Vendor Contract

Introduction

The purpose of Tanga’s Vendor Guide (“Vendor Guide”) is to present you (“Vendor”) with a comprehensive guide regarding your obligations as a Vendor in connection with any Purchase Order (“PO”) you receive from Tanga.

Fulfillment and shipping guidelines will be covered in a separate document called: Tanga Routing Guide (“Routing Guide”). We strongly advise you read this and all other referenced documents and share them with all relevant parties within your organization; these documents form a binding legal agreement between you and Tanga. Questions or comments relating to Tanga’s Vendor and/or Routing Guides should be directed to:

New/Existing Vendors: Please email ops@tanga.com

Tanga prides itself on exceeding the expectations of our customers. As such, the terms and conditions of our Vendor and Routing Guides are geared towards providing the best customer experience possible, including but not limited to:

Accurate, prompt (ideally early) fulfillment and delivery
High quality goods and
Industry leading customer service

Your efforts towards achieving our timeframes and requirements is of utmost importance not only for our customers but our mutual long-term success, and Tanga’s ability to ensure prompt payment for your goods. We welcome you to the Tanga family, and we look forward to a long prosperous relationship!

Sincerely,

Ezra Shabot, CEO

Agreement

PLEASE READ THESE VENDORS TERMS AND CONDITIONS (THE “AGREEMENT”) CAREFULLY. IF ACCEPTING ELECTRONICLY, BY CLICKING ON THE “ACCEPT” BUTTON, COMPLETING THE VENDOR REGISTRATION PROCESS, YOU REPRESENT THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE AGREEMENT, AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE VENDOR, AND TO BIND THAT COMPANY TO THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE VENDOR WHEN YOU REGISTERED ON THE WEBSITE.

THESE VENDOR TERMS AND CONDITIONS, TANGA ROUTING GUIDES AND TANGA CONFIDENTIALITY AGREEMENT (all collectively known as the “Agreement”) are entered into as of this _____ day of ___________________,____________________, 20__ by and between EOM COMMERCE, INC. (“Tanga”) a corporation organized under the laws of the state of Delaware, having an address of "4140 East Baseline Rd, Ste. 101, Mesa, AZ, 85206" and_______________________________________________ (“Vendor”), a ________________________________________________________ organized under the laws of the state of ____________________, having an address of _______________________________________________________________. Both Tanga and Vendor may individually or collectively be referred to in this Agreement as “Party or Parties.”

Your use of, and participation in, certain Tanga Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this main Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Agreement incorporates any and all applicable Supplemental Terms.

This Agreement will govern all of Tanga’s purchases from Vendor of any Services and Goods (“Goods”) described in Tanga’s Purchase Order (“PO”), as well as all transactions between the parties via Tanga’s Vendor Portal, APIs, or website. Tanga and Vendor agree that:

1) Tanga’s Representations and Warranties.

Primary Obligor. Tanga shall be the obligor in any transaction made between Tanga and its customers. Tanga will be responsible to its customers, including the issuance of customer refunds, regarding the acceptability of the Goods ordered and received, and for the fulfillment of such Goods whether the drop shipper, Tanga, or its fulfillment centers ship the Goods directly to the customer. Tanga will be the only direct point of contact to its customers.
General Inventory Risk. Tanga will take title to and assume the risk of loss for all Goods shipped in bulk to its fulfillment centers prior to such Goods being shipped to Tanga’s customers, listed for sale and/or ordered by the customer. Tanga will also take title to and assume risk of loss for all Goods (whether originally shipped to its customers by a Drop Shipper or its own fulfillment centers) that are returned directly to the Vendor by the customer, or returned by the customer to Tanga’s fulfillment centers for returns processing, until such goods have been delivered back to Vendor.
Pricing. Vendor is encouraged to submit to Tanga, suggested prices at which to sell its Goods. Vendor also agrees to establish its manufacturer’s suggested retail price (“MSRP”) for the Goods, and provide the same to Tanga to enable Tanga to establish an accurate reference point for the discounted pricing Tanga offers to its customers on its website or other marketplaces. Tanga will however make the final determination regarding the price at which Goods will be offered to its customers.
Additional Services Offered. Tanga at its sole discretion may offer and charge for additional services to its customers related to the Goods Vendor has offered to Tanga. Such additional services include, but are not limited to insurance protection and warranties. Tanga will be solely responsible for honoring any additional services offered to Tanga’s customers.
Vendor Selection. Tanga at its sole discretion will determine whether Vendor will provide specific Goods Offered and sold to Tanga’s customers.
Credit Risk. Tanga will solely be responsible for collecting the sales price for Goods purchased by Tanga’s customers, and for refunding the full sales price of the aforementioned purchases pursuant to Tanga’s customer return policy (although Vendor will be required to reimburse Tanga for such refunds to the extent required under this Agreement).
Payments to Vendor. Vendor will not receive a fixed fee for Goods it sells to Tanga in bulk or for Goods fulfilled to Tanga’s customers in a drop ship arrangement. Vendor will be paid an agreed-upon Goods cost as indicated on Tanga’s PO.

2) Vendor’s Obligations, Representations and Warranties.

Authority. Vendor represents and warrants that (i) it has full power and authority to enter into this Agreement; and (ii) its entrance into and performance of this Agreement does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party, or by which it is bound.
Safety of Goods and Recalls. Vendor will not Offer, sell or fulfill any Goods to Tanga or its customers that possess any defect, are subject to a recall, or may be unsafe for their intended use. Should Vendor become aware of any previously unknown defects, safety issues or recalls, Vendor will immediately notify Tanga; and Vendor, at Tanga’s direction, will provide to Tanga or its customers equivalent or better substitute Goods at its own cost, or reimburse Tanga for the costs of the Goods previously paid to Vendor by Tanga, as well as all additional costs incurred by Tanga to refund customer purchases and recall the Goods, including costs of transportation, commissions and related fees, inspection, handling, repacking, demurrage, insurance and taxes.
Product Information. Vendor warrants that any pictures and descriptions of Goods provided to Tanga for the purpose of negotiating a deal or listing the Goods on Tanga’s website to be available for sale are accurate and in no way misrepresent the Goods being Offered, sold and shipped to Tanga and its customers.
New Versus Refurbished Goods. Except to the extent expressly authorized by Tanga in a PO, all Goods must be in new, unused condition and be shipped in their original, unopened packaging. Any such goods, whether submitted via deals to authorized representatives of Tanga or uploaded to Tanga’s marketplace must have their condition accurately described and advertised by Vendor including but not limited to “used, ” “refurbished,” or “open box.”
Tanga Customers. Vendor warrants that it shall not contact any of Tanga’s customers who were not previous direct business to consumer customers of Vendor for any reason, including but not limited to regarding Goods ordered from Tanga.
Access. Vendor shall not access or use the Vendor Portal or the Tanga APIs for any purpose other than to perform its obligations under this Agreement.
Regulatory. Vendor warrants that all Goods adhere to, and that Vendor will comply with, all laws applicable to Vendor and with respect to Goods sold to consumers in the applicable jurisdictions.
California Proposition 65.
- We require that you will review the list of chemicals identified by the state of California to cause cancer, reproductive harm, or both, and make a determination about whether the products you provide to us must include a Proposition 65 warning or are otherwise impacted by the new regulatory requirements.
- We require you to correctly label all of your products (and/or packaging) with the warning information required by Proposition 65. If your product contains chemicals triggering Proposition 65 warning requirements, you will be responsible for providing an on-product warning that complies with Proposition 65 for those products.
- Since all of our products are sold in, or into California via our online or mobile channels, you are expected to provide us with updated information about your products related to Proposition 65 requirements. This likely means new fields to update in product data information.
- If we receive notice of an alleged Proposition 65 violation concerning your product(s), we will forward that information to you and you will be required to resolve all allegations and fully reimburse us for any loss, including attorney’s fees associated with the alleged violation.
- Online product(s) will be removed from sale until you provide compliant product data for display online, provide product(s) with the required warning and resolve the alleged violation.
- Tanga's California Proposition 65 Requirements

3) Licensing, Intellectual Property and Resale Rights.

Goods Licensing and Intellectual Property. Vendor warrants to the best of their ability that all Goods Offered, sold and shipped to Tanga, its fulfillment centers and/or its customers are genuine and authentic Goods of the brands represented and are not replicas, fakes, counterfeit, look-alikes, gray-market imports, or stolen.
Resale. Vendor acknowledges and agrees that Tanga shall have the right to market and resell the Goods through: wholesale channels, its own websites and mobile apps including but not limited to www.tanga.com, www.bellechic.com, and www.lolshirts.com, other 3rd party platforms, and any marketing channels including but not limited to its affiliate network and email.

4) Invoicing and Payment.

Invoicing Automation. Tanga utilizes an automated PO and invoicing system whereby Vendor receives an invoice from Tanga weekly for all orders dropshipped to Tanga’s customers. Invoices are based on orders placed with Vendor by Tanga through Tanga's Vendor Portal or API that are actually shipped by Vendor and delivered to customer within 30 days from order date.
Required Information. Vendor will be required to submit a completed form W-9 or W-8BEN, along with banking information before any payments will be received by Vendor from Tanga.
Payment Withholding. Notwithstanding any other provisions of this agreement, Tanga at its sole discretion may withhold payment of any amounts currently or about to become due in whole or in part, in order to cover or offset items including but not limited to damages, costs or expenses incurred by Tanga, as a result of Vendor’s failure to perform in accordance with this Agreement, or for any other reasonable cause resulting from any default by Vendor of its representations, warranties or obligations under this Agreement.
Currency. and International Payments. Payments shall be made in United States Dollars unless specified otherwise by Tanga on the PO. Vendor will be responsible for any international payment fees incurred by Tanga on payments made to Vendor, which will be deducted from current or future payments made to Vendor by Tanga.
Credit Reporting. Vendor agrees not to submit to credit reporting agencies negative payment history information on Tanga relating to invoices that are in dispute or have been short paid due to Vendor’s failure to perform in accordance with this Agreement, or for any other reasonable cause.
Drop Shipped Goods. For invoices generated by Vendor, Vendor will be paid via ACH by Tanga within 20 calendar days from the later of a) the date tracking numbers on items shipped by Vendor show movement to the applicable customer or b) the Vendor’s invoice date. For automated invoices generated by Tanga, Vendor will be paid within 20 days of the weekly automated invoice generation date.
Bulk Shipped Goods. Vendor will be paid via ACH by Tanga within 20 calendar days of the Vendor’s invoice date or from date Goods are received at Tanga’s fulfillment centers.
Minimum Balances. At Tanga’s sole discretion, payment for invoices under $200 may be withheld for up to 30 days past the invoice due date until Vendor’s entire account balance due exceeds $200.
Transfer of Accounts Receivable. If at any time prior to payment by Tanga, Vendor assigns its account receivables associated with the Goods sold to Tanga, Vendor shall immediately provide notice to Tanga of such assignment either directly or through its financing or factoring agent. Tanga shall have no responsibility to any party other than Vendor to provide any kind of notice required under this Agreement. Tanga’s responsibility shall be solely to Vendor. Vendor agrees and acknowledges that it shall be responsible for any and all notifications to its financing or factoring agent.
Credit Memos. Tanga may issue credit memos at its sole discretion to Vendor which will be used to offset outstanding or future invoices of the Vendor. Vendor shall have seven (7) days from the credit memo date to remit payment to Tanga via ACH or wire transfer for outstanding credit memo amounts invoiced by Tanga.
Current Information Required Sellers must provide current, complete and accurate information for your billing account including a credit card on file. Sellers must promptly update all information to keep billing account current, complete and accurate. Updates such as a change in billing address, credit card number, or credit card expiration date must be conveyed. Sellers must promptly notify us (Tanga) or our payment processor if your payment method is canceled or compromised. Any negative Tanga balance represents an amount that sellers owe to Tanga, and, in this situation, must be rectified. If you do not do so, Tanga may:
- Recover any amounts due to Tanga by debiting your balance;
- Engage in collection efforts to recover such amounts from you;
- Place a limitation or take other action on your Tanga account

5) Term and Termination.

Term. This Agreement shall be in force as of the earlier of the date Vendor first registers with Tanga via the Vendor Portal or the date Vendor accepts any Tanga PO (the “Term”), and will continue until such time when it is terminated in accordance with the Termination section below.
Termination. Tanga may terminate this Agreement at any time for its convenience upon ten (10) days prior written notice. Vendor may terminate this Agreement at any time for its convenience upon thirty (30) days prior written notice, provided that all outstanding POs transmitted to Vendor prior to the effective termination date will be shipped in accordance with the terms and conditions of this Agreement. After termination, Tanga shall pay all non-disputed outstanding invoices based on previously agreed payment terms. Upon notice, any outstanding fees due Tanga that do not have Vendor invoices to offset against must be paid by Vendor to Tanga within five (5) business days of any such termination.
Survival of Termination. After the termination of the Agreement, (i) the parties’ rights and obligations under Sections 1, 2, 4, 5(c), and 7-12 will survive; (ii) Tanga’s rights under Section 4(a) will survive with respect to Goods that Tanga may feature on the Site; (c) Vendor’s obligations will continue with respect to any Goods for which there is a continuing obligation (such as returns and warranty obligations) (d) within five (5) business days, Vendor will return, and will not retain any copies of any Tanga Confidential Information in its possession at the time of expiration or termination.

6) Amendments and Modifications.

By Vendor. Tanga expressly rejects any and all inconsistent, modified or added terms and conditions offered by Vendor to this Agreement at any time and not agreed to in writing by an authorized representative of Tanga.
By Tanga. THE TERMS OF THIS AGREEMENT ARE SUBJECT TO CHANGE BY TANGA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Tanga will make a new copy of these terms available at the Tanga website. If we make any material changes we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the terms. Any changes to the terms will be effective immediately

7) Limitation of Liability.

IN NO EVENT SHALL TANGA BE LIABLE TO VENDOR OR ITS EMPLOYEES, SUBCONTRACTORS, OR ANY THIRD PARTY FOR LOST PROFITS OR EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, OR OTHER MATTER, REGARDLESS OF WHETHER OR NOT VENDOR WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGE. TANGA SHALL NOT BE LIABLE FOR THE CONTENTS, RESULTS OR SUCCESS OF ANY SALE ON TANGA’S WEBSITES OF GOODS SOLD OR OFFERED BY VENDOR TO TANGA. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, IN NO EVENT SHALL TANGA’S LIABILITY EXCEED THE TOTAL AGGREGATE AMOUNT PAID BY TANGA TO VENDOR UNDER ANY OPERATIVE PO DURING THE THREE (3) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.

8) Remedies

Without prejudice to other remedies or rights, and at Tanga’s sole discretion, in the event of breach of warranty or representation, anticipatory breach, or Vendor’s failure to perform, Tanga may:

Suspend or cancel Tanga’s performance in part or in full under the applicable PO or any other open POs or automated orders sent to Vendor;
Invoice Vendor for all costs, both direct and indirect for Goods returned by Tanga’s customers, due to non- conformities or defects in the aforementioned Goods;
Reject in part or in full, return for complete reimbursement, credit and/or refund, or demand replacement for any non-conforming Goods;
Set off against or deduct any monetary obligations resulting from return costs, credits, refunds, or chargebacks owed by Vendor to Tanga, from payments pertaining to unpaid POs or automated orders due to Vendor by Tanga. Should Vendor have any outstanding monetary obligations to Tanga, any outstanding pre- payments or installment payments made by Tanga to Vendor for any PO or other reason will be deemed an overpayment, and will be subject to recovery and/or set off by Tanga.

9) Insurance.

Vendor shall carry and maintain insurance coverage satisfactory to Tanga, and at all times sufficient to cover Vendor’s obligations under the Purchase Order, Tanga Routing Guides and these Terms and Conditions, and, upon Tanga’s request, shall furnish Tanga with evidence of such insurance in a form satisfactory to Tanga. Vendor shall name Tanga as an additional insured under the applicable insurance policies as requested by Tanga.

10) Confidentiality.

Vendor acknowledges that in connection with this Agreement, Vendor may obtain information which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, but is not limited to, information about Tanga’s API, Vendor Portal, Goods purchases, techniques, processes, programs, product cost, pricing, customer phone number, email address, and postal and billing address, financial information, and sales and marketing plans, marketing partner, or information which Vendor knows or has reason to know is confidential, proprietary or trade secret information of Tanga.
Vendor shall at all times, both during the term of this Agreement and for a period of at least three (3) years after its expiration or termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Tanga under this Agreement, nor shall Vendor disclose any such Confidential Information to third parties without Tanga’s prior written consent.
Vendor further agrees that, upon Tanga’s written request or upon termination of this Agreement, Vendor will promptly return to the disclosing party all Confidential Information (including copies thereof) in its possession, custody, or control.
The obligations of confidentiality set forth herein shall not apply to information (a) which has entered the public domain except where such entry is the result of Vendor’s breach of this Agreement; (b) which prior to disclosure hereunder was already rightfully in Vendor’s possession; (c) which subsequent to disclosure hereunder is obtained by Vendor on a non-confidential basis from a third party who has the right to disclose such information to Vendor; or (d) the extent to which Vendor is required to produce pursuant to a court order or administrative subpoena, provided that Vendor shall notify Tanga of the receipt of such order or subpoena prior to disclosure and provide the disclosing party an opportunity to protect its interest in the confidentiality of the information to be produced in response.

11) Indemnification.

Vendor agrees to indemnify and hold Tanga, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) the Goods sold by Vendor and any materials provided by Vendor in connection with the Goods; (b) Vendor’s breach of this Agreement or the performance or failure to perform of Vendor or Vendor’s agents, subcontractors or employees in connection with this Agreement; (c) Vendor’s or any Goods’ infringement or violation of any rights of another party; (d) Vendor’s violation of any applicable laws, rules or regulations. or (e) any claims resulting from violation of Prop 65 rules and regulations. Tanga reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Vendor, in which event Vendor will fully cooperate with Tanga in asserting any available defenses. If the Goods, the resale, promotion, use, or distribution thereof by Tanga, or the use thereof by Tanga’s subcontractors or customers, is threatened by injunction, enjoined, or the subject of any legal proceeding, Vendor shall, at its sole cost and expense and as directed by Tanga in its sole discretion: (i) substitute fully equivalent non-infringing Goods; (ii) obtain for Tanga, its customers and/or subcontractors the right to continue using the Goods; or (iii) refund all amounts paid for the infringing Goods.

18) Miscellaneous.

Successors. Tanga may transfer its rights and obligations provided by this Agreement to a current or future affiliate or pursuant to a reorganization, consolidation, merger, change-in-control or sale of all or substantially all of the assets or business to which this Agreement relate, or by operation of law, without notice to Vendor.
Governing Law. The construction, interpretation, and validity of this Agreement shall be governed by the laws of the State of Arizona without regard to its conflict or choice of law principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. Disputes arising out of or relating to the Agreement shall proceed in a state or federal court located within Maricopa County, Arizona.
Wavier. Any waiver of a provision or a party’s rights or remedies under this Agreement must: (a) be in writing to be effective, (b) expressly identify the provision to be waived, and (c) be signed by an authorized representative of Tanga. A one-time or repeated failure by Tanga to exercise a right hereunder shall not be deemed to be a waiver of that right and Tanga’s delay in exercising a right shall not be deemed a waiver of that or any future right.
Relationship of Tanga and Vendor. The relationship of the parties in this Agreement is that of independent contractors and nothing in this Agreement will be deemed to create a partnership, joint venture, agency or employer-employee relationship for any purpose. Except as expressly provided in Section 5 (Exclusivity), this Agreement is not exclusive.
Severability. If any provision of this Agreement is ruled invalid or unenforceable by a court of law of competent jurisdiction, (a) such provision will be ineffective to the extent of the court’s ruling in such jurisdiction, (b) all other provisions of this Agreement shall remain in full force and effect in such jurisdiction, and (c) said ruling will not affect the validity or enforceability of any provision of this Agreement in any other jurisdiction.
Notices. All notices sent by Vendor relating to this Agreement shall be in writing and shall be delivered in person, mailed by first class mail, postage prepaid, (registered or certified), sent to Tanga at the address set forth in this Agreement. Notices sent to Tanga shall also be addressed to the attention of the CFO. All notices relating to the performance and obligations pursuant to Tanga’s Routing guides shall be addressed to the appropriate party listed in Tanga’s Routing Guides. Unless otherwise provided herein, any written notice by Tanga will be deemed to have been made if provided via email to the contacts provided by Vendor to Tanga.
Electronic Communications. The communications between Vendor and Tanga use electronic means. For contractual purposes, Vendor (i) consented to receive communications from Tanga in an electronic form; and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Tanga provides to Vendor electronically satisfy any legal requirement that such communications be in writing.
Export Control. Vendor shall comply with all laws and regulations governing use, export, re-export and transfer of Goods and will obtain all required U.S. and local authorizations, permits or licenses therefor.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.