Textbook Leasing Provider Agreement

ValoreBooks.com Textbook Leasing Provider Agreement

TEXTBOOK LEASING PROVIDER AGREEMENT ("Agreement"), made as of the day you accept this Agreement ("Effective Date"), by and between Agora ECommerce LLC (d/b/a www.valorebooks.com) ("ValoreBooks"), a Delaware corporation with a mailing address of PO Box 385, Burlington, MA 01803; and the person or entity who desires to lease textbooks to customers by way of the fulfillment services that ValoreBooks offers ("Provider").

WHEREAS, ValoreBooks provides services for the purchase, sale and leasing of books to its customers through the Site, its owned and operated electronic commerce Site; and

WHEREAS, Provider offers textbook leasing services and maintains a significant inventory of textbooks therewith; and

WHEREAS, Provider desires to offer its leasing services and textbook inventory for lease (and, under the circumstances described in this Agreement, purchase) through ValoreBooks's Site; and

WHEREAS, to further the objectives set forth above, the parties desire to enter into this Agreement;

NOW, THEREFORE, in consideration of the above premises and of the mutual covenants and obligations hereinafter set forth, the parties hereby agree as follows:

1. Definitions. As used in this Agreement, the following capitalized terms shall have the respective meanings set forth below:"Business Day" means a day in which banks in the United States generally are open to the public for conducting substantially all customary business functions.
   "Collect" means the charging end or crediting of tax amounts to a Customer who leases a Provider Product in connection with a Provider Transaction.
   "Chargeback" means, with respect to an Order, the actual amount charged to ValoreBooks by credit or debit cards (or both) for: (a) a Customer dispute not involving any theft, embezzlement or fraud in such order (including, without limitation, credit card or payment fraud), (b) Provider Product returned by Customer but for which Provider has no shipping tracking information, or (c) any other dispute accepted by the credit card company.
   "Confidential Information" means: (a) ValoreBooks's Intellectual Property, work product, and any technical and non-technical information, including without limitation, financial information, forecasts, know-how, marketing data and plans, operational methods and models, performance evaluations and techniques (existing or contemplated) plans for future development, policies, processes, proprietary information and techniques related to ValoreBooks's services; and (b) the financial and transaction data arising from Leasing Transactions and data related to Products. As between the parties, all Customer Information shall constitute ValoreBooks's Confidential Information. Confidential Information shall not include information that is or becomes publicly available, was or is rightfully acquired from a source other than the other party or becomes independently available as a matter of duty or right.
   "Customer" means any person who visits the Site, regardless of whether such person places an Order for Provider Products.
   "Customer Information" means the following with respect to a Customer who places an Order: Customer mailing address, shipping address, email address and telephone number(s); Customer credit or debit card (or both) number(s), card security code and expiration date; (c) Customer credit information; and (d) any other information that ValoreBooks acquires in connection with Provider Transactions the confidentiality of which ValoreBooks is legally obligated to respect. Capitalized terms used in this Agreement not defined elsewhere in this Agreement that pertains to Consumer Information shall have the meanings set forth in PCI DSS, which meanings are incorporated into this Agreement.
   "Facility" means the physical location(s) at which Provider Products are maintained while they are in Provider's possession, from which Provider Products are shipped to Customers and to which Customers or ValoreBooks (as the case may be) may return Provider Products. Provider agrees to supply to ValoreBooks from time to time all appropriate information therewith. From time to time, Provider may change or add a Facility, upon prior Notice to ValoreBooks.
   "Fulfillment Services," for ValoreBooks, means: (a) advertising for its own account textbooks that Provider offers for lease to Customers, but not soliciting Leasing Transactions; (b) acceptance for its own account of orders from Provider or Customer (electronically or by mail, telephone, telefax or Internet) for textbook leases between Provider and Customers; (c) responses for its own account to Provider or Customer inquiries (electronically or by mail, telephone, telefax or Internet); (d) billing, remittance and associated recordkeeping activities for its own account; and (e) arranging for Provider's or Customer's shipment of orders to the other from an inventory of Provider's Products that Provider maintains and offers for lease.
   "Intellectual Property" means all intellectual property (as that term is commonly understood) rights and industrial property rights (throughout the world, in all media, now existing or created in the future, for all versions and elements, in all languages, and for the entire duration of such rights) arising under statutory or common law, contract, or otherwise, and whether or not perfected, including without limitation, all (a) rights associated with works of authorship including without limitation copyrights, moral rights, copyright applications, copyright registrations and synchronization rights; (b) rights associated with trademarks, service marks, trade names, logos, trade dress, and the applications for registration and registrations thereof; (c) rights relating to the protection of trade secrets and confidential information; (d) goodwill or other value (regardless of magnitude) of intangible assets (of whatsoever kind or nature); and (e) rights analogous to those set forth above and any and all other proprietary rights relating to intangible property; in each case, that a party is entitled to utilize.
   "ISBN" means the International Standard Book Number assigned to a Product by a country specific ISBN issuing authority pursuant to the International Standard Book Numbering Convention (as approved by the International Organization for Standardization).
   "Late Return Fee" means the amount(s) charged by ValoreBooks to a Customer pursuant to Leasing Policy for Provider Products returned after the initial return due date(s) for such Products and that are not subject to Leasing Extension, which Late Return Fee ValoreBooks will post on the Site from time to time.
   "Lease Agreement" means the standard terms and conditions of the leasing agreement between ValoreBooks and a Customer, posted on the Site by ValoreBooks, the Order, ValoreBooks's Leasing Policy, any of which agreement ValoreBooks may be amend, change or modify from time to time in its sole discretion.
   "Leasing Extension" means an extension of the leasing period from the initial leasing period under Lease Agreement pursuant to Leasing Policy, and any subsequent extensions thereof.
   "Lease Extension Fee" means the fee charged to Customer for each Leasing Extension.
   "Leasing Fee" means the leasing price posted on the Site at which Customer leases Provider Product for the initial leasing period.
   "Leasing Policies" means the Participation Agreement, the Leasing Policy and the Privacy Policy.
   "Leasing Policy" means ValoreBooks policy regarding the leasing of Products posted on the Site by ValoreBooks, which policy may be changed, amended or modified from time to time at the sole discretion of ValoreBooks.
   "Leasing Transaction" means each instance in which a payment or fee is collected from a Customer involving a Provider Product, including, without limitation, each of the following: (a) Order; (b) a transaction resulting in Lease Extension Fee, Late Return Fee, or Non Return Fee; and (c) Purchase. The method of calculating such fees, charges and other amounts due from a Customer are set forth on the Leasing Policy or the Lease Agreement, as the case may be.
   "List Price" is the ValoreBooks stored list price for the Provider Product. If an item does not have a stored list price with ValoreBooks the List Price will be determined as two times the semester rental price.
   "Net Amount Due" means the difference between the amounts owed by one party to the other party in one calendar month hereunder, including but not limited to the Leasing Fee, Shipping Fee, Lease Extension Fee, Late Return Fee, Return Processing Fee, Non Return Fee, Refund, Chargeback, Provider Chargeback and the cost of shipping non-Provider Products from a Facility or to a Return Location.
   "Netting" means the conversion, including, but not limited, to netting, set-off or recoupment as provided under state or federal law, into one net claim or one net obligation, of all financial claims and obligations arising under this Agreement, to the effect that only Net Amount Due may be demanded from, or is owed by, one party to the other party.
   "Netting Report" means a report prepared by ValoreBooks setting forth all revenues and expenses related to payments and actual revenues and expenses associated with Orders charged, collected, remitted or due to or from Provider, and such other information as may be reasonably necessary to make the calculation of payments hereunder.
   "Non Return" means a Provider Product not returned to Provider according to the return requirements set forth in the Leasing Policies.
   "Non Return Buyout Fee” means the List Price of a Non Return, less the Lease Extension Fee (but not including applicable excise or transaction taxes, shipping charges and Sales Taxes) voluntarily paid by Customer and attributable to such Non Return.
   “ Non Return Forced Buyout Fee” means 125% of the List Price of a Non Return, less the Lease Extension Fee (but not including applicable excise or transaction taxes, shipping charges, and Sales Taxes) paid by Customer after the Lease Extension due date.
   "Order" means any order placed by a Customer on the Site fulfilled by ValoreBooks pursuant to this Agreement. An Order includes, but is not limited to, the name and shipping address of such customer and the details of the Order (such as the Leasing Fee, List Price, leasing term and return due date, sales taxes, shipping fees charged to such customer, and the title, author and ISBN.
   "Participation Agreement" means ValoreBooks terms governing all persons using the Site posted on the Site by ValoreBooks and made a part hereof, which agreement may be changed, amended or modified from time to time at the sole discretion of ValoreBooks.
   "Payment Period" means the period from the first to the fifteenth (inclusive) or the sixteenth to the last day (inclusive) of any month.
   "PCI DSS" means the Data Security Standard for the Payment Card Industry set by the Security Standards Council of Wakefield, MA.
   "Privacy Policy" means ValoreBooks policy regarding the protection of Customer Information posted on the Site by ValoreBooks and made a part hereof, which policy may be changed, amended or modified from time to time at the sole discretion of ValoreBooks.
   "Product" means any printed or electronic material listed on the Site.
   "Provider Chargeback" means the percentage of Chargeback set forth in Exhibit A payable to ValoreBooks by Provider.
   "Provider Product" means a Product supplied by Provider and available for lease to Customers pursuant to this Agreement.
   "Provider Transaction" means a textbook lease of Provider Products that ValoreBooks has agreed to facilitate pursuant to the Agreement.
   "Purchase" means the purchase of Provider Product by Customer pursuant to Leasing Policy after such customer initially enters into Lease Agreement.
   "Purchase Price" means the amount paid by Customer in a Purchase transaction, which is List Price, less any Leasing Fee, exclusive of all applicable sales taxes on such purchase transaction
   "Refund" means, with respect to an Order, the actual amount charged to ValoreBooks by credit and/or debit card companies resulting from cancelled Orders.
   "Return Location" means the physical location to which Provider shall ship non-Provider Products that are erroneously returned by Customer to a Facility. ValoreBooks may supply to the Provider from time to time all appropriate information therewith. From time to time, ValoreBooks may change or add a Return Location, upon prior Notice to Provider.
   "Sales Tax(es)" means any (or all, as the case may be) sales, use, gross receipts, privilege and other similar tax(es) and other governmental charge(s) on Leasing Transactions imposed by any taxing authority (but excluding any taxes imposed on net income), including any interest and penalties relating thereto, regardless of who is obligated to pay, remit or report therewith.
   "Sales Tax Return" means any tax return, declaration, reports, estimates, claims for refund, claims for extension, information returns, or statements relating to Sales Taxes, including any schedule or attachment thereto.
   "Sales Taxes Information Provider" means the third-party from whom ValoreBooks, from time to time, obtains information on the appropriate rates for Sales Taxes and their applicability in any jurisdiction of any Sales Tax Jurisdiction set forth in Exhibit A or otherwise. As of the Effective Date, the Sales Taxes Information Provider is Zip2Tax, LLC, having its main office located at 1740H Dell Range Blvd #449, Cheyenne, WY 82009. ValoreBooks, at any time and in its sole discretion, may choose to add or change the Sales Taxes Information Provider.
   "Site" means www.valorebooks.com, the internet website owned and operated by ValoreBooks, or any other such website through which ValoreBooks offers to Provider for Provider Transactions.
2. ValoreBooks's Obligations. ValoreBooks has the following obligations during the term of this Agreement:

1. ValoreBooks shall supply Fulfillment Services to Provider.
2. ValoreBooks shall be solely responsible to market Products, including Provider Products, on the Site; provided that at no time shall ValoreBooks be responsible for any marketing expenses directly and solely related to Provider Products except as expressly stated in this Agreement.
3. ValoreBooks shall offer Provider Products to Customers for lease or (as provided in this Agreement) for purchase. Provider acknowledges that as part of ValoreBooks's product offering, ValoreBooks may offer similar or identical titles for lease or purchase, either for its own account or for the account(s) of any other provider(s).
4. ValoreBooks shall offer Customers the option to extend the leasing term for Provider Products pursuant to the Leasing Policy, including but not limited to, extensions requested prior to the termination of leasing terms, or if such products are overdue, extensions for pre-designated extension periods. The Lease Extension Fee for a Provider Product shall be a 15 day extension billed at twice the daily rate of the semester rental price.
5. ValoreBooks may offer Customers the option to Purchase a Provider Product by paying Purchase Price in accordance with the Leasing Policies. Once a Purchase is completed, ownership and title to Provider Product shall transfer to Customer.
6. ValoreBooks shall use commercially reasonable efforts to collect from Customers the amounts charged and due with respect to Orders in accordance with the Leasing Policy, including, but not limited to the Leasing Fee, the Late Return Fee, the Lease Extension Fee, the Non Return Fee, the Purchase price, and Sales Taxes (if applicable).
7. ValoreBooks may collect and remit Sales Taxes in accordance with Section 9 of this Agreement.
8. ValoreBooks shall provide customer support related to Orders resulting from the leasing of Provider Products in accordance with the Leasing Policy.
9. ValoreBooks shall compensate Provider in accordance with terms set forth in Exhibit A.
10. ValoreBooks acknowledges that it is solely responsible to adopt and maintain the Privacy Policy, in compliance with PCI DSS and legal standards. The Privacy Policy shall disclose to the Customer that third parties may have access to Customer Information, and that under circumstances described in Section 17 or otherwise as required by law, third parties may use the same for the sole purpose of collecting Non Return Fees.
11. ValoreBooks shall maintain full and adequate business records of all Leasing Transactions, and the parties shall develop a reporting process and frequency (which shall not be less than once a month) regarding details of all Leasing Transactions relevant to the parties. Upon request not more frequently than once in any twelve-month period, Provider shall have the right during normal business hours and at its own expense to audit ValoreBooks's records pertaining to its performance under this Agreement.
12. ValoreBooks shall encourage Customers to return all Provider Products to the Facility. If any Provider Products should be returned to ValoreBooks at its Return Location, ValoreBooks shall identify such Products as appropriate and arrange to return them in a suitable and timely manner to the Facility. ValoreBooks shall be responsible to replace and/or compensate Provider for all Provider Products that are either damaged while in ValoreBooks's possession or lost due to ValoreBooks's actions or omissions. ValoreBooks shall not be responsible for any loss or damage to Provider Products for any time during which the Provider Products are not in its possession, except as specified in this Agreement.

1. Provider's Obligations. Provider has the following obligations during the term of this Agreement:

1. Provider shall lease Provider Products to Customers for purposes of, and on the terms set forth in, this Agreement.
2. Provider shall make available to ValoreBooks, at no cost, all information on Provider Products, whether such information is proprietary to Provider or not. Provider shall maintain Provider Products at Facility and transmit such information to ValoreBooks in electronic format. Provider at all times shall retain ownership of Provider Products. ValoreBooks shall have no title, and no rights or interests (except in the limited circumstances specified in this Agreement), to the Provider Products.
3. Provider shall update, modify and revise information on Provider Products no less frequently than as set forth in Exhibit A, in order to make such information relevant and appropriate for Customers. ValoreBooks acknowledges that the quantity of a Provider Product, as the same is updated, modified and revised from time to time, constitutes the quantity of such product available on the date of submission to ValoreBooks of information related to such product, but Provider is not obligated to hold such quantity available solely for the purposes of this Agreement. Unless Provider has confirmed that a Provider Product indicated in an Order is available (in which event Provider shall be obligated to provide such product to ValoreBooks to fulfill the Order), Provider shall have no obligation to acquire or restock such product if they become depleted. Provider shall use commercially reasonable efforts to keep in stock Provider Products until Provider provides updated, modified or revised information on such Provider Products.
4. Provider shall transmit all data and information required herein in a timely and regular manner, but in any event in conformance with an Order data transmission schedule and protocol as shall be mutually agreed to between parties. (e) When requested by ValoreBooks, Provider shall assist with researching the status of Orders, the expected shipping date, changes in status, etc. (such as delivery address changes and the status of non-delivery problems) and respond within 24 hours of receipt of the request during "peak times" and, otherwise, within 24 hours of the next Business Day.
5. In the event of damage or loss of Provider Product in transit to Customer, Provider shall assess each situation in a timely manner on a "per Order basis" and Provider in good faith shall attempt to resolve any disputed payments and other issues therewith, whether between Provider and Customer or Provider and ValoreBooks; provided, that Provider shall refund to ValoreBooks any portion of the Leasing Fee related thereto that ValoreBooks has paid to Provider and that such refund shall be subject to Netting.
6. In the event of damage or loss of Provider Products in transit, Provider is hereby authorized to make claims (at its sole discretion) with the appropriate carrier(s).
7. Provider shall not insert any literature, marketing flyers, or any other like material in shipments to Customers, whether on behalf of ValoreBooks, Provider or third parties, other than return stickers on Provider Products, except that Provider may insert literature for the sole purpose of promoting its Product leasing business.
8. All non-Provider Products returned to Provider shall be processed by Provider at Facility. All such products shall be available for shipment at Facility's shipping dock within 72 hours of their receipt. Provider shall identify such Products as appropriate and arrange to return them to ValoreBooks in a suitable and timely manner to the Return Location. Provider shall be responsible to replace and/or compensate ValoreBooks for all non-Provider Products that are either damaged while in Provider's possession or lost due to Provider's actions or omissions.

1. Outbound Shipping and Inbound Returns.

1. Provider shall provide services at Facility for Orders as follows:

1. Packing. Provider shall package Provider Products to protect against damage during shipment and to maintain a high-quality shopping image, which ValoreBooks desires. Provider shall be responsible for the cost of the packing services and materials at its Facility.
2. Shipping. Provider shall handle shipment of Provider Products, including weighing, labeling, coding as to type of delivery services required and delivery to or holding for pickup by local carriers. When Provider Product has been shipped, Provider shall notify ValoreBooks electronically of the date and time of shipment, and any assigned tracking number. Provider shall be responsible for risk of loss in outbound shipping and for reshipment due to Provider's error. Pursuant to ValoreBooks instructions, and based upon availability of Provider Products, Provider shall ship Provider Products to Customer either as one or multiple packages. Provider shall ship such products within one Business Day of the receipt of Orders.

1. Upon expiration of the leasing term of Provider Product, ValoreBooks shall provide an electronic prepaid shipping label for the return by Customer of such product to Facility. Provider shall register the shipping label and pay all applicable shipping fees. Provider shall provide a copy of such shipping label to ValoreBooks, and ValoreBooks shall provide the same to Customer.
2. Provider shall provide tracking data to ValoreBooks related to each Order partially or fully fulfilled.
3. Provider shall promptly advise ValoreBooks when books are returned.

1. Fees.

1. Leasing Fees. ValoreBooks shall pay Provider the portion of Leasing Fee as rate set forth in Exhibit A. All Leasing Fees are subject to Netting.
2. Shipping Fees. ValoreBooks shall pay Provider the shipping fees as set forth in Exhibit A (or as they may be changed from time to time) for each Order resulting in Provider Products being shipped to Customers, and which Order is not subsequently cancelled and such shipping fees shall be in full reimbursement of Provider's outbound and inbound shipping expenses related to such Order, notwithstanding the actual outbound and inbound shipping expenses incurred by Provider for such Order being higher or lower than such shipping fees. All Shipping Fees are subject to Netting.
3. Lease Extension Fee. ValoreBooks shall pay Provider the percentage of Lease Extension Fee as set forth in Exhibit A. All Lease Extension Fees are subject to Netting.
4. Late Return Fees. ValoreBooks shall pay Provider the percentage of Late Return Fees as set forth in Exhibit A. All Late Return Fees are subject to Netting.
5. Books Lost in Transit. Provider shall be solely responsible for Provider Products lost in transit. Neither ValoreBooks nor any Customer shall be charged for such loss. Provider may submit claims (at its discretion) with the carrier and retain all amounts collected.
6. Chargebacks. ValoreBooks shall be responsible for handling and paying Chargebacks, and for paying commissions to independent third parties which refer leasing inquiries to the Internet link to the Site. Provider shall be responsible for Provider Chargebacks as set forth in Exhibit A, and such Provider chargebacks are subject to Netting.

1. Netting; Disputes; Method of Payment.

1. Netting. Notwithstanding the provisions of any law, any Netting pursuant to this Agreement shall be enforceable against the parties in accordance with the terms hereunder, whether before or after Bankruptcy (as defined in 20(c), in respect of any amount due one party to the other party that have arisen or occurred before such Bankruptcy. The authority for ValoreBooks to implement Netting hereunder shall not be revoked by the declaration of Bankruptcy of either party. Notwithstanding the provisions of any law to the contrary, nothing in this Agreement is intended to limit or delay the application of any provision of this Agreement concerning Netting that otherwise would be enforceable. No order of any court, any warrant, any injunction or similar instrument and no proceedings of whatever nature shall have any effect in relation thereto.
2. Netting Report. No later than five days after the end of a Payment Period during the term of this Agreement, ValoreBooks shall prepare a Netting Report indicating the Net Amount Due for such period and transmit such report to Provider by electronic mail to the individual named and the electronic mail address indicated in Exhibit A or such other individual as shall be designated by Provider from time to time; provided, that if the day on which Netting Report is required to have been transmitted to Provider shall fall on a day that is not a Business Day, Netting Report shall be transmitted on the Business Day immediately following.
3. Disputes. Any disputed under-payments or over-payments in the Netting Report shall be due and payable to the appropriate party within 15 days after the date of a claim for such under- or over-payments, and the parties shall work diligently and in good faith to resolve any disputed items, fees or payments. Once resolved between the parties, the agreed amount of under- or over-payment shall be subject to Netting and shall be included in the Netting Report for the Payment Period immediately following the agreement regarding resolution of the dispute.

1. Method of Payment. All payments to a party shall be made in U.S. dollars by check or ACH transfer in immediately available funds to the bank account(s) for such party. The parties agree to supply to each other from time to time all appropriate information therewith.
2. Relationship of the Parties. The parties understand and agree that ValoreBooks provides only the Fulfillment Services. In that connection, neither party intends that ValoreBooks, nor is ValoreBooks authorized to, act as Provider's agent or in any like capacity in the performance of either of such Services, nor is ValoreBooks selling, using or engaging in any business, or authorized to sell, use or engage in any business, within any jurisdiction in which Provider leases any Provider Products. The parties further understand and agree that: (a) neither is an affiliate of the other or co-owners of any enterprise; (b) Provider is purchasing only Fulfillment Services from ValoreBooks; and (c) ValoreBooks is not, and is not intended to be, a "seller" or vendor" (as those terms may be defined in any Sales Tax law) of any of Provider's Products.
3. Sales Taxes.Seller agrees that VALOREBOOKS will determine, collect, and remit Taxes to the appropriate authorities as a Marketplace Facilitator. Seller agrees that the list price of any goods or services offered through our Website excludes any Taxes. No Seller may charge or seek to charge the buyer for any Taxes in any amount beyond the sales price (as displayed on our Website) for any Item in question. 
4. No Exclusivity. Each party acknowledges that the other party may obtain inventory of Products from its own resources and from third parties, and that each party may engage in the business of leasing Products on its own behalf and on behalf of, or through, third parties. Neither party (a) has any duty or obligation to deal exclusively with the other party hereunder; (b) shall be restricted from conducting its own Product leasing business without participation or involvement of the other party; and (c) shall have any financial or other obligation to the other party related thereto.
5. Intellectual Property. Neither party shall have the right to use the other party's Intellectual Property. Both parties acknowledge that each party is the exclusive owner of its respective Intellectual Property and that all goodwill associated therewith shall inure solely to the benefit of the Intellectual Property's owner.
6. Customer Information.

1. Upon written request to ValoreBooks by Provider, ValoreBooks shall provide to a third party licensed debt collector who shall then be authorized to use Customer Information solely for the purposes related to the return of Provider Products and the collection of Non Return Fees and such other fees that are or may become due from Customers, provided: (i) such Provider Products are more than 90 days overdue; and (ii) such third party shall be subject to approval by ValoreBooks, which approval shall not be unreasonably withheld or delayed. In such an event, ValoreBooks shall cease and desist from any collection activities on its own behalf against such customers unless authorized in writing by Provider to continue such activities in a manner that causes all collection proceeds to be paid to Provider. The Lease Agreement should reference Provider's rights as stated in this 12(a).
2. ValoreBooks shall include terms in the Lease Agreement which authorizes the assignment of collection rights to a third party and authorizes an assignee or successor to make a charge for fees to become due thereunder against the Customer's credit or debit card account that was used for the Order.

1. Term; Termination. The term of this Agreement shall commence on the Effective Date, and shall continue until the first anniversary thereof ("Initial Term") and is renewable for successive one-year periods (each, a "Renewal Term") upon mutual agreement between, and Notice by, the parties no later than 30 days prior to termination of the Initial Term or a Renewal Term, as the case may be. Either party may terminate this Agreement before expiration of either the Initial Term or any Renewal Term upon 30 days' Notice to the other party. To the extent appropriate, the parties agree that appropriate provisions of this Agreement will survive termination of this Agreement in order to fulfill its purposes. Within 30 days after termination of this Agreement, any undisputed Net Amount Due that accrued before such termination shall be paid to the party owed such net amount due without delay or presentment.
2. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF SECTION 15, IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY: (A) SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE; (B) AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID TO PARTNER BY VALOREBOOKS DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM ON WHICH LIABILITY IS PREDICATED; OR (III) MATTER(S) BEYOND THE LIABLE PARTY'S REASONABLE CONTROL; PROVIDED THAT THESE PROVISIONS ARE NOT INTENDED TO LIMIT VALOREBOOKS'S OBLIGATION TO PAY THE AMOUNTS SET FORTH IN EXHIBIT.
3. DISCLAIMERS. EXCEPT AS PROVIDED HEREIN, EACH PARTY AND ITS RESPECTIVE AGENTS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, EXCEPT THOSE REPRESENTATIONS AND WARRANTIES MADE BY VALOREBOOKS TO ITS CUSTOMERS.
4. Confidentiality. During the term of this Agreement, each party (a "Disclosing party") may provide the other party ("Receiving party") with Confidential Information. Receiving party shall keep the Confidential Information secret and shall only use the Confidential Information for the purposes contemplated hereunder. Receiving party shall neither use such information for its own purposes nor disclose such information to any third party without the prior written consent of the Disclosing party. At termination of this Agreement, upon Disclosing party's request, Receiving party shall return to Disclosing party all Disclosing party's Confidential Information in its possession, including, without limitation, all copies and extracts thereof, or shall purge any Confidential Information in its database maintained for this Agreement except as may be reasonably necessary for historical record keeping purposes. Notwithstanding the foregoing, Receiving party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights or perform its obligations under this Agreement; provided that, all such third parties are bound by obligations of confidentiality and non-use at least as restricted as the duties applicable to the Receiving party hereunder.
5. Consumer Information Security.

1. ValoreBooks acknowledges that it is solely responsible for the security of Consumer Information while that Consumer Information is in ValoreBooks's control or possession. ValoreBooks shall maintain and adhere to all reasonable security measures to protect computer systems and computer networks operated on or behalf of ValoreBooks that capture Cardholder Data or that are used to transfer Cardholder Data to or from Provider from unauthorized control, tampering, or any other unauthorized access. Provider has no liability or obligation for the security of Cardholder Data while in ValoreBooks's control or possession.
2. ValoreBooks shall comply with all applicable Card Association rules including, without limitation, the PCI DSS.
3. ValoreBooks agrees that its employees, contractors, and agents shall be subject to the PCI DSS. ValoreBooks shall instruct its employees, contractors, and agents as to the PCI DSS and develop procedures and practices that ensure compliance to the PCI DSS when using the Site.
4. ValoreBooks shall be solely responsible for ensuring that the Site is PCI DSS compliant. ValoreBooks specifically agrees not to display any Cardholder Data, not to collect Cardholder Data on insecure forms and not to use email for the transmission of Cardholder Data.
5. Provider shall be responsible for the security of Cardholder Data while Cardholder Data is in Provider's control or possession. Provider shall utilize all reasonable efforts to ensure such security to achieve this result and at all times shall comply with PCI DSS when it has access to or possession of Consumer Information.

1. Independent Contractors. The parties intend that ValoreBooks be treated as an independent contractor and not an employee, agent, joint venturer or partner of Provider for any purpose. Nothing in this agreement is intended to be interpreted or construed as creating or establishing the relationship of employer and employee between ValoreBooks and Provider or agency between either of them or on behalf of another. Nothing in this Agreement shall be construed to restrict either party from entering into any other similar or lease referral arrangements with third parties. Neither party is authorized to, and neither party shall make, any representations, warranties or guarantees to customers or potential customers regarding the other party's services or products in a manner that states or implies that such representation, warranty or guarantee is being made on behalf of the other party.
2. Events of Default. A party shall be deemed to have defaulted under this Agreement, and the non-defaulting party shall be entitled to the remedies set forth in Section 20 hereof, upon the occurrence of any of the following events of default (each, an "Event of Default"):

1. Failure to Pay. Any fees or other sums owing by a party hereunder remain unpaid for a period of 15 business days after the due date;
2. Breach of Agreement. A party shall default in the keeping or performance of any non-monetary covenant or obligation herein contained on its part to be kept or performed and such default shall continue for a period of 30 days after the date of receipt of Notice from the non-defaulting party specifying such default;
3. Bankruptcy. A party (i) is dissolved (other than pursuant to a consolidation, amalgamation of merger); (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (iv) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy of insolvency law or other similar law affecting creditors rights, or a petition is presented for its winding-up or liquidation, and , in the case of any such proceedings or petition instituted or presented against it, such proceeding or petition (I) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (II) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; (v) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation, or merger); (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (vii) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process of levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained in each case within 30 days thereafter; (viii) causes or is subject to any event with respect to it that, under the applicable laws of a governing jurisdiction, has an analogous effect to any of the events specified (i) to (viii) inclusive; or (ix) takes any action in furtherance of or indicating its consent to, approval of or acquiescence in any of the foregoing acts; or
4. Merger Without Assumption. A party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity and, at the time of such consolidation, amalgamation, merger, or transfer the resulting, surviving or transferee entity fails to assume all the obligations of such party under this Agreement.
5. Section 3. Provider's breach of any of its obligations in Section 3 if such breach continues uncured for a period of 30 days after the receipt or deemed receipt of Notice from ValoreBooks specifying such default.

1. Remedies. Upon the occurrence of any Event of Default, all sums due under this Agreement at the time of the Event of Default shall be due and payable as of the date of such Event of Default, and the parties shall be entitled to the additional remedies set forth below.

1. ValoreBooks shall not withhold payment or make deductions to any payment before the issuance of a credit by Provider for billing errors or for any other appropriate reasons. If either party discovers a discrepancy for any prior billing period, it shall promptly report the discrepancy to the other party.
2. The parties acknowledge that if either party fails, or threatens to fail, to comply with its obligations under Section 16 (Confidentiality) of this Agreement, the other party may suffer irreparable harm for which there may be no adequate remedy at law. Accordingly, if either party fails to comply with such obligations, then, in addition to its other remedies, the other party shall be entitled immediately to injunctive relief or any other appropriate equitable remedy.
3. Provider may terminate or suspend performance of offering Provider Products, and ValoreBooks may terminate or suspend performance of its fulfillment services, if the other party breaches this Agreement and fails to timely cure such breach. At termination, the Provider Products which may still be in the field with Customers shall continue to be deployed until either such Products are returned to Provider by the Customer or Provider is paid all amounts associated with such Products as outlined in Exhibit A.
4. The rights, powers, and remedies under this Agreement shall be in addition to all rights, powers, and remedies by virtue of any statute or rule of law, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently. Any waiver, forbearance or failure or delay in exercising any right, power, or remedy shall not preclude the further exercise thereof, and every right, power, or remedy of the non-defaulting party shall continue in full force and effect.
5. Notwithstanding any other terms of this Agreement, each party agrees to indemnify and hold the other party (as well as its respective affiliates, directors, officers, employees and agents) harmless from and against all liabilities, losses, damages, judgments, costs, and expenses of any kind which may be imposed on, incurred by or asserted against a party to this Agreement including, without limitation, attorney fees relating to or arising out an uncured Event of Default by the other party, any transaction contemplated hereby, or any amendment, supplement, modification of, or any waiver or consent under or in respect of this Agreement that in each case results from an Event of Default or from any act of negligence or willful misconduct on the part of such party. The indemnifying party's indemnity obligations are contingent on the indemnified party providing the indemnifying party with prompt Notice of all claims, sole control of all defense and settlement activities, and all reasonably requested assistance with respect thereto.

1. General Provisions.

1. All Notices, requests, consents and other communications under the Agreement (collectively, "Notice" or "Notices'') shall be in writing and sent to (a) ValoreBooks for the attention of the individual identified, and at the address indicated, on Exhibit A, as it may amended from time to time; and (b) to Provider for the attention of the person so identified, and at the address Provider supplies to ValoreBooks from time to time. Such Notices shall be deemed to have been received by the recipient on: (i) the second Business Day after the date any such Notice is placed in the United States first class certified mail, return receipt requested, postage prepaid, if mailed; (ii) the day that any such Notice is sent by email whose receipt by the address is electronically confirmed or by facsimile or by personal delivery to the address indicated on or as supplied pursuant to Exhibit A; or (iii) the Business Day following the date any such Notice is sent by nationally recognized overnight courier service to the recipient.
2. Neither party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of the other party (and any such attempt shall be void); provided that, either party may, without such consent, assign and transfer this Agreement to a successor to substantially all of its business or assets to which this Agreement relates. This Agreement shall be binding on and inure to the benefit of ValoreBooks and Provider and their respective permitted successors and permitted assigns.
3. The parties further agree that if any portion of this Agreement is illegal or unenforceable, such portion(s) shall be limited or excluded from this Agreement to the minimum extent required and the balance of this Agreement shall remain in full force and effect and enforceable.
4. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. This Agreement contains the entire understanding of the parties regarding its subject matter and can only be modified or waived by a subsequent written agreement signed by both parties.
5. The parties agree that this Agreement shall be governed by the laws of the State of Delaware, without regard to the conflict of the laws thereof. The parties hereby irrevocably consent to the jurisdiction of the state and federal courts in the State of Delaware for any action arising out of or relating to this Agreement, and waive any other venue to which either party may be entitled by domicile or otherwise. Each party shall comply with all laws, rules and regulations applicable to the performance of its obligations hereunder, and to promptly correct any noncompliance with codes and other laws if such noncompliance in any way interferes with performance of the services.
6. In any action or proceeding to enforce rights under this Agreement, the defaulting party shall pay all attorneys fees and costs incurred by the other party in enforcing this Agreement, including any such costs associated with enforcing this.
7. Neither party shall be liable for delay in performance or nonperformance of any term or condition of the Agreement directly or indirectly resulting from matters beyond its reasonable control, including, without limitation, fire, explosion, accident, flood, labor trouble or stoppage, any regulation, rule or act promulgated by any governmental agency, inability to obtain or shortage of suitable software, material, components, parts, equipment, machinery, fuel, power, transportation, or acts of God.
8. No delay or omission by either party to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of the Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other party shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.
9. This Agreement and the Exhibits annexed hereto constitute the entire agreement between the parties and supersede any and all Orders, prior agreements, arrangements or understandings related to the subject matter hereof, including the Confidential Information. No representation, promise, inducement or statement of intention has been made by either party that is not embodied herein. The Agreement may be modified or amended only by a written amendment specifically referencing the Agreement and any affected Exhibit by number, date, title and parties and executed by a person authorized to execute agreements on behalf of the parties.
10. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
11. The terms of this Agreement supersede any inconsistent terms in the Leasing Policies.

EXHIBIT A

Leasing Terms

[The Leasing Terms may change, in whole or in part, from time to time, at the sole discretion of ValoreBooks.]

Last updated: February 1, 2021