E-COMMERCE MANAGEMENT SOLUTION AGREEMENT
This E-Commerce Management Agreement (the “Agreement”) is entered into by and between UPD Urns LLC, a Virginia Limited Liability Company dba as Memorial Stores (“UPD Urns” ”), and the funeral home agreeing and consenting to the Agreement (“Client”). This Agreement automatically becomes effective and binding upon the Parties upon the date Client agrees and consents to the Agreement (“Effective Date”), by clicking the “Agree” button.
Both UPD Urns and Client may be referred to as a “Party” or collectively as the “Parties”.
- UPD Urns installs, configures, manages, and fulfills orders using E-Commerce Shopping Cart Software (the “Software”).
- Client is in the business of providing death care services, including, but not limited to, serving as a funeral home. Client wishes to have an online portal, by which Client’s Customers (“Customers”) may purchase funeral-related items including UPD Urns items and third-party products (“Products”), with orders fulfilled by UPD Urns and the third party supplying the third-party Products .
- UPD Urns and Client wish to engage in business, by which UPD Urns will provide the Software and management necessary for Client to sell Products via an online portal.
NOW, THEREFORE, in consideration of the promises, covenants, and agreements contained herein, the Parties agree as follows:
The above Recitals are incorporated by reference herein.
1. Management Solution.
Services. UPD Urns agrees to provide an e-commerce solution (“Portal”) to sell Products to Client’s Customers, which includes, but is not limited to:
- providing a back-end Software solution;
- taking and fulfilling Customer orders on behalf of Client;
- making available links to third-party websites that sell Products on the Portal;
- providing payment processing;
- customizing said Portal with Client’s image and branding, “powered by”
- listing any and all Products including those that UPD Urns sees fit.
UPD Urns agrees to:
- devote as much productive time, energy, and ability to the performance of its duties under this Agreement as may be necessary to provide the required services in a timely and productive manner;
- communicate with the Client about progress UPD Urns has made in the development and rollout of the Software;
- supply all tools, hardware, software, and manpower necessary to perform the services, except if UPD Urns’ work must be performed by using or relying on Client’s resources.
- Customer Communications. The Client agrees, and gives permission to, UPD Urns to contact, communicate, and otherwise interact with Client’s Customers for the purposes of fulfilling Product orders and advising Customers that contact UPD Urns via the Portal.
- Video. The Client agrees, and gives permission to, UPD Urns and third-party sellers to exhibit live or pre-recorded Product demonstration videos on the Portal to provide Customers information about the Products.
- Product Listings. The Client agrees, and gives permission to, UPD Urns to list on, and remove from, the Portal any Products that UPD Urns in its sole discretion deems fit. After the end of each quarter, UPD Urns shall provide a notification to the Client listing all Products available on the Portal during the preceding quarter and the 100 most recent Products added to the Portal.
- Links to third-party Websites. The Client agrees, and gives permission to, UPD Urns to make available on, and remove from, the Portal any links to third-party websites selling Products that UPD Urns in its sole discretion deems fit. The Client acknowledges that Customers will be able to directly order Products using the links provided on the Portal. The Client agrees that all dealings between Customers and such third-parties shall on the terms and conditions agreed between Customers and the third-parties.
- UPD Urns will not charge up-front costs for providing the management solution stated under Section 1. Client agrees that, by using UPD Urns’ Software to order Products, Customers will pay UPD Urns for purchased Products.
- Client agrees that, UPD Urns shall set the prices for Products sold by UPD Urns and be authorized to offer up to 15% discount on all Products sold by it. Client additionally agrees that, the amount payable to the Client in respect of the discounted Products shall be calculated with reference to their discounted price.
- Client agrees that, Customers may be provided such credit facilities as UPD Urns sees fit, to finance their purchase of the Products. Client additionally agrees that, cost of the credit facilities shall be shared equally between the Client and UPD Urns.
- After the end of each calendar month, UPD Urns shall provide a summary to the Client listing all Customer purchases of Products through the Portal during the preceding calendar month and all sums due to the Client in respect thereof, which shall be the aggregate of the amount payable for UPD Urns items and for third-party Products, both of which shall be calculated in the following manner:
Amount payable for UPD Urns items:
- UPD Urns will retain a fixed percentage of sales price of all UPD Urns items sold on the Portal during preceding calendar month. The percentage of sales price of UPD Urns items retained by UPD Urns is set out in Part 1 of Schedule 1;
- UPD Urns will retain UPD Urns Item Prices; and
- The balance sales price of UPD Urns items minus Client’s share of cost of the credit facilities offered to Customers, applicable use and sales taxes on such items and value of UPD Urns items returned shall be paid to the Client by UPD Urns.
Amount payable for third-party Products:
- The Client will receive a fixed percentage of the Net Sales Price of all third-party Products purchased by Customers on the Portal or using the links to third-party websites provided on the Portal, during preceding calendar month. The percentage of Net Sales Price of third-party Products payable to the Client is set out in Part 2 of Schedule 1.
- For the purpose of this Agreement, Net Sales Price means sales price of third-party Products minus use and sales taxes on third-party Products and value of third-party Products returned.
- Enclosed with UPD Urns delivered summary shall be a check for payment of the sums due from UPD Urns to the Client.
- For the purpose of this Agreement, UPD Urns Item Prices equals the total number of UPD Urns items purchased by Customers during the month multiplied by the prices for UPD Urns items quoted by UPD Urns to the Client and excludes any discounts on UPD Urns items.
4. Intellectual Property Licenses
- UPD Urns License. UPD Urns owns the intellectual property used in the Software and owns (or licenses) the images and descriptions of the Products. UPD Urns hereby agrees to license to Client, on a revocable, nonexclusive, non-sub licensable and non-transferable basis, its images, and product descriptions used in the Software. The Software used by UPD Urns to provide fulfillment services is, and shall always be, the property of UPD Urns , and UPD Urns hereby agrees to grant to Client a revocable, nonexclusive, non-sub licensable and non-transferable license to said Software.
- Client License. Client owns various pieces of intellectual property, including, but not limited to, names, brands, and copyrighted material. Client hereby agrees to license to UPD Urns , on a nonexclusive basis, that intellectual property which is necessary for UPD Urns to customize Portal for the Client.
- 5. Independent Contractor Relationship. UPD Urns and Client are in an independent contractor relationship, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this Agreement. Neither Party may assume or create obligations on the other Party’s behalf, except as otherwise noted in this Agreement. Parties shall comply with Federal, state, and local tax laws, social security acts, unemployment compensation acts, and workers’ compensation acts on their own. UPD Urns shall not hold itself out as an agent of Client, except insofar as it is necessary to effectively contact and communicate with Client’s Customers.
- 7. Limitations on Liability. The Client agrees that UPD Urns shall only be liable for providing Software, order fulfillment for Products sold by UPD Urns, and maintenance of Client’s Portal. Client agrees that, to the maximum extent permitted by law, UPD Urns’ will be liable under this Agreement only for the Products that are directly sold by UPD Urns. The liability of UPD Urns for such Products is limited, at the option of UPD Urns to order fulfillment and returns and refund of Product price or replacement of Product.
- 8. Assignment. UPD Urns may assign or delegate its rights and obligations under this Agreement to a third party with the written consent of the Client, not to be unreasonably withheld or conditioned, and the assignee agreeing in writing to perform and honor all the terms and conditions contained in this Agreement. Nothing herein prevents or precludes UPD Urns from selling its business or entering into similar agreements with other funeral homes. Notwithstanding this Section 8, Client expressly agrees that UPD Urns , shall not require Client’s permission, to assign this Agreement, and all rights, benefits, and obligations accrued hereunder, to its own subsidiaries, parent companies, sub-companies, partnerships, joint ventures, or other entities controlled or affiliated by or with UPD Urns .
9. Term and Termination.
- Term. This Agreement will become effective on the Effective Date, for a period of one year, except as otherwise stated in this Section. Either Party may terminate this Agreement, by providing the other Party written termination notice at least 30 days prior to the end of the one-year term. If written notice is not provided in the aforementioned manner, this Agreement will extend for an additional one year, with the same notice requirements for termination, in perpetuity.
- Termination. This Agreement may be terminated:
- by either Party by 3working days written notice to the other Party, with or without cause at any time during the term of this Agreement; or
- by either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within 30 days of receipt of written notice of the breach.
- Effect of Termination. After the termination of this Agreement for any reason, UPD Urns shall promptly pay the Client for outstanding commissions due, less Products returns and other deductions. Immediately upon termination of this Agreement: (i) the Client shall have no rights to use the Portal and all licenses granted by one Party to the other Party under this Agreement shall cease; and (ii) all of the provisions of this Agreement will cease to have effect, save that Sections 7, 11, 13 and 20 of this Agreement will survive and continue to have effect in accordance with their express terms or otherwise indefinitely.
- 10. Other Activities. During the term of this Agreement, UPD Urns is free to engage in other independent contracting activities.
- 11. Indemnification. At all times after the Effective Date of this Agreement, the Client shall indemnify UPD Urns and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns (collectively the “UPD Urns Indemnitees”) from all Claims that the UPD Urns Indemnitees may incur arising from:
- the Client’s operation of its business;
- the Client’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or
- the Client’s breach of any of its obligations or representations under this Agreement. However, the Client is not obligated to indemnify UPD Urns if any of these Claims result from UPD Urns ’ own actions or inactions.
- For the purpose of this Agreement, “Claim” means a claim, action, proceeding, notice, demand, litigation, investigation, or liability, however it arises and whether it is present or future, fixed or unascertained.
- 12. Force Majeure. A Party will not be considered in breach or in default because of, and will not be liable to the other Party for, any delay or failure to perform its obligations under this Agreement by reason of pandemics, epidemics, national health emergencies, total or partial lockdowns, fire, earthquake, work stoppages, communication failure, general failure of postal or logistics services, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (“Force Majeure Event”). In the event a Force Majeure Event occurs, the affected party shall, as soon as practicable, notify the other party of the event and its impact on performance under this Agreement, and use reasonable efforts to resolve any issues resulting from the event and perform its obligations under this Agreement.
- 13 Choice of Law.
- The laws of the state of Virginia govern this Agreement, notwithstanding conflicts of law principles.
- The Parties will attempt to settle any claim or cause of action arising out of this Agreement or the subject matter hereof through consultation and negotiation in good faith.
- If the Parties fail to resolve any dispute in the aforementioned manner within thirty days after either Party notifies the other Party, then the dispute shall be resolved exclusively through final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, by one arbitrator, who will be appointed by the CEO of The Foresight Companies, L.L.C or their nominee.
- Each Party shall pay its own legal cost and expenses, provided however, that the Parties agree to share the cost of the arbitrator and of the arbitration equally.
- All such arbitration proceedings will be held in Manassas, Virginia.
- Subject to Section 13(B), both Parties consent to the personal jurisdiction of the state and federal courts in the state of Virginia including for obtaining any restraining order or injunction, where such relief is necessary.
- 14. Amendments. No amendment to this Agreement will be effective unless it is in writing and signed by a Party or its authorized representative.
- 15. Counterparts; Electronic Signatures. The Parties may execute this Agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument. This Agreement, and ancillary agreements thereto, and all related documents in connection with this Agreement are deemed signed: (a) when a Party’s signature is delivered by facsimile, email, or other electronic medium, including .PDF files; or (b) when a Party signs and/or agrees to and accepts the Agreement electronically. The said modes of signatures or acceptance shall be treated in all respects as having the same force and effect as original signatures.
- 16. Severability. If any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, but this Agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this Agreement to be unreasonable.
- Writing; Permitted Delivery Methods. Each Party giving or making any notice, request, demand, or other communication required or permitted by this Agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this Agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
Addresses. A Party shall address notices under this Section 17 to a Party at the following addresses:
If to UPD Urns :
UPD Urns LLC
2940 Blystone Lane
Dallas, TX 75220
If to the Client:
Address on file
- Effectiveness. A notice is effective only if the Party giving notice complies with subsections (A) and (B) and if the recipient receives the notice.
- 18. Entire Agreement. This Agreement constitutes the final agreement of the Parties. It is the complete and exclusive expression of the Parties’ agreement about the subject matter of this Agreement. All prior and contemporaneous communications, negotiations, and agreements between the Parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither Party was induced to enter this Agreement by, and neither Party is relying on, any statement, representation, warranty, or agreement of the other Party except those set forth expressly in this Agreement. Except as set forth expressly in this Agreement, there are no conditions precedent to this Agreement’s effectiveness.
- 19. Headings. The descriptive headings of the sections and subsections of this Agreement are for convenience only, and do not affect this Agreement’s construction or interpretation.
- 20 Confidentiality. UPD Urns and the Client agree, during the term of this Agreement and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the disclosing party, or to disclose to any person, firm, or corporation without the prior written authorization of the disclosing party, any Confidential Information received by one Party from the other Party. “Confidential Information” means any of the UPD Urns’, Client’s and any third party’s proprietary information, commercial and pricing information, information relating to Product sourcing, terms of this Agreement, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, Software, Portal, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by one Party to the other Party either directly or indirectly. UPD Urns may also use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Client personnel or authorized representatives or for any other purpose the Client may hereafter authorize in writing.
- 21 Execution. Client acknowledges that clicking the “Agree” button, acts as the Client’s electronic signature to this Agreement, and constitutes the Client’s acceptance of and agreement with all of the terms and conditions of this Agreement, and ancillary agreements thereto, and all related documents in connection with this Agreement. Each Party agrees that it has been given time to seek the opinion of an attorney on this Agreement. Each Party to this Agreement warrants, covenants, and agrees that the persons executing/accepting this Agreement are authorized and empowered to enter into and execute/accept this Agreement for and on behalf of the person(s) and/or entity(ies) they represent, and by their execution and acceptance hereof, each respective entity or person they represent, and all persons, partnerships, corporations, joint ventures and any person or thing affiliated therewith, shall be bound by the terms hereof.
Schedule - I Amounts payable to the Client
Part – I: Amount payable for UPD Urns items
With the exception of [insert product name] for which UPD Urns retains [insert]% of the sales price, for all other UPD Urns items, UPD Urns will retain [insert]% of the sales price.
Part – II: Amount payable for third-party Products:
Percentage of Net Sales Price
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