach is not cured by the other Party within five (5) business days of written notice of such breach. Regardless of any termination, you will fulfill all orders you accepted before the effective date of termination unless prohibited by Applicable Law or Wayfair cancels any such orders. Any terms that by their nature should reasonably be expected to survive termination shall so survive, including Section 4.2 (Product Information), Section 5 (Product Safety and Compliance), Section 6 (User Accounts), Section 9 (Supplier Defense and Indemnification), Section 10 (Limitation of Liability), Section 12 (Insurance), Section 7 (Confidentiality), Section 11 (Termination and Survival), and Section 15 (Miscellaneous).
12. Insurance. This Section 12 sets forth our insurance requirements. We may amend these requirements from time to time upon written notice to you. Your obligations under this Section will survive the termination or expiration of this Agreement for a period of one (1) year. We reserve the right to suspend your Product listings if you fail to comply with these requirements or we determine in our sole and absolute discretion that your insurance coverage is unenforceable or is issued by an insurance company that does not meet our standards.
12.1. Required Limits and Insureds. You are required to obtain, maintain, and carry in full force and effect at all times, at your sole expense, at least the insurance coverage set forth in this paragraph, subject also to the requirements set forth throughout this Section 12.1. Required coverage includes, for each applicable Region and Subregion in which your Products are offered for sale, commercial general, umbrella or excess liability insurance (or the local equivalent in your Region or Subregion) covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, on an “occurrence form”, of at least $1 million USD per occurrence. If the coverage contains an aggregate limit, it shall be no less than $2 million USD per calendar year. There can be no per-occurrence or aggregate sublimit with respect to coverage for products liability. Coverage limits may be denominated in a currency other than USD, provided that they are equivalent to the USD amounts set forth herein. The coverage must include as named insured the Supplier Entity and any other Supplier Entities that offer Products to us, and must also include as additional insureds (or additional beneficiaries, co-insureds or other local equivalent) Wayfair Inc., Wayfair LLC and Wayfair Stores Limited (and their respective officers, directors and employees and all successors and permitted assigns).
12.2. Additional Required Terms. The insurance coverage required by this Agreement must (i) be issued by insurance companies with a Best’s rating of no less than A- or that are otherwise reasonably acceptable to Wayfair and (ii) provide that such insurance be primary insurance with respect to any insurance maintained by us, and that our insurance will be excess of all insurance maintained by you and non-contributory. You will cause all applicable policies to be endorsed to provide us (or an agent designated by us) with at least 30 days’ prior written notice of cancellation (10 days for non-payment). You will also notify us promptly of any non-renewal or expiration of, or adverse material change to, such coverage.
12.3. Evidence of Insurance. You agree to provide certificates of insurance (or its equivalent), and policy endorsements for all insurance coverage required by this Section 12: (i) prior to selling your Products under this Agreement; (ii) within ten (10) days of any policy renewal; and (iii) upon our request (including a copy of the underlying policy upon request). You also agree not to do anything to invalidate such insurance at any time during the term of this Agreement.
12.4. EU Regions. All amounts referred to in U.S. dollars shall be understood as Euro amounts. To the extent that an insurance company has been certified as having a strong financial backing by a reputable rating agency, it shall satisfy the obligation set forth in this Section 12. For purposes of Section 12.1, if the Supplier’s insurance policy does not allow for Wayfair entities to be listed as additional insureds, the Supplier’s insurance will cover third parties that are indemnified by the insured.
13. Governing Law; Venue; Dispute Resolution. The parties agree that the venue and governing law of any claim or controversy arising from this Agreement (“Dispute”) shall be determined based on the Region in which the Dispute arises.
13.1. If the claim or controversy arises in the United States, this Agreement will be governed by the laws of the Commonwealth of Massachusetts. Any legal action, suit, or proceeding shall be brought exclusively in the state courts of the Commonwealth of Massachusetts or the United States District Court for the District of Massachusetts, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such action, suit, or proceeding. The parties irrevocably and unconditionally waive any objection to venue of any action, suit, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
13.2. If the claim or controversy arises in Canada, this Agreement will be governed by the laws of the Province of Ontario. Any action, proceeding, or claim shall be brought exclusively in the courts of the Province of Ontario, Canada. The parties irrevocably submit to the exclusive jurisdiction of such courts and waive any objection they may have to venue or any claim of inconvenient forum. Each Party agrees that service of process in any such proceeding may be given by any method of service permitted by the applicable laws of Ontario.
13.3. If the claim or controversy arises in Europe (including the EEA, UK, or Switzerland), this Agreement will be governed by Irish law. Any dispute, controversy, or claim shall be subject to the exclusive jurisdiction of the courts of Ireland. The parties hereby irrevocably consent and submit to the exclusive jurisdiction of the Irish courts and waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.
13.4. In the event of a matter: (i) arising outside of the Regions listed in this Agreement; (ii) involving multiple Regions; or (iii) where it is not clear or there is a conflict between the parties as to where the Dispute arose, the governing law and venue shall correspond to the Region with the most gross sales of your Products or, where applicable, the most Goods stored by CastleGate, as described in the applicable Program Policy. You irrevocably submit to the jurisdiction of those courts and waive all defenses of lack of personal jurisdiction and any claim of inconvenient forum.
13.5. Notwithstanding the above, Wayfair may, at its sole discretion, elect to refer any Dispute to binding arbitration before the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of arbitration will be Hong Kong, the arbitration will be conducted in English, and the law of this arbitration clause will be Hong Kong law. The number of arbitrators shall be one (1). This arbitration clause is for the sole and exclusive benefit of Wayfair and does not prevent Wayfair from initiating proceedings in a court of competent jurisdiction. In all cases, the cost and expenses of arbitration (including reasonable attorneys’ fees and costs) shall be borne by the non-prevailing party or as the arbitrator shall determine. The decision of the arbitrator shall be final and may be enforced by any court or other forum having jurisdiction.
13.6. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
14. Supplier Program Policies. These General Terms incorporate herein by reference, and you agree to be bound by, all Program Policies, which may include the Supplier Transfer Program, the B2B Made-to-Order Program, and other specialized services or programs offered. Such terms will apply solely to your participation in the applicable program. In the event of a conflict between these General Terms and any Program Policies, the Program Policy will control solely with respect to the applicable program or services.
15. Miscellaneous.
15.1. Entire Agreement. This Agreement, including the Program Policies, and any Rate Cards, constitutes the entire agreement between you and Wayfair and supersedes all prior agreements or discussions and any terms later issued by you. If any provision is found to be invalid or unenforceable, that provision may be modified to the extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.
15.2. Modifications and Continued Use. We reserve the right to update, change, or supplement any of these General Terms, Program Policies, or Rate Cards (collectively, “New Terms”), at any time and in our sole discretion, except where a Program Policy or Rate Card expressly provides for a different modification process, in which case that process will control. Unless otherwise specified in the applicable Program Policy, any changes will be effective upon the date which is fifteen (15) days after we notify you of the New Terms or the Program Policy, which may occur through (i) posting a change notice in Partner Home or another designated communication platform, or (ii) sending notice by email or other means consistent with this Agreement. You are responsible for reviewing all such updates. However, we may change, modify or terminate the Agreement at any time with immediate effect (i) for legal, regulatory, fraud and abuse prevention, or security reasons; (ii) to change existing terms or add additional terms related to selling the Products (where this does not materially adversely affect you); or (iii) to restrict Products or activities that we deem unsafe, inappropriate, or offensive. We will notify you about any change or modification in accordance with this Agreement. YOUR CONTINUED ACCEPTANCE OF PURCHASE ORDERS OR CONTINUED USE OF PARTNER HOME FOLLOWING ANY SUCH NOTICE OF NEW TERMS OR PROGRAM POLICY WILL CONSTITUTE YOUR ACCEPTANCE OF THE NEW TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, ANY NEW TERMS, OR ANY PROGRAM POLICY YOUR SOLE REMEDY IS TO TERMINATE THIS AGREEMENT WITHOUT CAUSE IN ACCORDANCE WITH SECTION 11 AND TO STOP ACCEPTING PURCHASE ORDERS.
15.3. Assignment. You may not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, by operation of law or otherwise, without our prior written consent. For the avoidance of doubt, this prohibition includes the sale or transfer of your Partner Home account or any of your Products to another entity. Any assignment or transfer in violation of this paragraph will be void; provided, however, that upon notice to us, you may assign or transfer this Agreement, in whole or in part, to any of your Affiliates as long as you remain liable for your obligations that arose prior to the effective date of the assignment or transfer under this Agreement. You agree that we may assign or transfer our rights and obligations under this Agreement: (a) in connection with a merger, consolidation, acquisition or sale of all or substantially all of our assets or similar transaction; or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee will be deemed substituted as the party to this Agreement. Subject to the foregoing, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates.
15.4. Third Party Beneficiaries. This Agreement includes certain rights, benefits and remedies (together, the “Beneficiary Rights”) for our affiliated companies and their respective officers, directors, employees, and agents (the “Third Party Beneficiaries”). In respect of the Beneficiary Rights: (i) we enter into this Agreement on our own behalf and as agent for the Third Party Beneficiaries; and (ii) we shall be entitled to enforce and/or pursue any claim for and on behalf of any Third Party Beneficiary (“Beneficiary Claim”). If for any reason we are unable to enforce and/or pursue a Beneficiary Claim then for the purposes of this Agreement all losses, liabilities, damages, costs, claims, charges and/or expenses (“Losses”) of the applicable Third Party Beneficiary shall be treated as our Losses and shall be recoverable by us as if such Losses were our own. We may amend, terminate or rescind this Agreement (subject to its terms) without the consent of any Third Party Beneficiary.
15.5. Accuracy of Information. You will be solely and exclusively responsible for maintaining the accuracy of all Product Information, account information and other information you provide to us in connection with this Agreement and/or via Partner Home. If any such information ceases to be true, accurate, or adequate, you will promptly inform Wayfair in Partner Home or by other approved means as is necessary to maintain the accuracy or adequacy of such information.
15.6. No Publicity. Neither Party shall issue any press release or make any public statement regarding this Agreement or the relationship between the Parties without the other Party’s prior written approval, which may be withheld in the other Party’s sole discretion. Nothing herein shall obligate a Party to approve or participate in any press release, case study, or other similar material. You may not use Wayfair’s branding or trademarks without our prior written approval, which may be withheld in our sole discretion.
15.7. Waiver. The failure by either Party to insist upon strict performance of any provision of these terms will not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same or any other provision of these terms at any other time.
15.8. Interpretation. The section headings throughout this Agreement are for convenience only and shall have no interpretive value. Unless stated otherwise, all definitions throughout this Agreement include both their singular and plural forms. The terms “include,” “includes,” and “including” shall be interpreted to mean “without limitation” even if not explicitly provided.
15.9. Other. We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control. Any references to “Supplier Agreement” located within Partner Home shall mean this Agreement. The parties expressly agree that this English language version of this Agreement (including all Program Policies) is definitive and that in the event of any dispute or controversy as to the proper interpretation and construction of this Agreement, the English version will prevail. If the Region is Canada, then it is the express wish of the parties that this Agreement and the applicable terms have been drafted in English. (The following is a French translation of the preceding sentence: Si la région est le Canada, les parties souhaitent expressément que le présent accord et les conditions et les politiques du programme applicables soient rédigés en anglais.) Any versions provided in other languages are for reference purposes only.
General Terms Definitions:
“Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
“Agreement” means this Master Platform Agreement, including the General Terms and any applicable Program Policies or Rate Cards.
“Applicable Law(s)” mean any ordinances, rules, regulations, orders, licenses, permits, judgments, or decisions of any federal, state, territorial, or provincial jurisdiction, now or hereafter in effect, in any geography within the applicable Region(s) or Subregion(s), including, but not limited to, consumer protection laws and Privacy and Data Protection Laws.
“Customer Information” means any information or data about any Wayfair customer in any format, including customer names, addresses, phone numbers, and email addresses.
“Data Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data, as defined in Article 4(7) of the EU GDPR and UK GDPR.
“Data Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller, as defined in Article 4(8) of the EU GDPR and UK GDPR.
“Partner Home” (also referred to as “Wayfair Partner Home”) means Wayfair’s supplier platform, including the online portal and tools made available by Wayfair to you for registering for and using the Services.
“Party” means either Wayfair or Supplier individually; “Parties” or “parties” means both collectively.
“Personal Data” means any data that identifies an individual or relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an identifiable individual, or any information defined as “personal data,” “personal information,” “personally identifiable information,” or an equivalent term in applicable Privacy and Data Protection Laws. This shall include Customer Information.
“Privacy and Data Protection Laws” means any law, code or regulation relating to the Processing, security, privacy, and use of Personal Data, including, without limitation the following to the extent they are applicable: (i) the Privacy and Electronic Communications Directive 2002/58/EC and the Privacy and Electronic Communications (EC Directive) Regulations 2003; (ii) the EU General Data Protection Regulation 2016/679 (“GDPR”); (iii) the UK General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the UK Data Protection Act 2018; (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance (“Swiss DPA”); and (v) the California Consumer Privacy Act and other U.S. state privacy laws; and in each case as amended, replaced or updated from time to time by any judicial or administrative interpretation of such laws, directives or regulations and together with any subordinate or related legislation made under any of the foregoing.
“Processing” or “Process” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, including the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available in any form, merging, linking as well as blocking, erasure or destruction of Personal Data.
“Product(s)” means your tangible goods, together with any packaging you provide.
“Product Information” means all available product information, including all specifications, features, images, videos, or computer-aided design models, and all information required to be provided under Section 4.2, which you agree to provide to us on an ongoing basis and free of charge. Product Information also includes manufacturer suggested retail price, recommended retail price or similar pricing information and any other information about your Products collected by us, or otherwise made available to us by you.
“Product Recall” means any public or private recall or corrective action in connection with the Products.
“Program Policy” means any current or future supplemental terms, incorporated by reference into this Agreement, that apply to your participation in a specific Wayfair program, offering, or Service.
“Region” means any one of the geographic regions set forth in this Agreement, as defined under these General Terms.
“Sales Channel” means any one of our omni-channel offerings, including our family of websites, physical retail locations, liquidation channels, and shoppable marketing channels.
“Service(s)” means the features, platforms, tools, systems, and programs provided or made available by Wayfair to you under this Agreement, including through any Program Policy, and as may be further described or defined in an applicable Program Policy.
“Subregion” means any country within a Region.
“Supplier”, “you”, or “your” means the person or legal entity that has agreed to this Agreement by registering with or using any Wayfair platform, or by participating in any Wayfair Services or Program Policy.
“UK” means the United Kingdom.
“UK Mandatory Clauses” means the International Data Transfer Addendum issued by the UK Information Commissioner under Section 119A(1) of the Data Protection Act 2018 currently found at https://ico.org.uk/media2/migrated/4019539/international-data-transfer-addendum.pdf, as may be amended, superseded, or replaced.
“US Privacy Laws” means all applicable US federal and state laws and regulations relating to the processing of personal information, including but not limited to the California Consumer Privacy Act as amended by the California Privacy Rights Act, Virginia Consumer Data Protection Act, Colorado Privacy Act, Connecticut Data Privacy Act, Utah Consumer Privacy Act, and other enacted US state privacy laws.
“User Accounts” means the accounts you create and maintain in Partner Home and on all other Wayfair platforms.
“Wayfair”, “we”, “us”, or “our” means Wayfair LLC and its Affiliates, as applicable to the Region(s) in which you operate.
The following sets of terms - including the Installation and Assembly Terms, Physical Retail Terms, Marketing Services Terms, and CastleGate Terms - are each a Program Policy, as defined under the Agreement.
INSTALLATION AND ASSEMBLY TERMS
These Installation and Assembly Terms utilize the General Terms Definitions, as applicable, and relate to your provision of certain installation and assembly services for your Products through a Sales Channel (collectively, the “Installation and Assembly Terms”). For purposes of this Program Policy, “Services” includes the installation and assembly services described herein.
These Installation and Assembly Terms are part of the Agreement, and apply only to activities described herein. BY REGISTERING FOR, ACCESSING, OR USING PARTNER HOME OR ANY OTHER WAYFAIR-SUPPORTED PLATFORM, OR BY ACCEPTING ANY PRODUCT PURCHASE FROM WAYFAIR, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE INSTALLATION AND ASSEMBLY TERMS.
I-1 Covered Products. Wayfair reserves the right to restrict the Services, including with respect to the type of services provided, the Products eligible for the Services or the geographic region in which the Services are provided, at any time or for any reason.
I-2 Warranties. You represent and warrant that you will perform and provide the Services in a manner that (i) is consistent with the practices of other experienced, reputable, first-rate service providers who regularly perform or provide similar services or products; (ii) meets or exceeds industry standards; and (iii) complies with all Applicable Laws and regulations, including for the avoidance of doubt, holding and maintaining as active any and all necessary certificates, registrations, permits, credentials, accreditations, licenses, or other requirements associated with local or state general contracting regulations.
I-3 Permits; Insurance. You agree to obtain all permits, licenses, and approvals required in connection with the Services and to maintain the insurance set forth below. You will also ensure that any person acting for you or on your behalf in connection with the Services is properly licensed, certified or accredited as required by Applicable Law and is suitably skilled, experienced, and qualified to perform the Services. You are responsible for any subcontracted Services to the same extent you would be if you performed or provided such Services yourself. In addition to the amounts set forth in Section 12 (Insurance) of the General Terms, in order to perform the Services you must also obtain, maintain, and carry in full force and effect at all times, at your sole expense, the following insurance coverage:
- Products and completed operations coverage, in addition to general liability coverage, that covers the Services set forth herein;
- Umbrella or excess coverage in an amount of $5 million USD covering both general liability and products and completed operations;
- Workers compensation coverage equal to, or greater than, state statutory limits.
I-4 Indemnification. In addition to the obligations set forth in Section 9 of the General Terms (Supplier Defense and Indemnification), you will defend, indemnify, and hold harmless each Wayfair Party from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by a Wayfair Party arising out of or in any way relating to a Claim to the extent arising from or in connection with the Services or your actual or alleged breach of your obligations, representations or warranties under these Installation and Assembly Terms.
I-5 Termination. Either Party may terminate your participation in providing these Services at any time upon written notice to the other Party.
PHYSICAL RETAIL TERMS
These Physical Retail Terms utilize the General Terms Definitions, as applicable, and supplemented by the terms specified on Partner Home (collectively, the “Physical Retail Terms”), define and govern the Physical Retail Program (“Physical Retail Program”) and will apply to the sale of your Products in any of our physical retail locations (“Physical Retail Locations”).
These Physical Retail Terms are part of the Agreement, and apply only to activities described herein. BY REGISTERING FOR, ACCESSING, OR USING PARTNER HOME OR ANY OTHER WAYFAIR-SUPPORTED PLATFORM, OR BY ACCEPTING ANY PRODUCT PURCHASE FROM WAYFAIR, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING THESE PHYSICAL RETAIL TERMS.
P-1 Products.
P-1.1 Assortment and Packaging. Wayfair in its sole discretion will determine which Products may be offered in its Physical Retail Locations, and may discontinue any Product offering at any time. You agree to comply with the Physical Retail Packaging Guidelines, which are listed on Partner Home and may be updated from time to time or otherwise as may be updated from time to time on Partner Home.
P-1.2 Product Samples and Swatches. You will provide Product samples and/or swatches upon request in line with our Product Sample guidelines set forth on Partner Home, which may be updated from time to time or otherwise as may be updated from time to time on Partner Home.
P-1.3 Availability & Discontinuation. You will use your best efforts to keep all Products in stock. You will provide advanced written notice of any product discontinuation to allow sufficient lead time for removal from any Physical Retail Locations as detailed in the Physical Retail Guidelines, which are listed on Partner Home and may be updated from time to time or otherwise as may be updated from time to time on Partner Home.
P-2 Forecast Adherence. Physical Retail Location forecasts are incorporated into overall item level forecasts in your Partner Home account. You will strictly adhere to omni-channel forecasts against any delivery location for these items to ensure stores have products on time, in the right quantities, and with sufficient stock.
P-3 Change of Policies. Wayfair may modify these Physical Retail Terms and/or any accompanying guidelines which are listed on Partner Home, or otherwise as may be updated from time to time on Partner Home, by providing Supplier with at least thirty (30) days advance written notice. Supplier’s continued participation in Wayfair’s Physical Retail Program following any such modification will constitute Supplier’s acceptance of the modified Physical Retail Location terms. If Supplier does not accept any modifications to these terms, Supplier’s sole remedy is to cease participating in the Physical Retail Program.
P-4 Termination. Either Party may terminate your participation in the Physical Retail Program at any time upon written notice to the other Party.
P-5 Perigold Terms. For the avoidance of doubt, Perigold specific terms will be provided in Partner Home.
CASTLEGATE TERMS OF SERVICE
These CastleGate Terms of Service (“CastleGate Terms”) govern the provision of warehousing and related services set forth herein, the Guide, and in the Rate Card(s) to you and the Company you represent by CastleGate with respect to Company’s Goods. The Rate Cards, together with the applicable articles in the Guide, are incorporated into and form part of these CastleGate Terms. For purposes of these CastleGate Terms, “Services” includes all warehousing, fulfillment, value-added, multichannel, freight, positioning, customs, and related services described in these CastleGate Terms, the Guide, and the applicable Rate Cards.
These CastleGate Terms are part of the Agreement, and apply only to activities described herein. BY REGISTERING FOR, ACCESSING, OR USING CASTLEGATE SERVICES, OR BY CLICKING TO ACCEPT THESE CASTLEGATE TERMS, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE MASTER PLATFORM AGREEMENT, INCLUDING THESE CASTLEGATE TERMS, THE GUIDE, AND THE APPLICABLE RATE CARDS.
CastleGate may modify these CastleGate Terms and the Rate Cards by providing at least thirty (30) calendar days’ advance written notice to the Company, unless a Rate Card expressly provides for a different modification process. The Guide may be updated, changed, or supplemented by CastleGate at any time in its sole discretion. Any continued use of the Services following a modification to the CastleGate Terms, the Guide, or the applicable Rate Cards will constitute Company’s acceptance of the modified terms. If Company does not accept any modifications to these CastleGate Terms, Company’s sole remedy is to terminate these CastleGate Terms in accordance with Section C-11. To the extent of any conflict between these CastleGate Terms and the General Terms, these CastleGate Terms will control solely with respect to the applicable subject matter. In the event of a conflict between CastleGate-related documents, the following order of precedence will apply: (1) the applicable terms and conditions in the Rate Card; (2) this Agreement including the CastleGate Terms; and (3) the Guide terms.
C-1 Fulfillment Services. CastleGate may provide the Services set forth in the Fulfillment Rate Card for Goods delivered to Facilities. CastleGate will perform the Services on a non-exclusive basis with reasonable skill and care. Storage services will commence when CastleGate confirms receipt of delivery to a Facility and acceptance of the Goods to be stored.
C-1.1 Inspection and Dispute Period.
i. CastleGate will endeavor to perform an Inspection within two (2) Business Days (as defined herein) of its receipt of such Goods. Following the Inspection, CastleGate will notify Company in accordance with its Quality Control policy article in the Guide of issues with any received Goods and next steps, if Company opts to receive such notifications. If CastleGate determines that the Goods pass the Inspection, CastleGate receives the Goods for purposes of offering the Fulfillment Services and other applicable Services. CastleGate’s Inspection assessment shall be determinative and CastleGate may modify such assessment as soon as practicable and will endeavor to do so within two (2) Business Days of receipt of the Goods to be stored.
ii. CastleGate will further endeavor to conduct a count of the received Goods within two (2) Business Days following its receipt of such Goods (“Count”). CastleGate will notify Company of the number of units received as assessed during the Count. CastleGate’s Count shall be determinative. For sixty (60) days following CastleGate’s release of its Count notification (“Count Confirmation Period”), Company may raise concerns about the associated Count assessment to CastleGate for its consideration. Any written dispute of the Count may result in a CastleGate re-count of the Goods. After the Count Confirmation Period, Company’s silence will be deemed acquiescence and alignment with the CastleGate provided Count.
iii. Concealed shortages, damages or tampering or latent defects in the Goods discovered after deposit during a subsequent Inspection, are subject to disposal, sale, monetization or other action at CastleGate’s discretion and CastleGate may deduct the agreed upon allowance for manufacturer defects in accordance with the Quality Control policy. To the extent that the Goods received by CastleGate are not consistent with the applicable CastleGate and/or Wayfair catalogs, CastleGate may decline to offer further Services for the Goods and may at its sole discretion proceed to arrange for pick up and disposition in a manner consistent with Section C-11.4 of these Terms. Following CastleGate’s release of its Inspection assessment for a period permitted in the Quality Control policy (the “Dispute Period”), Company may raise concerns about the associated Inspection assessment to CastleGate for its consideration. After the Dispute Period, Company’s silence will be deemed acquiescence and alignment with the CastleGate provided assessment from the Inspection.
C-1.2 Tracking of Goods. CastleGate shall maintain electronic records that track the number of units of Goods, and in some cases the size/dimensions of such Goods, stored in its warehouses and retail stores, and make such records available to Company. If Company determines that the electronic records are inconsistent with its own records, Company must report the discrepancy to CastleGate in writing (the “Reconciliation Report”) within sixty (60) days of the initial transaction. CastleGate is not required to physically mark the Goods or segregate the Goods from other goods. If CastleGate elects to commingle the Goods with other goods, CastleGate’s records shall be determinative in assessing which goods are owned by Company. CastleGate may, without notice, move the Goods within or among the various Facilities. CastleGate may impose and change, from time to time, scheduling restrictions and volume limitations on the delivery and storage of the Goods, and Company agrees to comply with any such restrictions and limitations. CastleGate does not warrant the accuracy of the electronic records for use or reliance on by any person or entity other than Company, and with respect to Company only in connection with the process outlined in this subsection, and hereby disclaims any and all liability or damages that may result or arise from Company's or any third party's use or reliance upon CastleGate's electronic records.
C-2 Value-Added Services. Company shall ensure that all Goods are packaged and labeled in accordance with all Applicable Laws. All Goods shall be delivered to CastleGate with usable UPC and UCC 128 labels. CastleGate will provide the Services set forth in the Value-Added Services Rate Card with respect to the Goods in CastleGate’s reasonable discretion according to CastleGate standards provided to Company in writing from time to time, including, without limitation, those set forth in the Guide. Packaging Services are priced per packaging unit. Palletization Services are priced per pallet. Additional Services are priced per packaging unit unless otherwise specified. Upon Company’s request, CastleGate will ship Goods being stored at the Facilities to Company (Return to Vendor Freight Services under the Value-Added Services Rate Card) or make such Goods available for Company to pick them up from designated Facilities. Return to Vendor Freight Services and CastleGate’s enablement of Company’s pick-up of Goods will each constitute Return to Vendor Processing Services under the Value-Added Services Rate Card and in accordance with the Return to Vendor (RTV) Service policy article. Company is solely responsible for any duties or other costs associated with Return to Vendor Freight Services, which costs will be additional to the quoted price.
C-3 Multichannel Services.
C-3.1 General. Upon Company’s request, CastleGate may provide the Services set forth in the Multichannel Rate Card with respect to Goods sold through retailers other than CastleGate or a CastleGate Affiliate (“Multichannel Services”). Unless otherwise directed by CastleGate, Multichannel Services are not available in connection with the customs warehouse services in Section C-6, below. The rates and prices in the Fulfillment Rate Card do not apply to such Goods. Rates and prices, including any tiered pricing and surcharges, shall be as set forth in the Multichannel Rate Card. Company shall deliver Goods to be sold through retailers other than CastleGate or a CastleGate Affiliate to the Facilities as instructed by CastleGate and in accordance with the Multichannel Program Policy article.
C-3.2 Shipping Accounts. Company is responsible for enabling shipping accounts for each retailer account, and for selecting a shipping account for each order which shall be either a Wayfair shipping account or a non-Wayfair shipping account. Company is responsible for keeping their non-Wayfair shipping account information up-to-date and ensuring the shipping account is properly enabled to be shipped on and billed for the shipment costs. Company shall promptly resolve any issues with the applicable carrier or retailer that may arise in relation to any non-Wayfair shipping account. Notwithstanding anything to the contrary herein or in a Rate Card, if Company chooses to ship an order on a non-Wayfair shipping account and for any reason shipping on or billing to that account fails, and the order is billed to the Wayfair shipping account, Company shall be liable to CastleGate for, at CastleGate’s sole discretion, either: (i) the applicable rate in the Multichannel Rate Card for Multichannel Services provided less any amounts already paid for Services related to that order; or (ii) the actual shipping costs incurred by CastleGate or Wayfair related to all impacted orders, and any surcharges imposed on CastleGate or Wayfair by the carrier related to shipping costs, including but not limited to rebilling fees. CastleGate shall include any such charges on an invoice which Company shall pay in accordance with the terms herein.
C-3.3 Multichannel Order Information. Company is responsible for providing CastleGate with accurate order information, and shall be liable to CastleGate for charges imposed on CastleGate or Wayfair by carrier due to incorrect order information provided by Company, including but not limited to rebilling fees, surcharges for incorrect address, failed delivery attempts, incorrect shipping dimensions.
C-3.4 Data Privacy.
i. Multichannel Personal Information. Multichannel order information is Company’s Confidential Information (as defined below) and CastleGate will use such information solely to provide the Multichannel Services. To the extent that Multichannel order information includes Personal Data as defined under applicable Privacy and Data Protection Laws, Company represents and warrants that: (i) any Personal Data disclosed by it to CastleGate for Multichannel Services (“Multichannel Personal Information”) is accurate and up-to-date and it is collected by and on behalf of Company in accordance with Privacy and Data Protection Laws; (ii) it is entitled to disclose and CastleGate is entitled to receive Multichannel Personal Information in accordance with Privacy and Data Protection Laws; (iii) prior to any Multichannel Personal Information (or any part of it) being disclosed to CastleGate in each instance, each relevant natural person has been provided with sufficient information, and in an appropriate form, so as to enable fair, transparent and lawful processing, which includes sharing of such Multichannel Personal Information by Company with CastleGate or a CastleGate Affiliate and CastleGate’s or CastleGate Affiliate’s processing of such Multichannel Personal Information under Privacy and Data Protection Laws; (iv) it shall notify CastleGate if it becomes aware of any change or circumstance which will, may, or is alleged to impact the lawfulness of any processing of the Multichannel Personal Information; and (v) it shall not directly or indirectly cause CastleGate or a CastleGate Affiliate to be in breach of any Privacy and Data Protection Laws. With respect to Multichannel Personal Information, unless specified otherwise, Company is a Data Controller and CastleGate is an independent Data Controller or Service Provider as defined by Privacy and Data Protection Laws.
ii. In addition to the foregoing, each Party represents and warrants that: (i) it will maintain Multichannel Personal Information in strict compliance with all applicable Privacy and Data Protection Laws; and (ii) it will notify promptly, and in no event more than 24 hours after becoming aware, the other Party of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Multichannel Personal Information.
iii. International Transfers. If and to the extent that the provision of the Multichannel Services involves the transfer of personal data that is subject to the GDPR to a country outside the European Economic Area (“EEA”) that has not been deemed adequate by the European Commission, such transfer shall be governed by the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679, as set out in the Annex to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (the “SCCs”), Module One (Controller-to-Controller), Annex I, and Annex II, which are hereby incorporated by reference and part of this Agreement. If and to the extent the Multichannel Services involves the transfer of personal data that is subject to UK GDPR to a country outside the UK, the UK Mandatory Clauses shall apply and are incorporated by reference herein. Wayfair may end the UK Mandatory Clauses as set out in Section 19 of UK Mandatory Clauses.
C-4 Freight Pick-Up Services. If Company ships the Goods to CastleGate under CastleGate’s or CastleGate’s Affiliate’s motor carrier or broker contracts (“Freight Pick-Up Services”), Company shall pay to CastleGate the Freight Pick-Up Fees (i) at https://partners.wayfair.com/d/freight-pickup-rates-ui for shipments in North America and (ii) as quoted for shipments in Europe. Freight Pick-Up Services are “Services” under these CastleGate Terms. Company shall properly prepare the Goods for pick-up by CastleGate’s or its Affiliate’s carrier or broker. CastleGate may adjust the Freight Pick-Up Fees in CastleGate’s sole discretion by providing at least thirty (30) days’ written notice to Company. Company shall also pay any Accessorial Charges relating to Freight Pick-Up Services listed or quoted with the Freight Pick-Up Fees.
C-5 Positioning Services. CastleGate may reposition Goods throughout the CastleGate warehouse network (“Positioning Services”) according to the Positioning Services Rate Card.
C-6 Customs Warehouse Services.
C-6.1 Customs Storage & Compliance. CastleGate may store Goods in customs Facilities for deferred duty or customs clearance purposes in accordance with the applicable UK Customs Warehouse Program article. Company acknowledges that all Goods stored in such Facilities remain under customs supervision until released per applicable customs regulations. Company is responsible for providing all necessary customs documentation, documentation required by CastleGate including, without limitation in accordance with the aforementioned article and CastleGate’s standard operating procedures, ensuring compliance with import/export laws and regulations, correctly classifying and valuing Goods and obtaining any required licenses, permits, or approvals. CastleGate is not liable for any delays, penalties, seizures, or costs resulting from Company's failure to provide accurate and complete customs documentation or CastleGate-required documentation or to comply with applicable customs laws and regulations including, without limitation, providing incorrect customs classifications or values. Company assumes all risks associated with the Goods classification, valuation, and compliance. CastleGate reserves the right to refuse storage of Goods that do not meet legal or regulatory requirements.
C-6.2 Customs Audits & Inspections. Company acknowledges that customs authorities may inspect, audit, or demand records related to customs warehouse storage. CastleGate shall cooperate with such inspections and may provide customs authorities with access to Goods and documentation without prior notice to the Company. Any costs incurred from such inspections shall be borne by the Company.
C-6.3 Release & Removal of Goods. Goods stored in a customs warehouse will not be released until all required duties, taxes, and customs formalities are completed. For Goods that need to be returned to Company, Company must arrange for proper clearance, release, and removal of Goods within the applicable regulatory timeframe and in accordance with the Return to Vendor (RTV) Service policy article. If Company fails to remove Goods within the required timeframe, CastleGate may return, dispose of, or auction the Goods in accordance with these CastleGate Terms, Applicable Laws and regulations, with any costs incurred charged to Company.
C-6.4 No Mixed Storage. Company may use either the CastleGate customs warehousing or the standard warehousing services, but not both at the same time. If Company utilizes CastleGate’s customs warehousing services, any existing inventory in the standard CastleGate Facility must be removed—either through return to vendor (RTV), sell-through, or liquidation—before customs services begin.This is required to avoid co-mingling and for compliance reasons.
C-7 MultiBox. If Supplier does not properly enroll their Goods in either the Basic Access multibox program or the Premium Access multibox program available through CastleGate, CastleGate may at its sole discretion liquidate or dispose of the non-compliant Goods in accordance with the terms herein and its Multibox Program - Terms & Service (the “Multibox article”) governing the multibox program.
C-8 Damaged and Defective Goods. CastleGate may, at its sole discretion, dispose of Goods in any manner it deems appropriate that arrive or are later discovered to have arrived at a CastleGate Facility damaged or defective subsequent to tender, deposit or receipt, or for health, safety or other reasons including without limitation Goods that do not pass the Inspection from Section C-1.1. CastleGate will have no liability to Company relating to such disposition. At the sole discretion of CastleGate, Company may be held responsible to CastleGate for all costs and expenses incurred by CastleGate in removing and disposing of the Goods and agrees to indemnify, defend, and hold CastleGate harmless for any claims, fines or penalties arising from such disposal. CastleGate manages claims and dispositions of the Goods falling under this Section, in compliance with the associated terms offered under the Guide. Unless a shorter period is required under the applicable article in the Guide, including the Return to Vendor (RTV) Service policy article (in which case the shorter period will apply), claims for loss or damage to Goods must be submitted to CastleGate, in writing, together with the requisite supporting documentation within sixty (60) Business Days after delivery of Goods or after notification that loss or damage to part or all of the Goods has occurred, whichever time is shorter. As between the Parties, absent CastleGate negligence, Company is responsible for any loss of or damage to the Goods, including while the Goods are not in CastleGate’s possession at CastleGate Facilities and before the receipt and Inspection of the Goods, as defined in Section C-1.1. CastleGate will not be liable to Company or others for loss or injury to the Goods stored or carried unless Company submits a claim in accordance with this Section and any applicable Guide article, and commences action either within nine (9) months after the date of delivery by CastleGate or within nine (9) months after you are notified that loss or injury to part or all of the Goods has occurred, whichever is shorter.
C-9 Fees and Payment. Company shall pay CastleGate for Services performed in full and without deduction or offset at the rates and prices set forth in the Rate Cards or otherwise referenced herein. CastleGate may verify the weights and dimensions of the Goods using representative samples and CastleGate’s measurements shall be determinative in assessing fees based on the weight and/or dimensions of Goods. Company shall pay all invoiced amounts to CastleGate within thirty (30) days of the invoice date. Company shall notify CastleGate in writing of any invoice dispute within ninety (90) days of the invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Company as true and correct. Unless reasonably disputed by Company in writing, invoiced amounts not paid by Company within thirty (30) days of the invoice date shall accrue interest at a rate of 1.5% per month or the maximum interest rate permitted by law, whichever is lower. In any dispute involving money owed to CastleGate by Company, Company is responsible for any collection costs incurred by CastleGate, including, without limitation, legal and collection agency fees and expenses and interest at 1.5% per month or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by CastleGate. CastleGate and its Affiliates may set off or recoup any amounts owed to Company against any amounts Company or any one of Company’s Affiliates owe to such entities. CastleGate and its Affiliates may use a reasonable exchange rate in exercising their rights under the foregoing sentence. If CastleGate or its Affiliate normally pays Company by credit card, CastleGate or its Affiliate may charge Company an additional 3% of all such offset amounts as an administrative fee. Company is solely responsible for all taxes arising from the Services. For Services provided in Europe (including EEA, UK, and Switzerland), invoices will be issued and paid in Company's default currency setting with CastleGate.
C-10 Company Representations and Warranties. Company shall not tender any illegal or counterfeit goods or goods subject to trade embargoes or sanctions to CastleGate. Company shall not tender any dangerous goods or hazardous materials to CastleGate without CastleGate’s prior written consent. Company shall provide all relevant classification details and documentation relating to any hazardous materials and dangerous goods. CastleGate shall have the right to reject delivery, processing and storage of any Goods, including, without limitation, Goods that do not meet the requirements of this Section C-10 or CastleGate’s product safety and compliance requirements, and such Goods will be returned to Company or disposed of at Company’s sole cost and expense. Company shall be liable for the payment of storage fees and costs incurred by CastleGate during any suspension from sale, ceased listing, advertisement, or promotion of any Company Goods at CastleGate’s discretion. Company represents and warrants that it has full right, title, and interest in all Goods tendered to or deposited with CastleGate and has all necessary rights and authority to deliver them to CastleGate and arrange for the Services. Company shall provide CastleGate with accurate, complete, and sufficient information to allow CastleGate to comply with these CastleGate Terms, Company’s instructions, and all Applicable Laws and regulations concerning the storage, handling, and transportation of the Goods. Company shall promptly notify CastleGate of the characteristics of any Goods that: (i) require special storage, handling, packaging, material, equipment, or precautions; (ii) may be hazardous or dangerous to persons or property, including, without limitation, CastleGate’s employees, subcontractors, or agents, whether by handling, exposure, or otherwise; (iii) are defined as hazardous materials or dangerous goods or otherwise subject to regulation under any international, federal, state, provincial, or local law or regulation; or (iv) are or should be reasonably believed or known to be likely to cause damage to any Facility, equipment, or other goods. CastleGate may refuse to accept any Goods that are identified as any of the foregoing or that reasonably might cause infestation, contamination, or damage to other goods in its custody. CastleGate shall promptly notify Company of such refusal and shall have no liability for any alternate storage, demurrage, detention, transportation, or other charges by virtue of such refusal. In no event will Company deliver to CastleGate any Goods subject to regulation as waste, whether hazardous or otherwise. Company further represents that with respect to any Goods which, due to international, federal, state, provincial, or local laws, statutes, ordinances, or regulations, require special handling, storage, stacking, segregation, documentation, records certification, reports, or other treatment beyond that afforded by CastleGate with respect to goods in the ordinary course of business, it will furnish CastleGate in writing with all information and instructions necessary to conform with the requirements applicable to the Goods. CastleGate shall have no obligation to provide or arrange any specialized services with respect to any Goods unless such instructions have been provided in accordance with this Section and receipt and acceptance thereof is confirmed by CastleGate in writing.
C-11 Term and Termination.
C-11.1 Term. The Agreement, including these CastleGate Terms, is effective immediately and shall remain in effect until terminated in accordance with this Section C-11 (the “Term”).
C-11.2 Termination.
i. Either Party may terminate the Agreement or these CastleGate Terms for any or no reason by providing the other Party with at least ninety (90) days’ advance written notice of termination.
ii. Either Party may terminate the Agreement or these CastleGate Terms immediately by providing written notice of termination to the other Party in the event that the other Party triggers a Default Event. “Default Events” include when the other Party: (a) ceases to do business or otherwise terminates its business operations; (b) admits in writing its inability to pay its debts generally as they become due; (c) makes a general assignment for the benefit of its creditors; (d) files a petition, voluntarily or involuntarily, under any state or federal bankruptcy or insolvency law, has a receiver appointed for its business or becomes insolvent; or (e) breaches any material term of the Agreement or these CastleGate Terms and fails to cure such breach within thirty (30) days of being provided with written notice of such breach.
iii. A terminating Party shall not incur any liability whatsoever for any damage, loss, or expense of any kind suffered or incurred by the other Party arising from any termination according to the terms of this Section C-11, regardless of whether the terminating Party was aware of the possibility of any such damage, loss, or expense.
C-11.3 Post-Termination.
i. Upon termination of the Agreement or these CastleGate Terms: (a) CastleGate will continue to fulfill any orders for the Goods pending as of the effective date of termination; (b) CastleGate may continue to provide Services with respect to Goods returned by CastleGate’s or its Affiliates’ customers; (c) Company shall continue to owe and pay to CastleGate all fees under these CastleGate Terms, whether accrued prior or subsequent to termination; and (d) the Agreement, including these CastleGate Terms will continue to govern the provision of and payment for all Services.
ii. Company shall notify CastleGate in writing within ten (10) days of either Party’s provision of a termination notice whether Company will: (a) pay CastleGate in advance to arrange for the shipment of the Goods in CastleGate’s possession to Company; or (b) pick up the Goods from the Facilities at dates and times designated by CastleGate in CastleGate’s sole discretion, in either case within thirty (30) days of the effective date of termination. If Company does not provide such notice, Company shall be deemed to have selected option (b) under this sub-section. Regardless of the Company’s selection option under this sub-section, CastleGate will charge applicable fees necessary to prepare the Goods for shipment as outlined in the applicable Rate Card. If neither (a) nor (b) from Section C-11.3(ii) occurs within the required thirty (30) days period, then Company transfers all right, title, and interest in and to such Goods remaining in CastleGate’s possession and CastleGate may dispose of or sell such Goods (and retain all proceeds) or take other action consistent with ownership of the Goods and shall have no liability or obligation to Company relating to such disposal, sale, or other action.
C-11.4 Bankruptcies, Post-Termination, & Failure to Pick-Up or Pay for Delivery of Goods.
i. If Company either: (a) files a petition, voluntarily or involuntarily, under any state or federal bankruptcy or insolvency law; or (b) does not pay CastleGate under the foregoing Section C-11.3(i)(a) or fails to pick up the Goods on the dates and times designated by CastleGate under the foregoing Section C-11.3(i)(b) or (c) delivers Goods that are not consistent with Section C-1.1(iii), CastleGate may:
1. in exchange for a reasonable fee or as an offset to Company’s receivables, arrange for the shipment of the Goods in CastleGate’s possession back to Company (Option 1); or
2. coordinate with Company for the Goods to be picked up from the Facilities at dates and times designated by CastleGate in CastleGate’s sole discretion (Option 2).
ii. If neither Option 1 nor Option 2 from Section C-11.4(i) is arranged within thirty (30) days from the date of such petition or bankruptcy notice, from the date of the termination notice, or from the date of non-compliant delivery, then Company transfers all right, title, and interest in and to such Goods remaining in CastleGate’s possession and CastleGate may dispose of or sell such Goods (and retain all proceeds) or take other action consistent with ownership of the Goods and shall have no liability or obligation to Company relating to such disposal, sale, or other action.
C-11.5 Notices. All communications regarding Company’s termination and limited post-termination rights under Section C-11 should be sent with a copy to legal@wayfair.com, and in accordance with the notice obligations of Section C-19.
C-12 Lien. Company represents and warrants to CastleGate that Company has the lawful possession of, and legal right and authority to tender or deposit, all the Goods with CastleGate. Unless prohibited by Applicable Law, CastleGate shall have an actual and constructive general and continuing lien against the Company on any and all Goods tendered or deposited with CastleGate, and on the proceeds from the sale thereof for all charges provided herein, including storage charges, claims for money advanced, interest, insurance, transportation, labor, dunnage, wrapping, weighing, coopering, and all other rates, charges, and expenses in relation to such Goods or any part thereof, for all expenses necessary for preservation or removal of the Goods, all reasonable charges and expenses for notice and advertisement of sale and sale of the Goods where default has been made, and for all costs including court costs and reasonable attorney's or legal fees and costs (on a full indemnity basis) in collecting charges or enforcing this lien, or defending itself in the event CastleGate is made a party to any litigation concerning the Goods, or in filing any action in interpleader for the determination of ownership of the Goods. Company promises to pay all charges when due and CastleGate may, at its option, bring suit for delinquent charges without first foreclosing its lien.
C-13 Security Agreement in Accounts Receivable.
C-13.1 Grant of Security Interest. As of the date hereof, for the value provided by CastleGate and its Affiliates under the Agreement and these CastleGate Terms, Company irrevocably grants CastleGate and its Affiliates, to secure the payment and performance in full of all of the Secured Obligations (as defined below in Section C-13.2, a security interest in and pledges and assigns to CastleGate the following properties, assets, and rights of the Company, wherever located, whether the Company now has or hereafter acquires an ownership or other interest or power to transfer, and all products and proceeds thereof, and all books and records relating thereto (all of the same being hereinafter called the “Collateral”): all of the Company’s accounts receivable evidencing any right to payment from Wayfair LLC, CastleGate, or CastleGate’s Affiliates for Goods sold or leased or for Services rendered, now existing or subsequently acquired, and the proceeds of the accounts receivable, including all Goods returned to or repossessed by the Company and all claims of the Company against common carriers for Goods lost or damaged in transit.
C-13.2 Secured Obligations. The Agreement, including these CastleGate Terms, secure the prompt and full performance and payment of all of the indebtedness, obligations, liabilities, and undertakings of the Company to CastleGate and its Affiliates, of any kind or description, individually or collectively, whether direct or indirect, joint or several, absolute or contingent, due or to become due, voluntary or involuntary, now existing or hereafter arising (including, all interest, fees, and attorneys' fees), costs, and expenses that the Company is hereby or otherwise required to pay and perform pursuant to the Agreement, including these CastleGate Terms, by law or otherwise accruing before and after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company, whether or not a claim for post-petition interest, fees or expenses is allowed in such proceeding, irrespective of whether for the payment of money, under or in respect of the Agreement or these CastleGate Terms, including instruments or agreements executed and delivered pursuant thereto or in connection therewith (the “Secured Obligations”).
C-13.3 Notice of Security Interest in Accounts Receivable. CastleGate or its Affiliate may, or at their discretion require the Company to, notify account debtors and other persons obligated on any of the Collateral of the security interest of CastleGate or its Affiliate in any account receivable or other Collateral and instruct them to remit payments directly to CastleGate or its Affiliate. The Company shall promptly forward all collected proceeds from accounts receivable subject to this Agreement to CastleGate in the form received.
C-13.4 Covenants. The Company grants CastleGate the right to inspect its books and records related to accounts receivable or any transactions between the parties, with at least two (2) Business Days’ notice. The Company shall: (a) maintain accurate records of all accounts receivable; (b) timely pay all taxes, judgments, and fees on the Collateral; and (c) endorse, assign, and deliver any chattel paper, promissory notes, or instruments related to the Collateral as requested by CastleGate. The Company waives presentment, demand, and all related notices.
C-13.5 Perfection of Security Interest. The Company agrees to execute all necessary documents, obtain third-party agreements, and take any further action at its expense to maintain the validity, perfection, or priority of CastleGate’s security interest or to enforce its rights in the Collateral.
C-13.6 Remedies. Upon a Default Event (as defined in Section C-11), CastleGate may: (a) declare all Secured Obligations immediately due; (b) take possession of the Collateral without demand or legal process; (c) require the Company to make the Collateral available; (d) dispose of the Collateral in accordance with Applicable Law; and (e) exercise all rights under Article 9 of the UCC.
C-13.7 Jurisdiction. This Section shall be governed by the laws applicable to the Agreement, together with these CastleGate Terms, including the UCC, without regard to choice of law principles in any jurisdiction.
C-14 No Public or Third-Party Audits, Bailee Agreements or Lender Rights. CastleGate does not permit public audits, third-party inspections, or Company-initiated audits of its Facilities or operations unless explicitly required by Applicable Law or agreed upon by CastleGate in writing. CastleGate will not enter into bailee agreements, consent waivers or any agreements that grant third-party lenders rights over stored Goods, including access, inspection or control. Any legally required audits shall be conducted in a manner that minimizes disruption to operations and protects Confidential Information and third-party information. Reports or operational summaries may be provided upon Company’s reasonable request at CastleGate’s sole discretion and subject to confidentiality protections.
C-15 Indemnification. Each Party shall defend, indemnify, and hold harmless the other Party, its Affiliates, and its and their respective managers, directors, officers, employees, and agents (each an “Indemnified Party”) from and against any and all damages, injuries, liabilities, settlements, royalties, penalties, fines, costs, expenses (including, without limitation, reasonable attorneys’ fees), and losses (collectively, “Losses”) incurred by an Indemnified Party arising from any third party claim, demand, lawsuit, proceeding, or action (a “Claim”) to the extent arising from the indemnifying Party’s gross negligence, willful misconduct, fraud or violation of Applicable Laws or regulations. Company shall defend, indemnify, and hold harmless the CastleGate Indemnified Parties from and against any and all Losses arising from any Claim in connection with: (a) Company's negligent actions or omissions; (b) Company’s breach of the Agreement, including these CastleGate Terms; (c) CastleGate's compliance with or reliance on Company's instructions; or (d) taxes and duties or the collection, payment or failure to pay or collect taxes, regulated fees, levies or charges or duties assessed, incurred or required to be collected or the failure to meet tax registration obligations or duties related to Services. Where Services are provided to Company at a customs or bonded warehousing Facility, Company shall further indemnify, defend and hold CastleGate harmless from and against customs duties or taxes (e.g., VAT) incurred as a result of Company's or its customs broker's misclassification of Goods or negligence in completing customs documentation for the Goods but not recoverable from the applicable customs governmental agency by CastleGate, together with CastleGate's out-of-pocket costs in seeking such recovery. No settlement of any indemnified Claim may be made without the Indemnified Party’s prior written consent to the terms of settlement, which consent shall not be unreasonably withheld or delayed. An Indemnified Party will have the right to participate in the defense of any such Claim at its own expense. If an Indemnified Party notifies the indemnifying Party of a Claim, the indemnifying Party shall provide prompt assurance of its ability and intent to indemnify the Indemnified Party, to the Indemnified Party’s reasonable satisfaction, and the indemnifying Party shall commence to defend such Claim, at its sole cost and expense, within ten (10) days of such notice. Because CastleGate is not involved in transactions between Company and third parties, if a dispute arises between Company and one or more third parties, each party releases CastleGate (and its Affiliates, agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or any way connected with such disputes.
C-16 LIMITATION OF LIABILITY AND DISCLAIMERS.
C-16.1 CastleGate does not guarantee and will not be responsible for the condition of the Goods tendered under any circumstances including, without limitation, hidden, concealed shortages, damages or tampering or latent defects in the Goods. CastleGate's confirmed receipt of delivery does not: (i) indicate or imply that any Good has been delivered free of loss or damage, or that any loss or damage to any Good later discovered occurred after confirmed receipt of delivery; (ii) indicate or imply that CastleGate actually received the number of Good(s) specified by Company for such shipment; or (iii) waive, limit or reduce any of CastleGate’s rights under the Agreement, including these CastleGate Terms.
C-16.2 The Parties agree that CastleGate will not be liable for any loss or damage to Goods tendered, stored or handled unless such loss or damage resulted from the failure by CastleGate to exercise reasonable care, and CastleGate shall not be held liable for losses or damages which could not have been avoided by the exercise of such care. In no event will CastleGate be liable for loss or damage caused by events covered in the Force Majeure Section herein or the inherent vice or nature of the Goods. The period of CastleGate responsibility for the Goods shall be from the date on which CastleGate receives the Goods through the date on which CastleGate relinquishes its care, custody and control of the Goods.
C-16.3 CastleGate's maximum liability for shortages, loss or damage to Goods in connection with the Services will be the lesser of: (i) $5,000 USD per occurrence; or (ii) the Good's invoice value at the time of loss or damage. The liability of CastleGate, may be further subject to otherwise applicable convention, law, rule or regulation, and limited by terms and conditions of service or otherwise by contractual arrangements.
C-16.4 IN NO EVENT SHALL CASTLEGATE HAVE ANY LIABILITY TO COMPANY OR ANY THIRD PARTY FOR ANY COST OF COVER, RECOVERY, RECOUPMENT OF ANY INVESTMENT MADE BY COMPANY OR ITS AFFILIATES IN CONNECTION WITH THE AGREEMENT OR THESE CASTLEGATE TERMS, OR FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER CASTLEGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C-16.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL CASTLEGATE HAVE ANY LIABILITY TO COMPANY OR ANY THIRD PARTY DUE TO ANY CAUSE BEYOND CASTLEGATE’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF GOVERNMENT, FIRE, FLOOD, CIVIL UNREST, AND ACTS OF TERROR. IN NO EVENT SHALL CASTLEGATE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING THESE CASTLEGATE TERMS, (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED AT ANY TIME ONE-HUNDRED THOUSAND U.S. DOLLARS ($100,000). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
C-16.6 COMPANY AGREES THAT CASTLEGATE SHALL BE FREE FROM ANY AND ALL LIABILITY OR DAMAGES ASSOCIATED WITH THE RETURN OR SHIPMENT OF GOODS TO COMPANY OR, AT THE DIRECTION OF COMPANY, A THIRD PARTY AND AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS CASTLEGATE FROM ANY AND ALL CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE SHIPMENT, COLLECTION, ORGANIZATION, OR PALLETIZATION OF GOODS TO OR FOR COMPANY OR ANY THIRD PARTY, INCLUDING DAMAGE TO GOODS OR LOST OR MISIDENTIFIED GOODS. COMPANY FURTHER AGREES TO PAY FOR COSTS TO SHIP, ORGANIZE, COLLECT, OR PALLETIZE ANY GOODS FOR RECOUPMENT OR COLLECTION BY OR FOR COMPANY OR COMPANY'S AUTHORIZED THIRD PARTY AT THE RATE SET FORTH IN THE VALUE-ADDED SERVICE RATE CARD.
C-16.7 EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED AS-IS AND CASTLEGATE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
C-17 Insurance. Company is responsible for maintaining at its expense throughout the Term commercial general, property, umbrella or excess liability insurance with the insurance limits per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of Company’s business, including Goods (covering the Goods and harms arising during storage or transit, including loading and unloading), products/ completed operations and bodily injury, with policy(ies) naming CastleGate and its assignees as additional insureds. At our request Company will cause Company’s insurance broker to provide to us certificates of insurance, the full insurance policy or other documents we may request for the coverage as directed by CastleGate.
C-18 Trade Compliance. Company agrees that all Goods tendered or deposited pursuant to these CastleGate Terms will comply with Applicable Laws in the countries in or through which the Service will be performed. Unless otherwise agreed upon by the parties, Company shall ensure that the Goods are cleared by customs prior to arrival at any CastleGate Facility. Company shall comply with all Export Control and Trade Sanctions, if applicable. Company warrants that neither it nor its directors, officers or subsidiaries are designated or sanctioned parties under Export Control and Trade Sanctions. Company shall not request Services in connection with goods, countries, regions, or parties subject to Export Control and Trade Sanctions absent required government authorization, license, or permit, and prior agreement with CastleGate. CastleGate may refuse to receive, process, or release an order that appears to CastleGate, at its sole discretion, to involve Goods, countries, regions, or parties subject to Export Control and Trade Sanctions.
C-19 Notices. All notices, requests, consents, claims, demands, waivers, and other communications provided by CastleGate will be sent via email to a Company email address designated in the Wayfair supplier platform or that Company has otherwise indicated. All notices, requests, consents, claims, demands, waivers, and other communications provided by Company will be sent via email to legal@wayfair.com. Email constitutes written notice under these CastleGate Terms.
C-20 Dispute Resolution. In addition to and without limiting the Dispute Resolution provisions set forth in the General Terms, the following shall apply specifically to Disputes involving CastleGate: The prevailing party in any Dispute shall be entitled to recover its reasonable attorneys’ fees, court costs and expenses incurred in enforcing its rights, in addition to any other relief granted.
C-21 Delegation. CastleGate may delegate any and all of its duties or obligations under the Agreement, including these CastleGate Terms, to Wayfair LLC without notice to the Company.
C-22 Force Majeure. A Party shall not be liable or responsible to the other Party, or be deemed to have defaulted under or breached the Agreement, including these CastleGate Terms, for any failure or delay in fulfilling or performing any term of the Agreement (except for Company’s payment obligations), when and to the extent such failure or delay is caused by or results from a Force Majeure Event. The Impacted Party shall provide prompt notice of the Force Majeure Event to the other Party stating the impact on performance and the period of time the occurrence is expected to continue. The impacted Party shall use diligent efforts to end the failure or delay and minimize the effects of the Force Majeure Event. The impacted Party will resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
C-23 Amendments. Except as otherwise expressly set forth herein, no waiver, amendment, or modification of any provision of these CastleGate Terms will be valid unless it is in writing and executed by a duly authorized representative of each Party.
C-24 Survival. Sections C-7, C-9 (with respect to Company’s payment obligations), and C-10 through C-25 shall survive the termination of these CastleGate Terms, as shall any other terms that expressly survive or by their nature should reasonably be expected to survive termination.
C-25 Previous Version. The most recent prior version of the CastleGate Terms, which remains in effect during the 30-day notice period for their modification can be found here.
CastleGate Terms Definitions:
“Business Day” means a day which includes the local working hours including Monday through Friday (each 9 AM local time to 5 PM local time) at the Facility where Goods are received.
“CastleGate” means the CastleGate entity that corresponds with the Region in which Services are provided, as set forth in the General Terms.
“Company” means you and the entity or business you represent, collectively, as the specific party receiving Services under these CastleGate Terms.
“Export Control and Trade Sanctions” means the export control and trade sanctions laws and regulations, including those administered by the United States, Canada, United Kingdom, European Union, and United Nations.
“Facilities” means warehouses or retail stores owned or operated by CastleGate, its Affiliates, or contractors, together with consolidation, fulfillment, distribution, and break-bulk facilities operated by such parties.
“Force Majeure Event” means an act beyond the impacted Party's reasonable control including, without limitation, acts of God, flood, fires or other casualties, natural catastrophe and exceptional climatic event, earthquakes, quarantine, pandemics, epidemics, or other outbreak of disease or public health emergency, war, terrorist threats or acts, acts or omissions of a public enemy, closing of the public highways, riots or other civil unrest, transportation disasters, government orders, governmental restraints and interference (including import restrictions and voluntary quotas arising from the threat of governmental restraints), embargoes or other similar conditions except commercial contingencies (such as changing markets, business declines, etc.), blockades, national or regional emergencies, strikes, labor stoppages or slowdowns, and power outages or shortages and other utility failures, and information technology failures.
“Goods” means Company’s general commodities that will be governed under the CastleGate Terms.
“Guide” means the CastleGate Operating Guide, including the policies and procedures incorporated therein, as referenced in and incorporated into these CastleGate Terms.
“Inspection” means CastleGate’s quality control inspection, which includes a damage inspection of Goods.
“Rate Card(s)” means the applicable rate card(s) posted at https://partners.wayfair.com/help/2/article/2274.