We will use commercially reasonable efforts to provide you the procurement, fulfillment, storage and related services (“Services” and each a “Service”) described in these Terms. We will provide the Services solely as your agent, and not as a bailee or warehouseman. From time to time, you may request changes (including additions, modifications, and deletions) to products or Services. Any changes and adjustments must be approved in writing (with electronic mail communications being sufficient written exchange) by both parties and, once so approved, will be incorporated into these Terms.
You agree to timely pay us the fees for the Services (“Fees”) pursuant to the rates set forth in the rate schedule currently in effect for each Service as set forth on Services Exhibit, without setoff, deduction or other withholding. We may increase the Fees during each Term with advance notice to you, and your continued use of the Services constitutes acceptance of any such increase. All payments shall be in US dollars and paid on or before the applicable due date. You agree to timely pay all reasonable third-party costs and expenses related to the Services. You are responsible for all costs incurred in connection with collecting past due amounts, including attorneys’ fees, court costs and collection fees. All charges under or pursuant to these Terms are exclusive of taxes, assessments, duties and charges imposed by any jurisdiction or authority, and you are responsible for paying all such amounts directly.
This Terms and each Service offering applies only to products, other than Excluded Products (as defined below) that you specify and which we approve in our sole discretion (“Products”). As used in these Terms, the term “Covered Products” includes Storage Products (as defined below), Procurement Products (as defined below) and Fulfillment Products (as defined below), as the context may require. You agree to provide accurate and complete information about all products that you wish to include within the Services. You will promptly update any information about Products in accordance with our requirements and as necessary so that the information is at all times accurate and complete. We have no obligation to provide any Service for products that we do not approve in advance or products that we deem inappropriate or unfit as determined in our sole discretion, including products that are illegal, unsafe or restricted, whether by law, contract or otherwise (“Excluded Products”). You agree not to supply, ship, handle, store, procure, or otherwise provide us with any Excluded Products.
We will provide storage services (“Storage Services”) for Products that you own or Products for which you are the authorized agent of the owner once we confirm receipt of delivery from you or on your behalf (“Storage Products”). The Storage Services and Storage Products and corresponding Fees for Storage Services may be more fully set forth on the Services Exhibit attached hereto and incorporated herein. We may confirm receipt of delivery via electronic mail or through our electronic portal if made available to you, or otherwise in accordance with our standard practices in effect from time to time. You agree to be solely responsible for all costs incurred to ship Storage Products to our primary warehouse location (“Location”) and to the final shipping destination (including costs of freight and transit insurance) and for payment of all customs, duties, taxes, and other charges. You agree that we may store Covered Products at the Location and may move Covered Products among facilities owned or leased by us or our affiliates without notice. We will keep records that track inventory of Covered Products and will not be required to physically mark or segregate Covered Products from other inventory products, whether owned by us or a third party. In the event Covered Products are commingled with other inventory products, the parties agree that our records will be sufficient to identify which products are Covered Products.
We will provide sourcing, purchasing and procurement services
(“Procurement Services”) for Products that you direct us to acquire on your behalf and in your name (“Procurement Products”). The Procurement Services and Procurement Products and corresponding Fees for Procurement Services may be more fully set forth on the Services Exhibit attached hereto and incorporated herein. Unless you otherwise direct, you agree that Procurement Products may be delivered to our Location for storage and, once receipt of delivery is confirmed, will be subject to Section 4 above. You agree to be solely responsible for all costs incurred to ship Procurement Products to our Location and to the final shipping destination (including costs of freight and transit insurance) and for payment of all customs, duties, taxes, and other charges.
You agree that, as between you, us, and the applicable carrier, you will be the shipper of record, we will make payment to the carrier with respect to the shipment of all Products, risk of loss for each Product will remain with you, and we will not incur any liability or responsibility with respect to any delay, damage, or loss incurred during shipment. You further agree that, except as provided in these Terms, we will not acquire title to any Product. You authorize the applicable carrier to provide us with all shipment tracking information.
We may agree to accept and process returns of Fulfilled Products received from your customers in our discretion and we may return other Covered Products to you upon your request or upon termination of these Terms (“Returned Products”). Fulfilled Products that are properly returned will be placed back into the inventory of Covered Products or sent to your designated shipping address. Except as provided in these Terms, you will retake title of all Returned Products and we will, at your direction and at your cost, either return or dispose of any Returned Product and any Covered Product that we determine is an Excluded Product or a Covered Product that we determine requires removal, for instance because Covered Products cannot be returned due to incomplete or inaccurate shipping information, because we cannot make satisfactory arrangements for you to pay for return shipping in a timely fashion, because of recalls or potential recalls or safety alerts with respect to Covered Products or because these Terms is terminated (“Ineligible Product”). We may return to you or dispose of Excluded Products immediately. We may return to you or dispose of all other Ineligible Products if, after notifying you that removal is required, you fail to cause such removal within 30 days after such notice. In the event we dispose of any Ineligible Product, you agree that we may retain any proceeds we may receive from disposal. You agree to reimburse us for expenses we incur in connection with any Ineligible Product. You agree that title to each Ineligible Product will transfer to us at no cost, free and clear of any liens, claims, security interests or other encumbrances to the extent required to dispose of the Ineligible Product.
You agree to promptly notify us in writing once you discover a possible loss or damage claim, but not later than four (4) months after delivery of any Covered Product, if no delivery, after the scheduled delivery date (“Reimbursement Notice”). The Reimbursement Notice must set forth the nature of the damage and provide a reasonable estimate of the amount of the claim. If we determine that your claim is valid, we will replace the lost or damaged item with a comparable new item or we will reimburse you for it. We may dispose of any item for which we reimburse you in accordance with these Terms. You agree to institute any claim against us, if at all, no later than one (1) year we have delivered a written declination of claim to you.
WE FURTHER DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.
IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS PAID BY YOU TO US DURING THE MONTH IN WHICH THE CLAIM ACCRUED IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.
You agree to indemnify, defend, and hold harmless us and our Representatives from and against any Action that arises out of or results from or relates to, or is alleged to arise out of, result from or relate to: (i) the Covered Products (whether or not title has transferred to us, and including any Covered Product that we identify as yours), including any personal injury, death, or property damage; (ii) any taxes for which you are responsible or the collection, payment, or failure to collect or pay such taxes; and, if applicable (iii) any sales, use, value added, personal property, gross receipts, excise, franchise, business, or other taxes or fees, or any customs, duties, or similar assessments (including penalties, fines, or interest on any of the foregoing) imposed by any government or other taxing authority.
Unless otherwise specified on the Services Exhibit, the duration of these Terms shall be for 36 months from the Effective Date (“Term”), and the Term shall automatically renew for successive terms of equal duration unless earlier terminated pursuant to the Master Terms. No expiration or termination will affect your obligation to pay amounts that may have become due before such expiration or termination. Any provision in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination.
We will not be liable to you, or in breach of these Terms, for any failure or delay in performing under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond our reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
In addition to any other rights we may have, we may discontinue providing any Service or suspend or terminate any Service, including any access to or use of any Service or feature thereof, as to you or any User, without liability or obligation to any person at any time for any reason in our reasonable discretion, including for reasons related to Third-Party Products, such as inability to access any Third-Party Product or if there is a security threat or for maintenance or downtime, or if in our opinion you have failed, or any User has failed, to comply with the terms of the MSA or we suspect you or any User is involved in inappropriate conduct or your or any User’s account is being used for unauthorized or inappropriate purposes, or upon termination or expiration of the Master Terms or any Additional Terms, or to comply with any applicable law or otherwise protect or enforce our interests.
These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of these Terms, whether by facsimile or electronic signature and whether delivered by facsimile, email, or other means of electronic transmission, is deemed to have the same legal effect as delivery of an original signed copy hereof.
