Fulfillment Services Agreement

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THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”) is enacted by and between Ship my Deal, LLC and “Company”.
  1. The Company is in the business of selling and/or manufacturing certain Products
  2. 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
  3. The Company desires to retain Ship my Deal’s services, and Ship my Deal desires to provide services to the Company, subject to the terms and conditions of this Agreement
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 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 intended recipient. (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 the 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 intended recipient 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 the intended recipients. 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.

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 the first of every month for services provided the prior month, following the conclusion of the period of which those specific services were provided. Storage fees are charged forward for the whole month including a relative charge for the month in which the goods arrive. All invoices must be paid within 7 days of being issued. If all, or a majority, of the Company’s Product being stored at Ship my Deal’s warehousing facilities is scheduled to be shipped out, Ship my Deal reserves the right to issue an invoice in advance which must be paid before Product can leave for shipping.

Prepaid account: Ship my Deal reserves the right to classify an account as Prepaid. A prepaid account will need to pay in advance for services before the services are done.

Deposit: Ship my Deal reserves the right to ask for a deposit in the amount of services/postage that may accrue in the future. Any deposit will be applied against the future invoices once the services are given. In case of a postage deposit, the deposit will remain until the Company has no more inventory at Ship my Deal warehouse.

Product Invoicing: Any and all fees due for the cost of the Product shall be paid directly by the intended recipient to the Company. Under no circumstances shall Ship my Deal accept, receive, or otherwise be held responsible for payments from the intended recipient made in exchange for the Product.

Failure of Company to Make Timely Payments. If Ship my Deal fails to receive payment from the Company within 30 days after the date of an invoice, all Services shall stop until Ship my Deal receives payment. Furthermore, after 45 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 the Company after 30 days of the issue 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, credit card or Direct deposit. 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 the Company's payment information is stored with Authorize.Net.

Auto-Pay. The 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: The 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 the Company until such time as the Products are delivered to the intended recipient.

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 intended recipient.

Insurance: The Company hereby agrees that it is the Company’s responsibility, at all times, to maintain an insurance policy that covers the cost of the Products held in Inventory. The Company has the option of adding the Warehouse as a designated storage location to the Company’s general inventory policy.

No Insurance: The 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, the Company will provide Ship my Deal with identifying information, the company information and information about the Products.

Services Available: Through the Account. By using Ship my Deal Services, the 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 as U.S. addresses and U.S. phone numbers. Ship my Deal is an independent contractor for all purposes, and only acts as the agent of the Company with respect to Ship my Deal’s custody of the Products in its Inventory.

Account Balances: Any invoices Ship my Deal sends to the Company shall be based on any balance accrued in the Company’s Account. Services ordered through the Account and any special or additional fees assessed against the Account will be invoiced as permitted in this Agreement. The Company agrees and acknowledges that should the 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 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 the Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, the 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.

Outstanding balance: In the event that the seller requests to ship out a majority of the goods received in the warehouse, Ship my Deal reserves the right to issue an invoice for the service and ask for the remaining balance to be paid prior to shipping out, regardless of the seller’s payment terms.

Abandoned Account and Liquidation: : If the Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 45 days, then Ship my Deal reserves the right, at its sole discretion, to reclassify the Company’s Account as an “Abandoned Account”. Upon an Account becoming an Abandoned Account, Ship my Deal shall immediately inform the Company of such reclassification and the Company shall pay any unpaid fees within 15 days of receiving such notice. Such notice will be sent via email only, to the email address on file. If the Company fails to make the payment within 15 days, Inventory will become immediately unavailable to the Company, and liquidation proceedings would begin. The Company agrees the Inventory would be free and clear of liability, and that the Company assumes any liability therefore. The 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 the Company, and all activity will be suspended. Ship my Deal reserves the right to place an Account on hold for a number of reasons upon providing a prior written notice to the Company via email; only to the email address on file, including but not limited to the following; (a) Account Balance remaining unpaid after 45 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: Each party reserves the right to terminate this Agreement for any reason upon 30 days’ Notice (“Termination Notice Period”). The Company shall have full use of the Account during the Termination Notice Period. Any Product inventory that remains in Ship my Deal’s inventory at the expiration of the Termination Notice Period will be shipped to the Company at the address on file and, if address is not on file, the billing address on the Company’s credit card, at the Company’s expense. Any unshipped Products that remain at Ship my Deal warehouse within and after the 30 days’ notice will incur storage fees based on customer’s storage tariff. 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.

Currency Fluctuations: 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: The Company may close the Account for any reason, upon giving Ship my Deal 30 days prior written Notice. Merchandise will be returned to the Company at the expense of the Company.

Ship my Deal Property: For the purposes of this Agreement, “Ship my Deal Property” shall mean; (a) Ship my Deal’s methodology for the provision of 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. The 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, the 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, rent, lease, distribute, or otherwise transfer any of the rights the 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 the Company shall not copy, imitate, or use them without Ship my Deal’s express prior written consent. The 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. The 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. The 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 expressed, written consent; (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 provided Services.

Client Property: No Confidential Information obtained by Ship my Deal from the Company shall become Ship my Deal Property. All materials provided by the Company shall be deemed “Client Property” for purposes of this Agreement. The 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 that the 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, the 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 intended recipient, (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 the Company; (b) Any negligent or more culpable act or omission of the 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 the 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 the Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or (f) Any failure by the 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, including the Ship my Deal website, or third party services is at the 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, yet Ship my Deal makes no representations or warranties regarding the amount of time needed to complete processing, due to the fact that completion of said Service is dependent upon many factors outside of its control.

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 are liable for any indirect, incidental, special, consequential, exemplary, punitive or enhanced damages; as well as, damages for loss, loss of profits, revenue, data or use; incurred by the 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 what is expressed above, in no event shall Ship my Deal’s liability under this agreement exceed the monies paid or payable by the 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 the Company waives 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 in which Ship my Deal is in possession of inventory for which the clauses above are determined to be inapplicable and Ship my Deal is held legally liable, the 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”), the Company agrees and acknowledges that Ship my Deal’s liability shall be limited to the hourly charge the 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 and information; all of which is necessary to fulfill our services for you.

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, costs 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 that; “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.

The Company agrees to not take any legal action against Ship my Deal that relates to or arises out of any of Ship my Deal Services or websites without first; (a) sending Ship my Deal, via registered mail, a detailed written description of the facts and law out of which the Company’s claim arises; and (b) negotiating with Ship my Deal, in good faith, for no less than 30 days, towards resolution of the dispute. All correspondence concerning such disputes must be addressed to Ship my Deal’s email. 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 Ship my Deal control.