FULFILLMENT SERVICES AGREEMENT
This Fulfillment Services Agreement (“Agreement”) is made and entered into this 15th day of May, 2017,
between 5 Logistics, LLC of 6750 East 46th AVE Drive Suite 400 Denver, CO 80239 (“Company”)
and Feel The World, Inc. of 100 Technology Drive, Suite 315C, Broomfield, CO 80021 (“Customer”).
RECITALS
1. Company is in the business of providing order fulfillment, packaging, warehousing,
domestic shipping, and international shipping solutions.
2. Customer desires to use Company’s services as provided herein below in the Agreement.
3. Now, therefore, in consideration of the mutual covenants and agreements contained
herein. Company hereby agree as follows:
AGREEMENT
1. SCHEDULES
a. Company and Customer mutually acknowledge and agree that the detailed terms
and conditions of any and all projects entered into between Company and
Customer 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. Company and Customer
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 Company
and Customer. If there is a conflict between the terms of the Schedules and this
Agreement, the terms of the Schedules shall control.
b. Commencing as of the date hereof and continuing during the term of this
Agreement, Company shall, subject to the terms and conditions of this Agreement
and any Schedules, provide Customer or cause Company’s various affiliates (all
of which are collectively referred to as "Company") to provide the services
identified on any Schedules (collectively referred to as the "Fulfillment
Services").
c. From time to time during the term of this Agreement, Customer may request that
Company take part in a new project(s). Any such request shall be in writing.
Company reserves the right to accept or decline any project in which Customer
seeks its participation for any reason. 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.
d. The pricing of Fulfillment Services for each individual project shall be set forth in
the relevant Schedule. Commencing after the expiration of one year from and
after the Effective Date, Company reserves the right, upon sixty (90) days prior
written notice to Customer, to increase the price of Fulfillment Services that
Company provides to Customer.
e. Postage and freight rates anticipated to apply to the performance of any
Fulfillment Services project shall be determined by Company for each project and
shall be communicated in writing to Customer in the Original Schedule.
f. Customer 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.
2. PAYMENT TERMS
a. Company shall invoice Customer for the Fulfillment Services every month or
week, setting forth (i) a detailed list of Fulfillment Services provided to Customer
during the prior month, (ii) associated charges for the services, (iii) shipment
services on a per shipment basis, having a net 15 term. Full payment of all
invoices is due in full within 15 days of issuance of the invoice.
b. Company and Customer shall use their best efforts to resolve any disputed invoice
through negotiations. In the event that disputed amounts are not resolved within
60 days of issuance of the invoice, all unpaid portions of the invoice shall become
immediately due and payable.
c. In the event of continued nonpayment, Customer shall be responsible for all
reasonable collection costs incurred by Company to collect on delinquent
accounts. Reasonable collection costs shall include reasonable Court costs,
attorney fees, and alternative dispute resolution fees incurred by Company,
ASSUMING THERE IS A FINDING BY A COURT OR ARBITRATOR THAT
SUCH FEES ARE REASONABLE AND SHOULD BE PAID BY CUSTOMER.
d. Company shall assess an interest rate of 1 percent per month on all receivables not
paid (AS REQUIRED BY THE COURT OR AN ARBITRATOR) within the
above-stated time periods. Interest will continue to accrue until all overdue
payments, plus interest charges, are paid in full.
3. TERM AND TERMINATION
a. Unless terminated at an earlier point as provided herein, the term of this
agreement shall be for a period of_1_years commencing on the Effective
Date. Customer shall have the option of extending this Agreement for_1_
additional years after the expiration date of this Agreement by providing written
notice of Customer’s intent to extend this Agreement 90 days prior to the
Expiration Date.
b. This Agreement may be terminated as follows:
i. 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.
ii. By either party, immediately or 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.
c. The rights of the parties to terminate this Agreement or any Schedule are not
exclusive of any other rights and remedies available at law or in equity, and such
rights shall be cumulative.
d. Notwithstanding any termination by either party of this Agreement or any
Schedule, Company shall continue to fulfill all orders from customers, and
Customer shall continue to remit amounts due to Company under this Agreement
or any Schedule, in connection with any product orders made prior to the effective
date of such termination.
4. RELATIONSHIP OF THE PARTIES
a. The relationship created hereunder between Company and Customer 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.
b. Company reserves the right to subcontract with other individuals and businesses
for Fulfillment Services required to be performed pursuant to this Agreement and
any Schedule. Company 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.
Subject to and solely in accordance with the provisions of Section 1, Company
reserves the right to increase its pricing at any time in accordance with any rate
increases by subcontractors.
5. INVENTORY AND RISK OF LOSS
a. Subject to the provisions herein. Company acknowledges that Customer shall
retain all right and title to all Inventory and packaging materials which Customer
causes to be delivered to Company under this Agreement. Customer may
physically inspect upon reasonable notice to Company.
b. Company shall be responsible for exercising reasonable care under the
circumstances and shall not be liable of any loss, damage or injury to the goods
that could not have been avoided by the exercise of such reasonable care. In the
event of loss, damage, shortage, failure to deliver and/or misdelivery involving
the goods for which Company is legally liable. Company shall be responsible
only to the extent of the actual cost to repair, restore, and/or replace such goods,
or ten (10) cents per pound for such goods, whichever is less. An excess valuation
charge may be assessed in the event a higher value is declared by Customer.
Customer agrees that the foregoing shall be its exclusive remedy against
Company for any claim or cause of action whatsoever relating to the goods or
services hereunder.
6. LIMITATIONS ON LIABILITY
a. Company does not and shall not at any time insure the goods provided by
Customer. Company does not charge for insurance of goods.
b. Regarding Domestic Freight shipping, the parties hereto waive all rights and
remedies under 49 U.S.C 14706 (a) (1). Company shall not be liable in any event
for any special, incidental or consequential damages, including but not limited to
loss of profits, income, interest, utility or loss of market, whether or not Company
had knowledge that such damages might be incurred. Company’s liability, in
absence of a higher declared value for carriage, is limited to $50.00 per shipment
or $0.50 per pound, per piece, of cargo lost, damaged, misdelivered or otherwise
adversely affected, whichever amount is greater, but in no event shall amount
exceed the actual invoice value of the goods or damages sustained by Customer.
This limitation is further subject to provisions as published in Company’s service
guides if and as applicable in effect at the time of this shipment. Declared values
for carriage in excess of $0.50 per pound, per piece, shall be subject to an excess
valuation charge. The charge for each additional $100 of declared value is $0.85.
Declared value does not constitute cargo insurance. Unless each piece of the
shipment has a declared value stated and is specifically identified on the
Company’s shipping document at the time of the shipment and is so identified on
the delivery receipt as being lost, damaged, destroyed, or otherwise adversely
affected at time of delivery, Company shall be liable for the “average declared
value” of the shipment. The “average declared value” of the shipment shall be
determined by first dividing the total declared value of the shipment by the total
weight of the shipment. This figure, multiplied by the packaged weight of the
piece(s) adversely affected, shall then establish the amount of Company’s
liability. The total declared value amount must be inserted in the Declared Value
box on the face of this shipping document. Company’s liability shall in no event
exceed the actual invoice value of the goods adversely affected. Company shall
not be liable for loss, damage, delay or monetary loss of any type caused by: Acts
of Gods; public authorities acting with actual or apparent authority; strikes; labor
disputes; weather; mechanical failures; aircraft failures; civil commotions; acts or
omissions of customs or quarantine officials; the nature of the freight or any
defects thereof; public enemies; hazards incident to a state of war; acts of
terrorism; and by acts, defaults or omissions of the shipper or consignee for
failure to observe the terms and conditions of the contract of carriage contained in
this shipping document, including but not limited to improper packaging,
marking, incomplete/inaccurate shipping instructions and the rules relating to
freight not acceptable for transportation or freight acceptable only under certain
conditions outlined more�� fully in Company’s Domestic Freight Terms and
Conditions, integrated by paragraph 8(a) of this agreement.
c. Regarding International and Brokerage shipping services,
i. Unless subject to a specific statute or international convention, all claims
against the Company for a potential or actual loss, must be made in
writing and received by the Company, within ninety (90) days of the event
giving rise to claim; the failure to give the Company timely notice shall be
a complete defense to any suit or action commenced by Customer.
ii. All suits against Company must be filed and properly served on Company
as follows:
1. For claims arising out of ocean transportation, within one (1) year
from the date of the loss;
2. For claims arising out of air transportation, within two (2) years
from the date of the loss;
3. For claims arising out of the preparation and/or submission of an
import entry(s), within seventy five (75) days from the date of
liquidation of the entry(s);
4. For any and all other claims of any other type, within two (2) years
from the date of the loss or damage.
iii. No Liability for the Selection or Services of Third Parties and/or Routes.
Unless services are performed by persons or firms engaged pursuant to
express written instructions from the Customer, Company shall use
reasonable care in its selection of third parties, or in selecting the means,
route and procedure to be followed in the handling, transportation,
clearance and delivery of the shipment; advice by the Company that a
particular person or firm has been selected to render services with respect
to the goods, shall not be construed to mean that the Company warrants or
represents that such person or firm will render such services nor does
Company assume responsibility or liability for any actions(s) and/or
inaction(s) of such third parties and/or its agents, and shall not be liable for
any delay or loss of any kind, which occurs while a shipment is in the
custody or control of a third party or the agent of a third party; all claims
in connection with the Act of a third party shall be brought solely against
such party and/or its agents; in connection with any such claim, the
Company shall reasonably cooperate with the Customer, which shall be
liable for any charges or costs incurred by the Company.
d. In regards to warehousing. Company shall be responsible for exercising
reasonable care under the circumstances, and shall not be liable for any loss,
damage or injury to the goods that could not have been avoided by the exercise of
such reasonable care. In the event of loss, damage, shortage, failure to deliver
and/or misdelivery involving the goods for which Company is legally liable,
Company shall be responsible only to the extent of the actual cost to repair,
restore and/or replace such goods, or ten (10) cents per pound for such goods,
whichever is less. An excess valuation charge may be assessed in the event a
higher value is declared by Customer. Customer agrees that the forgoing shall be
its exclusive remedy against Company for any claim or cause of action
whatsoever relating to the goods or services hereunder.
e. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY TYPE OR
NATURE WHATSOEVER AND HOWSOEVER ARISING, INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF INCOME, LOSS OF
BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF USE
AND/OR LOSS OF ABILITY TO USE UNDAMAGED COMPONENT OR
SYSTEM PARTS, WHETHER RESULTING FROM NEGLIGENCE,
BREACH OF CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER
SUCH DAMAGES MAY HAVE BEEN FORESEEABLE BY ANY PERSON OR ENTITY.
f. In the event that a dispute by this agreement. Company and Customer may jointly elect
Alternative Dispute Resolution as follows:
i. The parties will attempt to settle the dispute promptly.
ii. If such a dispute cannot be resolved, the parties will promptly initiate and
participate in good faith mediation of the dispute, with the mediator to be
selected jointly by the parties or, if the parties cannot agree upon a
mediator, by a mediator to be selected BY THE AMERICAN
ARBITRATION ASSOCIATION (“AAA”).
iii. If the dispute is not resolved through mediation, the parties will promptly
submit such dispute to binding arbitration in accordance with the
Commercial Arbitration Rules and regulations of AAA. Judgment upon
the award rendered by the arbitrator may be entered in any court of
competent jurisdiction.
g. Nothing shall prevent either party from directly seeking injunctive or other
equitable relief from any court of competent jurisdiction in situations where
damages would not adequately compensate for an alleged breach of this Agreement.
h. The prevailing party in any [ERASED THE WORD MEDIATION.. .THERE IS NO
PREVAILING PARTY IN A MEDIATION…IT IS A COMPROMISED/SETTLEMENT]
arbitration or legal action to enforce or interpret this Agreement shall be entitled to
recover from the non-prevailing party all costs and expenses, including reasonable
attorneys' fees, incurred in such action or proceeding.
7. GOVERNING LAW AND JURISDICTION - Any disputes arising between Company
and Customer shall be governed by the laws of the State of Colorado. Any litigation
between Company and Customer shall be filed in State or Federal Court in the State of
Colorado. Company and Customer both consent to personal jurisdiction in the State or
Federal Courts of the State of Colorado.
8. INTEGRATION AND SEVERABILITY
a. This Agreement integrates, as if fully stated herein, Company’s Warehouse terms
and Conditions, Domestic Freight Terms and Conditions, and International &
Brokerage Terms and Conditions when applicable.
b. This Agreement and any Schedule or Terms of Condition integrated hereto
constitute the entire agreement of Customer and Company. Amendment to this
Agreement may only be completed by a signed writing of both Customer and
Company.
c. Whenever possible, each provision of this Agreement and any Schedule shall be
interpreted in such a manner as to be effective and valid under applicable law, but
if any provision of this Agreement or any Schedule is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement and any Schedule.
IN WITNESS THEREOF, the parties hereto, intending to be legally bound hereby, have caused
this Agreement to be executed by their respective duly authorized representatives as of the day
indicated.
BY:
President | CFO | |
Title | Title | |
5/15/17 | 5/15/17 | |
Date | Date |