Terms of Service

Terms of service

ACCEPTABLE USE POLICY

The Acceptable Use Policy covers all shipments made from Bondy & Bendana Fulfillments (“B&B Fulfillments”) facilities or on B&B Fulfillments shipping accounts whether through a user’s own web site, the B&B Fulfillments application, any online marketplace, or any other forum.

B&B Fulfillments reserves the right to take preventative or corrective actions to protect itself and its users at any time. Any user violating this policy voids any implied or express warranties and violates the B&B Fulfillments Terms. Violating this policy may also result in temporary or permanent limitation of a user’s Account, a held Account, termination of an account with 30 days’ notice, or immediate termination. This includes the inability to ship merchandise, to remove financial information from an account, and for users to close their Accounts as a way of evading the policy. Additionally, users whose Accounts are permanently limited for violating this policy are barred from future use of B&B Fulfillments and its services, and such users are not permitted to directly or indirectly open new or additional B&B Fulfillments Accounts on behalf of themselves or others. Please note, additional information on held Accounts and termination is provided in the Support section of this site. If you encounter violations of this policy, please report them to B&B Fulfillments immediately

 

FULFILLMENT SERVICES AGREEMENT (U.S.)

THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”) is entered into by and between BEDABOX, LLC, a Florida Limited Liability Company doing business as B&B Fulfillments (“Bondy & Bendana Fulfillment Services” or “B&B Fulfillments”) (“Company,” together with B&B Fulfillments, the “Parties,” and each a “Party”)

RECITALS

WHEREAS, the Company is in the business of selling and/or manufacturing certain Products; and

WHEREAS, B&B Fulfillments provides to various retailers and manufacturers direct-to-customer order fulfillment services, pursuant to which B&B Fulfillments provides storage, packing and shipping products to the retailer’s customers; and

WHEREAS, Company desires to retain B&B Fulfillments’ services, and B&B Fulfillments desires to provide services to Company, subject to the terms and conditions of this Agreement; and

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. APPOINTMENT

The Company hereby engages B&B Fulfillments to provide, and B&B Fulfillments hereby agrees, upon the terms and subject to the conditions set forth in this Agreement, to provide the Services (as defined below) to the Company for the duration of the Term and the Renewal Term described in Section 2. During the Term, and any Renewal Terms, the conduct of the Parties shall be subject to the terms and conditions of this Agreement, including conformance with the various B&B Fulfillments policies.

 

2. TERM

2.1 Term. The term of this Agreement commences on the Effective Date and continues for a period of 1 year, unless and until earlier terminated as provided under this Agreement or applicable law (“Term”). On expiration of the Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a “Renewal Term”). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.

 

3. B&B FULFILLMENTS SERVICES

3.1 Services. B&B Fulfillments shall provide the following services to the Company (collectively, the “Services”):

(a) Receive shipments from the Company of the Product

(b) Provide storage facilities for the Inventory in B&B Fulfillments’ warehousing facilities (“Warehouse”).

(c) Upon notification by the Company of a purchase of Products by a customer, B&B Fulfillments will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”).

(d) B&B Fulfillments will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.

(e) Upon request by the Company, B&B Fulfillments will include a Company packing slip, and/or other Company marketing materials concerning the Product, to be provided by Company.

(f) B&B Fulfillments will process, package and ship all Product orders in accordance with B&B Fulfillments Policies, and as may be further specified on Exhibit A.

(g) B&B Fulfillments will maintain monthly ledger summaries of all orders shipped and received, available upon request by the Company.

(h) B&B Fulfillments will facilitate any Product returns from the End-User to the Company.

(i) In addition to the above described Services, B&B Fulfillments shall perform any additional services, including special projects, that the Company desires B&B Fulfillments to perform, to be amended from time to time as agreed upon by the Parties.

 

4. COMPANY PERFORMANCE

4.1 General Compliance With Laws Covenant. The Company shall at all times comply with all laws applicable to this Agreement and its obligations under this Agreement, including the Company’s sale of the Products to End-Users. Without limiting the generality of the foregoing, the Company shall, at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the sale of the Products; and not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law.

 

5. COMPENSATION AND REIMBURSEMENT FOR SERVICES

5.1 B&B Fulfillments Fees. The Company agrees to pay B&B Fulfillments for the Services, in the amounts 

5.2 Invoicing. B&B Fulfillments shall send invoices to the Company on a bi-weekly basis, on the 1st and 15th of each month, for the previous period following the conclusion of the period for which such Services were provided, unless otherwise defined.

5.3 Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to the Company. Under no circumstances shall B&B Fulfillments accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.

5.4 Failure of Company to Make Timely Payments. If B&B Fulfillments fails to receive payment from Company within 15 days after the date of an invoice, all Services shall stop until B&B Fulfillments receives payment. Furthermore, after 30 days of non-payment, B&B Fulfillments has the right to automatically charge the saved payment method on file or any payment method used in the past for the amount due.

5.5 Late Payment Fee – If B&B Fulfillments fails to receive payment from Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.

5.6 Options & Ways to Pay – B&B Fulfillments provides the Company with a convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% convenience fee), check (Free), or a wire transfer (Free within the U.S.). B&B Fulfillments is using a 3rd party payment processing company for credit and debit card payments, which will be entered via a virtual terminal. B&B Fulfillments does not store any payment information on its own servers. right to auto-charge any payment method that has been used in the past. 

6. REPRESENTATIONS AND WARRANTIES

6.1 B&B Fulfillments’ Representations and Warranties. B&B Fulfillments hereby represents and warrants to Company that:

(a) It is duly organized, validly existing and in good standing in the jurisdiction of its formation;

(b) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;

(c) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;

(d) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of B&B Fulfillments;

(e) When executed and delivered by each of B&B Fulfillments and Company, this Agreement will constitute the legal, valid and binding obligation of B&B Fulfillments, enforceable against B&B Fulfillments in accordance with its terms; and

(f) To the best of B&B Fulfillments’ knowledge, the execution, delivery and performance of this Agreement by B&B Fulfillments will not violate, conflict with, require consent under or result in any breach or default under: (i) any of B&B Fulfillments’ organizational documents; or (ii) any applicable law.

6.2 Company’s Representations and Warranties. Company hereby represents and warrants to B&B Fulfillments that:

(a) It is duly organized, validly existing and in good standing in the jurisdiction of its formation;

(b) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;

(c) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;

(d) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Company;

(e) When executed and delivered by each of B&B Fulfillments and Company, this Agreement will constitute the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms; and

(f) To the best of Company’s knowledge, it is in material compliance with all laws applicable to this Agreement, the Products and the operation of its business.

 

7. TITLE, RISK OF LOSS, AND INSURANCE

7.1 Title. Company hereby agrees that at no time during the period that Products are held by B&B Fulfillments as Inventory in the Warehouse will B&B Fulfillments 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.

7.2 Risk of Loss. Company hereby agrees that at no time during the period that Products are held by B&B Fulfillments as Inventory in the Warehouse will B&B Fulfillments 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.

7.3 Insurance. Company 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.

7.4 No Insurance. Company can choose not to insure its inventory. In this event, B&B Fulfillments will, under no circumstances, be liable for any loss or damage to the inventory stored at B&B Fulfillments facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event, not directly caused by B&B Fulfillments.

 

8. COMPANY’S ACCOUNT

8.1 Company’s Account. In order to create an account with B&B Fulfillments, Company will provide B&B Fulfillments with identifying information,, company information and information about the Products (“Registration Information”). Company agrees to provide accurate Registration Information and will promptly update such Registration Information as necessary, but in no event later than 30 days after any applicable change. Upon B&B Fulfillments’ acceptance of Company’s request to register for an account (“Account”), Company will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. Company agrees not to share the following: password(s), Account information, or Account access information. Company is responsible for maintaining the confidentiality of password(s) and Account information, and is responsible for all activities that occur under Company’s password(s) or Account(s) or as a result of access to the Account(s). Company shall notify B&B Fulfillments immediately of any unauthorized use of the Account. B&B Fulfillments shall not be liable for any unauthorized use of the Account. Through the Account, Company will select various Services, in addition to or in conformance with Exhibit A. B&B Fulfillments will not be liable for any shipping rate errors due to inaccurate or incomplete Company information in the Account.

8.2 Services Available Through the Account. Subject to Company’s compliance with this Agreement, B&B Fulfillments shall perform the Services described in this Agreement as selected and authorized by Company in the Account, and described on Exhibit A attached hereto. Company may order Services through the Account (“B&B Fulfillments Services Orders”). All B&B Fulfillments Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that B&B Fulfillments is a broker of third-party warehouse and shipping services; accepting shipments from, and making shipments to, third parties. B&B Fulfillments is an independent contractor for all purposes, and only acts as the agent of Company with respect to B&B Fulfillments’ custody of the Products in its Inventory.

8.3 Account Balances. Any invoices B&B Fulfillments sends to Company in accordance with Section 5 of this Agreement shall be based on any balance accrued in the Company’s Account. “3rd Party Fees” are the fees for postage, shipping and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums or other charges given during Company’s use of Services) ordered through the Account and any special or additional fees assessed against the Account as permitted in this Agreement. The 3rd party fees for Services are billed during the month in which the Services are performed, but such 3rd Party Fees are subject to change due to circumstances beyond B&B Fulfillments’ control. Company agrees and acknowledges that should Company change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services listed on Exhibit A to this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed on the 1st and 15th day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.

8.4 B&B Fulfillments Services Estimates. Quotes for 3rd party fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon B&B Fulfillments. Quotations accepted through B&B Fulfillments’ online interface are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.

8.5 Currency Fluctuations. B&B Fulfillments reserves the right to adjust its pricing for the Services in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.

8.6 Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to B&B Fulfillments within 60 days of the fee being charged (“Dispute Period”). B&B Fulfillments will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.

8.7 Liens. B&B Fulfillments shall have a priority security interest in all Products in Inventory and on the proceeds thereof to secure the payment of all Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by B&B Fulfillments for the preservation of the Inventory or its sale. In connection therewith, Company hereby (a) grants to B&B Fulfillments a first priority security interest in all Inventory and the proceeds thereof to secure the payment of the User Fees and fees for Services, (b) consents to and grants to B&B Fulfillments the right to deliver and file any documentation required under applicable laws and regulations to perfect such security interest, and (c) irrevocably waives any requirements for its signature on any document filed by B&B Fulfillments under this Section 8.7.

8.8 Account Balance Disputes. If B&B Fulfillments becomes aware of, or is notified of, a dispute relating to the Account Balance, then B&B Fulfillments will promptly review the dispute. Within 5 days after the resolution of the dispute, B&B Fulfillments will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.

8.9 Abandoned Account and Liquidation. If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then B&B Fulfillments reserves the right, at its sole discretion to reclassify Company’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits all rights of ownership of such Company’s Inventory. Inventory will become immediately and irrevocably unavailable to Company, and liquidation proceedings would begin. Company agrees the Inventory would be free and clear of liability, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account and would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.

8.10 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activity will be suspended. B&B Fulfillments reserves the right to place an Account on hold for a number reasons, including but not limited to the following:

(a) Account Balance remaining unpaid within 30 days of receipt of invoice;

(b) suspicious activity on or through the Account;

(c) if anyone using the Account uses abusive language or otherwise threatens B&B Fulfillments or its staff;

(d) to allow time to resolve or investigate a third party complaint of a violation of this Agreement;

(e) To allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and

(f) To allow time for B&B Fulfillments to comply with any extraordinary support requests.

8.11 Termination with 30 days’ Notice. B&B Fulfillments reserves the right to terminate an Account for any reason upon 30 days’ Notice (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period, subject to B&B Fulfillments’ discretion. Any Product inventory that remains in B&B Fulfillments’ inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company’s credit card, at Company’s expense. If no address is available or no balance is available to pay for shipment back to the Company, B&B Fulfillments will liquidate the Product inventory in accordance with an Abandoned Account.

8.12 Additional Actions. If Company is in breach of any of the terms of this Agreement, B&B Fulfillments may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, B&B Fulfillments may also take any actions available, including, without limitation, any of the following :

(a) contact End-Users who have received Products, contact Company’s bank or credit card issuer, and warn other users, law enforcement, or impacted third parties of Company’s actions;

(b) refuse to provide the Services in the future;

(c) hold Account funds and Inventory for up to 180 days if reasonably needed to protect against the risk of liability; and

(d) take any available legal action.

8.13 Closing Accounts. Company may close the Account for any reason, upon giving B&B Fulfillments 30 day’s prior written Notice. Merchandise will be returned at a rate of $0.5 / item.

 

9. B&B FULFILLMENTS INTELLECTUAL PROPERTY RIGHTS

9.1 B&B Fulfillments Property. For purposes of this Agreement, “B&B Fulfillments Property” shall mean (a) B&B Fulfillments’ methodology for the provision of the Services; and (b) B&B Fulfillments’ Confidential Information. B&B Fulfillments hereby retains all worldwide right, title and interest in and to the B&B Fulfillments Property. Any rights not expressly granted herein to the B&B Fulfillments Property shall be retained by B&B Fulfillments. Company acknowledges that all right, title and interest to the B&B Fulfillments Property is owned by B&B Fulfillments.

9.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the B&B Fulfillments Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of B&B Fulfillments and Company shall not copy, imitate, or use them without B&B Fulfillments’ express prior written consent. Company may use HTML logos provided by B&B Fulfillments through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to bbfulfillments.com. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to B&B Fulfillments or the Services, or display them in any manner that implies B&B Fulfillments’ sponsorship or endorsement. Company shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access B&B Fulfillments’ website or Services for any purpose without B&B Fulfillments’ express written permission, (ii) interfere or attempt to interfere with the proper working of B&B Fulfillments’ website or any activities conducted on the website, or (iii) bypass any measures B&B Fulfillments may use to prevent or restrict access to B&B Fulfillments’ website or the Services.

9.3 Client Property. No Confidential Information obtained by B&B Fulfillments from Company shall become B&B Fulfillments Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants B&B Fulfillments a non-exclusive license to the Client Property solely as needed to provide the Services.

9.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in the United States. B&B Fulfillments has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. These measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. B&B Fulfillments will use reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to B&B Fulfillments’ attention. Company agrees to immediately notify B&B Fulfillments of any suspected security breach at info@bbfulfillmentservices.com, followed by contacting B&B Fulfillments customer support.

9.5 Third Party Software. Any third party software application Company uses on the B&B Fulfillments website, to connect to the Services, or related to the Services (“Third Party Software”) is solely subject to any third party software provider software licenses. B&B Fulfillments does not own, control or have any responsibility or liability for any Third Party Software.

 

10. CONFIDENTIAL INFORMATION

10.1 Scope. From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of this Agreement, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:

(a) All patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models);

(b) All rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;

(c) All rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;

(d) All rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and

(e) All inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.

10.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:

(a) information that is or becomes generally available to and known by the public;

(b) information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;

(c) information published or otherwise made known to the public by Discloser;

(d) information that was generated independently without reference to the Discloser’s Confidential Information; or

(e) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.

10.3 Protection of Confidential Information. Recipient shall protect and safeguard the confidentiality of Discloser’s Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and not disclose any such Confidential Information to any Person, except: (i) to Recipient’s representatives who need to know the Confidential Information to assist Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or (ii) pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Recipient shall first provide Discloser with: (A) prompt Notice of such requirement so that Discloser may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

The Recipient shall be responsible for any breach of this Section 10.3 caused by any of its representatives. The provisions of this Section 10.3 shall survive termination or expiration of this Agreement for any reason for a period of 5 year after such termination or expiration. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 10.3.

10.4 Return or Destruction. Other than transactional information that is retained in the ordinary course of B&B Fulfillments’ business, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed promptly after receipt of written request from the other party.

10.5 Aggregate Use. Subject to the terms and conditions of this Agreement, Company hereby acknowledges and agrees that B&B Fulfillments may compile aggregate results from all of, or a selection of Company’s use of the Services, provided that B&B Fulfillments shall not disclose any information that would individually identify Company (“Aggregate Information”). Such Aggregate Information shall be deemed to be B&B Fulfillments’ Confidential Information. Company also hereby agrees that B&B Fulfillments may review and use Company’s individual use of the Services in order to provide Services to Company, to evaluate B&B Fulfillments’ provision of the Services, and to improve B&B Fulfillments’ service offerings.

 

11. INDEMNITY

11.1 Company Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless B&B Fulfillments 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 B&B Fulfillments;

(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.

 

12. DISCLAIMERS

12.1 AS IS. B&B FULFILLMENTS’ OBLIGATIONS UNDER THIS AGREEMENT AND THE ATTACHED EXHIBITS (INCLUDING THE USE OF B&B FULFILLMENTS’ WEB SITE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. B&B FULFILLMENTS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES, B&B FULFILLMENTS’ WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF SERVICES, B&B FULFILLMENTS WEB SITE, OR THIRD PARTY SERVICES IS AT COMPANY’S RISK.

12.2 No Continuous Access. B&B Fulfillments does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of B&B Fulfillments’ control. However, B&B Fulfillments will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but B&B Fulfillments makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.

 

13. LIMITATION ON B&B FULFILLMENTS LIABILITY

13.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER B&B FULFILLMENTS 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 B&B FULFILLMENTS/ OR COULD HAVE BEEN REASONABLY FORESEEN BY B&B FULFILLMENTS, 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 B&B FULFILLMENTS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO B&B FULFILLMENTS EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). B&B FULFILLMENTS MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM B&B FULFILLMENTS.

13.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST B&B FULFILLMENTS FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT B&B FULFILLMENTS 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 B&B FULFILLMENTS IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND B&B FULFILLMENTS IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND B&B FULFILLMENTS’ LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL B&B FULFILLMENTS 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 B&B FULFILLMENTS’ LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO B&B FULFILLMENTS FOR THE PROJECT.

 

14. GENERAL PROVISIONS

14.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and B&B Fulfillments Services Orders constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

14.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.

14.3 No Waiver. Failure or delay of B&B Fulfillments to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.

14.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal notices to B&B Fulfillments must be sent by postal mail to: B&B Fulfillments, LLC, Attention: Legal Department, 901 NW 35th Street, Boca Raton, FL, 33431.

14.5 Assignment. Company may not transfer or assign any rights or obligations under this Agreement without B&B Fulfillments’ prior written consent. Any attempted assignment without that consent will be void. B&B Fulfillments reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing provisions of this Section, this Agreement shall be binding on and inure to the benefit of the parties’ successors and assigns.

14.6 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.

14.7 Attorneys’ Fees and Costs. B&B Fulfillments shall have the right to collect from Company any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.

14.8 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of Florida without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in Palm Beach County, Florida. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Palm Beach County, Florida. Notwithstanding the foregoing, B&B Fulfillments may seek injunctive or other equitable relief to protect B&B Fulfillments’ intellectual property rights in any court of competent jurisdiction.

14.9 Mandatory Mediation and Arbitration of Disputes. Except for disputes relating to payment for the Services or as otherwise expressly provided in this Agreement, all disputes arising under this Agreement, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, or otherwise from use of or access to B&B Fulfillments’ website or the Services, shall be determined by arbitration in the State of Florida, Palm Beach County (using the English language), before one arbitrator. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. The Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. The mediation may continue, if the Parties so agree, after the appointment of the arbitrators. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. The pendency of a mediation shall not preclude a Party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the Parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.

14.10 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). Company’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give B&B Fulfillments prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Company shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.

If requested by B&B Fulfillments, Company shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the Florida Uniform Commercial Code or any similar statute or regulation.