TERMS AND CONDITIONS FOR LOGISTICS SERVICES
BY TENDERING ANY GOODS TO WE SHIP EXPRESS LLC (“COMPANY”), REQUESTING COMPANY TO PERFORM ANY SERVICES, CLICKING TO ACCEPT, OR AGREEING TO THESE TERMS AND CONDITIONS, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS IN THE VERSION PUBLISHED AT THE TIME OF COMPANY’S PERFORMANCE OF SERVICES. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, THEN YOU MUST NOT TENDER ANY GOODS TO COMPANY OR REQUEST PERFORMANCE OF SERVICES. COMPANY MAY REVISE AND UPDATE THESE TERMS AND CONDITIONS FROM TIME TO TIME IN ITS SOLE DISCRETION. ALL CHANGES ARE EFFECTIVE IMMEDIATELY WHEN POSTED AND APPLY TO THE SERVICES PROVIDED TO YOU THEREAFTER.
These terms and conditions, together with any and all schedules, addenda, other attachments, or documents they expressly incorporate by reference (collectively, these “Terms and Conditions”) govern your relationship as a customer with Company and any Customer’s Goods that You tender to Company for Services. Company and You may be individually referred to as a “Party” or collectively as the “Parties” in these Terms and Conditions. These Terms and Conditions supersede all previous terms and conditions and any prior statements concerning rates, payment, and other terms concerning Company’s performance of Services for You.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION AGREEMENT, WITH A CLASS ACTION WAIVER, WHICH REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR COURT TRIALS.
1. Certain Definitions:
1.1. The term “Carrier” as used herein shall include any National Carrier and/or Regional Carrier.
1.2. The term “Company Service Guide” as used herein shall mean the information, rules, regulations, and/or procedures codified by Company and made available to Customer either electronically or physically, which Customer shall comply with. The Company Service Guide is subject to change from time to time by Company, at Company’s sole discretion. Customer hereby acknowledges that the most recent version of the Company Service Guide provided to Customer shall control the Parties’ obligations. Customer represents and warrants that it has received a copy of the Company Service Guide and agrees to the incorporation of the terms of the Company Service Guide into these Terms and Conditions by this reference.
1.3. The term “Company Territory” shall mean the delivery destinations permitted by Company, including individual states, counties, and/or municipalities as amended from time to time by Company in Company’s sole discretion based upon any changes to applicable federal, state and local laws and/or carrier requirements.
1.4. The term “Company Warehouse” as used herein shall include all warehouse locations operated by Company, Company’s business partners and/or any Company designated third-party location with which Company has an affiliation.
1.5. The term “Customer” as used herein shall include Customer, Customer’s employees, agents, owners, members, contractors, designees, successors, assigns, heirs, and/or personal representatives.
1.6. The term “Customer’s Clients” as used herein shall include all individuals, persons, legal entities, and the like that utilize Customer’s web site, or other mechanism, to order goods for delivery to their chosen destination.
1.7. The term “Customer’s Goods” as used herein shall mean those goods or products manufactured, sold, distributed, or otherwise inserted into the stream of commerce by Customer.
1.8. The term “Final Mile” as used herein shall be defined as the movement of goods from Customer’s facility or a Carrier injection site to a Customer Client or any other final delivery destination specified by Customer.
1.9. The term “Final Mile Carrier” as used herein shall be defined as the Carrier responsible for the movement of goods from Customer’s facility or a Carrier injection site for delivery to Customer’s Clients or any other final delivery destination specified by Customer.
1.10. The term “Middle Mile Carrier” as used herein shall be defined as the Carrier responsible for the movement of goods from a Company Warehouse location to another Company Warehouse, to a Carrier injection site, or to any other location, other than to Customer’s Clients.
1.11. The term “National Carrier” as used herein shall include any Final Mile Carrier that provides delivery services in all of the 48 contiguous states of the United States of America, plus Alaska and Hawaii.
1.12. The term “Regional Carrier” as used herein shall include any Final Mile Carrier that provides delivery services in only a portion of the 48 contiguous states of the United States of America, Alaska, or Hawaii.
2. Services.
2.1. Description of Services. Company will provide services for Customer, which may include shipping services, provision of proprietary software applications, and arranging the transportation of Customer’s goods from a Company Warehouse to other recipients, facilities, or direct to consumer (the “Services”). Company’s performance and Customer’s receipt of the Services will be subject to the Pricing Agreement, if any, agreed upon by the Parties, these Terms and Conditions, its Schedules and Addenda (which Schedules or Addenda, unless expressly stated therein, will not limit any other obligation of Customer or Company under these Terms and Conditions), all of which are hereby incorporated. Customer additionally accepts the terms of any bill of lading, waybill, warehouse receipt, tariff, circular, terms of service, power of attorney, or other transactional documents issued to it or its agents in performance of the Services. The order of priority in the event of conflict will be: (a) the terms of the Pricing Agreement, including all of its Schedules and Addenda; (b) the terms of these Terms and Conditions; and then (c) any transactional documents issued to and accepted by Customer in writing. The Services may be amended by Company from time to time upon notice to Customer in writing.
2.2. Freight Broker Services. Company is licensed as a broker of property with the U.S. Department of Transportation (“DOT”) under U.S. DOT No. 4125802 and registered with the Federal Motor Carrier Safety Administration (“FMCSA”) with Docket No. MC-1578838 and will operate under such license and authority when arranging for the transportation of Customer’s goods via a third party Middle Mile trucking providers. For the avoidance of doubt, Company does not operate any trucks utilized for Middle Mile transport. Company will arrange for the labeling and transportation of Customer’s goods through the transportation management accounting software currently utilized by Company (hereinafter referred to as the “Company Systems”) in the “Company Systems” required file format for shipments shipping off Company’s dock (See state break down in the Company Service Guide). Company may change, modify, and/or update the “Company Systems” from time to time in Company’s sole discretion. Company reserves the right to determine which Carrier will be utilized for each delivery/shipping destination within the Company Territory in Company’s sole discretion. Company additionally reserves the right to change, modify, and/or update the delivery/shipping destinations permitted by Company and its Carriers, including individual states, counties, and/or municipalities, within the Company Territory from time to time in Company’s sole discretion based upon any changes to applicable federal, state and local laws and/or Carrier rules/regulations.
- 2.2.1. Outbound Trucking. Freight Broker Services provided by Company included in these Terms and Conditions shall only apply to the outbound movement of Customer’s goods from a Company Warehouse to a designated location to complete the Services (“Outbound Trucking Services”).
- 2.2.2. Inbound Trucking. Upon request Company may provide the inbound movement of Customer’s goods from their present location to the designated Company Warehouse (“Inbound Trucking Services”) through an affiliated third party motor carrier entity. In the event that Customer requests Inbound Trucking Services, Company shall invoice Customer the cost of trucking plus twenty (20%) percent of the trucking cost.
2.3. No Legal Advice or Compliance Services. For an abundance of clarity, Company does not provide any form of legal advice or compliance services to Customer or Customer’s Clients. Customer is solely responsible for ensuring that any goods tendered to Company for storage or transportation are fully compliant with all applicable legal requirements required by country, federal, state and local rules.
2.4. Transportation of Alcohol. Company permits shipments of alcoholic beverages for Final Mile delivery to Customer’s Clients and/or Customer’s designees to the states and counties contained in the Company Territory designated by Company, and only where permitted by Applicable Law and only when Customer complies with the Applicable Laws. These Terms and Conditions do not provide any form of legal advice to Customer. Customer is solely responsible for ensuring that any shipment/package tendered to Company is fully compliant with all applicable legal requirements.
2.5. Labeling of the Goods. Customer shall be responsible to print and supply all labeling and warnings, including and required inserts to comply with any applicable federal, state, and/or local laws, rules, regulations, and the like, including California Proposition 65. This Section shall be deemed to apply to any new/amended laws, rules, regulations, and the like.
2.6. Fines and Penalties. Customer shall be responsible for any fines or similar penalties/damages for each and every offense committed by Customer, its agents, and/or assigns. Customer agrees that Customer shall pay Company all out of pocket expenses incurred by Company as a result of Customer’s shipment(s), including, payment of any and all fines/penalties incurred by Company or such fines/penalties/damages that Company is obligated to pay relative to the offense committed by Customer, its agents, and/or assigns, including attorney fees incurred by Company to defend and/or respond to any offense committed by Customer, its agents, and/or assigns.
3. Company’s Obligations to Customer.
3.1. Company’s Legal Compliance. Company represents and warrants that it will, and it will contractually require that third parties, including affiliates, that participate in delivery of the Services will, comply at all times with all laws, rules, regulations, conventions, and practices applicable to the Services in the countries and states in or through which the Services will be performed. For the avoidance of doubt, Company does not and will not perform any alcohol compliance services, including processing or clearing alcohol products into a state or payment of excise taxes, for Customer pursuant to these Terms and Conditions nor will Company ever be responsible for a Customer’s interstate shipping of alcohol in accordance with applicable law.
3.2. Company shall not be responsible to pay any sales or excise taxes on behalf of Customer.
3.3. Customer Service Items (ex; address corrections, call tags, intercepts). Company shall process “Customer Service Items” according to the instructions submitted by Customer and maintained within Customer’s company profile. Each and every “Customer Service Item” shall be invoiced to Customer at the agreed upon rates set forth in the Company Service Guide, unless otherwise agreed between the Parties.
4. Customer’s Obligations to Company.
4.1. Customer’s Ownership Warranty. Customer represents and warrants to Company that it is the lawful owner or that Customer is acting with the full consent and authority of the lawful owner of all goods subject to the Services and that Customer has full authority to store such goods with Company and to direct the disposition of such goods in accordance with these Terms and Conditions. Customer shall, in the event of a dispute concerning the ownership, custody or disposition of any goods stored by Company or arranged for delivery by Company, indemnify, defend and hold Company, and its officers, directors, shareholders, employees, agents, successors and assigns, harmless from and against any and all claims, suits, expenses, liabilities, losses, and costs, including without limitation attorneys’ fees, arising out of or resulting therefrom.
4.2. Customer’s Legal Compliance. Customer represents and warrants that it and all goods tendered or deposited pursuant to this Agreement will comply at all times with all applicable laws, rules, regulations, conventions, and practices (“Applicable Law”), and that the goods will have all import, sales, excise, or other applicable taxes paid prior to the arrival of the goods at any Company Warehouse or in storage at any third party storage facility.
4.3. Use of the Company Systems. Customer agrees to utilize the Company Systems in the manner required by Company. Customer will process all orders through the Company Systems when the goods are ready to be, labeled and shipped by Customer. Company shall also accept Customer’s orders via a direct integration between “systems” (this includes but is not limited to the “Company Systems”, ecommerce, POS, shopping cart, NetSuite, and any other software/system approved by Company). Company will provide the shipping routing tables to Customer and Company reserves the right to select the carrier account number that will be utilized for each shipping destination.
4.4. Tender and Bills of Lading. Customer will ensure that all goods delivered to Company are delivered in a segregated manner, properly marked and packaged for handling. Customer shall provide all necessary bills of lading (BOLs), receipts, or other itemized delivery/pick up manifest whenever delivering freight to Company (or a Company partner facility) or having Company pick up freight from Customer’s facility or other third party location. Customer shall ensure that the “Ship To” address is not a post office box. Shipments arriving with invalid information can be delayed until the next release date following correction of the invalid information.
4.5. Customer Packaging. Any and all packaging supplied by Customer must be approved by Company. Company shall retain the right to refuse any packaging. It is expressly understood that Company’s acceptance or failure to refuse any packaging supplied by Customer or required by Customer shall not make Company an insurer of any packaging supplied by Customer or required by Customer. Company shall not in any way be responsible for quality of packaging of any packaging supplied by Customer. Customer is hereby advised that packaging that does not meet generally accepted Carrier standards will result in increased damage rates and potential denial of Customer’s claim presented to the Carrier.
4.6. Labeling. Customer shall be responsible to supply all labeling and warnings, including required inserts, to comply with any applicable Federal, State, and/or Local laws, rules, regulations, and the like, including California Proposition 65. This section shall be deemed to apply to any new/amended laws, rules, regulations, and the like.
4.7. Fines and Penalties. Customer shall be responsible for any fines or similar penalties/damages for each and every offense committed by Customer, its agents, and/or assigns. Customer agrees that Customer shall pay Company all out of pocket expenses incurred by Company as a result of Customer’s shipment(s), including, payment of any and all fines/penalties incurred by Company or such fines/penalties/damages that Company is obligated to pay relative to the offense committed by Customer, its agents, and/or assigns, including attorney fees incurred by Company to defend and/or respond to any offense committed by Customer, its agents, and/or assigns.
4.8. Release of Shipments. Customer agrees to provide Company with a reasonable time to process and order directed by Customer. If Company is unable to carry out such instructions because of a Force Majeure Event (as described below), Company shall not be liable for failure to carry out such instructions.
5. Returns.
Company shall process “Returns” according to the terms and conditions set forth in the Company Service Guide, or as otherwise agreed in the Pricing Agreement and maintained within Customer’s company profile. Each and every returned package shall be invoiced to Customer at the rate set forth in the Company Service Guide, unless otherwise agreed in writing between the Parties. For any product returned by a Customer Client, or returned due to unsuccessful delivery, Company and Customer will determine the process to be followed. Company will hold returned items in quarantine for a maximum of thirty (30) days. After thirty (30) days for any quarantined item, Company shall be permitted to dispose of the quarantined item(s).
6. Insurance.
6.1. In Transit. Company does not provide insurance coverage for Customer’s goods while in transit. Company’s Final Mile, Regional, and National Carriers may provide insurance coverage for any damage or delay to Customer’s goods in transit according to their terms. If Customer requires insurance coverage in addition to any coverage potentially offered by Company’s Final Mile, Regional, or National Carriers, Customer shall be responsible to purchase additional coverage from a Third Party, or, if available through the Company Software, to convey the request to Company in the transmission format designated by Company. Company reserves the right to change, modify, and/or update the required transmission format from time to time in Company’s sole discretion. Company shall not responsible for any damage to Customer’s goods or delay in arranging shipments if caused by a Force Majeure Event (as defined hereinbelow).
6.2. In Storage. Company does not provide insurance coverage for Customer’s goods while in storage at any Company Warehouse or in storage at any third party storage facility. Customer shall provide any and all insurance required by Customer during the time that the goods are placed with Company, until Customer’s goods are placed with a Carrier, returned to Customer, or otherwise transferred or disposed of by Company in accordance with Customer’s instruction/direction. Customer, as the inventory owner, shall be responsible to carry both general liability (for third party claims) and property insurance (for first party claims) to cover Customer’s goods while the goods are being stored at Company’s facility(ies). Customer shall add Company as an additional insured on Customer’s insurance policy so that Customer’s goods shall be covered by Customer’s insurance while in storage at any Company location. Customer shall provide a certificate of insurance evidencing both general liability and property insurance, including an ‘additional insured’ endorsement, and waiver of subrogation in favor of Company. Customer shall provide updated certificate(s) of insurance upon request by Company. Customer waives any rights to subrogate against Company for any damage/loss to Customer’s goods for losses. In the alternative to the above requirements for Customer’s property/goods inventory insurance, Customer may obtain ‘stock throughput’ coverage (hereinafter “STP”). STP may provide coverage for Customer’s goods from production to final sale. STP may provide broader coverage than traditional ‘property’ coverage. STP may include coverage for earthquake, flood, and/or other events.
7. Claims Process.
7.1. Claims for Storage. Claims by Customer must be presented in writing to Company within a reasonable time, and in no event longer than either: (a) sixty (60) days after removal of the goods from the Company Warehouse or any third party storage facility; or (ii) sixty (60) days after Customer learned or in the exercise of reasonable care should have learned that any part of the goods were lost, damaged or destroyed, whichever time is shorter. No lawsuit or other action may be maintained by the Customer or others against Company for loss or destruction of or damage to the goods unless timely written claim has been given as provided in this Section, and unless such lawsuit or other action is commenced either within nine (9) months after removal of the goods from the Company Warehouse or any third party storage facility or within nine (9) months after Customer learned or in the exercise of reasonable care should have learned that any part of the goods were lost, damaged or destroyed, whichever time is shorter.
7.2. Claims for Transportation. Customer understands and agrees that Company is not a motor carrier or freight forwarder and that Company will not be liable for loss, damage, or delay in connection with the transportation of Customers goods. Company will submit a claim on behalf of Customer under a number of circumstances, including but not limited to damaged shipments. It is Customer’s responsibility to inform Company of Customer’s desire to submit a claim for any reason a Carrier. Company will not submit any claim(s), for any reason, to a Carrier without a prior written request from Customer. Any written request from Customer shall be sent to Company by regular or overnight mail, email, or fax transmission.
7.3. Claims for loss during Final Mile Delivery. Shipments placed with a Final Mile Carrier by Customer to certain expanded coverage areas are not covered by the Final Mile Carrier for loss or damage claims. Please speak with your sales representative for more information.
- 7.3.1. Documentation Required for Claims (Where Available). When insurance is available from the Final Mile Carrier, Customer may submit a completed claims package in the format required by the Carrier, Company will need several items including, but not limited to a customer invoice stating the invoice value of the goods or related items contained in the package which form the basis of the claim.
- 7.3.2. Claim Timeliness. Customer must work with Company to submit the claim within the shortest time frame possible as each Carrier has a distinct time limit within which the claim must be submitted (please contact Company to learn more about these timelines as they are constantly changing). If Customer fails to notify Company of a claim within the time period required by the Carrier, the claim will be denied and Company shall have no further responsibility to Customer for the claimed loss.
- 7.3.3. Claims and Final Mile Carriers. Once Company is notified by Customer that a package that was damaged by the Final Mile Carrier, Company will submit a claims notification to Customer (when insurance coverage is available). The amount of a claim will be subject to the Final Mile Carrier’s minimum transportation liability coverage available on the package that was damaged. Customer may elect to purchase additional transportation liability coverage from the Final Mile Carrier at the time the package label is generated and before the package is placed with the Final Mile Carrier for delivery (if available for that shipment), or from a third-party insurance provider on a SKU by SKU basis. The Customer must report damage within the time period required by the Final Mile Carrier or the Final Mile Carrier may deny the claim. Company will track the claim until a resolution is received from the Final Mile Carrier. If payment is received as a result of the claim, Company will issue a credit to Customer’s account in the full amount of the payment received and close the case. If the claim is denied after the claim process terminates, Company shall not be responsible for the loss of the damaged package.
8. Force Majeure.
In the event either of the Parties hereto is unable to carry on its normal operations or is compelled to reduce or suspend its operations because of forces beyond its immediate reasonable control (a “Force Majeure Event”), including, but not limited to, fire, flood, war, embargo, strike, boycott, lockout, labor difficulty, accident, explosion, severe weather, riot, insurrection, shortage of fuel, mechanical breakdown, Acts of God, virus, disease, pandemic, government shutdown orders, or expropriation by governmental authority, or for any failure of any kind if the same shall be caused in any way by federal, state, or other government authority, the Party so affected shall be relieved to that extent from performing its obligations hereunder. In such event, such Party shall take all reasonable measures to remove the disability and resume full performance hereunder at the earliest possible date. In the event of a weather/fire event that may cause harm to goods in transit, Company may communicate weather advisories to Customer and Company shall not be penalized for any delay in the shipment of packages due to weather/fire related issues (e.g. Carrier delay in picking up packages, employment shortages due to weather/fire, etc.) and Company shall be permitted to hold shipments until the weather advisory has cleared if required by weather/fire related issues. Company shall not be held responsible for any damage to Customer’s goods due to weather/fire related issues. Customer shall be responsible for communicating weather/fire, or disaster holds to Company and Customer’s desire to ship or to hold shipments. Unless and until Customer advises Company that it desires to hold shipments after an order is received by Company, Company will process the order in accordance with the Customer’s instructions.
9. Limitation of Liability.
WITH RESPECT TO ANY CLAIM ARISING FROM OR RELATED TO THESE TERMS AND CONDITIONS, OR OTHERWISE ARISING FROM THE RELATIONSHIP OF THE PARTIES, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SALES, OR DAMAGES DUE TO BUSINESS INTERRUPTION, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, OR THE PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, CUSTOMER RECOGNIZES THE ADMINISTRATIVE BURDEN THAT LOW VALUE CLAIMS IMPOSE ON EACH PARTY AS WELL AS THE FAVORABLE RATES AND TERMS THAT CAN BE ACHIEVED BY FOREGOING SUCH CLAIMS. AS A RESULT, CUSTOMER WAIVES ANY CLAIM IT MAY HAVE AGAINST COMPANY, AND COMPANY SHALL HAVE NO LIABILITY FOR, ANY LOSS OR DAMAGE TO GOODS INVOLVING CLAIMS THAT ARE LESS THAN FIFTY DOLLARS ($50.00). COMPANY’S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE, INCLUDING ATTORNEY’S FEES, FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICES PROVIDED FOR CUSTOMER, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO $50 PER PACKAGE.
10. Indemnification.
10.1. Company’s Indemnification Obligations. Company will defend, indemnify, and hold Customer harmless from and against any and all claims, demands, liabilities, obligations, costs, losses, and expenses, including court costs and reasonable attorneys’ fees, resulting from Company’s performance of the Services under these Terms and Conditions to the extent caused by: (a) any breach by Company of any of its obligations or any of its representations or warranties contained in these Terms and Conditions; (b) Company’s negligence or intentional misconduct; or (c) Company’s violation of applicable laws or regulations. Notwithstanding the foregoing, Company’s defense, indemnification, and hold harmless obligations shall not apply to the extent such claim represents consequential, punitive or special damages (unless the loss results from personal injury, death, or fraud) or is to the extent to the extent the result of the negligence or other wrongful conduct of Customer, consignee, consignor, the beneficial owner of the goods, or an independent third-party service provider, or an independent third party service provider.
10.2. Customer’s Indemnification Obligations. Customer will defend, indemnify, and hold Company harmless from and against any and all claims, demands, liabilities, obligations, costs, losses, and expenses, including court costs and reasonable attorneys’ fees, resulting from Customer’s acts or omissions under these Terms and Conditions to the extent such claim is caused by: (a) any breach by Customer of any of its obligations or any of its representations or warranties contained in these Terms and Conditions; (b) Customer’s negligence or intentional misconduct; (c) Customer’s violation of applicable laws or regulations; (d) Customer’s failure to comply with obligations imposed by underlying third party service providers; (e) infestation, contamination, property damage or personal injury caused by Customer’s goods to the extent not caused by Company’s negligence or willful misconduct; (f) the design, packaging, labeling, manufacture, distribution, marketing, use or sale of the goods; or (g) recalls to the extent not caused by Company’s negligence or willful misconduct. Notwithstanding the foregoing, Customer’s defense, indemnification, and hold harmless obligations shall not apply to the extent such claim represents consequential, punitive, or special damages (unless the loss results from fraud) or is to the extent the result of the negligence or other wrongful conduct of Company.
11. Confidential Information.
11.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose valuable trade secrets and/or other business, technical or financial information relating to the Disclosing Party’s business, including without limitation the Disclosing Party’s business contacts, customer lists, prices, payment methods, promotional tools, inventory management techniques, suppliers, technology, know-how, packaging, and marketing information (hereinafter referred to as “Confidential Information” of the Disclosing Party). The existence of these Terms and Conditions shall constitute Confidential Information of each of the Parties. The Receiving Party agrees: to treat the Disclosing Party’s Confidential Information in the same manner as it treats its own confidential and proprietary information but shall, in all events, use at least reasonable efforts to protect the confidentiality thereof; and not to use (except in performance of the Receiving Party’s obligations hereunder or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Title to Confidential Information shall remain with the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Confidential Information of the Disclosing Party; (e) is required to be disclosed by law or legal process provided that the Receiving Party provides the Disclosing Party with advance notice of any proposed disclosure under this clause (f), in order to give the Disclosing Party the opportunity to contest such disclosure or obtain a protective order.
11.2. Shipping with Company is Confidential. Customer understands and agrees that Customer shall NOT make any reference to Company to Customer’s clients and shall not use Company’s name in any marketing efforts, advertising, web pages, social media, or the like.
11.3. Each Party acknowledges that serious harm and damage may occur as a result of release of Confidential Information by the other Party and, accordingly, each Party agrees that money damages would not be a sufficient remedy for any breach of this Section. In the event of the release or threatened release of any Confidential Information by a Party, the aggrieved Party shall be entitled to equitable relief, including injunctive and specific performance, in the event of any breach this Section, in addition to all other remedies available at law or in equity.
12. Non-Solicitation of Employees, Customers, and Carriers.
12.1. During the period beginning upon the execution of the Pricing Agreement or the date performance of Service begins, whichever is earlier, and ending upon the date that is twelve (12) months after the date Services were last performed by Company (the “Restricted Period”), the Parties agree to refrain from making any solicitations or offers of any kind, directly or indirectly, to: (a) any then-current employee of the other Party to join the soliciting Party as an employee, consultant, or advisor in any capacity whatsoever; or to (b) any then-current customer of the other Party to discontinue working with the other Party and to become a customer of the soliciting Party.
12.2. During the Restricted Period, Customer shall not, directly or indirectly, enter into any business transaction pertaining to the shipment of any alcoholic beverage products with any Off-Limits Carrier (as defined below), unless written permission has been obtained from Company to do so. Permission for Customer to conduct any such business with any Off-Limits Carrier shall be granted or denied in Company’s sole discretion. As used herein, the term “Off-Limits Carrier” means any Carrier constituting part of Company’s Carrier Network with which Customer did not have a commercial relationship prior to the Effective Date of this Agreement.
12.3. In the event of a breach or threatened breach of any of provisions of this Section, including a solicitation to an employee or customer about whom the Parties were unable to reach an agreement as to status as an employee or customer, the aggrieved Party shall be entitled to seek equitable relief, including injunctive and specific performance, in addition to all other remedies available at law or in equity.
13. General Provisions.
13.1. No Partnership or Joint Venture. Nothing contained in these Terms and Conditions shall create any partnership, joint venture, agency or other relationship between Company and Customer, except that of independent contractors. Neither Party can legally bind the other Party without its written consent.
13.2. Successors/Assigns. These Terms and Conditions are binding upon, and inure to the benefit of the Parties’ successors, assigns, heirs, and personal representatives.
13.3. Exclusivity. Nothing stated herein shall prevent Company from offering services to other recipients/members/customers other than Customer. Customer is aware that Company provides similar services to Company’s other customers and/or clients for warehousing, fulfillment, shipping, and delivery services of product to recipients/members/customers and other services in the fulfillment sector, and acknowledges that Company’s relationship with Customer will not be exclusive.
13.4. Technology Clause.
- 13.4.1. Any and all (i) inventions (whether or not reduced to practice and whether or not patentable), (ii) works of authorship, (iii) trade secrets, know-how, confidential information (including but not limited to confidential ideas, research and development, technology, discoveries, methods, formulas, compositions, manufacturing processes, designs, specifications, clinical trial protocols, statistical analyses and other regulatory information, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) and all other proprietary information and data conceived, developed or reduced to practice by Company, in whole or in part, during the performance of Services by Company (collectively, “New Technology”) shall be owned by Company. For no additional consideration, Customer hereby assigns to Company all of Customer’s right, title and interest, worldwide, in and to any New Technology (including without limitation all intellectual property rights associated therewith and all copies and tangible embodiments thereof, in whatever form or medium) consistent with the ownership described above so that sole and exclusive ownership therein resides in Company. Customer shall cause each of its employees, contractors and consultants to execute and deliver an agreement assigning all of their respective right, title and interest in and to any New Technology consistent with this Section so that sole and exclusive ownership therein resides in Company.
- 13.4.2. Company shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Company Systems any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Company Systems.
13.5. Customer Website. Company reserves the right to inspect Customer’s website with respect to compliance with applicable laws, rules and regulations, including, without limitation, California Proposition 65. If Company, upon the advice of counsel, determines that Customer’s website is not fully compliant with Applicable Law, it shall have the right to request that Customer modify its website in such respects as may be necessary to effectuate full compliance with Applicable Law. In the event that Customer shall fail to make such modifications within 90 days of any such request, Company shall have the right to suspend or terminate performance of the Services, immediately upon written notice, without penalty or liability of any kind to Customer.
13.6. Entire Agreement. The Pricing Agreement, these Terms and Conditions, and the Schedules or Addenda attached hereto or incorporated herein by reference, set forth all of the terms and conditions of the agreement between the Parties with respect to the subject matter hereof, and supersedes and supplants all prior agreements, representations, promises and understandings between the Parties with respect to such subject matter. These Terms and Conditions cannot be amended except by a writing signed by Company.
13.7. Applicable Law; Jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice of law rules thereof that may direct the application of the laws of another jurisdiction. Notwithstanding the foregoing, nothing herein shall bar the Parties from mutually agreeing to resolve a matter or dispute relating to the construction and performance of these Terms and Conditions by alternative dispute resolution, including but not limited to mediation or arbitration.
13.8. Disputes.
- 13.8.1. The Parties will use good faith efforts to resolve any disputes, performance, or breach issues relating to these Terms and Conditions. If after thirty (30) days the exercise of such good faith efforts the Parties have not resolved, the Parties shall submit to non-binding mediation in Wilmington, Delaware before commencing legal action in relation to the enforcement or breach of these Terms and Conditions. If the dispute(s) between the Parties are not resolved after the occurrence of non-binding mediation, the dispute must be submitted to arbitration.
- 13.8.2. The Parties agree that any controversies or disputes between arising under, arising out of, or relating to (i) the relationship created by these Terms and Conditions, and/or (ii) the terms of these Terms and Conditions, and/or (iii) any breach of these Terms and Conditions, and/or (iv) the interpretation of these Terms and Conditions (collectively “Claims”), shall be resolved by binding arbitration proceedings.
- 13.8.3. Such arbitration of Claims will be administered by one arbitrator in accordance with the arbitration rules of the American Arbitration Association (“AAA”) and administered by AAA arbitration services located in Wilmington, Delaware pursuant to then current Commercial Arbitration Rules of the AAA, as modified by the terms and conditions contained in this Section. General pleading and discovery processes related to the arbitration proceeding shall comply with the Federal Rules of Civil Procedure.
- 13.8.4. The arbitrator shall be selected by mutual agreement of the Parties. If the Parties cannot agree on an Arbitrator within fifteen (15) days of either Party notifying the other of a controversy or dispute to be arbitrated, then either Party may request an AAA Arbitration service administrator in Wilmington, Delaware select an impartial arbitrator to preside as arbitrator over the Parties’ dispute, and such selected arbitrator shall act as the arbitrator of the dispute.
- 13.8.5. The arbitrator will be permitted to award only those remedies in law or equity that are requested by the Parties and allowed by local, state and/or federal substantive law applicable to the Claim(s). The Parties shall maintain the confidential nature of the arbitration proceedings and the award (if any) including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary or provisional remedy, a court application for confirmation of an award at arbitration, a judicial challenge to an award or its enforcement, or unless otherwise required by law. Any award or decision obtained from any such arbitration proceeding shall be entered in any court having jurisdiction.
- 13.8.6. The Parties agree that any and all Claims SHALL BE RESOLVED ON AN INDIVIDUAL BASIS (AND NOT AS PART OF A CLASS OR COLLECTIVE ACTION) BY FINAL AND BINDING ARBITRATION WITH A SINGLE ARBITRATOR TO BE HELD IN WILMINGTON, DELAWARE (or such other location as the Parties may agree upon with the assistance of the AAA). Notwithstanding anything to the contrary contained or referred to in this Agreement, the Parties agree that NO CONSOLIDATED OR CLASS ARBITRATIONS SHALL BE ALLOWED and that no arbitrator shall have the authority to certify, conduct, or award relief in a consolidated or class arbitration. If a court or arbitrator nevertheless allows or requires a consolidated or class arbitration, the Parties agree that such a determination is immediately appealable and that all proceedings, including discovery, shall be stayed pending the appeal. THE ARBITRATOR IS PROHIBITED FROM CONSOLIDATING CLAIMS OF MULTIPLE PARTIES INTO ONE PROCEEDING AND MAY NOT HEAR ANY CLAIM AS A CLASS OR COLLECTIVE ACTION.
- 13.8.7. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these Terms and Conditions, including (without limitation) any claim that all or any part of these Terms and Conditions is void or voidable.
13.9. Amendment/Waiver.
- 13.9.1. No waiver or modification of these Terms and Conditions of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the Company. Furthermore, no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting these Terms and Conditions, or the rights or obligations of Company hereunder, unless such waiver or modification is in writing, duly executed as aforesaid. The provisions of this Section may not be waived except as herein set forth.
13.10. Survival. All provisions of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations and limitations of liability.
Addendum A: Holidays Observed
| New Year’s Day |
| Martin Luther King Day |
| Memorial Day |
| Independence Day |
| Labor Day |
| Thanksgiving Day |
| Christmas Day |
*Note: Company is closed on the above holidays. Subject to change.
Addendum B: Business Hours
| Western Region | Mid-West Region | Eastern Region | |
| Monday | 8:00 – 5:00 PST | 8:00 – 5:00 CST | 8:00 – 5:00 EST |
| Tuesday | 8:00 – 5:00 PST | 8:00 – 5:00 CST | 8:00 – 5:00 EST |
| Wednesday | 8:00 – 5:00 PST | 8:00 – 5:00 CST | 8:00 – 5:00 EST |
| Thursday | 8:00 – 5:00 PST | 8:00 – 5:00 CST | 8:00 – 5:00 EST |
| Friday | 8:00 – 5:00 PST | 8:00 – 5:00 CST | 8:00 – 5:00 EST |
| Saturday | Closed | Closed | Closed |
| Sunday | Closed | Closed | Closed |
