THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”) is entered into by and between SHIP MY DEAL, LLC and “Company”.
WHEREAS, the Company is in the business of selling and/or manufacturing certain Products; and
WHEREAS, Ship my Deal provides to various retailers and manufacturers direct-to-customer order fulfillment services, pursuant to which Ship my Deal provides storage, packing and shipping products to the retailer’s customers; and
WHEREAS, Company desires to retain Ship my Deal’s services, and Ship my Deal desires to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SHIP MY DEAL SERVICES
Ship my Deal shall provide the following services to the Company (collectively, the “Services”): (a) Receive shipments from the Company of the Product. (b) Provide storage facilities for the Inventory in Ship my Deal’s warehousing facilities (“Warehouse”). (c) Upon notification by the Company of a purchase of Products by a customer, Ship my Deal will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”). (d) Ship my Deal will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.). (e) Upon request by the Company, Ship my Deal will include a Company packing slip, and/or other Company marketing materials concerning the Product, to be provided by Company. (f) Ship my Deal will process, package and ship all Product orders in accordance with Ship my Deal Policies. (g) Ship my Deal will maintain monthly ledger summaries of all orders shipped and received, available upon request by the Company. (h) Ship my Deal will facilitate any Product returns from the End-User to the Company. (i) In addition to the above described Services, Ship my Deal shall perform any additional services, including special projects that the Company desires Ship my Deal to perform.
The Company shall at all times comply with all laws applicable to this Agreement and its obligations under this Agreement, including the Company’s sale of the Products to End-Users. Without limiting the generality of the foregoing, the Company shall, at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the sale of the Products; and not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law.
COMPENSATION AND REIMBURSEMENT FOR SERVICES
Ship my Deal Fees. The Company agrees to pay Ship my Deal for the Services, in the amounts agreed on, to be amended from time to time as agreed upon by the Parties.
Invoicing. Ship my Deal shall send invoices to the Company on a bi-weekly basis, on the 1st and 15th of each month, for the previous period following the conclusion of the period for which such Services were provided. All invoices are to be paid within 7 days.
Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to the Company. Under no circumstances shall Ship my Deal accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.
Failure of Company to Make Timely Payments. If Ship my Deal fails to receive payment from Company within 15 days after the date of an invoice, all Services shall stop until Ship my Deal receives payment. Furthermore, after 30 days of non-payment, Ship my Deal has the right to automatically charge the saved payment method on file or any payment method used in the past for the amount due.
Late Payment Fee. If Ship my Deal fails to receive payment from Company by the due date of the invoice; a late payment fee of 5% (minimum of $10) will be applied to the invoice, unless the invoice is currently being disputed.
Options & Ways to Pay. Ship my Deal provides the Company with a convenience to pay for their invoices with PayPal or credit card. Ship my Deal is using a 3rd party payment processing company Authorize.Net. Ship my Deal does not store any payment information on its own servers; all of Company’s payment information is stored with Authorize.Net.
Auto-Pay. Company has the right to opt-in for “auto-pay” service, which will automatically charge the saved payment method on file, for the amount due on the invoice.
TITLE, RISK OF LOSS, AND INSURANCE
Title. Company hereby agrees that at no time during the period that Products are held by Ship my Deal as Inventory in the Warehouse will Ship my Deal hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
Risk of Loss. Company hereby agrees that at no time during the period that Products are held by Ship my Deal as Inventory in the Warehouse will Ship my Deal carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
Insurance. Company hereby agrees that it is Company’s responsibility, at all times, to maintain an insurance policy that covers the cost of the Products held in Inventory. Company has the option of adding the Warehouse as a designated storage location to Company’s general inventory policy.
No Insurance. Company can choose not to insure its inventory. In this event, Ship my Deal will, under no circumstances, be liable for any loss or damage to the inventory stored at Ship my Deal facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event, not directly caused by Ship my Deal.
Company’s Account. In order to create an account with Ship my Deal, Company will provide Ship my Deal with identifying information, company information and information about the Products.
Services Available. Through the Account. By using Ship my Deal Services, Company acknowledges and agrees that Ship my Deal is a broker of third-party shipping services; accepting shipments from, and making shipments to, third parties. Ship my Deal is also a broker of other third-party services, such us USA address and USA phone number. Ship my Deal is an independent contractor for all purposes, and only acts as the agent of Company with respect to Ship my Deal’s custody of the Products in its Inventory.
Account Balances. Any invoices Ship my Deal sends to Company shall be based on any balance accrued in the Company’s Account. Ordered through the Account and any special or additional fees assessed against the Account as permitted in this Agreement. Company agrees and acknowledges that should Company change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services, will be billed on the 1st and 15th day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.
Currency Fluctuations. Ship my Deal reserves the right to adjust its pricing for the Services in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.
Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to Ship my Deal within 60 days of the fee being charged (“Dispute Period”). Ship my Deal will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
Account Balance Disputes. If Ship my Deal becomes aware of, or is notified of, a dispute relating to the Account Balance, then Ship my Deal will promptly review the dispute. Within 5 days after the resolution of the dispute, Ship my Deal will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
Abandoned Account and Liquidation. If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then Ship my Deal reserves the right, at its sole discretion to reclassify Company’s Account as an “Abandoned Account”. Upon an Account becoming an Abandoned Account, Company immediately forfeits all rights of ownership of such Company’s Inventory. Inventory will become immediately and irrevocably unavailable to Company, and liquidation proceedings would begin. Company agrees the Inventory would be free and clear of liability, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account and would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.
Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activity will be suspended. Ship my Deal reserves the right to place an Account on hold for a number reasons, including but not limited to the following: (a) Account Balance remaining unpaid after 30 days of receipt of invoice; (b) Suspicious activity on or through the Account; (c) If anyone using the Account uses abusive language or otherwise threatens Ship my Deal or its staff; (d) To allow time to resolve or investigate a third party complaint of a violation of this Agreement; (e) To allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and (f) To allow time for Ship my Deal to comply with any extraordinary support requests.
Termination with 30 days’ Notice. Ship my Deal reserves the right to terminate an Account for any reason upon 30 days’ Notice (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period, subject to Ship my Deal’s discretion. Any Product inventory that remains in Ship my Deal’s inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company’s credit card, at Company’s expense. If no address is available or no balance is available to pay for shipment back to the Company, Ship my Deal will liquidate the Product inventory in accordance with an Abandoned Account.
Closing Accounts. Company may close the Account for any reason, upon giving Ship my Deal 30 days prior written Notice. Merchandise will be returned to Company on the Company expense.
SHIP MY DEAL INTELLECTUAL PROPERTY RIGHTS
Ship my Deal Property. For purposes of this Agreement, “Ship my Deal Property” shall mean (a) Ship my Deal’s methodology for the provision of the Services; and (b) Ship my Deal’s Confidential Information. Ship my Deal hereby retains all worldwide right, title and interest in and to the Ship my Deal Property. Any rights not expressly granted herein to the Ship my Deal Property shall be retained by Ship my Deal. Company acknowledges that all right, title and interest to the Ship my Deal Property is owned by Ship my Deal.
Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Ship my Deal Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Ship my Deal and Company shall not copy, imitate, or use them without Ship my Deal’s express prior written consent. Company may use HTML logos provided by Ship my Deal through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to Ship my Deal.com. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Ship my Deal or the Services, or display them in any manner that implies Ship my Deal’s sponsorship or endorsement. Company shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access Ship my Deal’s website or Services for any purpose without Ship my Deal’s express written permission, (ii) interfere or attempt to interfere with the proper working of Ship my Deal’s website or any activities conducted on the website, or (iii) bypass any measures Ship my Deal may use to prevent or restrict access to Ship my Deal’s website or the Services.
Client Property. No Confidential Information obtained by Ship my Deal from Company shall become Ship my Deal Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants Ship my Deal a non-exclusive license to the Client Property solely as needed to provide the Services.
Third Party Software. Any third party software application Company uses on the Ship my Deal website, to connect to the Services, or related to the Services (“Third Party Software”) is solely subject to any third party software provider software licenses. Ship my Deal does not own, control or have any responsibility or liability for any Third Party Software.
Company Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless Ship my Deal and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, “Losses”), arising out or resulting from any claim of a third party alleging: (a) Breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company; (b) Any negligent or more culpable act or omission of Company (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (c) Any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Company; (d) The acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Ship my Deal; (e) Any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or (f) Any failure by Company to comply with any applicable state, federal or international laws.
As is. Ship my deal’s obligations under this agreement (including the use of ship my deal’s web site) are provided on an “as is” and “as available” basis. Ship my deal expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement for the services, ship my deal’s web site and any third party services. The use of services, ship my deal web site, or third party services is at company’s risk.
No Continuous Access. Ship my Deal does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Ship my Deal’s control. However, Ship my Deal will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Ship my Deal makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
LIMITATION ON SHIP MY DEAL LIABILITY
No liability for consequential or indirect damages third party liability. Except for liability for indemnification and liability for breach of confidentiality, neither Ship my Deal nor its representatives is liable for any indirect, incidental, special, consequential, exemplary, punitive or enhanced damages, or damages for loss, loss of profits, revenue, data or use, incurred by company or any third party, whether in an action in contract or tort, arising out of or relating to any breach of this agreement, whether or not the possibility of such damages has been disclosed in advance by Ship my Deal or could have been reasonably foreseen by Ship my Deal, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Other than as set forth below, in no event shall Ship my Deal’s liability under this agreement exceed the monies paid or payable by company to Ship my Deal excluding carrier fees or other third party fees (“damages cap”). Ship my Deal must be notified within five (5) days after any unauthorized transaction or company waive all damages from Ship my Deal.
Inventory count inaccuracies. In the event of inventory loss due to inventory count inaccuracies, inaccurate inventory counts during receiving or inventory count inaccuracies at any time that Ship my Deal is in possession of inventory for which the clauses above is determined to be inapplicable and Ship my Deal is held legally liable, company agrees that it will be considered an “inventory loss” and Ship my Deal’s liability shall be limited as stated above. In no event shall Ship my Deal be liable for any lost sales revenue from the inventory loss due to inventory count inaccuracies.
Projects. In the event of a loss due to a project defined as an hourly or piece work done on expected or held inventory (“special project”), Company agrees and acknowledges that Ship my Deal’s liability shall be limited to the hourly charge Company paid to Ship my Deal for the project.
Ship my Deal will not share, rent or lease your personal information to any third party for their independent use or benefit. Information we collect from you is used to process your orders, ship products, verify accounts and email you special promotions, which is basically what we need to do our job.
In the event that you have a dispute with one or more users (including merchants and service professionals) of Ship my Deal, you, on behalf of yourself (and any of your officers, directors, employees, agents, predecessors, successors and assigns), hereby irrevocably release and discharge Ship my Deal, our officers, directors, employees, attorneys, predecessors, successors, assigns and agents from, against and in respect of all past, present and future claims, rights, actions, causes of action, suits, indemnification obligations, losses, liabilities, matters, issues, cost and expenses, of any kind or nature whatsoever, including without limitation court costs and attorneys’ fees, whether known or unknown, concealed or hidden, fixed or contingent, suspected or unsuspected, in law or in equity, concerning, related to or arising out of any such disputes. To ensure that the release provided in this Agreement is fully enforceable in accordance with its terms, you knowingly and voluntarily waive any protection that you might have in relation to the release set forth in this section by virtue of §1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” In addition, you hereby knowingly and voluntarily waive any protection that may exist under any comparable or similar statutes or principles of common law applicable in states other than California as it pertains to the enforcement of the release in this section.
You agree not take any legal action against Ship my Deal that relates to or arises out of any of our websites without first (a) sending us, via registered mail, a detailed written description of the facts and law out of which your claim arises; and (b) negotiating with us, in good faith, for not less 30 days, toward resolution of the dispute. All correspondence concerning such dispute must be sent to dispute at Ship my Deal. This Agreement is governed by California law as such laws apply to Agreements entered into and to be performed entirely within California between California residents and without regard to conflict of laws.
Ship my Deal shall be excused for any problem caused by a factor beyond our control.