Fulfyld Terms of Service Agreement
Last Revision: 9/28/2020
Acceptance of terms
Fulfyld, LLC, an Alabama corporation with offices at 4521 Old Railroad Bed Rd., Harvest, AL 35749, (“Fulfyld”) provides fulfillment and packaging Services (the “Services”) to you, (herein referred to as the “Customer”, the “Client”, “Company”, or “you”). You agree to be bound by this Agreement (this “Agreement”) as of the date (the “Effective Date”) that you agree to when signing up with Fulfyld. This Agreement is between you and Fulfyld, LLC, an Alabama corporation with offices at 4521 Old Railroad Bed Rd., Harvest, AL 35749, (“Fulfyld”).
Fulfyld may change or revise this Agreement at our discretion. Fulfyld may change or revise this Terms of Service Agreement from time to time by providing five (5) days prior notice by emailing the email address provided by you, posting a notice on this page (https://www.fulfyld.com/terms-of-service/) or by notifying you via any Fulfyld billing statements or web portals. If any change or revision to this Agreement is not acceptable to you, your only remedy is to notify both firstname.lastname@example.org and your account manager. Otherwise, you are bound by the revised or changed Terms of Service Agreement. Your use of the Services after five (5) days notice shall constitute full acceptance of the revised or changed Terms of Service Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Client and Fulfyld hereby agree as follows:
“Content” shall mean any information or data provided to or stored by Fulfyld or its agents on its servers related to the Client, or stored on Client’s behalf.
1.2 Client Representatives
“Client Representatives” shall mean any Client employee, officer or agent that has access to information about any aspect of the Products (defined below) and Services provided by Fulfyld.
“User” shall mean any person/entity that has been granted access to the Client’s database on Fulfyld or its agent’s servers.
1.4 Shipped or Fulfilled
“Shipped” or “Fulfilled” shall mean any package/parcel, product or item that has a tracking number associated in any of Fulfyld’s computer software systems.
2. Right to User Services
If and to the extent you comply with this Agreement, you may use the Services to facilitate the packaging, warehousing and shipment of any of Client’s property or other goods sent to or held by Fulfyld (the “Products”). Client may use the Services only for its own internal business use and to process its own data. Client has no right to (i) sublicense, sell or make available the Services to or for the benefit of any third party, (ii) use the Services in service bureau, application service provider or software as a service mode or share Services or make any portion thereof available to third parties or (iii) in any way use the Services to process or manage the products of a third-party.
3. Warehouse and Inventory Management
3.1 Advance Shipment Notice
The Client shall provide 48 hours advance shipment notice (“ASN”) of any items being sent to the Fulfyld warehouse via the Fulfyld Warehouse Management System (“WMS”) purchase order system (instructions on how to use the WMS provided upon onboarding), which notice shall include an itemized list of each stock keeping unit (“SKU”). When Fulfyld, in its reasonable discretion, receives goods for which an ASN has not been provided in advance in accordance with this Agreement, Fulfyld may quarantine the entire shipment of such goods until the Client provides the correct ASN. A Fulfyld agent will contact the Client (via phone, email, or other method of communication) to seek a resolution within 5 Business Days of its receipt of the same, and the quarantined goods will remain in quarantine until the Client provides a sufficient ASN to Fulfyld. If Fulfyld has contacted the Client and the Client has not provided the ASN in accordance with this paragraph, Fulfyld may perform all acts reasonably necessary in lieu of the ASN and charge a fee of $35/man-hour to Client.
3.2 Receiving Services
Fulfyld warehouses shall be open for receipt of Products until 1:00 pm (local warehouse time) each Business Day. Upon arriving at the Fulfyld warehouse, all items will be moved to the incoming receiving inspection area to be checked for compliance with Requirements for Inbound Product, as specified below. Client shall use reasonable efforts to ensure that items delivered to Fulfyld will comply with the Requirements for Inbound Products. Fulfyld shall verify the pallet and case quantities listed on the incoming paperwork against what Fulfyld physically receives, but the counts inside individual cases shall not be verified. The Client will be notified of any discrepancies between the paperwork and the physical receipt, and any exterior physical damage noted upon receipt will also be reported to the Client in a reasonable manner.
The delivery address for each warehouse is listed below. Less than truckload and full truckload carriers are required to call the number listed below for the respective facility at least 24 hours in advance to schedule a delivery appointment. Fulfyld is not liable for any fees associated with refused shipments.
4521 Old Railroad Bed Rd.
Harvest, AL 35749
“Requirements for Inbound Products”:
Product must be received in ready-to-ship format unless previously discussed with email/written confirmation. One SKU per master carton unless previously discussed with email/written confirmation.
Barcode must appear on exterior of the Product (unless otherwise specified via email). Each barcode must be a unique identifier for the product and will be applied to the unit of measure which is being ordered by Client’s customers. (For example, if a carton of toothpaste is being sold as a single unit, the carton must be barcoded on the exterior. If a shrink-wrapped bundle of 5 toothpaste cartons is being sold as a unit, the shrink-wrapped bundle must be barcoded). If Fulfyld receives an inbound shipment of Products that it reasonably determines does not apply barcode(s) in accordance with this Paragraph 3.2.B, Fulfyld shall apply the barcodes, and $0.26 per label will be charged to Client unless agreed upon otherwise in writing.
Product must be accompanied by a packing list with the following details (this can also be provided in advance via email):
- Client Name
- Part Number or SKU (matching system part number)
- Product Description (matching system description)
- Packs Unit of Measure (i.e: 100 cases)
- Total Quantity (i.e: 20 units per case)
Pallet dimensions must be as follows:
- Pallet must be a standard four-way entry 40” x 48”
- Maximum Height is 48” including pallet (Unless otherwise agreed upon in writing)
- EUROPALLETs are also acceptable
A non-standard inventory receipt fee of $35/hour will apply for any items that do not meet these requirements.
3.3 Warehousing Services
Fulfyld warehouses and inventories all Products received until such time as the Products are ordered, picked, packed and shipped. Storage of materials will be billed per the number of pallets, bins or equivalent pallets or bins held at Fulfyld. Storage charges are based on number of orders shipped per month (or 4-week average/Volume) and are outlined in the following table unless agreed upon otherwise in writing:
3.4 Inventory Services
Inventory is monitored via random cycle counts, performed in Fulfyld’s sole discretion. As described in the receiving processes above, the Product is not counted at the piece level upon arrival (unless otherwise specified). Fulfyld shall not be responsible for any variance in the total volume of any Product held in inventory unless such variance exceeds 3% of the total volume of such Product (per sellable-SKU) against the last total Product volume amount communicated to the Client. A volume variance between 1% and 3% (from the incoming material receipt accuracy, as compared to the packing list on the Product) is expected during cycle counting.
Through the incoming inspection processes and random inspections, variations to the receipt quantity that are found will be communicated to the Client and corrective action may be requested. Client’s failure to provide corrective action or failure to provide Fulfyld with PO or Shipment notification via the WMS/OMS web portal system will negatively impact inventory accuracy. Additional or annual physical inventory counts can be scheduled on request and will incur an additional cost to the Client at the rate of $35 per man hour.
4. Order Fulfillment
All orders for Fulfyld to ship any of Client’s Products (each an “Order”) shall be placed by Client or a third party acting on Client’s behalf through the Fulfyld WMS online portal. Client shall be bound by and Fulfyld may rely on any Order accepted by Fulfyld in good faith accordance with the previous sentence.
Orders will be processed on Mondays through Fridays that are not national holidays or holidays in the state of Alabama (“Business Days”). “Business Hours” are defined as 9:00 AM local time to 5:00 PM local time. Local time is the time zone of the warehouse from which the Order is being shipped. Further, Orders will not be processed when Fulfyld is closed for the following holidays:
- New Year’s Day
- Martin Luther King, Jr. Day
- Monday after the Super Bowl
- Memorial Day
- Fourth of July Labor Day
- Thanksgiving Day
- Christmas Eve & Christmas Day
- Any Common Shipping Carrier (FedEx, UPS or USPS) Holidays
Orders received by Fulfyld with Standard/Flat-rate shipping on any Business Day before 2:00 PM (local warehouse time) will be fulfilled on the same Business Day. Orders received by Fulfyld with Expedited/Overnight shipping received on any Business Day before 12:00PM (local warehouse time) will be shipped on the same Business Day.Orders received by Fulfyld with Standard/Flat-rate shipping on any Business Day after 2:00 PM (local warehouse time) will be treated as if they came in on the following Business Day. Orders received by Fulfyld with Expedited/Overnight shipping received on any Business Day after 12:00PM (local warehouse time) will be treated as if they came in on the following Business Day. The Client should inform Fulfyld of any urgent Orders and Fulfyld may use reasonable efforts to send such Orders to customers. Additional lead time may be required for orders received during Holidays or peak times. Orders are considered Shipped when a tracking number is generated in any of Fulfyld’s software systems regardless of their status with any third party shipping carriers.
Orders will ship using the carrier and service level selected by Fulfyld in its reasonable discretion in accordance with Paragraph 7 of this Agreement based on the shipping method name mapping that is provided via API or Webhook from the Client’s integrated web store. Notwithstanding the previous sentence, if the Client provides written instruction to Fulfyld to ship its Products using a different carrier or service level, the Client will be charged in accordance with Paragraph 11.4 below. Orders will be packed into shipping containers using standard packaging materials, at the sole discretion of Fulfyld. Standard packaging materials may include padded mailers, corrugated shipping boxes and newsprint paper filler. Materials will be selected by Fulfyld, in its sole discretion, based on the size, shape, weight, etc. of the Products contained in the Order. The smallest container, in Fulfyld’s sole discretion, which adequately contains and protects the product will be selected to minimize freight expense. Unless otherwise stated in Exhibit A of this agreement, the Client will be billed for packing materials according to usage. If, in the sole discretion of Fulfyld, the Product does not require any additional packaging or overpacking, Fulfyld may apply a shipping label and the Shipping Invoice to the exterior of the Product.
For any shipment from a destination outside the United States, the Products will be imported on behalf of the consignee/Client. The Client authorizes Fulfyld to import the goods on its behalf. Further, the Client agrees that Fulfyld may delegate the obligation to import the goods on Client’s behalf to a subcontractor. The Client will reimburse all applicable taxes & duties for such imported goods to Fulfyld in addition to the purchase price of the goods and any other applicable costs related to the shipment.
Unless stated in Exhibit A of this Agreement, Fulfyld shall not be responsible for any fees or reimbursements to the Client resulting from incorrect or incomplete information contained in any Order (including but not limited to address hold) if Fulfyld has made a good faith effort to either (i) ship an Order containing incorrect or incomplete information, or (ii) contact Client to correct such incorrect or incomplete information.
Any reimbursements or guarantees provided for Same-Day Shipping or incorrect shipments are provided as a commitment to a quality level of service by Fulfyld to the Client. During holidays or peak shipping seasons, Client agrees to provide Fulfyld with up to three business days to process orders. During such peak shipping seasons, Client agrees that any guaranteed shipping deadlines or reimbursements during these times will be extended up to three business days. Reimbursements or credits of these fees are credited to the Client account and cannot be redeemed for cash value. For example, if Fulfyld agrees to ship all orders that are in the WMS system by 2PM local warehouse time that same day (usually within 24 hours), and orders are shipped beyond the 24 hour mark due to a major US holiday, Fulfyld would not credit the Client any reimbursements owed until the delay exceeds 3 business days. Any third party carrier damage or claim credit requests for packages/parcels shipped by Fulfyld must be presented to Fulfyld within seven (7) days of the delivery of the package. If a shipping carrier’s tracking number shows the parcel/package in a “Delivered” status, Fulfyld will not accept any claims for such package or parcel. Fulfyld does not guarantee any credits for parcels delivered by common third party shipping carriers and Client agrees that not all claims will be refunded unless approved by the third party shipping carrier. Fulfyld holds no responsibility for credits or claims once parcels have been tendered to a shipping carrier.
Orders that are cancelled or modified after fulfillment has been completed will be subject to a $30 charge to locate the package, void the shipping label and restock the item(s). Orders that are cancelled or modified after the package has been collected by the carrier will be subject to a $55 fee to attempt to re-route the shipment back to our facilities or any other address than originally intended. This does not constitute guarantee that the package will be returned to our facilities.
5. Returns Processing
If a package is returned to Fulfyld’s facility, Fulfyld will update the Order status of such package from closed to returned on the WMS. Unless otherwise directed by the Client in writing, Fulfyld shall examine returned packages for content completeness, and if, in its sole discretion, Fulfyld determines a returned package contains good components, it may return such components to the Client’s stock for use in future shipments. Goods that Fulfyld determined to be damaged or unsellable items will be moved to quarantine. Unless specified in Exhibit A of this agreement, the Client shall be charged a minimum fee of $2.50 per unit for all returns. The $2.50 fee includes labor cost for re-processing the return, re-stickering (labeling) the return and adding the product back into inventory. Any pricing provided during the quotation process supersedes this section.
6. Client Support Center
Questions regarding the Services can be officially submitted via email to support@Fulfyld.com. After receipt of a question regarding the Services, a Fulfyld agent will contact the Client via email and update them on inquiry status within a reasonable amount of time. Fulfyld’s goal is to acknowledge all inquiries within 4 hours of receipt and resolve all matters within 24 business hours, but in some instances, more time may be required.
7. Pricing and Payment
The pricing shown in EXHIBIT A shows all applicable costs associated including storage costs as described in Section 3.3 of this agreement. Pricing is subject to change at any time with 30 days written notice to the Client. Any non-standard delivery fees from shipping carriers such as Extended Delivery Area Surcharges, Returned Package Fees, Insufficient Address Fees and any other non-standard fees will be billed to the client with a four percent (4%) surcharge added.
8. Term and Termination
This Agreement shall commence upon execution by both parties and shall continue until this Agreement is terminated in accordance with its terms.
8.2 Termination for Convenience
Either party may terminate this Agreement for convenience upon sixty (60) days written notice to the other party at any time.
8.3 Termination for Insolvency
This Agreement shall terminate immediately, without notice, (i) upon the institution by or against either party of insolvency, liquidation (whether voluntary or compulsory, except for the purposes of a bona fide reconstruction on amalgamation) receivership, examinership, bankruptcy, or administration proceedings or any other proceedings for the settlement of debts of either party, (ii) upon either party making a general assignment for the benefit of creditors, or (iii) upon the dissolution of either party.
8.4 Effects of Termination
In the event of the expiration or termination of this Agreement, the licenses granted to Client shall automatically terminate and Client shall cease to use the Services and any Fulfyld trademarks. Fulfyld may suspend the Services at any time if Client is in breach of any obligation under this Agreement. In the event of termination of this Agreement, all fees due and payable by Client, together with all sums then outstanding, shall become immediately due and payable by Client. Client will be responsible for paying for any Services rendered until all Products are removed from Fulfyld’s warehouse, including monthly fees, storage fees, attorney fees, administrative fees and product removal fees. Upon termination, Fulfyld will cease providing Services to Client and any of Client’s customers who are being serviced on Client’s behalf under the terms of this Agreement. Fulfyld will also discontinue any Fulfyld- or partner-hosted web pages or applications relating to Client or Client’s customers. Client grants Fulfyld a security interest in all of Client’s Products in the possession of Fulfyld as security for the full payment of any and all sums due to Fulfyld from Client hereunder. Subject to the foregoing sentence, Client agrees to remove all Products from Fulfyld’s properties within thirty (30) days of termination of this Agreement. In the event that such Client Products are not removed, Client agrees that such Products shall be deemed abandoned by Client and Fulfyld may, in its sole and absolute discretion, remove and/or dispose of such Products in any manner without further liability or obligation to Client; and Client shall promptly reimburse Fulfyld for any reasonable fees incurred for such removal/disposal. Subject to the other terms of this Paragraph 8.4, in the event of expiration or termination of this Agreement, Fulfyld agrees to work in good faith with Client to transition the Client to use other fulfillment services.
9. Client Obligations and Warranties
Client warrants that it is the owner of the Content and/or has the necessary licenses and authority to use the Content and that it is authorized to license Fulfyld to use the Content to the extent necessary for the provision of the Services and the operation of the Products hereunder. Client is solely responsible for all aspects of the accuracy of the Content. Client warrants that possession of the Products by Fulfyld or any of its officers, employees, or agents, shall not violate any applicable laws.
9.2 Branding and Marketing
Client grants to Fulfyld the right to use Client’s trademarks, service marks and/or trade names that Client and its licensors may adopt from time to time (the “Trademarks”) on any Fulfyld client list, in print or electronic media, used for sales generation, on any Fulfyld Client application web page derived from the Content as requested by the Client and as a hypertext link to the Client’s website if mutually agreed. Client further agrees that Fulfyld may refer to Client by name and may use samples of Services provided to Client for marketing purposes on the Fulfyld website and in other Fulfyld literature if mutually agreed upon in advance. Any representations of Client’s Trademarks other than for use on the Fulfyld client list shall first be submitted to Client for approval. During the term of this Agreement, Client may display the Fulfyld Trademarks on Client’s website solely for the purpose of linking Client’s website to the Fulfyld website or Fulfyld Client application web pages. All representations of the Fulfyld Trademarks that Client intends to use shall first be submitted to Fulfyld for approval.
9.3 Permission Based Communication
Client agrees that it shall not use Content in connection with sending unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages. Client also agrees that it will honor all unsubscribe requests in the spirit of permission-based communications.
9.4 Privacy and Acceptable Use
Client acknowledges and agrees that it has read and understands the Fulfyld Privacy and Acceptable Use Policy as set forth on its web site located at www.Fulfyld.com, which policy may change from time to time.
9.5 Client Representatives/User Terms and Conditions
Client acknowledges and assumes responsibility for communicating the applicable sections of this Agreement to Client Representatives and Users of the Services.
9.6 General Obligations
Client shall (i) promptly provide Fulfyld with all necessary information, decisions, support and co-operation that may reasonably be required to enable Fulfyld to carry out its obligations to Client under this Agreement; (ii) provide at no charge to Fulfyld adequate office accommodation, telephone services and other facilities including access to Client’s applicable equipment to enable Fulfyld to perform the Services at Client’s sites if so requested by the Client; (iii) abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the Products and Services.
10. Fulfyld Obligations
You retain all right, title and interest in and to Your Data, other than the limited rights expressly granted in this Section 10. For purposes of this Agreement, “Your Data” means any and all information collected and/or stored by or on behalf of Fulfyld in connection with your use of the Services, excluding data and information relating to the operation and/or performance of any Fulfyld Software.
You hereby grant Fulfyld the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary to provide the Services to you pursuant to the Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Your Data on an aggregate and anonymous basis for marketing purposes.
11. Use, Storage and Other Limitations
Fulfyld reserves the right to establish or modify general practices and limits concerning use of the Services, including without limitation, the maximum number of days that Content will be retained and the maximum disk space that will be allotted to Client on Fulfyld or its agent servers.
The billing period starts on the first day of shipping in a calendar week and ends on the following Friday. The billing period shall be every 7 days (Starting Sunday at 12AM and ending the following Saturday at 11:59PM), Fulfyld will provide an invoice for the previous billing period to Client via email, and following circulation of such email invoice, Fulfyld will initiate the payment for the amount specified in the invoice via ACH transfer or credit card transaction (an additional 3% processing fee will be applied for payment by credit card) using the bank account/credit card information provided by the Client. If client is outside of the USA, client agrees to provide payment to Fulfyld within 1 business day after receiving invoice or the Client account with Fulfyld will be put on hold until such payment is made. All Services fees are FOB Fulfyld’s warehouse. In addition to its other rights hereunder, including the right to terminate and suspend the Services, Fulfyld may charge interest in respect of late payment of any sum due under this agreement at the rate of eight percent (8%) per anum or the maximum rate permitted by applicable law, whichever is higher, from the due date of the invoice until the date paid. In addition, the Client is responsible for all collection fees, including reasonable attorney’s fees incurred by Fulfyld to receive payment. If the Client is late in any payments, Fulfyld may suspend the Services without notice.
You agree and acknowledge that Fulfyld shall maintain a warehouseman’s lien and security interest under the UCC for all Goods in Fulfyld’s possession or control, regardless of whether a specific receipt is issued by Fulfyld, to cover all charges, expenses, costs and fees set forth in this Agreement. In the event Fulfyld is required to exercise its lien or security interest, you shall be responsible for all necessary and reasonable costs incurred by Fulfyld to enforce the lien or security interest including, but not limited to, reasonable attorney fees. You will execute all agreements and documents so that Fulfyld may obtain, perfect and maintain its lien rights and security interest in the Goods. You will execute all documentation to permit us to perfect our liens.
11.2 Business Sales Tax
Client is responsible for all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with its purchase of the Services from Fulfyld, except for taxes based upon Fulfyld ‘s net income. Fulfyld base prices do not include any such taxes. To the extent Fulfyld is required by law to collect such taxes relative to the services provided, those amounts shall be added to Fulfyld invoices and paid in full by Client. Fulfyld will be responsible for remitting those taxes to the sales or use taxing authority. If Alabama State sales tax applies, Fulfyld agrees to accept Client’s direct pay permit, which shall relieve Fulfyld from the obligation to collect Alabama State Sales tax.
11.3 Client Tax
Client agrees that it is the Client’s responsibility to determine whether Client Taxes apply to sales utilizing the Services and to collect, report, and remit the correct Client Taxes to the appropriate tax authority, and that Fulfyld is not obligated to determine whether Client Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any Client transaction between Client and a customer. “Client Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any Client transaction between Client and a customer using the Services, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives. Under no circumstances shall Fulfyld, an unaffiliated entity of Client, as a Complete Fulfillment Service provider, be required to collect or pay Alabama State Sales Tax or the sales tax of a foreign state, or receive any resale or exemption certificate in any Client transaction between Client and a customer.
11.4 Postage and Shipping Fees
Client will be charged postage and shipping fees in accordance with Paragraph 7. If the Client instructs Fulfyld to use a shipping method not specified in Paragraph 7 above, the use of Fulfyld’s shipping and carrier numbers will be invoiced to Client (i) for commercial carriers, at the published commercial rate less a ten percent (10%) discount, or (ii) for USPS postage, at the published commercial rate plus a three percent (3%) service and handling fee. These fees only apply to shipments that are requested outside of normal operating procedure in accordance with Paragraph 7.
12. Warranty and Exclusions
Fulfyld warrants that it has the right to grant the Services. Fulfyld shall have no liability as a result of any of the following circumstances: (i) the improper use or operation of the Products or Services; (ii) the merger or use (in whole or in part) with any software or hardware by any person other than Fulfyld; (iii) any failure by Client to implement recommendations previously advised by Fulfyld; (iv) the use of the Products for a purpose not reasonably to be inferred from the Product information provided by the Client. Client expressly agrees that Fulfyld shall have no liability for non-performance or failure of functionality of the Services where the same is due to third party telecommunications equipment or services or Client’s computer equipment and software.
12.2 Exclusions of Warranties and Consequential Damages
Except as expressly stated in this agreement, Fulfyld hereby excludes all liabilities whether express or implied, statutory or otherwise in respect of the Services to the greatest extent permitted by applicable law. No warranty of fitness for a particular purpose or merchantability is given by Fulfyld to Client under any circumstances. Notwithstanding anything to the contrary contained herein, Fulfyld shall not, under any circumstances, be liable to Client for lost profits, consequential, incidental, special or indirect damages arising out of or related to this Agreement even if Fulfyld has been apprised of the likelihood of such damages or such damages were reasonably foreseeable.
13. Limitation of Liability
In no event shall Fulfyld’s liability to Client, whether based on an action or claim in contract, tort (including, without limitation, negligence and, to the extent permitted by law, strict liability) or otherwise, arising out of or related to this agreement, exceed the amount received by Fulfyld from Client for the Services complained of pursuant to this agreement in the twelve-month period immediately prior to the date Client notifies Fulfyld of such action or claim.
NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER FULFYLD 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 FULFYLD OR COULD HAVE BEEN REASONABLY FORESEEN BY FULFYLD, 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 FULFYLD’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO FULFYLD EXCLUDING CARRIER FEES OR OTHER THIRD-PARTY FEES (“DAMAGES CAP”). FULFYLD MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM FULFYLD.
EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST
FULFYLD FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT FULFYLD CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
13.3 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 FULFYLD IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND FULFYLD IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND FULFYLD’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL FULFYLD BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
13.4 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 ACKNOWLEDGE’S THAT FULFYLD’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO FULFYLD FOR THE PROJECT.
14. Indemnity and Insurance
Client warrants that the Content shall not be libelous, or constitute malicious falsehood or disparagement of goods or services, or be otherwise defamatory, immoral, obscene, pornographic, illegal, and shall not advocate illegal activity or constitute a violation of privacy or a breach of any obligation of confidentiality to any third party, nor shall it infringe the proprietary or intellectual property rights of any third party. Client shall indemnify, defend and hold Fulfyld, its employees, officers and agents harmless from any and all claims, losses, damages, liabilities, costs or expenses (including, without limitation, reasonable attorney’s fees and costs whether incurred in a third party action or in an action to enforce this Agreement) whether related to injury or death to persons (including Fulfyld employees) or damage to property to the extent that such may arise out of or be connected with Client’s breach of this Agreement or Client’s gross negligence. Subject to the terms of this Agreement, Fulfyld shall indemnify, defend and hold Client, its employees, officers and agents harmless from any and all claims, losses, damages, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees, and costs whether incurred in a third party action or in an action to enforce this Agreement) whether related to injury or death to persons (including Client employees) or damage to property that may arise out of or be connected with Fulfyld’s gross negligence. Fulfyld shall at all times maintain comprehensive liability insurance coverage in an amount no less than $1,000,000 per occurrence.
15. Proprietary Rights Ownership
15.1 Proprietary Rights
All right, title, and interest in the intellectual property rights related to the Services and the deliverables (if any) of the Services (the “Deliverables”), including, without limitation, all patents, trademarks, trade names, inventions, copyrights, (including copyright in computer programs), database rights, know-how, and trade secrets (“Intellectual Property Rights”) relating to the design, manufacture, operation or service of the Services and Deliverables are retained by Fulfyld except as specifically set forth herein. Client’s use of any of these Intellectual Property Rights is authorized only for the purposes and to the extent set forth in this Agreement, and upon termination of this Agreement for any reason, such authorization shall cease. Nothing herein shall grant to Client any right, title or interest in or to the Intellectual Property Rights in the Services and Deliverables.
16. Fulfyld Third Party Intellectual Property Rights Indemnity
Fulfyld will indemnify and defend Client and keep Client fully and effectively indemnified against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Deliverables by Client infringes the Intellectual Property Rights of said third party (an “Intellectual Property Infringement”), provided that Client gives Fulfyld the sole right to conduct the defense to any claim or action in respect of an Intellectual Property Infringement, and do not at any time admit liability or otherwise settle or compromise, or attempt to settle or compromise the said claim or action except upon the express written instructions of Fulfyld and gives to Fulfyld such assistance as it shall reasonably require in respect of the conduct of the said defense. Should notice be given to Client by a third party that any of the Services or Deliverables infringes any intellectual property rights owned or controlled by the third party, or should Client learn of any infringement by a third party of any of Fulfyld intellectual property rights in the Products or Deliverables, Client shall immediately notify Fulfyld thereof.
If any of the Services are finally adjudged to so infringe, or in Fulfyld’s opinion is likely to become the subject of such a claim, Fulfyld may, at its option and expense, either: (i) procure for Client the right to continue using the Services; (ii) modify or replace the Services to make it noninfringing; or (iii) terminate this Agreement and provide Client a pro rata refund of any pre-paid fees for the period after termination.
Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless Fulfyld 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 Fulfyld;
- (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.
Each party shall treat as confidential all information obtained from the other party pursuant to this Agreement and shall not divulge such information to any person (except to such party’s own employees, and then only to the extent that those employees need to know) without the other party’s prior written consent, provided however, that this clause shall not extend to information that is already public knowledge or will become so at a future date (otherwise than as a result of a breach of this clause) or that is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this clause. This Agreement imposes no obligation upon Client with respect to disclosed information that (a) Client can demonstrate was already in its possession before receipt from Fulfyld; (b) is or becomes publicly available through no fault of Client or Client’s representatives; (c) is rightfully received by Client from a third party without a duty of confidentiality; (d) is disclosed by Fulfyld to a third party without a duty of confidentiality on the third party; (e) is independently developed by Client without a breach of this Agreement as evidenced by contemporaneous written records; or (f) is disclosed by Client with Fulfyld’s prior written approval. If Client is required by a governmental body or court of law to disclose any confidential information, to the extent permitted by law, Client agrees to give Fulfyld reasonable advance notice so that Client may contest the disclosure or seek a protective order.
Each party undertakes and agrees that it shall not solicit any personnel of the other during the term of this Agreement and for one (1) year after the expiration or termination of this Agreement.
19. Other Terms
19.1 Risk of Loss
- (a) Client hereby agrees that at no time during the period that Products are held by Fulfyld as Inventory in the Warehouse will Fulfyld 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.
- (b) Client hereby agrees that at no time during the period that Products are held by Fulfyld as Inventory in the Warehouse will Fulfyld 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.
- (c) Client 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.
- (d) Client can choose not to insure its inventory. In this event, Fulfyld will, under no circumstances, be liable for any loss or damage to the inventory stored at Fulfyld facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event, not directly caused by Fulfyld.
19.2 Waiver of Jury Trial
TO THE EXTENT PERMITTED BY LAW, YOU AND FULFYLD EACH WAIVE YOUR RIGHTS TO A TRIAL BY JURY OF ALL CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR ARISING OUT OF THIS AGREEMENT BROUGHT BY EITHER PARTY AGAINST THE OTHER. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS OF OR MODIFICATIONS TO THIS AGREEMENT.
All claims between the parties related to this Agreement will be litigated individually and you may not consolidate or seek class treatment for any claim with respect to the Services.
19.3 Record Retention
Fulfyld will keep full and accurate records for a period of six (6) months following any distribution or disposition of inventory by Fulfyld. These records shall, during normal business hours and upon seventy-two (72) hour written notice, be open to examination by Client authorized personnel. Fulfyld is not responsible for the retention of any information after six (6) months.
19.4 Governing Law and Jurisdiction
This Agreement shall be governed in all respects by the substantive laws of the court of the State of Alabama in Madison County of the Northern District, without regard to its conflicts of laws principles, and controlling U.S. Federal law. Any and all disputes, controversies or differences arising from or in connection with this Agreement shall be settled by mutual consultation between the parties hereto in good faith as promptly as possible, but failing an amicable settlement shall be resolved by litigation held in Alabama. This Agreement was negotiated and executed in English, and the original English language version shall be controlling.
19.5 Relationship of the Parties
The parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint ventures, co-owners, principal and agent, or otherwise as participants in a joint or common undertaking.
Client shall not assign, sub-contract or otherwise transfer any of Client’s rights, obligations or licenses hereunder or appoint any agent to perform Client’s obligations hereunder without the prior written consent of Fulfyld, provided however, that Client and Fulfyld shall each have the right to assign this Agreement to a corporation controlled by, controlling, or under common control of the assigning party. Assignments not in accordance with this Section 19.6 are null and void.
Failure by any party to enforce any of its rights under this Agreement shall not be deemed a waiver of any right, which that party has under this Agreement.
19.8 Force Majeure
Except for the payment of any monies due under this Agreement non-performance of either party shall be excused, and any performance date shall be extended, to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, telecommunications services or equipment or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party.
19.9 Invalid Provisions
If any provision of this Agreement is held to be invalid or unenforceable, the other provisions will remain in effect to the greatest extent possible consistent with the parties’ intent, and the invalid, void or unenforceable provision shall be modified as may be necessary to make it valid, effective and enforceable to the greatest extent possible consistent with the parties’ intent.
19.10 Entire Agreement
This Agreement reflects the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior and contemporaneous agreements between the parties, whether written or oral.
19.11 Survival of Certain Provisions
The indemnification, confidentiality, and payment obligations set forth in any Agreement shall survive the termination of the Agreement by either party for any reason.
Headings to clauses in this Agreement are for the purposes of information only and shall not be construed as forming part of this Agreement.
19.13 Conflict of Terms
If there is a conflict between this Agreement and the terms on any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, this Agreement shall control.