Fulfyld Terms of Service Agreement
Last Revision: 12/27/2021
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 its customers per the terms of this Service Agreement). This Service Agreement (this “Agreement”) is between you (you are hereinafter referred to as the “Customer” or “You”) and Fulfyld. You agree to be bound by the Agreement as of the date (the “Effective Date”) of this Agreement.
Fulfyld may change or revise this Agreement at its discretion periodically by providing five (5) days prior notice by posting a notice on this web page (https://www.fulfyld.com/terms-of-service/), or by notifying you via your web portals with Fulfyld. If any change or revision to this Agreement is not acceptable to you, your only remedy is to notify both email@example.com and your account manager at Fulfyld. Otherwise, you are bound by the revised Agreement. Your use of the Services after five (5) days’ notice shall constitute full acceptance of the revised Agreement.
As of the email notice sent on 9/27/2021 from Fulfyld, all prior contracts are subject to our updated Agreement shown below.
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 Customer 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 Customer and/or stored on the Customer’s behalf.
1.2 CUSTOMER REPRESENTATIVES
“Customer Representatives” shall mean any Customer or any employee, officer or agent of the Customer 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 Customer’s database on Fulfyld and/or its agent’s servers.
“Agent” shall mean and refer to Fulfyld’s software providers and their employees or other representatives.
“Shipped” shall mean any package/parcel, product or item that has a tracking number associated in any of Fulfyld’s computer software systems.
“Products” shall mean those items sent to Fulfyld by its Customers to utilize Fulfyld’s fulfillment and packaging services.
1.7 PRICING PROPOSAL
“Pricing Proposal” shall mean and refer to the document or email provided to the customer by Fulfyld’s sales or account management team that outlines the pricing for Services provided by Fulfyld.
1.8 PEAK SEASON
“Peak Season” is defined as the dates between the Monday prior to Thanksgiving Day and Christmas Eve.
2. RIGHT TO USER SERVICES
To the extent you comply with this Agreement, you may use the Services to facilitate the packaging, warehousing and shipment of any of Customer’s Products sent to or held by Fulfyld. Customer may use the Services only for its own internal business use and to process its own data. Customer has no right to (i) sublicense, sell or otherwise make available the Services r for the benefit of any third party, (ii) use the Services or Fulfyld’s software to serve as a service provider for any third parties, or (iii) in any way use the Services to process or manage the Products of a third party. Customer warrants that the Content it provides to Fulfyld shall not be libelous, maliciously false, disparaging Services, or be otherwise defamatory, immoral, obscene, pornographic, and illegal. Customer further warrants that it 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.
3. WAREHOUSE AND INVENTORY MANAGEMENT
3.1 MANDATORY ADVANCE SHIPMENT NOTICE
The Customer shall provide 48 hours advance shipment notice (“ASN”) of any items being sent to the Fulfyld warehouse via the Fulfyld Warehouse Management System (“WMS”), which serves as Fulfyld’s purchase order system. Instructions on how to use the WMS are provided upon the Customer’s acceptance of Fulfyld’s Services. The ASN shall include an itemized list of each stock keeping unit (“SKU”). When Fulfyld receives goods for which an ASN has not been provided in advance in accordance with this Agreement, Fulfyld may, at its sole and reasonable discretion, quarantine the entire shipment of such goods until the Customer provides the correct ASN. A Fulfyld agent will contact the Customer (via phone, email, or text message) to seek a resolution within 5 Business Days of its receipt of the shipment, and the quarantined goods will remain in quarantine until the Customer provides a sufficient ASN to Fulfyld. If Fulfyld has contacted the Customer and the Customer has not provided the ASN in accordance with this paragraph, 3.1, Fulfyld may perform all acts reasonably necessary in lieu of the ASN and charge a fee of $150.00 to Customer to release the goods from quarantine.
3.2 RECEIVING SERVICES
Fulfyld warehouses shall be open for receipt of Products from 8:00 AM to 4:00 PM (local warehouse time) each Business Day. Upon arriving at the Fulfyld warehouse, all goods will be moved to the receiving inspection area to be checked for compliance with Requirements for Inbound Product, as specified below. Customer shall use reasonable efforts to ensure that items delivered to Fulfyld comply with the below Requirements for Inbound Products. Fulfyld shall compare the pallet and case quantities listed on the incoming paperwork to the actual goods physically received by Fulfyld, but will not verify the quantities inside the individual cases delivered The Customer will be notified of any discrepancies between the ASN and the physical receipt. Any exterior physical damage noted upon receipt will also be reported to the Customer.
The delivery address for each warehouse is listed below. All carriers and 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
3.3 REQUIREMENTS FOR INBOUND PRODUCTS
Product must be received in ready-to-ship format unless previously discussed and confirmed by Fulfyld via email or other written confirmation. There shall be only one SKU per master carton.
A barcode must appear on exterior of the product. Each barcode must be a unique identifier for the product and will be applied to the unit of measure which is being ordered by the Client’s/Customer’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 3.3.B, Fulfyld shall apply the barcodes to the Products, and $0.30 per label will be charged to Customer unless otherwise agreed upon by Fulfyld and Customer, in writing.
Product must be accompanied by a packing list with the following details (this can also be provided by Customer in advance via an email to Fulfyld):
- Customer Name
- Part Number or SKU (matching system part number)
- Product Description (matching system description)
- Packs Unit of Measure (e.g.: 100 cases)
- Total Quantity (e.g., 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.
Customer shall be charged for additional labor on the part of Fulfyld at a rate of $35 per man hour for any items that do not meet these requirements.
3.4 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 attached table unless agreed upon otherwise in writing.
3.5 INVENTORY SERVICES
Inventory is monitored via random cycle counts, performed in Fulfyld’s sole discretion. As described in the receiving processes above, the Products are not counted by individual piece 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 last communicated to the Customer via the WMS online portal. To the extent Fulfyld is responsible for any damages under this Agreement, all such damages are limited as set forth in the terms in Paragraph 13 of this Agreement (“Limitation of Liability”). 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 Customer and corrective action may be requested. The Customer’s failure to provide corrective action or failure to provide Fulfyld with PO or Shipment notification via the WMS online portal will negatively impact inventory accuracy.
Additional or annual physical inventory counts can be scheduled on request and will incur an additional cost to the Customer at the rate of $35 per man hour.
- ORDER FULFILLMENT
All orders for Fulfyld to ship any of Customer’s Products (each an “Order”) shall be placed by Customer or the Customer’s agent through the Fulfyld WMS online portal. Customer shall be bound by and Fulfyld may rely on any Order placed through the Fulfyld WMS online portal and accepted by Fulfyld in good faith.
4.2 Business Hours.
Orders will be processed on Mondays through Fridays except for national holidays or holidays in the state of Alabama (“Business Days”). “Business Hours” are defined as 8:00 AM local time to 4:00 PM local time. Local time is the time zone of the warehouse from which the Order is being shipped. 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
- Columbus Day
- Thanksgiving Day
- Christmas Eve & Christmas Day
- Other Federal holidays.
4.3 Shipment Times
Orders will be shipped at the following times:
- Orders received by Fulfyld with Standard/Flat-rate shipping on any Business Day before 1:00 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 12:00 PM (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 1:00 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 12:00 PM (local warehouse time) will be treated as if they came in on the following Business Day.
The Customer 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 Season 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.
4.4 Shipment Details.
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 Customer’s integrated web store. However, if the Customer provides written instruction to Fulfyld to ship its Products using a different carrier or service level, the Customer 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. Customer is responsible for all data in the Fulfyld order management system. Customer is responsible for all charges related to any order or item in the Fulfyld software that is not deleted, cancelled, or placed on hold. Standard packaging materials may include padded mailers, corrugated shipping boxes and newsprint paper filler. Materials shall be selected by Fulfyld, based on the size, shape, weight, and other features of the Products contained in the Order. The smallest container, which adequately contains and protects the product will be selected to minimize freight expense. Unless otherwise stated in your Pricing Proposal, the Customer will be billed for packing materials according to usage. If, in the 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.
4.5 International Shipments.
For all international shipments, the Products will be imported on behalf of the /Customer. The Customer authorizes Fulfyld to import the goods on its behalf. Further, the Customer agrees that Fulfyld may delegate the obligation to import the goods on Customer’s behalf to a subcontractor. The Customer will reimburse Fulfyld for all applicable taxes & duties for imported goods in addition to the purchase price of the goods and any other applicable costs related to the shipment.
4.6 Reimbursement Policy
Fulfyld shall not be responsible for any fees or reimbursements to the Customer resulting from incorrect or incomplete information contained in any Order (including but not limited to a mail hold) if Fulfyld has made a good faith effort to either (i) ship an Order that unbeknownst to Fulfyld contained incorrect or incomplete information, or (ii) contact Customer 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 Customer. During Holidays or Peak Season, Customer agrees to provide Fulfyld with up to 3 business days to process orders. During such Peak Season, Customer agrees that any guaranteed shipping deadlines or reimbursements during these times will be extended up to 3 business days. Reimbursements or credits of these fees are credited to the Customer account and cannot be redeemed for cash value. For example, if Fulfyld agrees to ship all orders that are in the WMS system by 1:00 PM 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 Customer 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 3 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 Customer 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. Additionally, any claim or issue not related to a shipment delivered that is presented to Fulfyld must be filed within 5 days from when the issue occured.
4.7 Cancelled Or Modified Orders
Orders that are cancelled or modified after fulfillment has been completed will be subject to a $50 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 $75 fee to attempt to re-route the shipment back to our facilities or any other address than originally intended. This does not guarantee that the package will be returned to our facilities.
- RETURNS PROCESSING
If a package is returned to Fulfyld’s facility, Fulfyld will update the Order status of that package from closed to returned on the WMS. Unless otherwise directed by the Customer 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 Customer’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 the Pricing Proposal, the Customer shall be charged a minimum fee of $3.50 per shipment for all returns plus $.50 for each additional item after the first item included in the return shipment. The fees 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.
- CUSTOMER 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 Customer 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 Proposal provided to Customer shows all applicable costs including storage costs as described in Section 3.3 of this Agreement. Pricing is subject to change at any time within 5 days written notice to the Customer. Surcharges and any other non-standard fees are subject to change anytime with a 5 day notice to the customer. 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 Customer with a five percent (5%) surcharge added. If monthly shipping charges do not add up to more than $599 then the client is subject to a minimum fee for the difference.
- TERM AND TERMINATION
This Agreement shall commence upon execution by both parties and shall continue until this Agreement is terminated by either party to the Agreement or in accordance with its terms.
8.2 TERMINATION FOR CONVENIENCE
Either party may terminate this Agreement for convenience upon 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 either party’s insolvency, liquidation (except for the purposes of a bona fide restructuring or merger situation), receivership, examinership, bankruptcy, 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 benefits granted to Customer shall automatically terminate and Customer shall cease to use the Services and/or any trademarks of Fulfyld. Fulfyld may suspend the Services at any time if Customer is in breach of any obligation under this Agreement. In the event of termination of this Agreement, all fees due and payable by Customer, together with all sums then outstanding, shall become immediately due and payable by Customer. Customer 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 Customer and any of Customer’s customers who are being serviced on Customer’s behalf under the terms of this Agreement. Fulfyld will also discontinue any Fulfyld- or partner-hosted web pages or applications relating to Customer or Customer’s customers.
Customer grants Fulfyld a security interest in all of Customer’s Products in the possession of Fulfyld as security for the full payment of any and all sums due to Fulfyld from Customer hereunder. Subject to the foregoing sentence, Customer agrees to remove all Products from Fulfyld’s properties within 30 days of termination of this Agreement. In the event that such Customer Products are not timely removed, Customer agrees that such Products shall be deemed abandoned by Customer 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 Customer; and Customer shall promptly reimburse Fulfyld for any reasonable fees incurred for such removal and 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 Customer to transition the Customer to use other fulfillment services.
- CUSTOMER OBLIGATIONS AND WARRANTIES
Customer warrants that it is the owner of the Content and/or has the necessary 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. Customer is solely responsible for all aspects of the accuracy of the Content. Customer 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
Customer grants to Fulfyld the right to use Customer’s trademarks, service marks and/or trade names that Customer and its licensors may adopt from time to time (the “Trademarks”) on any Fulfyld Customer list, in print or electronic media, used for sales generation, on any Fulfyld Customer application web page derived from the Content as requested by the Customer and as a hypertext link to the Customer’s website if mutually agreed. Customer further agrees that Fulfyld may refer to Customer by name and may use samples of Services provided to Customer for marketing purposes on the Fulfyld website and in other Fulfyld literature if mutually agreed upon in advance. Any representations of Customer’s Trademarks other than for use on the Fulfyld Customer list shall first be submitted to Customer for approval. During the term of this Agreement, Customer may display the Fulfyld Trademarks on Customer’s website solely for the purpose of linking Customer’s website to the Fulfyld website or Fulfyld Customer application web pages. All representations of the Fulfyld Trademarks that Customer intends to use shall first be submitted to Fulfyld for approval.
9.3 PERMISSION BASED COMMUNICATION
Customer 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. Customer also agrees that it will honor all unsubscribe requests in the spirit of permission-based communications.
9.4 PRIVACY AND ACCEPTABLE USE.
9.5 NOTICE TO CUSTOMER REPRESENTATIVES
Customer acknowledges and assumes responsibility for communicating the terms and conditions of this Agreement to Customer Representatives and Users of the Services.
9.6 GENERAL OBLIGATIONS.
Customer shall (i) promptly provide Fulfyld with all necessary information, decisions, support and cooperation `required to enable Fulfyld to carry out its obligations to Customer under this Agreement; (ii) provide at no charge to Fulfyld adequate office accommodation, telephone services and other facilities including access to Customer’s applicable equipment to enable Fulfyld to perform the Services at Customer’s sites if so requested by the Customer; and (iii) abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the Products and Services.
You retain all right, title and interest in and to Your Data, other than the limited rights expressly granted in this Section 9. 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.
- 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 Customer on Fulfyld’s (or its agent’s 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 12:00 AM and ending the following Saturday at 11:59 PM), Fulfyld will provide an invoice for the previous billing period to Customer 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 Customer. If Client is outside of the USA, Client agrees to provide payment to Fulfyld within 1 business day after receiving invoice, or the Customer account with Fulfyld will be put on hold until such payment is made. All Service fees are FOB in Fulfyld’s
Fulfyld may modify, update or bill Customer for shipments that it failed to bill or incorrectly billed in a previous billing period. Customer agrees to pay all outstanding charges for all Service fees regardless of the billing period they occurred in.
10.2 LATE PAYMENTS
In addition to its other rights hereunder, including the right to terminate and suspend the Services, Fulfyld may charge interest in respect to any late payment of any sum due under this Agreement at the rate of eight percent (8%) per annum 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 Customer is responsible for all collection fees, including reasonable attorney’s fees incurred by Fulfyld to receive payment. If the Customer is late in any payments, Fulfyld may suspend the Services without notice.
You agree and acknowledge that Fulfyld shall maintain a warehouseman’s lien under Section 7-7-209 of the Code of Alabama 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, 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’s 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.
Customer 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 Customer. 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 Customer’s direct pay permit, which shall relieve Fulfyld from the obligation to collect Alabama State Sales tax.
10.5 POSTAGE AND SHIPPING FEES
Customer will be charged postage and shipping fees in accordance with Paragraph 7. If the Customer 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 Customer (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.
- WARRANTY AND EXCLUSIONS
Fulfyld warrants that it has the right to offer and extend the Services as provided by this Agreement. 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 Customer 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 Customer. Customer expressly agrees that Fulfyld shall have no liability for non-performance or failure of functionality of the Services where the same is due to an error on the part of third-party telecommunications equipment or services or the Customer’s computer equipment and software.
12.2 EXCLUSIONS OF WARRANTIES AND 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 Customer under any circumstances. Notwithstanding anything to the contrary contained herein, Fulfyld shall not, under any circumstances, be liable to Customer 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.
- LIMITATION OF LIABILITY
In no event shall Fulfyld’s liability to Customer, 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 Customer for the Services complained of pursuant to this Agreement in the twelve-month period immediately prior to the date Customer notifies Fulfyld of such action or claim. In the event of a loss due to a project defined as an hourly piece work, Customer agrees and acknowledges that Fulfyld’s liability shall be limited to the hourly charge Customer paid to Fulfyld for the project.
13.1 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 are 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 customer 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 Customer 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 customer waive all damages from Fulfyld.
13.3 EXCLUSIVE REMEDY.
The provisions of this Agreement provide Customer’s exclusive remedy against Fulfyld for any claim or cause of action whatsoever and 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 customer 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, Customer agrees that it will be considered an “Inventory Loss” and Fulfyld’s liability shall be limited as stated in Paragraphs 13.1, 13.2 and 13.3. In no event shall Fulfyld be liable for any of Customer’s lost sales revenue from the inventory loss due to inventory count inaccuracies.
Fulfyld shall at all times maintain comprehensive liability insurance coverage in an amount no less than $1,000,000 per occurrence.
- 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. Customer’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 Customer any right, title or interest in or to the Intellectual Property Rights in the Services and Deliverables.
- FULFYLD THIRD PARTY INTELLECTUAL PROPERTY RIGHTS INDEMNITY
Fulfyld will indemnify and defend Customer and keep Customer fully and effectively indemnified against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect to any claim or action that the normal operation, possession or use of the Deliverables by Customer infringes the Intellectual Property Rights of said third party (an “Intellectual Property Infringement”), provided that Customer gives Fulfyld the sole right to conduct the defense to any claim or action in respect of an Intellectual Property Infringement, and does 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. Customer shall give Fulfyld such assistance as Fulfyld shall reasonably require in respect of the conduct of the said defense. Should notice be given to Customer 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 Customer learn of any infringement by a third party of any of Fulfyld’s intellectual property rights in the Products or Deliverables, Customer shall immediately (no later than two (2) business days after learning of such alleged infringement) 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 Customer the right to continue using the Services; (ii) modify or replace the Services to remove the infringement; or (iii) terminate this Agreement and provide Customer a pro rata refund of any pre-paid fees for the period after termination.
17.1 CUSTOMER’S OBLIGATION
Customer 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 Customer’s breach of this Agreement or Customer’s gross negligence. Subject to the terms of this Agreement
losses shall include, but not necessarily be limited to:
- (a) Breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Customer;
- (b) Any negligent or more culpable act or omission of Customer (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 Customer;
- (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 Customer to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; o(f) Any failure by CUSTOMER to comply with any applicable state, federal or international laws
17.2 FULFYLD’S OBLIGATION
Fulfyld shall indemnify, defend and hold Customer, 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 Customer employees) or damage to property that may arise out of or be connected with Fulfyld’s gross negligence.
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, and except to such party’s legal counsel and accountants) 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 Customer with respect to disclosed information that (a) Customer can demonstrate was already in its possession before receipt from Fulfyld; (b) is or becomes publicly available through no fault of Customer or Customer’s representatives; (c) is rightfully received by Customer 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 Customer without a breach of this Agreement as evidenced by contemporaneous written records; or (f) is disclosed by Customer with Fulfyld’s prior written approval. If Customer is required by a governmental body or court of law to disclose any confidential information, to the extent permitted by law, Customer agrees to give Fulfyld reasonable advance notice so that Customer 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.
- OTHER TERMS
19.1 RISK OF LOSS
- (a) Customer 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, with the exception that Fulfyld shall have a lien under applicable Alabama law(s) on all inventory and Products of Customer held by Fulfyld in connection with all financial and other obligations Customer has to Fulfyld under this Agreement . Title in Inventory will continue to be held by Customer until such time as the Products are delivered to the End-User.
- (b) Customer 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 Customer until such time as the Products are delivered to the End-User.
- (c) Customer hereby agrees that it is Customer’s responsibility, at all times, to maintain an insurance policy that covers the cost of the Products held in Inventory. Customer has the option of adding the Warehouse as a designated storage location to Customer’s general inventory policy.
- (d) Customer 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, customer and Fulfyld each waive their respective 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 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 Customer’s 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 State of Alabama without regard to its conflicts of laws principles 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 the state or federal court located in Madison County, Alabama or the Northern District of Alabama, Northern Division. 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 contracting under this Agreement independently, 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.
Customer shall not assign, sub-contract or otherwise transfer any of Customer’s rights, obligations or licenses hereunder or appoint any agent to perform Customer’s obligations hereunder without the prior written consent of Fulfyld, provided however, that Customer 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, pandemic, 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 this 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.