Shopify Consignment Terms
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Last Updated: August 29, 2024

‍These Consignment Shop Terms (these “Terms”) supplement and govern the Consignment Specifics entered into by and between Fuze Technology Inc., a Delaware corporation (“Fuze”) and the Merchant identified in the Consignment Specifics (“Merchant”).

Merchant’s use of the Stations in connection with its facilitation of Rentals is governed by Fuze’s Terms of Service (“ToS”), and Fuze’s collection and processing of certain of End Users’, Merchant’s, and/or Merchant’s representatives’ information in connection therewith is governed by the terms of Fuze’s Privacy Policy (“Privacy Policy”). These Terms, the Consignment Specifics, the ToS, the Privacy Policy, and any supplemental terms or exhibits to any of the foregoing collectively form the “Agreement” between Fuze and Merchant. Capitalized terms used, but not defined, in these Terms are defined in the Consignment Specifics. If any term in these Terms conflicts with the Consignment Specifics, the ToS, and/or the Privacy Policy, the Consignment Specifics control.

1. Modifying the Agreement.
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‍(a) The Consignment Specifics may only be modified by a written document signed by Fuze and Merchant.

(b) Fuze may change these Terms from time to time, and will post any such changes at https://www.chargefuze.com/consignment-shop-terms with the revised “Last Updated” date above. These changes will only take effect as to Merchant 30 days after the changes are posted or notified to Merchant.

‍2. Rental.  

Fuze grants Merchant the right to possess the Stations at the Venue(s) during the Term in accordance with the terms of the Agreement for the purpose of facilitating Rentals.

‍3. Advertisements. 

Merchant acknowledges and agrees that, when not in use by End Users, the Stations may display content, including third-party advertisements, placed by Fuze that is consistent with Fuze’s Ad Guidelines, available at https://www.chargefuze.com/shop-ad-guidelines (“Screen Content”). As set forth in Fuze’s Ad Guidelines, Fuze does not allow Screen Content to contain or relate to certain categories of products and services.

‍4. Fees/Proceeds.

‍Except as otherwise provided in the Consignment Specifics, the Stations are being provided to Merchant on a gratis basis during the Term and all proceeds from Rentals will be collected and retained by Fuze.  Any payments by Merchant and End Users to Fuze will be facilitated by Fuze’s payment processor(s) (such as Stripe and Apple Pay) in compliance with industry standards and best practices, including PCI-DSS compliance, and as may be further specified in the Privacy Policy.  Fuze does not and will not collect, receive or maintain any payment card information in a manner sufficient to authorize any payments.

‍5. Expenses 

Merchant is solely responsible for providing and paying for all electricity necessary for the operation of the Stations at the Venue(s). Upon expiration or termination of the overall Agreement, Merchant agrees to pay Fuze a one-time uninstallation and return shipping fee at market cost not to exceed $1,500 per Merchant Venue. Fuze is solely responsible for all expenses relating to the delivery of the Stations to and from the Venue(s). 

‍6. Intellectual Property  

At all times during and after the Term, Fuze will retain all right, title and interest in and to the physical Stations, the Chargers and all related software, technology (including hardware, products, processes, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), and other intellectual property owned or licensed by Fuze related to or otherwise incorporated in any of the foregoing (the “Intellectual Property”).  Merchant acquires no property or ownership rights in the Stations, Chargers or Intellectual Property.  Merchant will not sell, mortgage, pledge or otherwise convey an interest in the Stations, Chargers or Intellectual Property, or subject them to any lien, encumbrance or legal process.  As between the parties, Merchant retains all right, title and interest in the Screen Content it provides and hereby grants to Fuze all rights necessary to display the Screen Content on the Stations during the Term.  Merchant agrees that Fuze may display Merchant’s name, the name of each Venue, and any associated logos or trademarks that Merchant may provide to Fuze, within the Fuze mobile app for the sole purpose of identifying each Venue’s location to End Users.
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7. Security and Privacy

Fuze has implemented and will maintain commercially reasonable technical and organizational security measures, in accordance with industry standards, to protect the Stations, their software and, in accordance with the terms set forth in the Privacy Policy, any End User information processed thereby against unauthorized disclosure or access by unauthorized third parties.
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8. Additional Responsibilities.  

(a) Each party represents and warrants that: (i) it has all requisite power and authority to enter into this Agreement and (ii) with respect to any Screen Content it provides hereunder, it owns or has all rights necessary to provide the Screen Content to the other party, and no such Screen Content will (1) infringe upon the intellectual property or other rights of any third party or (2) be deemed obscene, defamatory or otherwise illegal under applicable law.

(b) Unless otherwise stated elsewhere in the Agreement, Fuze agrees, represents and warrants that: (i) it is solely responsible for all Rental transactions with End Users; (ii) the Stations and Intellectual Property do not and will not violate any third party proprietary rights, such as registered intellectual property rights; and (iii) it is solely responsible for all costs, and risk of loss, arising from the delivery of the Stations to and from the Venue(s).

(c) Unless otherwise stated elsewhere in the Agreement, Merchant agrees: (i) to maintain the Stations in their condition as delivered, ordinary wear and tear excepted; (ii) to notify Fuze as soon as possible in the event of any loss or damage to the Stations; and (iii) upon the expiration or termination of the Agreement for any reason, to surrender the Stations by providing Fuze access to and assistance in the Venue(s) in order to uninstall and remove them.

‍9. Confidential Information.

(a) “Confidential Information” of a party means all technical or business information (including all data), and all intellectual property of such party, its affiliated entities, or other third parties doing business with such party that: (i) is disclosed to, accessed by or otherwise learned by the other party; and (ii) is marked or indicated as confidential (or with similar words) or would reasonably be expected to be confidential given the nature of the information or the circumstances around its disclosure. Merchant agrees that Fuze’s technology, software and End User data used or processed in connection with the Stations constitute Fuze’s Confidential Information.  

(b) During the Term and thereafter, each party will not: (i) access or use the Confidential Information of the other party except as necessary to perform its obligations or exercise its rights under the Agreement; or (ii) disclose or otherwise knowingly allow access to the Confidential Information of the other party to any individuals or third parties except as provided in clause (c) below. In addition, each party will protect the Confidential Information of the other party with at least the same level of care as it protects its own similar confidential information, but not less than a commercially reasonable level of care.

(c) Either party may disclose relevant aspects of the other’s Confidential Information to the officers, directors, employees, professional advisors (including accountants and attorneys), contractors and other agents of it to the extent such disclosure is necessary for the performance of their obligations to such party; provided, however, that the disclosing party causes the Confidential Information to be held in confidence by the recipient to the same extent and in the same manner as required hereby.  In addition, either party may disclose Confidential Information of the other party to the extent required to comply with any laws or orders of a court or governmental authority of competent jurisdiction; provided, however that such party provides the other party with (i) prompt written notice of any such disclosure so that the other party may seek, at its sole cost and expense, a protective order or other remedy, and (ii) reasonable assistance, at the other party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.  If, after providing such notice and assistance as required herein, such party remains required by law or order to disclose any Confidential Information, such party shall disclose no more than that portion of the Confidential Information which such party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or governmental authority that such Confidential Information will be afforded confidential treatment.

(d) The restrictions on use and disclosure in this Section will not apply to Confidential Information that: (i) is already known to the receiving party, as demonstrated by prior existing records, when it was disclosed by the other party; (ii) is or becomes known to the public through no fault of the receiving party or its employees, agents or contractors; (iii) is lawfully received by a party from a third party where the third party has not required that party to maintain the information in confidence; or (iv) as the receiving party can show, through competent written evidence, is developed by the receiving party independently of disclosure by or receipt from the other party.

(e) Upon a party’s request and as directed by such party, the other party will promptly return all Confidential Information of the requesting party and all written materials that contain, summarize or describe any such Confidential Information.  Each party will immediately notify the other of any unauthorized possession, use or knowledge of the other’s Confidential Information of which such party is aware.

‍10. Indemnification.  

Each party will defend, indemnify and hold harmless the other party, and its employees, associates, successors, designees, licensees and assigns (collectively, “Indemnitees”), from and against any claim, damage, assessment, proceeding, action, suit, loss, expense, liability (including settlements, judgments, fines and penalties) or cost (including reasonable attorney fees, court costs and other litigation expenses) (collectively, “Losses”) relating to any third party action, suit or proceeding against any such Indemnitees that arises from: (a) the breach or alleged breach by the indemnifying party of the Agreement; or (b) the gross negligence, recklessness or willful misconduct of the indemnifying party.  Additionally, Fuze will defend, indemnify and hold harmless Merchant and its Indemnitees from any Losses arising from death or personal injury to the extent caused by any Stations placed and used in accordance with the terms of this Agreement.

‍11. Disclaimer of Warranties.  

EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THE AGREEMENT, THE STATION(S), CHARGERS AND ALL RELATED INTELLECTUAL PROPERTY DELIVERED UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND FUZE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO.  ALL CONDITIONS, WARRANTIES, AND REPRESENTATIONS, EXPRESS OR IMPLIED, ARE EXCLUDED, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES RELATING TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

‍12. Limitation of Liability.  

‍(a) NEITHER PARTY SHALL HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY (WHETHER IN TORT, EQUITY, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY IN ACCORDANCE WITH APPLICABLE LAW) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, OR LOST BUSINESS OR PROFITS INCURRED BY MERCHANT, FUZE OR ANY OTHER PERSON, RELATING TO THE AGREEMENT OR THE STATION(S) OR CHARGERS PROVIDED UNDER THE AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING WAIVER ON INDIRECT DAMAGES, THIS SECTION 12(a) SHALL NOT APPLY TO LIMIT MERCHANT’S INDIRECT DAMAGES ARISING OUT OF OR RELATED TO (I) MERCHANT’S INDEMNITY OBLIGATIONS UNDER ANY AGREEMENT ENTERED INTO BETWEEN THE PARTIES, (II) MERCHANT’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR (III) MERCHANT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.  

(b) FUZE’S TOTAL LIABILITY TO MERCHANT FOR ALL DIRECT DAMAGES, INCLUDING DIRECT CLAIMS, LOSSES, COSTS, FINES, SETTLEMENTS, PENALTIES, COURT COSTS AND REASONABLE OUTSIDE ATTORNEYS’ FEES, ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED $500. THE FOREGOING LIMITATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, CLAIMS ARISING OUT OF (I) FUZE’S INDEMNITY OBLIGATIONS UNDER ANY AGREEMENT ENTERED INTO BETWEEN THE PARTIES, (II) FUZE’S BREACH OF IT’S CONFIDENTIALITY OBLIGATIONS, (III) FUZE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (IV) PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH.

‍13. Arbitration.  

In the event that the parties are unable to resolve any controversy or claim arising under this Agreement informally, the controversy or claim must be submitted to final and binding arbitration. The arbitration will be initiated and conducted according to either the JAMS Streamlined Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure or its successor in effect at the time the request for arbitration is made (the “Arbitration Rules”). The arbitration may only be conducted in a county embracing the Venue(s) or New York County, NY, before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator will follow New York law and the Federal Rules of Evidence in adjudicating the dispute. However, the parties agree that disclosure shall be limited in any such arbitration to no more than two depositions per party, each no more than four hours in length; no more than 10 written requests for documents; no more than 10 requests to admit; and no more than five written interrogatories. The parties waive the right to seek punitive damages and the arbitrator will have no authority to award such damages. The arbitrator will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within 30 days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction. The party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered. 

‍14. Miscellaneous.  

‍(a) Entire Agreement/Waiver. The Agreement contains the entire understanding between the parties and supersedes all prior agreements, representations and undertakings whether oral or written. It may only be modified, supplemented or altered by a writing signed by both parties. No failure or delay on the part of either party in insisting on compliance herein or in exercising any right, power or remedy under the Agreement will operate as a waiver or modification thereof; nor will any single or partial exercise of any such right, power or remedy under the Agreement, preclude any other or further exercise or any other right, power or remedy under the Agreement.  

(b) Notices. Any notice required or permitted to be given under this Agreement by either party shall be in writing and will be deemed given on the date sent by email to the following email address(es):         
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          (i) To Fuze: legal@fuzetechnology.com          
          (ii) To Merchant: to the email address(es) associated with Merchant’s Shopify order.
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         Merchant may change its notice email address(es) by updating the email address associated with its Buyer account on Chargefuze.com. Fuze may change its notice email address(es) by notifying Merchant in accordance with this section.

(c) Validity of Agreement. In case any term of the Agreement is held invalid, illegal, or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of any other terms will be affected thereby.

(d) Choice of Law. The Agreement is governed by the laws of the State of New York without regard to its jurisprudential or statutory conflicts of laws rules. Any claim, dispute or disagreement with respect to the relationship between the parties or the Agreement will be submitted for arbitration under Section 13 above; provided, however, that Section 13 does not restrict a party’s ability to seek preliminary injunctive relief to the federal courts in the district embracing the Venue(s) or in New York, New York.

(e) No Joint Venture. The Agreement creates no partnership, employment, joint relationship, joint venture, master-servant, or mutual responsibility on behalf of one party for the debts or liabilities of the other.  The parties agree that Fuze is acting as an independent contractor of Merchant.  Neither party has the power to bind nor obligate the other.
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(f) Electronic Consent.  The parties agree that this Agreement will be consented to and executed electronically, as evidenced by Merchant’s acceptance of the Agreement by completing the Shopify order with which the Agreement is provided. The parties waive any and all rights to object to the enforceability of the Agreement based on the form or delivery of consent or execution or the lack of a written signature evidencing to the foregoing apart from the completion of Merchant’s Shopify order. Fuze will use commercially reasonable efforts to ensure that a copy of the Agreement is delivered to the Merchant via the email address provided by Merchant in the Shopify order process.