PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: May 30, 2020
Welcome to Mable. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at firstname.lastname@example.org or 164 Canal Street, Suite 502, Boston, MA 02114.
NOTICE: Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms https://meetmable.com/terms/brand, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of in court.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the meetmable.com website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
1. Purchase and Sale.
These Terms apply to any product(s) (the “Product(s)”) supplied to or on behalf of Mable from or on behalf of you, the Brand. You agree to provide to us a full listing of all available Products, including wholesale prices and any volume limitations, discounts, incentives, or other promotions for each Product (a “Price Sheet”). The Price Sheet, including any updates which you may provide from time to time, is hereby incorporated into these Terms. All agreements to purchase a specific quantity of Products will be documented in a purchase order accepted by you (a “Purchase Order”) and issued by Mable according to the Price Sheet. You may accept a Purchase Order through our Website or App or by sending us an email. If you want to make any changes to any Purchase Order, you must obtain our prior approval. By accepting these Terms, you agree to comply with all reasonable policies and requirements of Mable including policies relating to Purchase Orders, deliveries, invoices, bills of lading and pallet requirements, in each case, provided that we notify you of such requirements in writing prior to accepting the Purchase Order. If the Purchase Order, your invoice or a shipping document conflicts with these Terms, the provisions of these Terms shall prevail.
2. Product Requirements.
(a) Labeling and Branding Requirements. You agree to deliver to us final Product samples and label information, including an FDA compliant nutritional panel that complies with all Applicable Laws. We may provide labels and packaging to you but are not required to do so. However, you will be solely responsible for confirming that labels and packaging are in compliance with all Applicable Laws and labeling claims. You agree to be solely responsible for labeling and packaging. We may reject or return any Product shipment if packaging is not consistent with the approved packaging design or if Product fails to comply with any Applicable Law.
(b) Mable Product Specifications. You agree to provide and continue to provide us with complete and accurate information regarding your production processes and record keeping practices (“Brand’s Standard Processing Specifications”) and that Brand’s Standard Processing Specifications comply with all Applicable Laws (hereinafter defined). Brand’s Standard Processing Specifications and any requirements communicated by us from time to time, including on an applicable Purchase Order (“Mable Requirements”) are referred to in these Terms as “Product Specifications.” You represent and warrant that all Products delivered to us will comply in all material respects with all Product Specifications and Product labeling claims and that all information provided by you to us about Products is true and correct. You agree to maintain appropriate documentation evidencing compliance with these Terms and agree to grant us reasonable access to this documentation for purposes of verifying such compliance. No proposed change will be deemed accepted by us unless we agree to the change in writing. You agree to promptly notify us in writing if you become aware that any Product fails to comply with any Product Specification. The term “Applicable Laws” includes all requirements of any applicable domestic or foreign federal, state, provincial or local law, regulation or ordinance of the place where Products are produced and packaged and where Products are sold.
(c) Representations and Warranties. You represent and warrant that all Products (including packaging and labels), at the time of receipt at the “Ship To” address in the Purchase Order, (the “Delivery Point”)
- will be merchantable and otherwise free from impurities or defects;
- will include packaging that is in compliance with all reasonable safety standards;
- will not pose a health or safety hazard when used for their intended purpose in accordance with applicable Product documentation and labeling;
- will not be contaminated with a foreign substance or contain any rancid ingredient
- will not include any ingredient that has not been disclosed to us;
- will not include any allergen or be processed in a facility that uses an allergen in production processes unless it has been disclosed on the label in accordance with Applicable Laws;
- will not include any illegal, misleading or untrue label claim;
- will not be prepared, packed or held under insanitary conditions;
- will not be adulterated or misbranded within the meaning of Applicable Law;
- will comply with all Applicable Laws;
- will be consistent with its original quality at all times during its designated shelf life (assuming proper storage and handling after delivery);
- upon payment, we will own the Product shipment free of any security interest, lien, pledge or other encumbrance of any nature. You and all employees and agents involved in the manufacturing, processing or delivery of the Products will adhere to all Applicable Laws with respect to the operation of your production facilities and your other business and labor practices, including, but not limited to, the California Transparency in Supply Chains Act of 2010. You further represent and warrant you will procure and maintain insurance sufficient to meet your obligations hereunder.
(d) Label Claims and Certifications. If a Product is subject to a Mable Requirement, or makes any label claims such as organic, kosher, Non-GMO, Non-GMO Verified or includes any other certification mark on its packaging, you agree to provide us with a copy of the applicable certificates of compliance.
(e) Delivery. You agree to deliver Products in strict compliance with these Terms and the Purchase Order. Your delivery of Product shipments will occur and title and risk of loss will pass when a Product shipment is delivered to the Delivery Point and an authorized representative has signed the bill of lading or other shipping document acknowledging its receipt. You agree to comply with all policies and requirements of Mable of which we have provided you notice prior to acceptance of the relevant Purchase Order, including policies relating to purchase orders, deliveries, invoices, bills of lading and pallet requirements. You agree to promptly notify us of any Product shortages, decreased availability or out of stocks impacting delivery under any Purchase Order.
3. Quality Assurance.
You agree to provide us or our designated agent with the results of any food safety audit of your Product production facilities at least once a year. We may require additional internal audits (to be reasonable in scope, duration and frequency) based upon our or our agent’s quality assurance evaluation. All such audits will be at your expense. You agree to grant us and our agents the right to do the following at your expense: (a) to inspect all production facilities of yours during regular business hours; (b) to have a representative on-site during the production of the Products; and (c) to randomly test Products at your facility during normal business hours or at our facilities at any time after delivery. If any valid sample test results indicate that a Product does not comply in any material respect with the requirements of these Terms, you agree to perform and pay for additional tests reasonably requested by us to confirm the Product’s compliance with the requirements of these Terms.
4. Product Quality Issues; Withdrawals & Recalls.
(a) You agree to provide us with primary and secondary contact numbers where we may reach you outside of normal business hours with questions concerning time sensitive issues. You agree that you have and will maintain a reliable recall system including appropriate tracking, coding and accounting systems for all Products, as well as securing necessary records for a minimum of one year beyond the expected shelf-life of the Product, or to the extent required by Applicable Laws of the state in which the Product is designated for sale, whichever is greater. You agree to consult directly with us for instructions relating to quality or regulatory issues, including consumer complaints and withdrawals and recalls.
(b) You agree to pay all reasonable out-of-pocket expenses associated with the withdrawal or recall of a Product or Product safety notice if the withdrawal, recall or safety notice is carried out in accordance with generally accepted industry standards and based upon Product test results or other credible evidence indicating that all or part of one or more Product shipments, as a result of a condition that existed at the time of receipt by us, fails to comply with any Applicable Law or any one or more of the representations, warranties or covenants made by you in these Terms, or could otherwise pose a health or safety risk. In the event we determine that any such recall is warranted, we will promptly notify you and the parties shall work together in good faith to determine the cause of the non-conforming Product and the extent of the impact on Products delivered hereunder. At our reasonable request, you agree to cooperate with and assist us with any such withdrawals, recalls and safety notices. Without limiting the foregoing, we may withdraw or recall any Product for any reason at our own expense without liability or obligation to you under these Terms.
5. Nonconforming Products.
We may terminate any outstanding Purchase Order for a Product and/or reject, revoke acceptance of and either hold or return Products (with return shipping at your expense) if (a) there is credible evidence that such a Product or all or part of shipment of such Products fails to comply with Product Specifications or the applicable Purchase Order, (b) the Product was processed in a manner that creates a substantial risk that some of the Product could be contaminated or defective, (c) Product tests indicate that any part of such Product is contaminated or otherwise fails to comply with these Terms or (d) the Product is produced in an unapproved facility. Payment of an invoice will not waive these rights. If the non-conformance is due to labels, we will have the option of correcting the label at your expense if you are unable to promptly correct the label on your own accord after being notified in writing of the non-conformance.
6. Pricing and Payment.
(a) Except as otherwise agreed between you and Mable in writing, Product prices will be set forth on the Purchase Order according to the Price List. Payment terms will be due net 30 days from the date of shipment and less the applicable commission (the “Commission”). Unless otherwise agreed to in writing by us, the applicable Commission for each Purchase Order shall be the commission as set forth in Exhibit A attached hereto. The date of shipment shall be the date Products are actually picked up from your facilities, as documented by a signed Bill of Lading.
(a) You agree to indemnify, hold harmless and defend the Indemnitee (defined below) and hereby release the Indemnitee from and against any and all Losses (defined below) to the extent caused by any Claim resulting from (i) the gross negligence, recklessness or willful misconduct of you or any of your employees, agents or third parties acting on your behalf in the supply and/or production of the Product; (ii) your failure to comply with Applicable Law or these Terms; (iii) personal bodily injury, illness, death or damage to personal property caused by the presence or activities of you or any of your employees or agents or by the failure of a Product to comply with any claim or representation on your label or the failure of your product label to disclose information about the product including but not limited to information about allergens; or (v) your production, handling, or disposal of your product, which Claim is brought against an Indemnitee pursuant to California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). If the root cause of an adulteration discovered after receipt of your product shipment to the Delivery Point is attributable to the production, processing or packing of the products in the product shipment prior to receipt or the condition of the container at the time of receipt, then the adulteration will be regarded as having existed prior to the time of the acceptance of the product shipment.
(b) The obligation to indemnify set forth in these Terms includes an obligation to indemnify us and all our affiliates and each of their members, managers, general and limited partners and other owners, their officers, directors, employees, and agents (in each case, an “Indemnitee”). The term “Losses” means losses, damages, costs, expenses and settlement amounts finally awarded to a third party by a court of competent jurisdiction or agreed to in monetary settlement of a Claim for which indemnification is sought by an Indemnitee. The term “Claims” means any and all third party claims, demands, causes of action, suits, actions, and other proceedings.
(c) We will have the option of investigating and negotiating a settlement of customer complaints and, where appropriate, of selecting counsel and controlling the defense of third party claims; provided, however, that your indemnification obligations are conditioned upon us providing you with prompt written notice of any Claim for which indemnification is sought, sole control over the defense and settlement of the Claim, and all reasonably requested cooperation in connection therewith. We will have a right to participate in the investigation and settlement of complaints and to approve any choice of counsel (such approval not to be unreasonably withheld, conditioned or delayed) and to participate in the settlement or defense. You agree to reimburse us for reasonable expenses (including reasonable attorneys’ fees and court costs) associated with investigating and settling or litigating Claims as those expenses are incurred if the claim is subject to indemnification under these Terms and you do not promptly assume control over the investigation, settlement and/or defense thereof in accordance with these Terms.
You agree to obtain and maintain the insurance sufficient to meet your obligations under, and any liabilities in connection with, these Terms (the “Insurance Coverage”) including, without limitation, any liability arising out of or related to the supply or sale of Products. Unless an exception is granted by us, the Insurance Coverage will be written by insurers in good standing that are licensed and admitted to do business in the locations where the Products are to be sold and the Insurance Coverage will be written on an occurrence basis by an insurance company classified by A M Best as a Class VII or larger with a Financial Strength Rating of at least A-. You agree to provide a Certificate of Insurance naming us and our subsidiaries as an additional insured to your Commercial General Liability Policy and Umbrella/Excess Liability Policy. You agree to provide us 30 days’ notice of cancellation, as well as, a copy of the insurance and endorsements annually, upon renewal and/or upon material changes, or within 30 days of cancellation. All such policies shall provide insurance for the life of Products and include a worldwide coverage territory covering (a) claims brought worldwide and (b) claims brought by third parties.
In connection with the negotiation of these terms and the provision of Products hereunder, we and you may have acquired or may acquire or develop non-public information relating to the other party and their businesses (“Confidential Information”). The parties agree that they will not disclose any Confidential Information to any third party unless the disclosure is necessary to fulfill the parties’ obligations under these Terms and the third party has agreed in writing to keep the information confidential. The parties will use the degree of care it uses to protect their own confidential information to maintain the confidentiality of all Confidential Information, but in no case, less than reasonable care. The obligations set forth in this Section 9 shall not apply to any information which (a) is already known by the receiving party prior to receipt from the disclosing party, (b) is rightfully furnished to the receiving party without restriction by a third party not in breach of any obligation to the disclosing party, (c) is or becomes generally available to the public other than due to the receiving party’s breach of these Terms or (d) is independently developed by the receiving party without reference to or use of any of the disclosing party’s Confidential Information. Each party may disclose the general nature, but not the specific terms, of these Terms without the prior consent of the other party; provided, however, that either party may provide a copy of these Terms or otherwise disclose its terms on a confidential basis in connection with any financing transaction, securities filing or due diligence inquiry.
10. Warranty Disclaimer.
Neither Mable nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Mable or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES, AND CONTENT ARE PROVIDED BY MABLE (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitations of Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MABLE (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO MABLE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent allowed by applicable law, You agree to indemnify and hold Mable, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms, and (c) any Products including any violation of any third party’s proprietary rights in connection with the Products. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Mable’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
14. Choice of Law.
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof.
15. Arbitration Agreement.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MABLE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. Both you and Mable acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Mable’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in Boston, Massachusetts. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Mable will pay all arbitration fees for claims less than $75,000. Mable will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court. Furthermore, either you or Mable may assert claims, if they qualify, in small claims court in Boston, Massachusetts or any United States county where you live or work.
(d) Waiver of Jury Trial. YOU AND MABLE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Mable are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Mable over whether to vacate or enforce an arbitration award, YOU AND MABLE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 164 Canal Street, Boston, MA 02114 postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Mable to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Mable agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Suffolk County, Massachusetts, or the District of Massachusetts.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for Mable as we see fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Mable agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Mable, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Mable, and you do not have any authority of any kind to bind Mable in any respect whatsoever.
All sales made using the Services shall be subject to the following commission fees:
|Existing customers listed on Brand’s Customer List||0%|
|All other customers||10%|
Prior to any use of the Services, Brand shall provide to Mable a list of existing customer accounts (the “Customer List”). Mable reserves the right to request, and Brand hereby agrees to reasonably provide, documentation to substantiate the Customer List.
All sales to customers on the Customer List shall be exempt from commission fees herein. All other sales will be subject to a 10% commission fee. All sales completed using a credit card shall be subject to a standard credit card processing fee of 3%.