Terms & Conditions
1. Work Orders
(a) The parties acknowledge and agree that the detailed terms and conditions of any and all projects entered into between the parties shall be set forth in a form and format substantially similar to the Work Order of even date herewith and delivered concurrently herewith as the “Original Work Order”, which sets forth the fulfillment project. The parties acknowledge and agree that in addition to the terms and conditions of the Original Work Order and any other comparable Work Order acknowledged in writing by the parties hereto and referencing this Agreement, with each a “Work Order” and collectively the “Work Orders”, the general terms of this Agreement shall apply to each project contained therein, as applicable, and the overall relationship between the parties. If there is a conflict between the terms of the Work Orders and this Agreement, the terms of the Work Orders shall control.
(b) Commencing as of the date hereof and continuing during the term of this Agreement, the Vendor shall, subject to the terms and conditions of this Agreement and any Work Orders, provide Client or cause the Vendor’s various affiliates, all of which are collectively referred to as “the Vendor”, to provide the services identified on any Work Orders, collectively referred to as “Fulfillment Services”
(c) From time to time during the term of this Agreement, Client may request that the Vendor take part in a new project(s). Any such request shall be in the form of a Work Order. The Vendor reserves the right to accept or decline any project in which Client seeks its participation for any reason; provided, however, that the Vendor shall discuss in good faith with Client any request that the Vendor take part in a new project and shall give any such request due and fair consideration. In the event a new project is accepted, a Work Order will be created pursuant to the terms hereof and attached to and made a part of this Agreement as contemplated in Section 1(a) above. A new project shall be deemed to have been accepted by Vendor upon Client’s receipt of a writing expressly agreeing to the new project or performance of any work on the new project by Vendor.
(d) PRICING OF FULFILLMENT SERVICES. The pricing of Fulfillment Services for each individual project shall be set forth in the relevant Work Order. The Vendor reserves the right, upon thirty (30) days prior written notice to Client, to modify the price of Fulfillment Services that the Vendor provides to Client by the subsequent cancellation of an existing Work Order and the mutual execution of a replacement Work Order.
(e) DELIVERY SERVICE CHARGES. Delivery Service Charges shall be determined by the Vendor on an item-by-item basis. In all cases, the Vendor shall maintain a charge at or below the current United Parcel Service Ground Residential rate. The Vendor considers all Delivery Service Charge information to be Confidential Information (as defined in Section 11).
(f) TAX MATTERS. Client acknowledges that it or its agent is solely responsible for identifying and resolving sales and use tax collection issues for product orders, including the necessity of charging, collecting and reporting such taxes.
(g) REPORTS. The parties agree to provide each other such reports as are mutually agreed upon and set forth in each Work Order or as either party shall reasonably request during the performance of any Fulfillment Services.
(h) INVENTORY STORAGE. Client’s inventory will be stored in the Vendor’s Tampa, FL or Salt Lake City, UT facility, unless Client authorizes or requests the Vendor as part of a Work Order to store Client’s inventory at an off-site location. Client inventory will be stored in a clean space that offers reasonable protection from extreme temperatures and water damage. In addition for items identified by Client as high value, a secure storage area with limited access will be available for an additional fee.
(i) INTERNATIONAL SHIPPING INSTRUCTIONS. The Client will be responsible for providing information regarding the tariff classification, valuation, and any other government requirements for the country of destination. The Vendor will assist where it can in this process, but Client acknowledges that Vendor is not a specialist in Customs laws and regulations and Vendor is solely responsible for the information provided to Customs and other Government Agencies on its merchandise.
(j) INTERNATIONAL SHIPPING INSTRUCTIONS. The Client will be responsible for providing information regarding the tariff classification, valuation, and any other government requirements for the country of destination. The Vendor will assist where it can in this process, but Client acknowledges that Vendor is not a specialist in Customs laws and regulations and Vendor is solely responsible for the information provided to Customs and other Government Agencies on its merchandise.
(k) EXPORT CONTROL INFORMATION. The Client acknowledges that it is an exporter of U.S. goods and subject to the U.S. Export Control laws. As such, it will provide the Vendor with the Export Commodity Classification Number (ECCN) for its products and will obtain all U.S. export licenses as required. In addition, The Client recognizes that exports and re-exports of U.S. goods are prohibited to certain embargoed destinations and to parties that are on the various denied party lists. Client will ensure that the resale of the goods from the fulfillment centers abroad are not sold to any prohibited parties or embargoed destination or for use in any prohibited end uses. Additionally, Client acknowledges that when selling merchandise from a foreign fulfillment center, the goods will also be subject to export controls in that country and Client is responsible for adherence to those requirements.
(l) PRODUCT COMPLIANCE: The Client represents that all product has been manufactured, labeled, packaged and marketed in accordance with government regulatory requirements of the jurisdiction wherein product will be marketed and/or sold. The Client accepts responsibility for verifying whether product manufactured and shipped from the United States complies with U.S. Food and Drug Administration (FDA) regulatory requirements. For product that is non-compliant with U.S. regulations, the Client accepts responsibility to obtain Export Certificates (Certificates of Free Sale) for countries that require such supporting documentation, and to make payment of associated certificate fees. The Client also represents that products manufactured and shipped from the United States for export to non-U.S. markets will comply with the laws of the importing country and for the country of destination, including compliance with all federal, state and local requirements. Client represents that product that is shipped and/or returned to the U.S. for market and sale will comply with all U.S. FDA regulations, including, but not limited to, compliance of product ingredients, intended use claims within the regulatory classification scheme, certification requirements of color additives, standards of identity and specifications, manufacturing controls, facility registration, establishment registration and product listing, labeling, and packaging.
(m) The Client agrees to indemnify, hold harmless and defend, at its expense, Vendor, for any and all claims, damages, losses, judgments, amounts agreed upon in settlement, costs and expenses (including reasonable attorney fees) that Vendor may suffer or incur that may arise out of or relate to any failure by Client to comply with or the breach of any governmental or regulatory rule, regulation, decision, ruling or ordinance of any kind to which Vendor or Client may be subject based on the actions of the Client; or any failure by Client with respect to the foreign or U.S. regulatory compliance requirements which results in increased duties, penalties, seizures, or other punitive costs to Vendor.
2. Payment Terms
(a) FULFILLMENT SERVICES. The Vendor shall invoice Client for Fulfillment Services on a schedule set forth in the project’s respective Work Order, which will include Fulfillment Services and associated charges for services provided to Client during the prior schedule period. Client shall pay all invoices upon receipt.
(b) DELIVERY SERVICE CHARGES. Client pays for Delivery Service Charges prior to accruing costs (prepay). Prepay allows Client to pay in advance of any activity. As Delivery Service Charges accrue, the Vendor deducts the cost from Client’s prepaid Delivery Service Charges Account. Client’s Delivery Service Charges account must maintain a balance above their account minimum balance at all times, which is determined to be the cumulative amount specified in all Client Work Orders. The Vendor will suspend services if Client’s Delivery Service Charges Account falls below the account minimum balance.
(c) BILLING DISPUTES. Client and the Vendor shall use best efforts to expediently resolve any disputed invoice through negotiations between each party’s Account Manager; provided, however, that disputed amounts not resolved within thirty (30) calendar days of Client’s receipt of the invoice shall be immediately due and payable.
(d) PAYMENT DELINQUENCY. Account balances which are unpaid beyond ten (10) calendar days of invoice are considered to be delinquent. The Vendor shall assess interest at a rate of 2.0% per month on all receivables not paid within the above-stated time periods. Interest will start accruing on the 30th day from the date of invoice, and will continue to accrue until all overdue payments, plus interest charges, are paid in full. The Vendor, without incurring any liability, may suspend some or all services until Client cures such default. Delinquency beyond thirty (30) calendar days may result in the surrender to the Vendor of Client’s prepaid Delivery Service Charges Account, the amount of which shall be applied to unpaid balances. Vendor shall have a lien on any inventory in its possession for the total amount outstanding to Vendor including any fees and costs accrued in asserting such lien.
3. Books and Records
(a) RECORD KEEPING. Both parties agree to keep complete and accurate books of account, records, and other documents with respect to this Agreement and any Work Order (“Books and Records”). Such Books and Records shall be kept by both parties for three (3) years following expiration or termination of the Agreement.
(b) AUDIT. The Books and Records shall be available for inspection and copying by any qualified representative or agent of a party or its affiliates, at the expense of that party, subject to the following terms and conditions: (a) such examination shall take place at the principal place of business or the location where the Books and Records are regularly maintained, during normal business hours and only to the extent necessary to verify inventory levels and payment amounts; (b) the party demanding the audit shall give the other party at least ten (10) business days’ written notice prior to any such examination; (c) both parties shall keep each party’s Confidential Information disclosed to it during the examination confidential in accordance with each party’s obligations set forth in Section 11 below; and (d) a party may not conduct more than four (4) such inspections during any twelve-month period during the term of this Agreement.
4. Term, Renewal and Termination
(a) TERM AND RENEWAL. Unless terminated earlier, the term of this Agreement shall be for a period of one (1) year commencing on the Effective Date (the “Original Term”), and shall automatically and consecutively renew for an indefinite number of one year periods until terminated by either party.
(b) TERMINATION. This Agreement may be terminated by the Client upon thirty (30) days prior written notice to the Vendor, and full payment of any balance due to Vendor by Client. This Agreement may be terminated by the Vendor upon thirty (30) days prior written notice to the Client.
(c) OTHER RIGHTS. The rights of the parties to terminate this Agreement or any Work Order are not exclusive of any other rights and remedies available at law or in equity, and such rights shall be cumulative. The exercise of any such right or remedy shall not preclude the exercise of any other rights and remedies.
(d) POST-TERMINATION PERFORMANCE. Notwithstanding any termination by either party of this Agreement or any Work Order, the Vendor shall continue to fulfill all orders from customers, and Client shall continue to remit amounts due to the Vendor under this Agreement or any Work Order, in connection with any product orders made prior to the effective date of such termination. Client property warehoused within any Vendor facility will be subject to storage and administrative fees which shall commence with termination.
(e) RETURN OF PROPRIETARY INFORMATION. Upon termination of this Agreement for any reason, each party shall immediately return to the other all proprietary information (including without limitation, Confidential Information and all material related to any customers) that it has received from the other party in connection with the performance of its obligations hereunder except to the extent such property is needed to fulfill its continuing obligations under Section 4(d) above. In such event, such proprietary information shall be returned immediately upon the party’s fulfillment of its obligations under such Section 4(d).
(f) SURVIVAL. Sections 3, 4(d), 4(e), 4(f), 8, 9, 11 and 12 shall survive any expiration or termination of this Agreement or any Work Order.
(a) TRADEMARK LICENSE. Client hereby grants to the Vendor a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to Client (collectively referred to as the “Licensed Marks”), solely for the purpose of displaying such Licensed Marks on packaging, invoices and customer service correspondence. Other than as contemplated by this Agreement or any Work Order, the Vendor shall not make any other use of the Licensed Marks or any related marks or intellectual property of Client.
(b) REPRESENTATION AND WARRANTY. Client represents and warrants to the Vendor that it is authorized to grant the aforementioned trademark license and that it shall fully indemnify and hold the Vendor and its affiliates harmless against any and all claims by a third party alleging a violation of such third party’s intellectual property or other proprietary rights in connection with the Vendor’s use of the Licensed Marks pursuant to the trademark license or this Agreement or any Work Order. The indemnification granted under this Section 5(b) expressly includes indemnification with respect to reasonable attorneys’ fees and any and all expenses and costs incurred or amounts paid in settlement or in satisfaction of any judgment or award.
(c) EXPORT LICENSE. If any U.S. export license or re-export license is required, Client will obtain such license from the proper U.S. export agency. If a license is required for exporting out of the fulfillment country, the Client will obtain such license from the proper agency in the fulfillment country.
6. Relationship of the Parties
(a) INDEPENDENT CONTRACTORS. The relationship created hereunder between the Vendor and Client shall be solely that of independent contractors entering into an agreement. No representations or assertions shall be made or actions taken by either party which could imply or establish any agency, joint venture, partnership, employment or trust relationship between the parties with respect to the subject matter of this Agreement or any Work Order. Neither the Vendor nor Client shall have any authority or power whatsoever to enter into any agreement, contract or commitment on behalf of the other, or to create any liability or obligation whatsoever on behalf of the other, to any person or entity.
(b) SUBCONTRACTORS. The Vendor reserves the right to subcontract with other individuals and businesses for Fulfillment Services required to be performed pursuant to this Agreement and any Work Order. The Vendor shall be responsible for all payments to, as well as the direction and control of the work to be performed by its subcontractors, if any. Subject to and solely in accordance with the provisions of Section 1, the Vendor reserves the right to increase its pricing at any time in accordance with any rate increases by subcontractors.
7. Inventory, Facilities and Risk of Loss
(a) GENERAL. Client shall provide the Vendor with sufficient inventory (the “Inventory”) to meet the fulfillment requirements under this Agreement. The Vendor shall have no liability to Client or third parties for losses caused directly or indirectly by Client for failure to provide sufficient Inventory.
(b) TITLE. Barring default of this Agreement by the Client, the Vendor acknowledges that Client shall retain all right and title to all Inventory and materials provided by the Client, or Client causes to be delivered to the Vendor under this Agreement.
(c) RECEIVED INVENTORY. The Vendor will rely on Client’s incoming inventory count (or that of its manufacturer) unless explicitly asked to perform a physical count in which Client will be billed the warehouse labor hourly rate. If the Client requests Vendor to perform a physical count upon receipt, the Vendor will make every attempt to report receiving discrepancies within 48 hours. If the Client asks that shipper counts on incoming material be accepted until processing, the Vendor is not responsible for shortages discovered at that time.
(d) SHRINKAGE. Shrinkage is an uncorrectable negative difference between physical and the Vendor book inventory of stock. Vendor is responsible for Shrinkage only if the Client has requested, and paid for a physical count of inventory. Inventory accuracy standard shall be 99%. If inventory accuracy has been maintained between 97% and 99%, the cost of the inventory discrepancy shall be shared equally by both parties. If the inventory accuracy is less than 97%, the Vendor shall reimburse Client, at Client’s cost, for the inventory adjustment to 97% accuracy, and the cost shall be shared equally by the Client and the Vendor to return the inventory from 97% to 100% accuracy. Client will report quarterly to the Vendor, Client’s product costs and inventory value. Client shall maintain the necessary inventory Books and Records for the Vendor’s audit pursuant to Section 3. Both parties will manage and report compliance issues monthly.
Inventory accuracy shall be defined as inventory overages minus inventory shortages, as measured by dollar value of the discrepancy and a percentage of total inventory value at Client’s cost. The measurement period shall constitute the period of time between physical inventories, which shall be requested and paid for by the Client and performed by the Vendor at a frequency of no less than one (1) time per calendar year, and no more than two (2) times per calendar year. Shortages will become payable only after two (2) consecutive inventory shortages. The net shortage or overage over the previous two (2) inventories shall be carried to the next inventory. Payment of the first shortage after two (2) consecutive shortages will be made thirty (30) days after reconciliation of the second shortage.
(e) Inventory accuracy shall be defined as inventory overages minus inventory shortages, as measured by dollar value of the discrepancy and a percentage of total inventory value at Client’s cost. The measurement period shall constitute the period of time between physical inventories, which shall be requested and paid for by the Client and performed by the Vendor at a frequency of no less than one (1) time per calendar year, and no more than two (2) times per calendar year. Shortages will become payable only after two (2) consecutive inventory shortages. The net shortage or overage over the previous two (2) inventories shall be carried to the next inventory. Payment of the first shortage after two (2) consecutive shortages will be made thirty (30) days after reconciliation of the second shortage.
Fire, war, Act of God, acts of terrorism, or any natural disaster or calamity, power outages, strikes, lockouts or labor disputes at the Vendor, its carrier(s), or at any party providing services to the Vendor, any governmental actions, or the failure of the Client, employees, agents, or other contractors and vendors of the Client.
Client waives its right to recover damages from the Vendor for any loss of use of the Inventory or loss of income there from, except to the extent provided pursuant to Section 9(a) of this Agreement.
8. Representations and Warrenties
(a) REPRESENTATIONS AND WARRANTIES OF the Vendor. With the knowledge that Client is relying thereon in entering into this Agreement and any Work Order, the Vendor hereby represents, warrants and covenants as follows:
- The Vendor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Florida.
- This Agreement and any and all Work Orders constitute the legal, valid, and binding obligation of the Vendor, enforceable against the Vendor in accordance with its terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and except as enforcement may be limited by general principles of equity. As of the Effective Date, the Vendor has taken all corporate action necessary for the authorization, execution and delivery of this Agreement and any Work Order, and for the performance by the Vendor of its obligations under this Agreement and any Work Order.
- Neither the execution and delivery of this Agreement (including the Original Work Order) nor the consummation or performance of any obligations hereunder shall, directly or indirectly (with or without notice or lapse of time) in any material respect, contravene, conflict with, or result in a violation or breach of any provision of, or give any person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any material contract to which the Vendor is a party.
- The Vendor is not and shall not be required to give any notice to or obtain any consent from any person in connection with the execution and delivery of this Agreement and the Original Work Order or the consummation or performance of any of its obligations hereunder.
- The Vendor’s facilities utilized to provide the Fulfillment Services have been designed or will be modified to ensure continuous operation and use prior to, during and after the calendar year 2013, and to operate during such time periods so that Client will not experience any loss of information or assets, interruption in service, or invalid and/or incorrect reporting or results.
- The Vendor is, to its knowledge, and, at all times during the performance of Fulfillment Services under this Agreement and any Work Orders hereunder, will remain in material compliance with all applicable laws, rules and regulations, including, but not limited to, the laws, rules and regulations of the Federal Trade Commission, including by way of illustration and not limitation, the Mail Order Rule, if applicable.
- The Vendor is not currently in default under any material contract or agreement.
(b) REPRESENTATIONS AND WARRANTIES OF Client. With the knowledge that the Vendor is relying thereon in entering into this Agreement and any Work Order, Client hereby represents, warrants and covenants as follows:
- Client is legal entity, duly organized, validly existing, and in good standing under the laws of the Client’s governing state, and has the full power to grant the license rights set forth in this Agreement.
- This Agreement and the Original Work Order constitute the legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and except as enforcement may be limited by general principles of equity. As of the Effective Date, Client has taken all action necessary for the authorization, execution and delivery of this Agreement and any Work Order, and for the performance by Client of its obligations under this Agreement and any Work Order.
- Neither the execution and delivery of this Agreement and any Work Order nor the consummation or performance of any obligations hereunder shall, with or without notice or lapse of time, in any material respect, contravene, conflict with, or result in a violation or breach of any provision of, or give any person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any material contract to which Client is a party.
- Client is not and shall not be required to give any notice to or obtain any consent from any person in connection with the execution and delivery of this Agreement and any Work Order or the consummation or performance of any of its obligations hereunder.
- Client’s assets and equipment utilized in connection with this Agreement and any Work Order have been designed or will be modified to ensure continuous operation and use prior to, during and after the calendar year 2013, and to operate during such time periods so that the Vendor will not experience any loss of information or assets, interruption in service, invalid and/or incorrect reporting or results.
- Client is to its knowledge and, at all times during the term of this Agreement, will remain in material compliance with all applicable laws and regulations, including, but not limited to, the laws, rules and regulations of the Federal Trade Commission and the Direct Marketing Association.
- Client is not currently in default under any material contract or agreement.
(c) SURVIVAL. The representations and warranties under this Section shall survive the termination of this Agreement and any Work Order.
9. Indemnification and Limitations on Liability
(a) INDEMNIFICATION BY the Vendor. Subject to the limitations specified in this Section 9, the Vendor shall indemnify, hold harmless and defend Client and each person or entity that is a stockholder, officer, director, partner, employee, affiliate or agent of Client from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in settlement, incurred or suffered by any such person or entity arising out of or in connection with (i) the inaccuracy of any representation or warranty made by the Vendor hereunder, (ii) any breach of this Agreement by the Vendor, or (iii) any negligent act or omission by the Vendor or its employees or agents in connection with the performance by the Vendor or its employees or agents of the Fulfillment Services hereunder, provided such negligent act or omission was not done or omitted at the direction of Client.
(b) INDEMNIFICATION BY Client. Subject to the limitations specified in this Section 9, Client shall indemnify, hold harmless and defend the Vendor and each person or entity that is a stockholder, officer, director, partner, employee, affiliate or agent of the Vendor from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in settlement, incurred, or suffered by any such person arising out of or in connection with (i) the inaccuracy of any representation or warranty made by Client hereunder, (ii) any breach of this Agreement by Client, (iii) any negligent act or omission by Client or its employees or agents in connection with the performance by Client or its employees or agents required of Client hereunder provided such negligent act or omission was not done or omitted at the direction of Client, or (iv) any claim or action for personal injury, death, property damage or other cause of action (A) involving a product liability claim arising from or relating to products for which Fulfillment Services are provided to Client hereunder, or (B) resulting from alleged defects in, or the inherently dangerous nature of, Client’ products that are the subject of this Agreement and any Work Order.
(c) NOTICE AND DEFENSE OF THIRD-PARTY CLAIMS. If a claim for indemnification hereunder arises from a claim or demand from a third party, the rights of the indemnified parties to be indemnified pursuant to this Agreement and any Work Order shall be governed by the following:
- Promptly after receipt by an indemnified party of notice of any claim, allegation or facts which may result in a claim for indemnification hereunder, an indemnified party shall give the indemnifying party prompt notice thereof. The failure to give such notice shall not affect the indemnified party’s ability to seek reimbursement unless such failure has materially and adversely affected the indemnifying party’s ability to defend the claims.
- An indemnified party shall have the right (i) to employ separate counsel in any action as to which indemnification may be sought under any provision of this Agreement and to participate in the defense thereof, or (ii) to the extent that it may wish, jointly with any other indemnified party, to assume the defense of any such action with counsel reasonably satisfactory to the indemnifying party but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (x) the indemnifying party has agreed in writing to pay such fees and expenses, (y) the indemnifying party has failed to assume the defense thereof without reservation and employ counsel within a reasonable period of time after being given the notice required above, and as a consequence thereof the indemnified party has employed separate counsel to protect its rights, or (z) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party and such indemnified party shall have been advised by its counsel that representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them. It is understood, however, that the indemnifying party shall, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties having actual or potential differing interest with the indemnifying party.
- The indemnifying party shall not be liable for any settlement of any such action effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such written consent, or if there be a final judgment against any indemnified party in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified parties to the extent provided above from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
(d) LIMITATIONS ON LIABILITY.
- CONSEQUENTIAL DAMAGES. Notwithstanding anything to the contrary contained in this Agreement, neither party, nor its affiliates shall, under any circumstances, be liable to the other party or its affiliates for any consequential, incidental, indirect, exemplary, punitive, or special damages of any nature whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether such party has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. In no event shall the Vendor be liable for any damages, liabilities, costs or expenses arising from or in connection with the acts, omissions, or delays of any third-party vendor; provided, however, that the Vendor shall make reasonable efforts to obtain performance by such third-party vendors on a timely basis. Remedies under this Agreement are exclusive and limited to those expressly described herein.
- LIMITATION OF LIABILITY. Each party’s maximum liability to the other relating to this Agreement and each party’s performance or non- performance hereunder shall be limited in the aggregate to the fees received by the Vendor pursuant to this Agreement during the previous twelve (12) month period. Any action by either party arising under this Agreement or any action related this Agreement shall be commenced within two (2) years from the date in which the action accrues.
(e) DISPUTE RESOLUTION. To be selected jointly by two mediators selected by the parties.
- If there is any controversy, dispute or claim arising out of or relating to interpretation or breach of this Agreement, the parties will endeavor to settle it promptly.
- If such a dispute cannot be resolved, the parties will promptly initiate and participate in good faith mediation of the dispute, with the mediator to be selected jointly by the parties or, if the parties cannot agree upon a mediator, by a mediator to be selected jointly by two mediators selected by the parties.
- If the dispute is not resolved through mediation, the parties will promptly submit such dispute to binding arbitration in accordance with the Commercial Arbitration Rules and regulations of The American Arbitration Association (“AAA”), with the arbitrator to be a retired federal or state court judge jointly selected by the parties or, if the parties cannot agree, by an arbitrator that satisfies such qualifications and that is jointly selected by two arbitrators selected by the parties. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The place of arbitration shall be Tampa, Florida.
- Nothing shall prevent either party from directly seeking injunctive or other equitable relief from any court of competent jurisdiction in situations where damages would not adequately compensate for an alleged breach of this Agreement. By way of illustration and not limitation, such relief would be appropriate in the case of either party’s need to: obtain cooperation of the other party in litigation; secure the timely delivery of information or services; or, prevent the disclosure of Confidential Information.
- The prevailing party in any mediation, arbitration or legal action to enforce or interpret this Agreement shall be entitled to recover from the non- prevailing party all costs and expenses, including reasonable attorneys’ fees, incurred in such action or proceeding.
(f) GOVERNMENT ACTIONS. Client hereby agrees to promptly provide the Vendor copies of all complaints or inquiries received by it from any governmental agency that in any way relate to or have a potential effect on the Fulfillment Services provided hereunder. In the event the Vendor is required, as a result of any such action, to change the manner in which it does business in any material respect, the Vendor shall have the option to terminate as soon as practicable the availability of such Fulfillment Services hereunder. The Vendor hereby agrees that it will promptly forward to Client copies of all written complaints or written inquiries addressed to the Vendor from any governmental agency in any way relating to or having a potential effect on the Fulfillment Services provided hereunder.
(g) SURVIVAL. The provisions of this Section shall survive the termination of this Agreement and any Work Order.
10. Marketing Materials
Both parties agree to act as a customer reference for the other in regard to the subject matter of this Agreement during the term hereof. The written consent of the other party shall be obtained before that party is used as a reference in any particular instance. Upon execution of this agreement, the parties shall issue a joint press release that is mutually acceptable to each party. After the issuance of such joint press release, either party may issue a press release regarding this Agreement or the subject matter hereof provided such party obtains the written consent of the other party, which consent will not be unreasonably withheld. In addition, the Vendor agrees not to use the Licensed Marks in any publicly distributed marketing materials without prior written consent of Client.
(a) GENERAL. As used herein, “Confidential Information” means (i) the terms and provisions of this Agreement and any related documents delivered concurrently herewith, and (ii) all computer hardware, all software, all data, reports, analyses, compilations, studies, interpretations, forecasts, records and other materials (in whatever form maintained, whether documentary, computer storage or otherwise) that contain or otherwise reflect information concerning Client, the Vendor, any of their subsidiaries or affiliates, or any portion thereof, that one party or its Agents may provide to the Receiving Party or its Agents in connection with this Agreement (“Provided Information”), together with all data, reports, analyses, compilations, studies, interpretations, forecasts, records or (ii) other materials (in whatever form maintained, whether documentary, computer storage or otherwise) prepared by the Disclosing Party receiving Provided Information or its Agents that contain or otherwise reflect or are based upon, in whole or in part, any Provided Information or that reflect the review of, interest in, or evaluation of all or any portion of the transactions contemplated by this Agreement and any related documents delivered concurrently herewith (“Derived Information”). As used herein, “Agents” means, collectively, the respective directors, employees, controlling persons or attorneys of Client or the Vendor. As used herein, the term “person” shall be broadly interpreted to include, without limitation, any corporation, partnership, trust or individual; the term “Receiving Party” shall mean the person receiving Provided Information; and the term “Disclosing Party” shall mean the person providing Provided Information.
(b) ACKNOWLEDGMENT. The parties hereby agree that all Confidential Information shall be kept confidential and shall not, without the prior written consent of the Disclosing Party, be disclosed by the Receiving Party in any manner whatsoever, in whole or in part, other than to the Disclosing Party’s Agents, and shall not be used, directly or indirectly, for any purpose other than in connection with this Agreement and not in any way inherently detrimental to the other party. Moreover, Client and the Vendor agree to reveal Confidential Information only to their Agents if and to the extent that such Agents, have a strict need to know such Confidential Information for the purpose of the Receiving Party satisfying its obligations under this Agreement and are informed of the confidential nature of the Confidential Information and agree to be bound by the terms and conditions of this Agreement. Client and the Vendor shall each be responsible for any breach of this Agreement by their respective Agents (including Agents who, subsequent to the first date of disclosure of Confidential Information hereunder, become former Agents). Moreover, Client and the Vendor shall take all reasonably necessary measures to restrain their respective Agents (and former Agents) from unauthorized disclosure or use of the Confidential Information.
(c) EXCEPTIONS. Notwithstanding anything in this Agreement to the contrary, Confidential Information shall not include any information which:
- at the time of disclosure to the Receiving Party is generally available to and known by the public (other than as a result of any disclosure made directly or indirectly or other action or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or transmitted any Confidential Information);
- becomes publicly available in the future (other than as a result of a disclosure made directly or indirectly or other action or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or have transmitted any Confidential Information);
- was available to the Receiving Party or its Agents on a non-confidential basis from a source other than the Disclosing Party or any of its Subsidiaries or affiliates or any of their respective Agents providing such information (provided that to the best of the Receiving Party’s knowledge, after due inquiry, such source is not or was not bound to maintain the confidentiality of such information); or
- has been independently acquired or developed by the Receiving Party without violating any of its obligations under this Agreement, provided such independent development can reasonably be proven by the Receiving Party upon written request. In the event that a party or any of such party’s Agents become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information of the other party, that party or person under the legal compulsion (the “Compelled Party”) from whom such information is being sought shall, unless prohibited by law, provide the party to whom such Confidential Information belongs with prompt prior written notice of such requirement so that it may seek a protective order or other appropriate remedy, or both, or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the Compelled Party agrees to furnish only such portion of the Confidential Information that the Compelled Party is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information. Notwithstanding the foregoing, to the extent required under applicable state and federal securities laws, either party may file this Agreement as an exhibit with federal and state securities filings, provided that each party shall use its best efforts to obtain confidential treatment of the portions of this Agreement that contain Confidential Information. In this regard, the party making such filing shall obtain the prior written consent of the other party, which consent shall not be unreasonably withheld.
(d) USE OF CONFIDENTIAL INFORMATION. Each party shall be subject to the obligations under this Section 11 until the expiration of three (3) years following the termination of this Agreement. Other than as specifically provided in this Agreement, neither party shall duplicate the Disclosing Party’s Confidential Information for any purpose other than for the performance of its obligations under this Agreement and for the benefit of the Disclosing Party; or use the Disclosing Party’s Confidential Information for any reason or purpose other than as expressly permitted in this Agreement.
(e) RETURN OF CONFIDENTIAL INFORMATION. Upon termination of this Agreement or if either party so requests, the Receiving Party shall return to the Disclosing Party or destroy all copies of the Confidential Information in its possession and the possession of its Agents and will destroy all copies of any Derived Information; provided, however, that this Agreement will continue to apply to the Confidential Information and/or Derived Information contained or reflected in such copies.
(f) The Parties agree that Client and the Vendor would be irreparably injured by a breach of this Agreement by the other party or its Agents and that the other party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 11. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 11 by either party or their Agents, but shall be in addition to all other remedies available at law or in equity.
12. Miscellaneous Provisions
(a) NOTICES. All notices, demands, requests, approvals, consents or other communications to be given or delivered under this Agreement (“Notices”) will be in writing and will be deemed to have been given
- When delivered in person or by courier or confirmed facsimile or email;
- upon confirmation of receipt when sent by certified mail, return receipt requested; or
- five (5) days after deposit in first-class U.S. mail, as the case may be to our corporate address
- If to the vendor: The Fulfillment Lab, Inc. Attention: Account Manager, Email: firstname.lastname@example.org or to such other addresses as a party may designate from time to time by written notice to the other party
(b) SEVERABILITY. Whenever possible, each provision of this Agreement and any Work Order shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any Work Order is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement and any Work Order.
(c) AMENDMENT AND WAIVER. This Agreement and any Work Order may be amended, and any provision of this Agreement and any Work Order may be waived; provided that any such amendment or waiver will be binding upon any party hereto only if such amendment or waiver is set forth in a writing executed by both parties No course of dealing between or among any persons having any interest in this Agreement and any Work Order will be deemed effective to modify or amend any part of this Agreement and any Work Order or any rights or obligations of any person under or by reason of this Agreement or any Work Order. The waiver of any default, or the remedying of any default in any manner, shall not operate as a waiver of any other prior or subsequent default. No extension of time for the performance of any obligation or act shall be deemed to be an extension of time for the performance of any other obligation or act hereunder. No delay or omission by a party to exercise rights hereunder shall impair any such rights or shall be construed to be a waiver of any such default or any acquiescence therein.
(d) COMPLETE AGREEMENT. This Agreement, all Work Orders and exhibits hereto and any related documents delivered concurrently herewith, contain the complete agreement between the parties relating to the Fulfillment Services and supersede any prior understandings, agreements or representations by or between the parties, written or oral, which may be related to the subject matter hereof in any way.
(e) FURTHER ASSURANCES. Client and the Vendor will each execute such other documents and take such actions as the other may reasonably request in order to affect the relationships, services and activities contemplated by this Agreement and any Work Order and to account for and document those activities.
(f) HEADINGS. Section headings contained in this Agreement and any Work Order are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement and any Work Order, respectively, or any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
(g) GOVERNING LAW. The internal law, and not the law of conflicts, of the State of Florida will govern all questions concerning the construction, validity and interpretation of this Agreement and any Work Order and the performance of the obligations imposed by this Agreement and any Work Order.
(h) ASSIGNMENT. This Agreement and any Work Order and all of the provisions will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement and any Work Order nor any of the rights, interest or obligations set forth in each may be assigned by any party hereto without the prior written consent of the other party hereto, which shall not be unreasonably withheld. Notwithstanding the foregoing, Client shall have the right to assign this Agreement to any wholly owned subsidiary of Client, provided that Client guarantees the obligations of any such subsidiary hereunder.
(i) INTERPRETATION. Each party acknowledges it has participated in the negotiation and preparation of this Agreement, and has reviewed this Agreement and had the opportunity to consult with its counsel and accountants with respect to its terms. Therefore, each Party agrees that the rule of construction to the effect that any ambiguities in a document shall be interpreted against the drafting party, will not be utilized in the interpretation, construction, or enforcement of this Agreement, and no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or any Work Order or other instrument subject hereto.
(j) FORCE MAJEURE. Neither party shall be liable for any failure of or delay in the performance of this Agreement or any Work Order for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labor disputes, or any other cause beyond the parties’ reasonable control (each a “Force Majeure”), it being understood that lack of financial resources shall not to be deemed a cause beyond a party’s control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement and any Work Order as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement or any Work Order.
(k) COUNTERPARTS. This Agreement may be signed in any number of counterparts.
13. Guarantee for Value Received
By clicking that you accept this agrement it unconditionally and irrevocably guarantees the prompt and faithful performance by Client of all of the obligations of the Client as set forth in the aforesaid Agreement.