PICK-UP CENTER AGREEMENT

 

            This Pick-Up Center Agreement (this “Agreement”) contains the terms and conditions under which Bike Slug Holdings Inc., a Delaware corporation (“us”, “we”, or “Bike Slug”) agrees to grant you access to and use of the Referral Services (as defined below).  By completing the Pick-up Shop Enrollment Form, you (and any of your Affiliates) agree to be bound by the terms of this agreement.

 1.             DEFINITIONS

(a)              “Affiliate” means with respect to you or any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with you or that entity.

(b)              “Agreement” has the meaning set forth in the preamble.

(c)              “Bike Customer Order” means an order for customer items placed on www.bikeslug.com, www.bikeslug.co, or any other related or successor website as determined by Bike Slug in its complete discretion.

(d)              “Bike Items” means bicycles, bicycle parts, and bicycle-related accessories.

(e)              “Bike Shop” means your brick-and-mortar retail bicycle shop establishment. 

(f)               “Bike Slug” has the meaning set forth in the preamble.

(g)              “Bike Supplier” means a manufacturer, distributor, or brand of Bike Items.

(h)              “Customer Payment” has the meaning set forth in Section 3(a).

(i)               “Confidential Information” has the meaning set forth in Section 8(a).

(j)               “Net Fees” has the meaning set forth in Section 3(a).

(k)              “Notice” has the meaning set forth in Section 13(a).

(l)               “Pick-up Shop Enrollment Form” means the online form found at www.bikeslug.com/pick-up-center-form.

(m)           “Registered Dealer” means an authorized dealer of a Bike Supplier’s branded Bike Items.

(n)              “Referral Fees” has the meaning set forth in Section 2(b).

(o)              “Referral Services” means any referral of a Customer Order to you for fulfillment.

(p)              “Taxes” means any income, sales, use, payroll, Social Security, other federal, state, or local taxes, and any insurance contributions, including for unemployment or disability, or worker's compensation insurance.

2.              REFERRAL SERVICES; FEES.

(a)              Bike Slug agrees that it may, in its sole discretion, provide you with Referral Services with respect to any Bike Customer Order, provided that (i) you are a Registered Dealer with respect to the Bike Items in the relevant Bike Customer Order and (ii) your Bike Shop has sufficient proximity to the customer such that the customer may travel to your Bike Shop and pick-up their Bike Customer Order.

(b)              If Bike Slug provides you with Referral Services, you agree to pay Bike Slug a non-refundable fee equal to 15% of the amount of the related Bike Customer Order (excluding any amounts related to any portion of the Bike Customer Order for which you do not receive Referral Services) (“Referral Fees”). 

3.              METHOD OF PAYMENT; FULFILLMENT

(a)              Each customer will pay for a Bike Customer Order on our online platform (a “Customer Payment”).  Within ten (10) business days of confirmation that Bike Slug will provide you with Referral Services, Bike Slug will pay you an amount equal to the Customer Payment, less the Referral Fees (a “Net Payment”), provided that if Bike Slug receives confirmation that you have fulfilled the related Bike Customer Order (in Bike Slug’s sole determination), Bike Slug will issue you the Net Payment within two (2) business days of receiving that confirmation.

(b)              Bike Slug will not include in a Customer Payment any amounts for services related to a Bike Customer Order, including assembly or additional labor.  You will be responsible for offering and charging for any such additional services to the customer directly.

(c)              Within two (2) business days of confirmation that Bike Slug will provide you with Referral Services, you agree to place any purchase orders with the related Bike Supplier necessary to fulfill the related Bike Customer Order. 

(d)              You agree to complete fulfillment of any Bike Customer Order within five (5) business days of receiving Referral Services.  

(e)              Notwithstanding subsection (a) above, Bike Slug may elect to withhold any amounts of a Customer Payment if it determines, in its commercially reasonable discretion, that you have not, or are not likely to, fulfill a Bike Customer Order.

4.              TERM.          

The initial term of this Agreement shall commence on the date of this Agreement and shall continue until this Agreement is terminated in accordance with Section 11.  

5.              RELATIONSHIP OF THE PARTIES.

You and Bike Slug are independent contractors, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and Bike Slug for any purpose.  Any persons employed or engaged by you in connection with your Bike Shop operations shall be your employees or contractors and you shall be fully responsible for them and indemnify Bike Slug against any claims made by or on behalf of any such employee or contractor.  

6.              TAXES.

Bike Slug will not be responsible for withholding or paying any of Taxes on your behalf.

 

7.              INTELLECTUAL PROPERTY RIGHTS.

 Intentionally Deleted.

8.              CONFIDENTIALITY

(a)              You acknowledge that you will have access to information that is treated as confidential and proprietary by Bike Slug, including, without limitation, the existence and terms of this Agreement, trade secrets, technology, and information pertaining to business operations and strategies, customers, pricing, marketing, finances, sourcing, personnel, and operations of the Company, its affiliates, or their suppliers or customers, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). Any Confidential Information that you develop in connection with this Agreement, shall be subject to the terms and conditions of this Section 8. You agree to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of Bike Slug in each instance, and not to use any Confidential Information for any purpose except as required in the performance of your obligations under this Agreement. You shall notify Bike Slug immediately in the event you become aware of any loss or disclosure of any Confidential Information.

(b)              Confidential Information shall not include information that:

(i)               is or becomes generally available to the public other than through a breach of this Agreement; or

(ii)              is communicated by a third party that had no confidentiality obligations with respect to such information.

9.              REPRESENTATIONS AND WARRANTIES.

You represent and warrant to us that:

(a)              if you are an entity, you are duly organized, validly existing and in good standing under the laws of the state in which your business is organized;

(b)              you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement;

(c)              any information provided or made available by you or your Affiliates to Bike Slug is always accurate and complete; and

(d)              you and all your subcontractors, agents, and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.

10.            INDEMNIFICATION.

You shall defend, indemnify, and hold harmless Bike Slug and its affiliates and their officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys' fees) arising out of or resulting from:

(a)              your Taxes,

(b)              bodily injury, death of any person, or damage to real or tangible, personal property resulting from your acts or omissions; and

(c)              your breach of any representation, warranty, or obligation under this Agreement.

11.             TERMINATION.

(a)              Either you or Bike Slug may terminate this Agreement without cause upon sixty (60) days’ written notice to the other party to this Agreement.

(b)              You or Bike Slug may terminate this Agreement, effective immediately, upon written notice to the other party to this Agreement if the other party breaches this Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, the other party does not cure such breach within ten (10) days after receipt of written notice of such breach.

12.             MODIFICATION; ASSIGNMENT.

Bike Slug may amend any of the terms contained in this Agreement at any time and at our sole discretion.  Any changes will be effective upon our delivery of notice of such modifications to you.   You shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without Bike Slug 's prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. Bike Slug may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns.

13.             MISCELLANEOUS.

(a)              All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing. All Notices shall be delivered by email (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only if (i) the receiving party has received the Notice and (ii) the party giving the Notice has complied with the requirements of this Section.

(b)              This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 

(c)              This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.

(d)              This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in the County of New York, State of New York in any legal suit, action, or proceeding arising out of or based upon this Agreement or the License Services provided hereunder.

(e)              If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(f)               This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument.