Terms of Service

FORTY ELEPHANTS 

CONSIGNMENT TERMS OF SERVICE 

Last Modified: May 1, 2024 

These Terms of Service (these “Terms”) apply to the consignment relationship between you  (the “Vendor”) and Forty Elephants, LLC, a Missouri limited liability company (the  “Company”), located at 200 S. Kirkwood Road, Ste. 140, Kirkwood, Missouri 63122 (the  “Company Location”), and are ePective as of the date you demonstrate your assent to  these Terms (the “EPective Date”) by clicking the check-box indicating such assent on  Company’s website. Vendor and Company shall be referred hereafter as the “parties,” and  individually, a “party.” 

By submitting your goods and products for consignment with Company, you acknowledge,  consent to, and agree to abide by, these Terms: 

1. Brokerage Appointment; Acceptance; Limited Exclusivity. Vendor hereby appoints  Company on a non-exclusive basis as an authorized broker for the consignment and sale of  the Products (as defined in Section 2.1). Company accepts such appointment and agrees  to act in such capacity as described in these Terms and to be bound by all terms applicable  to it as set forth herein. For the avoidance of doubt, Company shall have the right to obtain  and/or retain the rights to act as a broker, sales agent, and/or distributor of any other third  party products, including products that may compete with the Products. While Vendor may  consign goods and products with third parties during the term of this Agreement, Vendor  agrees that it shall not sell the same items being consigned with the Company  simultaneously on any third party platform or through any other commercial channel of any  kind. If Vendor wishes to consign certain goods or products through a third party channel, it  shall first withdraw such goods from sale with the Company (pursuant to these Terms). For  purposes of this Section, otherwise identical goods and products shall be deemed to be  the “same” notwithstanding any superficial variation to the good or product, including size,  color, condition, or name. 

2. Delivery of Consigned Products; Setting Up. 

2.1 Products Identified for Consignment; Suitable Products. Company shall have the  right to apply to Vendor for a consigned stock of Vendor’s products as identified by Vendor  through the Consignment System (defined in Section 4.1) from time to time (the  “Products”). Vendor may amend the list and quantity of Products within the Consignment  System as it sees fit. Company (a) may reject Products for consignment at any time and for  any reason (or for no reason), (b) is not required to purchase Products at any time, and (c) is  not required to stock or place for consignment any minimum amount or quantity of the  Products. 

The Company will only accept clothing, shoes, bags, jewelry and other accessories, and 

reserves the right to reject all other products for consignment. Company will not use any  Vendor Rack (as defined in Section 3.1) to store its own products or the products of other  vendors. 

2.2 Delivery of Products. Vendor shall personally deliver all Products to be consigned to  the Company Location at such date(s) and time(s) as are mutually agreed upon by the  Company and Vendor in advance. Company does not accept shipped Products, and will  reject any shipped Products or hold Products for collection by Vendor, at Vendor’s expense,  on the terms set forth in Section 4.11. 

2.3 Inspection of Products. Upon receipt by Company of any Products for consignment  (or incident to Vendor’s setting up of its Products on the Vendor Rack(s)), Company shall  promptly conduct a preliminary incoming inspection of the Products to verify that Vendor  has delivered the correct type and number of Products. Company shall have the authority 

to reject any Products that do not conform with this Section 2 or are not accurately  reflected in the Consignment System, and Vendor must immediately correct any such  errors or remove all such Products from the Company Location. 

2.4 Setting Up. Unless Vendor has elected and paid for a Plus-Up Option as described in  Section 3.1, in which case Company will perform the services purchased by Vendor  pursuant thereto, (i) Vendor alone is responsible for attaching barcodes, price tags, and  security (alarm) tags (see Section 5.3) to the Products and for hanging the Products on the  Vendor Rack(s), and Company shall provide Vendor with enough hangers to hang the  Products (in the quantity for which each Vendor Rack has been rented, as described in  Section 3); and (ii) Vendor is solely responsible for devoting suPicient time and personnel  to setting up its Products in accordance with the Services. Company will not display any  items that Vendor does not set up in accordance with Vendor’s level of service chosen. 

2.5 Faulty or Mispriced Products. Vendor is solely responsible for alerting potential  customers to any faults or defects in the Product(s), including incorrect pricing, as  Company will not honor consumer refunds or returns of any Products. Misplaced items  (e.g., Products found on another vendor’s rack) will nonetheless be credited to Vendor  upon any sale of such Product(s). 

2.6 No Guarantee of Minimum Sales. Company does not guarantee that any minimum  number of Products will be sold to Company’s customers. Company is under no obligation  to devote any ePort toward the marketing or sale of the Products except as provided in  these Terms. 

2.7 Customer Payments. Company accepts only credit and debit cards (or their  equivalent) as payment from its customers. Company shall have the right to remit  commissions to Vendor based on credit/debit card payments only as those payments  settle in Company’s account. In the event a customer charges back or successfully  disputes any purchase of any Product(s) and Company has already remitted the 

commission for such Product(s) to Vendor, Company shall credit such disputed amount  against Vendor’s future commissions, or at Company’s election, Company may request,  and Vendor shall repay to Company, any amount that is finally adjudicated by the credit  card processor to Company’s detriment. 

3. Rack Rental Fee and Commissions. As consideration for Company’s consignment of  the Products and provision of the ancillary services described in these Terms (collectively,  the “Services”), Vendor shall pay to Company, as applicable: 

3.1 Rack Rental Fee; Plus-Up Fee Options. A fee for Vendor’s rental of one or more  dedicated display racks (each, a “Vendor Rack”) at the Company Location, at the rate of (i)  $35 per week per small Vendor Rack or $50 per week per regular Vendor Rack, or (ii) an up front discounted rate of $95 per three-week period for a small Vendor Rack and $135 per three-week period for a regular Vendor Rack ((i) and (ii), as applicable, the “Rack Fees”), in  each case, plus (iii) any applicable Plus-Up Fee (as defined in this Section 3.1) (collectively,  the “Fees”). (For the avoidance of doubt, in the event a Vendor Rack has been gifted to you  by the Company, such Rack Fees will not apply with respect to such Vendor Rack.) For  purposes of these Terms, (i) a “regular” Vendor Rack is designed to comfortably display up  to 50 pieces of clothing and up to 5 accessories, with Company holding up to 10 pieces of  back stock, (ii) a “small” Vendor Rack is designed to comfortably display up to 20 pieces of  clothing and up to 3 accessories, with Company holding up to 5 pieces of back stock; and  (iii) a “week” shall mean one calendar week, and Vendor acknowledges that Company  hours are 10 a.m. to 5 p.m. Central Time Wednesday through Saturday, 11 a.m. to 4 p.m.  Central Time on Sunday, with the exception of certain holidays. Rental of a Vendor Rack  automatically opts Vendor in for participation in (i) store racks [rotating thematic or trend focused racks throughout]; and (ii) community and special events scheduled during or  outside of weekly Company hours. 

The Plus-Up Options, which Vendor may opt into for the additional Plus-Up Fees described  below, are as follows:

The Company may update the Fees from time to time in its sole discretion. Any Fee  updates will be reflected in updated Terms of Service on Company’s website and notice of  Fee updates will be provided in advance to active Vendors. 

Rental periods for Vendor Racks are at all times subject to Company discretion and  availability. 

3.2 Consignment Commissions. Unless Vendor opts to receive Store Credit Commission  (as defined herein) and except for items placed in the Luxury Cabinet (as defined in Section  3.3), Company shall retain 20% of the purchase price of any Products purchased by  Company’s customers and shall remit the remainder of such purchase price to Vendor in  accordance with Section 6.2. Notwithstanding the foregoing, if Vendor opts to receive store  credit to spend at the Company in lieu of commission (“Store Credit Commission”),  Company shall retain only 15% of the purchase price of such Products and shall remit the  remainder of such purchase price to Vendor as store credit to be spent at the Company. 

3.3 Luxury Cabinet Commissions. Upon Vendor’s request and with Company’s advance  consent (subject to Company discretion, space and availability), Vendor may place for sale  up to three (3) items in a locked cabinet (“Luxury Cabinet”), which Products are accessible  to Company’s customers only with assistance from Company’s sales staff. Company may  place size restrictions on any such Products and may reject Products for display in a Luxury  Cabinet for any reason. Company shall not charge rental fees for display of Products in a  Luxury Cabinet, but shall retain a commission of 35% of the purchase price for such  Products or, at Vendor’s option, 30% in the event Vendor chooses Store Credit  Commissions. 

4. Rack Reservation and Payment; Pricing and Tagging. 

4.1 Consignment System. Vendor shall reserve and pay for all display racks through Company’s booqable third-party online reservation program (will be available only before  7.31.24) or any other mechanism chosen for rack reservations by Company from time to  time (in any case, the “Consignment System”). Company shall likewise deliver to Vendor all  relevant information concerning the Products through the Consignment System, including,  but not limited to, sales and inventory information.

4.2 Weekly Payment. All weekly rack payments shall be due and payable in full at the time  of reservation. 

4.3 Product Information. Except for any information for which Company may be responsible in the event that Vendor has elected the Full-Service Plus-Up Option, Vendor is  responsible for maintaining current information in the Consignment System, relating to,  among other things, pricing of the Products and Vendor personnel contact information.  Company is not responsible for any lost revenue resulting from Vendor’s failure to update  its information for which Vendor is responsible in the Consignment System. Vendor  specifically represents that all information it adds to (or approves in, with respect to certain  Plus-Up Options) the Consignment System is accurate at the time it is so submitted or approved, as applicable. Company has the right to limit the frequency of pricing and other  changes within the Consignment System in its sole discretion, except as otherwise  provided in these Terms. To avoid costs associated with printing new price tags and  barcodes, Vendor shall not be permitted to change pricing information for the Products  after the start of the rack rental period (i.e., on or after 12 a.m. on the day the rental period  is to commence). 

4.4 Product Quantity. Vendor shall receive rack room sufficient to display and market the  quantity of Products for which Vendor has purchased Vendor Rack(s), as described in  Section 3.1. During Company’s ordinary business hours, Vendor may add inventory to its  rack(s) as Product inventory is sold through, provided the quantity limits for its rented racks  are not exceeded. Company will add any back stock to Vendor’s rack as items are sold  therefrom. 

4.5 Barcodes and Price Tags. At the commencement of any reservation, or upon receiving  new inventory of Products from the Vendor, as applicable, Company shall print and make  available to Vendor barcode stickers and price tags for the Products to be sold, in any form  Company chooses. Vendor is not permitted to use its own barcodes or price stickers for the  Products to be consigned, and Company will not oPer to sell Products that are not  stickered and tagged as provided in this Section. Company shall deliver to Vendor  replacement stickers and tags as necessary, except that absent any manifest error by the  Company, Vendor shall not be permitted to request or receive replacement barcodes or  tags more frequently than once per week (or as otherwise provided in these Terms). 

4.6 Discounting. Vendor may place its Products on sale or otherwise discount the price  of the Products by notifying the Company by phone or via email. However, to avoid  customer confusion, any such sale or discount shall apply to all Products on the Vendor  Rack being discounted. Upon notice of any sale or discount by Vendor, and subject to  those price change limitations set forth in Section 4.3, Company will change the price tags  for the Products. 

4.7 Availability. Company makes no representation as to the availability of racks of any 

size for the consignment of Vendor’s Products, even where Vendor has earlier been  provided rack space. No promise of availability by the Company shall be ePective except  where Vendor reserves such rack space through the Consignment System. 

4.8 Vendor Rack Maintenance. Company shall be permitted to tidy and organize any  Vendor Rack or take any other steps reasonably appropriate to encourage the sale of the  Products (for the avoidance of doubt, other than adding Company or other Vendor  products to your Vendor Rack). 

4.9 Media and Publicity. By utilizing any Vendor Rack, Vendor provides Company with  express permission to take and post photographs and other written or audiovisual media of  the Products on Company’s website, social media accounts, or through other ordinary  promotional channels. This right shall survive the Vendor-Company relationship. Company  may advertise and promote the Products in a commercially reasonable manner and may  use Vendor's trademarks, service marks and trade names in connection therewith. The  sublicense of any trademark, service mark, trade name, or other intellectual property shall  be perpetual, without royalty, and worldwide in scope. Notwithstanding the foregoing,  Company is under no obligation to market, advertise, or promote the Products except  expressly provided in these Terms. 

4.9 Untagged Items. In the event Company discovers an untagged item and cannot  determine its owner, the Company will segregate the item for recovery for a period of 7  days, during which Vendor shall be responsible for claiming the item. Any Product(s) not  claimed by Vendor within this 7 day period shall become the property of the Company.  Company is under no obligation to notify Vendor of any untagged items or the need to claim  them before Vendor suPers the loss of the item(s). 

4.10 Refunds. Company does not provide refunds, in whole or in part, for Vendor Rack  reservations under any circumstances, except by virtue of Company’s own error or due to  the unexpected closure of the Company Location in certain limited circumstances as  described in this Section. For the avoidance of doubt, Vendor is not entitled to any refund  for overestimating its need for rack space, its failure to code, tag, and hang its Products, the  occurrence of any force majeure event, or for any other reason. In circumstances in which the Company Location is unexpectedly closed to the public during any period of time not  scheduled in accordance with Company’s booking calendar, whether due to emergency (including any act of god or inclement weather), exigent circumstances, state or municipal  restrictions on operations, Company oversight, or similar, Vendor shall be entitled to a  daily, pro-rated refund of the Fee described in Section 3.1 for each day, or any material  portion thereof (i.e., more than six (6) business hours), that such closure continues. This  pro-rated refund shall be Vendor’s sole basis for recovery, accommodation, or offset under  this Agreement. Vendor is not entitled to the payment of any anticipated profits or revenues  lost as a result of a Company Location closure as described in this Section. Company  Location closures lasting fewer than three (3) days shall not constitute Company’s breach 

of this Agreement. This Section, including Company’s daily refund obligations referenced  herein, shall be subject to Section 12.12 (Force Majeure). 

4.11 Expiration of Rental Period; Storage Fee. On the last day of the applicable Vendor Rack’s rental period, and provided that Vendor has not renewed or reserved additional  rental time prior to expiration, Vendor must empty its rack(s) of unsold Products no fewer  than thirty (30) minutes prior to the close of ordinary business hours at the Company  Location. Vendor is responsible for collecting any Products inadvertently placed on racks  belonging to other vendors. Company reserves the right to charge Vendor a storage charge  of $20 per day for unsold Products not collected in accordance with this Section 4.11, or  Products that are shipped to Company under Section 2.2, which Company may offset  against any unremitted commissions. Upon one (1) day’s prior notice, and for a fee of $15,  Company shall remove all unsold Products from Vendor’s rack on its behalf and reserve  them for pick-up by Vendor on the last day of the rental period. Vendor is solely responsible  for ensuring the Products being collected are rightfully the property of Vendor (and are not  confused with another vendor’s products). After collection, If Company discovers  additional inventory not collected upon expiration of the rack rental period, such Products  will be stored at no cost to Vendor for a period of seven (7) days, after which such Products  shall become the property of the Company. Company is under no obligation to notify  Vendor with respect to any such Products. 

5. Storage and Care of Consigned Products. 

5.1 Condition of Products. Vendor is required to clean and press or steam (or select Plus Up Options pursuant to which the Company would do so) the Products before delivery to  the Company, in a manner reasonably appropriate for sale of the Products to the public.  The Company reserves the right to remove Products from the sales floor or decline to  accept any Products that do not, in the Company’s opinion, satisfy its cleanliness,  neatness or quality expectations. Company can demand Vendor’s removal of any oPending  Products at any time. 

5.2 Company Location and Placement of Products. The consigned Products shall be  stored at the Company Location. The Products shall be separated from Company's other  products, supplies, and equipment (or the products of other vendors) to the extent  Company deems appropriate. The Products shall not be stored at any other building or  place without the prior written consent of Vendor, which consent shall not be unreasonably  withheld, provided that the storage conditions for the Products at such other building or  place conform to the requirements set forth herein. Vendor shall be deemed to have  accepted all changes the Company makes to the location of the Products if Vendor does  not object to such changes within thirty (30) calendar days after written notice (which  notice may be given by email) is provided to Vendor. Vendor is not permitted to attach its  own shelves to, modify, tamper with, or otherwise alter any Vendor Rack or Luxury  Cabinet.

5.3 Security and Safety. Company shall use commercially reasonable eWorts to  provide for the security and safety of the consigned Products at the Company Location; however, Vendor accepts and agrees that Company shall not be responsible  for any loss or damage to Vendor, or for any loss, casualty, theft, or damage to the  Products, regardless of the cause thereof. Vendor is advised not to bring Products of  excessive sentimental or economic value that it has not insured or for which Vendor cannot otherwise bear the loss. At Vendor’s reasonable request, Company shall  provide Vendor with security tags for the Products at no cost to Vendor. To ensure the  safety of the Products and of the Company Location, Vendor is prohibited from leaving  Products, bags, boxes or other items on the floor in front of or near emergency or fire exits.  Company shall reserve the right to remove and dispose of any items it reasonably believes  to be in violation of this Section. 

5.4 Title to Products. Title to all Products shall be retained by Vendor unless and until  such Products are withdrawn from the consignment inventory by Company and sold to  Company’s customers. Vendor does not pass title to the Products to Company by virtue of  delivering the Products to the Company Location, and title for the Products shall never  pass to Company as a result of the brokerage relationship between the parties. By virtue of  Section 1, Section 6.1, and the rest of these Terms, Vendor acknowledges that Company  has the right, if executed in the manner described herein, to vest title in the Products to  third parties, and that Vendor shall have no right to demand the return of sold Products  after any customer sale has been consummated in accordance herewith. 

5.5 No Liability for Loss. The Products may be covered by Company's insurance while  physically located at the Company Location, but Company shall have no obligation to  insure the Products and Vendor shall bear the entire risk of loss or damage to the  Products at all times prior the sale of the Products as provided under these Terms. 

6. Withdrawal of Consigned Products from Inventory; Payment of Revenue. 

6.1 Title. Title to the Products shall pass to Company’s applicable customer buyer the  moment Company withdraws such Products from the consignment inventory. At the end of  each Vendor Rack rental period, Company shall notify Vendor through the Consignment  System of the quantity, Product type, and other identifying information of the Products  withdrawn from the consignment inventory and sold. 

6.2 Remittances. Within five (5) business days from the end of any applicable Vendor Rack  rental period (or the termination of Company’s relationship with Vendor, as applicable),  Company shall remit to Vendor all payment of revenue derived from the sale of the  Products (with commissions deducted), less any Fees owed and not yet paid to Company through check, Venmo, store credit, or any other similar method chosen by the Company.  Vendor is solely responsible for providing Company with correct payment credentials,  including bank account and routing information. Company is not responsible for  misdirecting the payment of Vendor revenues to any third party as a result of

Vendor’s submission of incorrect payment information to the Company, and Vendor shall  bear all costs associated with any such error. In the event Company cannot make any  payment(s) to Vendor through these or other reasonable payment methods, after  reasonable attempts to contact Vendor, Company shall be entitled to retain all such  payments after the passage of sixty (60) days. 

6.3 Taxes. Vendor shall be solely responsible for paying all taxes, fees, and other costs associated with revenues earned by Vendor from consignment of the Products. Vendor is  solely responsible for consulting tax counsel to determine Vendor’s tax obligations with  respect to revenues earned by Vendor under this Agreement. 

7. Product Warranty; Defective or Nonconforming Products. Vendor warrants that the  Products will be clean, smoke-free and authentic (meaning, as to name brand and designer  goods, that the Products are authentic to the brand and are not counterfeit). Vendor  warrants that the Products are merchantable and fit for their intended use and that the  Products will perform in conformance with the specifications and documentation provided  with the Products, if any. Vendor agrees that such warranties are made for the benefit of  Company’s customers and end users of the Products. Company may, at Vendor's sole  expense, remove Products that are found to be defective and require Vendor to collect  them within three (3) calendar days. 

8. Termination of Services and Consignment Relationship. 

8.1 Violation of Terms. Vendor is in default under these Terms if Vendor materially violates  any of these Terms and such violation continues uncured for a period of three (3) calendar  days after Vendor has been notified of the violation. Upon the occurrence of any violation  as described in the previous sentence, the Company may immediately terminate its  Services. 

8.2 Termination for Convenience. Notwithstanding anything herein to the contrary, the  Services may be terminated by either party, for any reason or no reason, at any time upon  at least fourteen (14) days written notice to the other party. Termination shall not absolve  Vendor of the payment in full of any Fees. 

8.3 EPect of Termination of Services. Upon expiration or termination of these Terms or of  the Services, Vendor shall collect unsold Products in the manner described in Section  4.11. 

8.4 Survival. All terms and conditions which by their nature are intended to survive  termination the Services shall survive to the extent necessary to preserve the rights and  expectations of the parties hereto. 

9. Indemnification.

9.1 Vendor's General Indemnification. Vendor shall defend, indemnify, and hold harmless  Company, its officers, directors, employees, counsel, agents, and attorneys-in-fact from  and against any claims, demands, liabilities, expenses (including attorneys' fees and  costs), or other losses for any injury or damage, including, but not limited to, any personal  or bodily injury or property damage, relating to, arising out of, or resulting in any way from  Vendor’s breach of these Terms or any defect in Products. This duty to indemnify Company  and the parties identified in the previous sentence shall be in addition to the warranty  obligations of Vendor. 

9.2 Intellectual Property Indemnification. Vendor shall indemnify and hold harmless  Company, its officers, directors, employees, counsel, agents and attorneys-in-fact from  and against all damages and costs incurred by Company arising from the infringement of  any patents, copyrights, or trademarks in the manufacture or marketing of the Products;  provided that Company promptly notifies Vendor of the charge of infringement or legal  proceeding. 

10. Vendor’s Representations and Warranties. Vendor represents and warrants to  Company that: 

10.1 The Products or their use do not infringe upon any patents, copyrights, or  trademarks of others, and that there are no suits or proceedings pending or threatened  which allege that any Product or the use thereof infringes upon such patents, copyrights, or  trademarks. 

10.2 The Products are not bootlegged, stolen, hazardous, adult-oriented in nature (e.g., sexually explicit), illegal, or otherwise unsuitable for sale at the Company Location. 

10.3 Products that bear a third party company’s name, logo, or other trademark are  authentic, were lawfully made by that company and do not infringe upon the copyright or  trademark of any third party. Vendor understands that it is solely responsible for ensuring  the authenticity of the Products it consigns with the Company. Company may, in its sole  discretion, refuse to sell consigned Products it suspects may be counterfeit, including  Products that bear the logo of a company that did not produce the Product. Company may  demand from Vendor additional information about Products it suspects to be in violation of  this Section 10.3 before offering the Products for sale, including chain of title, provenance,  or receipts. Vendor shall indemnify the Company pursuant to Section 9.1 for any breach of  this representation and warranty, including in respect of the sale or oPer for sale of any  counterfeit Product and any liability arising therefrom. Where Vendor has received sales  proceeds from the consignment of counterfeit Product(s) prior to Company’s discovery of  its breach of this Section, Company may compel Vendor to disgorge to Company (or to  Company’s assignee) all such proceeds. 

10.4 Vendor acknowledges that Company will contact and cooperate with law 

enforcement and related authorities if Company believes the Products are not lawfully the  property of Vendor at the time of consignment, or are otherwise unlawful to possess. 

10.5 Vendor is an individual/natural person and not a corporation, limited liability company,  limited or general partnership, or other type of legal entity, and the individual person who  assents to these Terms shall be personally responsible for, and shall guarantee, Vendor’s  compliance herewith. Vendor acknowledges that as of the Effective Date, Company  provides the Services only to individuals, and that Company shall be permitted to  terminate this Agreement pursuant to Section 8.2 upon learning, after entering into this  Agreement, that Vendor is not an individual or natural person. 

10.6 Vendor will not oPer Products for consignment by Company as his or her principal  source of income. 

11. Limitation on Liability. 

NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY  EXPENSES, LOST REVENUES, LOST SAVINGS, LOST PROFITS, OR ANY OTHER INCIDENTAL,  SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY BUSINESS  RELATING TO OR ARISING OUT OF THESE TERMS, HOWEVER CAUSED (ABSENT  MALICIOUS INTENT, GROSS NEGLIGENCE, OR VENDOR’S BREACH OF SECTION 10.3  RELATING TO COUNTERFEIT PRODUCTS), EVEN IF THE PARTY HAS BEEN ADVISED OF THE  POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS HEREIN SHALL APPLY  NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY  PROVIDED UNDER ANY TERM. VENDOR ALONE IS RESPONSIBLE FOR ALL FEDERAL,  STATE, LOCAL, AND OTHER TAXES, FEES, AND EXPENSES ASSOCIATED WITH VENDOR’S PERFORMANCE UNDER THIS AGREEMENT. 

12. Miscellaneous. 

12.1 Choice of Law. The Services and these Terms shall be governed by and construed  according to the laws of the State of Missouri. Both parties agree hereby to submit to the  jurisdiction of the federal and state courts of Missouri and to venue of St. Louis County,  Missouri with respect to any legal actions arising out of these Terms. 

12.2 Entire Agreement; Amendment and Modification. These Terms constitute the entire  agreement between the parties with respect to its subject matter and supersede any other  agreements, express or implied, between the parties with respect to the subject matter.  Company may amend or modify these Terms by providing Vendor with notice as described  in Section 3.1. 

12.3 Notices. All written notices required under these Terms shall be delivered to the  addresses for each party set forth below (for Company) or on file with Company (for  Vendor) until such address for notices is changed by e-mail or written notice provided by 

such party to the other party at their appropriate notice address or email address set forth  herein or on file with Company. 

12.4 Non-Consignment Sales. Company may purchase from Vendor, and Vendor may  sell to Company, from time to time as the parties may mutually agree, Products on a non consignment basis and not subject to these Terms, provided, however, that no such sale  

shall be deemed to have altered, reduced, or changed any of the parties' respective rights  and obligations hereunder. All sales made to Company or to any third party under these  Terms shall be presumed to be consignment sales unless expressly agreed upon by the  parties. 

12.5 Withholding Payment. In the event that any legitimate dispute arises out of these  Terms, Company shall have the right to withhold the disputed portion of any payment to  Vendor. 

12.6 Assent to Terms. Vendor acknowledges and agrees that by checking a box indicating  that Vendor has read these Terms, Vendor intends to assent to these terms and that such assent shall possess the same force and effect as Vendor’s manual or electronic  signature. 

12.7 Confidential Disclosures. Neither party shall disclose to the other any information  regarded as confidential information by the disclosing party or any third party. 

12.8 Waiver. The failure of either party at any time to require performance by the other  party of any provision hereof shall not affect in any way the full rights to require such  performance at any time thereafter. The waiver by either party of a breach of any provision  hereof shall not be taken, construed, or held to be a waiver of the provision itself or a waiver  of any breach thereafter or any other provision hereof. 

12.09 Successors and Assigns. These Terms shall be binding upon and shall inure to the  benefit of each party and its heirs, executors, successors and assigns. 

12.10 Severability. A judicial determination that any provision of these Terms is invalid in  whole or in part shall not affect the enforceability of those provisions found not to be  invalid. 

12.11 Relationship of the Parties. Regarding all matters relating to the Services, these  Terms create an independent contractor relationship between the parties. Nothing  contained in these Terms shall be construed to: (i) give any party the power to direct and  control the day-to-day activities of the other, (ii) constitute the parties as partners, joint  venturers, co-owners, or otherwise as participants in a joint or common undertaking, or (iii)  constitute any party, its agents, or employees as employees of any other party or grant any  of them the power or authority to act for, bind, or otherwise create or assume any  obligation on behalf of any of the other parties for any purpose whatsoever.

12.12 Force Majeure. Neither party will be liable to the other for any failure or delay in the  performance of such party’s non-monetary obligations due to causes beyond its control,  including without limitation any failure or delay caused, directly or indirectly, by acts of god,  including fires, floods, earthquakes, severe storms, other elements of nature, acts of war,  terrorism, riots, civil disorders, rebellions or revolutions, epidemics, pandemics, communications line or power failures, or governmental laws, court orders, and  regulations imposed upon such party. 

Contact Us: 

If you have any questions about these Terms, please contact Company at  hello@forty_elephants.com or by phone at 314.394.0885.