WHEREAS, Provider provides to various retailers "direct-to-consumer" order fulfillment services, pursuant to which Provider picks, packs, and ships Products to the Client’s customers under the terms and conditions of this Agreement and the Schedules (as defined below).
WHEREAS, Client intends to operate an "on-line retail store" (the "Site") through which it intends to sell Provider’s Product(s).
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Provider and Client hereby agree as follows:
SCHEDULES
The parties acknowledge and agree that the detailed terms and conditions (including all Products to be sold and the Prices thereof) of any and all projects entered into between the parties shall be set forth in a form and format substantially similar to the schedule of even date herewith and delivered concurrently herewith (the "Original Schedule"), which sets forth the fulfillment project and is attached hereto. The parties acknowledge and agree that in addition to the terms and conditions of the Original Schedule and any other comparable schedule acknowledged in writing by the parties hereto and referencing this Agreement (each a "Schedule" and collectively the "Schedules"), the general terms of this Agreement shall apply to each project contained therein, as applicable, and the overall relationship between the parties. If there is a conflict between the terms of the Schedules and this Agreement, the terms of the Schedules shall control.
Commencing as of the date hereof and continuing during the term of this Agreement, Provider shall, subject to the terms and conditions of this Agreement and any Schedules, provide Client or cause Provider's various affiliates (all of which are collectively referred to as "Provider") to provide the services identified on any Schedules (collectively referred to as the "Fulfillment Services").
From time to time during the term of this Agreement, Client may request that Provider take part in a new project(s). Any such request shall be in writing. Provider reserves the right to accept or decline any project in which Client seeks its participation for any reason; provided, however, that Provider shall discuss in good faith with Client any request that Provider take part in a new project and shall give any such request due and fair consideration. In the event a new project is accepted, a Schedule will be created pursuant to the terms hereof and attached to and made a part of this Agreement as contemplated in Section 1(a) above.
FULFILLMENT SERVICES
Order Fulfillment and Shipping. Provider will fulfill and ship all orders transmitted by Client. Upon email notification from Client, Provider will drop ship orders no later than five (5) to seven (7) days after their receipt by Provider. Provider will make best efforts to provide free shipping or charge either the cost for shipping all orders to Client’s shipping account with no markup, whichever is to be negotiated and to be confirmed as a valid shipping choice on the last page of this agreement. Client reserves the right, in its sole discretion, to require Provider to use, or to operate under separate arrangements with, carriers with whom Client or a Client's affiliate has separately negotiated postage and freight rates, in lieu of Provider rates. Provider should ship all orders from Client’s back office for tracking purpose.
Payment. Client will pay Provider on the 10th and on the 25th of each month after a product order is shipped using the Paylution system. The prices of the products and related shipping costs are set forth in Original Schedule. Provider can monitor all payment activities and status in the back office.
Back Office. Client will provide Provider with a “back office” log in to view pending accounts (order status), settled accounts (shipped orders), and update inventory. Client will be able to transfer payment for settled accounts (including pre-agreed and pre-paid shipping cost) to its own bank account.
Exchanges. Provider will to provide to Client's customers a pre-paid return label with Provider's address and RMA information for each shipped product. Provider will allow Client's customers to return any Product(s) only for exchange. Provider shall bear the costs of any product that is returned for an exchange.
Warranty. All products shall be warranted by Provider for a period of not less than one (1) year from the date of purchase.
Tax Matters. Client acknowledges that it or its agent is solely responsible for identifying and resolving sales and use tax collection issues for product orders, including the necessity of charging and collecting such taxes.
Reports. The parties agree to provide each other such reports as are mutually agreed upon and set forth in each Schedule or as either party shall reasonably request during the performance of any Fulfillment Services.
TERM AND TERMINATION
Term and Renewal Option. Unless terminated earlier, the term of this Agreement shall be for a period of five (5) years commencing on the Effective Date, however, that Client shall have the option of extending the Original Term for three additional one (1) year terms ("Additional Terms") after the Expiration Date on the terms and conditions provided herein, such option to be effected by Client providing written notice to Provider of its intent to extend the Original Term no later than ninety (90) days prior to the Expiration Date or, after the Expiration Date and during an Additional Term, by providing such written notice sixty (60) days prior to the expiration date of the Additional Term, as applicable.
Termination. This Agreement may be terminated as follows:
Breach - by either party, upon 30 days prior written notice to the other party, in the event of a material breach of this Agreement by the other party. The written notice shall specify the precise nature of the breach. In the event the breaching party cures the breach within the 30 day notice period, this Agreement shall not terminate.
Insolvency - by either party, immediately upon written notice to the other party, in the event the other party voluntarily files or has filed involuntarily against it a petition under the United States Bankruptcy Code, including a petition for Chapter 11 reorganization as set forth in the United States Bankruptcy Code.
Return of Proprietary Information. Upon termination of this Agreement for any reason, each party shall immediately return to the other all property (including without limitation, Confidential Information and all material related to any customers) that it has received from the other party in connection with the performance of its obligations hereunder except to the extent such property is needed to fulfill its continuing obligations under Section 4(d) above. In such event, such property shall be returned immediately upon the party's fulfillment of its obligations under such Section 4(d).
Survival. Sections 4(c) [Return of Proprietary Information], 4(d) [Survival],6 [Insurance], and 7(b) [Governing Law] shall survive any expiration or termination of this Agreement or any Schedule.
RELATIONSHIP OF THE PARTIES
Independent Contractors. The relationship created hereunder between Provider and Client shall be solely that of independent contractors entering into an agreement. No representations or assertions shall be made or actions taken by either party which could imply or establish any agency, joint venture, partnership, employment or trust relationship between the parties with respect to the subject matter of this Agreement or any Schedule. Neither Provider nor Client shall have any authority or power whatsoever to enter into any agreement, contract or commitment on behalf of the other, or to create any liability or obligation whatsoever on behalf of the other, to any person or entity.
Subcontractors. Provider reserves the right to subcontract with other individuals and businesses for Fulfillment Services required to be performed pursuant to this Agreement and any Schedule. Use of any subcontractor shall be subject to receipt of prior written consent of Client, which consent shall not be unreasonably withheld. Provider shall be responsible for all payments to, as well as the direction and control of the work to be performed by its subcontractors, if any.
INVENTORY, TITLE, AND RISK OF LOSS
General. Provider shall maintain sufficient inventory (the "Inventory") to meet the fulfillment requirements under this Agreement.
Title. The parties acknowledge that Provider shall retain all right and title to all Inventory and packaging materials Provider utilizes under this Agreement.
Risk of Loss. Provider shall be responsible for all risk of direct physical loss of the Inventory while it is in Provider's possession or control during the term of this Agreement.
INSURANCE
During the term of this Agreement, Provider will maintain, with a financially sound insurance company having an A.M. Best rating of A or better, the following insurance coverage:
products liability insurance with a combined single limit of $2 million per occurrence for bodily injury, including death and property damage;
umbrella excess liability insurance with a combined single limit of $2 million per occurrence for bodily injury, including death, and property damage;
Provider will furnish Client with certificates of insurance evidencing this coverage upon written request.
MISCELLANEOUS PROVISIONS
Notices. All notices, demands, requests, approvals, consents or other communications to be given or delivered under this Agreement ("Notices") will be in writing and will be deemed to have been given (1) when delivered in person or by courier or confirmed facsimile; (2) upon confirmation of receipt when sent by certified mail, return receipt requested; or (c) five (5) days after deposit in first class U.S. mail, as the case may be to the addresses accordingly.
Governing Law. The law of the State of Nevada will govern all questions concerning any issues related to conflicts of law, the construction, validity and interpretation of this Agreement and any Schedule, and the performance of the obligations imposed by this Agreement and any Schedule.
IN WITNESS WHEREOF, the parties hereto executed this Agreement effective as of the date first set forth...
