FULFILLMENT SERVICES AGREEMENT

THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”) is entered into by and between Polidan Inc, a Florida C-corp doing business as FBMFulfillment (“FBMFulfillment”) and Company (“Company”). (“Company,” together with FBMFulfillment, the “Parties,” and each a “Party”).

RECITALS

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

WHEREAS, FBMFulfillment provides to various retailers and manufacturers, product storage, FBA replenishment and direct-to-customer order fulfillment services, pursuant to which FBMFulfillment provides storage, packing and shipping products to the retailer’s customers; and

WHEREAS, Company desires to retain FBMFulfillment’s services, and FBMFulfillment 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 FBMFulfillment to provide, and FBMFulfillment 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 FBMFulfillment policies.

2. TERM

2.1 Term.  The term of this Agreement commences on the Effective Date and continues monthly in full months beginning the first and ending the last day of the month.  This Agreement automatically renews for subsequent months (Month to Month) unless and until either Party provides written Notice of termination at least fifteen (15) days before the end of the then-current month, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a “Renewal Term“).  FBM is committed to earn your business each and every month.

3. FBMFULFILLMENT SERVICES

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

1. Receive shipments from the Company of the Product
2. Provide storage facilities for the Inventory in FBMFulfillment’s warehousing facilities (“Warehouse”).
3. Upon notification by the Company of a purchase of Products by a customer, FBMFulfillment will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”).  Alternatively, at the written direction of the Company, FBMFulfillment will prepare goods for shipment to FBA or Wholesale destinations.
4. FBMFulfillment will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
5. Upon request by the Company, FBMFulfillment will include a Company packing slip, and/or other Company marketing materials concerning the Product, to be provided by Company.
6. FBMFulfillment will process, package and ship all Product orders in accordance with FBMFulfillment Policies.
7. FBMFulfillment will maintain monthly ledger summaries of all orders shipped and received, which shall be made available to the Company through FBMFulfillment billing.
8. FBMFulfillment will facilitate any Product returns from the End-User to the Company
9. In addition to the above described Services, FBMFulfillment shall perform any additional services, including special projects, that the Company desires FBMFulfillment to perform, as more fully described on the attached Exhibit A, to be amended from time to time as agreed upon by the Parties.

3.2 Service Level Agreement FBMFulfillment’s current Service Level Agreement can be found below Exhibit A.

4. COMPENSATION AND REIMBURSEMENT FOR SERVICES

4.1 30 day invoicing. FBMFulfillment will normally invoice you within the first 15 days of the month for the previous month’s charges.  Because we do not require pay in advance and/or 15 day invoicing, like most of our competitors, the payment terms are 7 days.  Invoice for Services shall serve as a receipt for the Company.

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

4.3 Late Payment Fee. If FBMFulfillment fails to receive payment from Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) may be applied to the invoice, unless the invoice is currently being disputed in writing in advance of the invoice due date.

4.4 Options & Ways to Pay. FBMFulfillment 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 via Wave (1.0% Convenience fee), Credit Card (3% convenience fee), PayPal (4% convenience fee), or a wire transfer ($15 within the U.S.). FBMFulfillment is using a 3rd party payment processing company. FBMFulfillment does not store any payment information on its own servers; all of Company’s payment information is stored with the 3^rd party. If Company’s invoice remains unpaid for more than 45 days from the issue date, Company agrees that FBMFulfillment shall have the right to auto-charge any payment method that has been used in the past.

5. TITLE, RISK OF LOSS AND INSURANCE

5.1 Title. Company hereby agrees that at no time during the period that Products are held by FBMFulfillment as Inventory in the Warehouse will FBMFulfillment 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.

5.2 Risk of Loss. Company hereby agrees that at no time during the period that Products are held by FBMFulfillment as Inventory in the Warehouse will FBMFulfillment 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.  FBMFulfillment shall exercise commercially reasonable standards of care for all of Company’s Products in its possession but specifically disclaims liability of loss except for instances of Gross Negligence by FBMFulfillment.  

5.3 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. Legally we cannot insure something we do not own.  Company has the option of adding the Warehouse as a designated storage location to Company’s general inventory policy.  If requested by Company, FBMFulfillment shall allow premises inspection in order to assist Company in obtaining coverage.   Polidan Inc’s insurance agent is www.marsh-pointe.com, they know our facility and would be happy to help you with this and Amazon required Liability insurance as well.

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

6. COMPANY’S ACCOUNT

6.1 Services Available Through the Account. Subject to Company’s compliance with this Agreement, FBMFulfillment 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 (“FBMFulfillment Services Orders”). All FBMFulfillment Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that FBMFulfillment operates as a third-party warehouse and broker of shipping services; accepting shipments from, and making shipments to, third parties. FBMFulfillment is an independent contractor for all purposes, and only acts as the agent of Company with respect to FBMFulfillment’s custody of the Products in its Inventory. 

6.2 FBMFulfillment 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 FBMFulfillment.  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.   In the event FBMFulfillment incurs additional charges from carriers, these charges will be passed along to the Company.

6.3 Pricing Changes & Currency Fluctuations. FBMFulfillment reserves the right to adjust its pricing for its Services, with 30 days’ notice via publication on the FBMFulfillment website and/or directly to the Company due to market forces and/or in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. After the first 90-days, FBMFulfillment reserves the right to charge a minimum monthly fee,  FBMFulfillment often waives such minimum fees for the initial startup period to allow the company to get established.  All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.

6.4 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 FBMFulfillment within 30 days of the fee being charged (“Dispute Period”). FBMFulfillment will not review customer requests for Usage Fee adjustments that are received after the Dispute Period. 

6.5 Abandoned Account and Liquidation. If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then FBMFulfillment 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 its rights of ownership of such Company’s Inventory up to the cumulative amount necessary for payment of all Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by FBMFulfillment for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of FBMFulfillment and 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 unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above.  Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, the Company would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.

6.6 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activities will be suspended. FBMFulfillment reserves the right to cease shipping orders for a number reasons, including but not limited to the following:

1. Account Balance remaining unpaid within 30 days of receipt of invoice;
2. if anyone using the Account uses abusive language or otherwise threatens FBMFulfillment or its staff;
3. to allow time to resolve or investigate a third party complaint of a violation of this Agreement;
4. to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and
5. to allow time to pick all inventory for the close out order.

6.7 Termination for Breach.   Either party may terminate this Agreement upon thirty (30) days’ notice to the other party in the event of a breach by the other party of any provision of this Agreement if the breaching party fails to cure such breach during the 30 day period; provided, that FBMFulfillment may terminate this Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30 day cure period, a 30 day wind down of the Company Account shall commence (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period for the sole purpose of winding down its use of the account in a commercially reasonable manner. Any Product inventory that remains in FBMFulfillment’s 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, FBMFulfillment will liquidate the Product inventory in accordance with an Abandoned Account.

6.8 Additional Actions. If Company is in breach of any of the terms of this Agreement, FBMFulfillment may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, FBMFulfillment may also take any additionally available legal actions

6.9 Closing Accounts. Company may close the Account for any reason, upon giving FBMFulfillment 30 days prior written notice. Merchandise will be returned subject to Company paying FBMFulfillment’s standard pick and pack rates outlined in Exhibit A.  All current charges and expected fees must be paid in advance in-order for goods to be released.

7. FBMFULFILLMENT INTELLECTUAL PROPERTY RIGHTS

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

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

7.3 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. FBMFulfillment 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. FBMFulfillment will use commercially reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to FBMFulfillment’s attention. Company agrees to immediately notify FBMFulfillment of any suspected security breach at sales@fbmfulfillmentcom, followed by contacting FBMFulfillment customer support.

7.4 Third Party Software. Any third party software application Company uses on the FBMFulfillment 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. FBMFulfillment does not own, control or have any responsibility or liability for any Third Party Software.

8. CONFIDENTIAL INFORMATION

8.1 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:

1. 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);
2. 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;
3. 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;
4. 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
5. 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.

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

1. information that is or becomes generally available to and known by the public;
2. information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;
3. information published or otherwise made known to the public by Discloser;
4. information that was generated independently without reference to the Discloser’s Confidential Information; or
5. 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.

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

9. INDEMNITY

9.1 Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless FBMFulfillment 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:

1. breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company;
2. 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;
3. 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;
4. the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by FBMFulfillment;
5. any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or
6. any failure by Company to comply with any applicable state, federal or international laws.

10. DISCLAIMERS

10.1 As Is. FBMFulfillment’s obligations under this agreement and the attached Exhibits are provided on an “as is” and “as available” basis. FBMFulfillment expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement for the services, FBMFulfillment’s website and any third-party services. the use of services, FBMFulfillment website, or third party services is at Company’s risk.

10.2 No Continuous Access. FBMFulfillment does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of FBMFulfillment’s control. However, FBMFulfillment will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but FBMFulfillment 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.

11. LIMITATION ON FBMFULFILLMENT LIABILITY

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

11.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST FBMFULFILLMENT 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 FBMFULFILLMENT CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW. 

11.3 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 FBMFULFILLMENT IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND FBMFULFILLMENT IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND FBMFULFILLMENT’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL FBMFULFILLMENT BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.

11.4 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 ACKNOWLEDGES THAT FBMFULFILLMENT’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO FBMFULFILLMENT FOR THE PROJECT.

12. GENERAL PROVISIONS.

12.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and FBMFulfillment 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.

12.2 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.

12.3 No Waiver. Failure or delay of FBMFulfillment 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.

12.4 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 FBMFulfillment must be sent by postal mail to: FBMFulfillment, Inc., Attention: Legal Department, 201 NW 22nd Ave. Unit 100, Fort Lauderdale, FL 33311

12.5 Conflict of Terms. If there is a conflict between this Agreement and the terms of 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.

12.6 Attorneys’ Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.

12.7 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 Broward County, Florida. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Broward County, Florida. Notwithstanding the foregoing, FBMFulfillment may seek injunctive or other equitable relief to protect FBMFulfillment’s intellectual property rights in any court of competent jurisdiction.

12.8 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 FBMFulfillment 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 FBMFulfillment, 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.

Privacy Policy

FBMFulfillment.com is committed to ensuring that your privacy is protected.

This privacy policy sets out how FBMFulfillment uses and protects any information that you give FBMFulfillment. FBMFulfillment is committed to ensuring that your privacy is protected. Should we ask you to provide certain information by which you can be identified when using the website, then you can be assured that it will only be used in accordance with this privacy statement. FBMFulfillment may change this policy from time to time by updating this page. You should check this page from time to time to ensure that you are happy with any changes.

What we collect

We may collect the following information:

• name
• contact information including email address
• demographic information such as postcode, preferences and interests
• other information relevant to customer surveys and/or offers

What we do with the information we gather

We require this information to understand your needs and provide you with a better service, and in particular for the following reasons:

• Internal record keeping.
• We may use the information to improve our products and services.
• We may periodically send promotional emails about new products, special offers or other information which we think you may find interesting using the email address which you have provided.
• From time to time, we may also use your information to contact you for market research purposes. We may contact you by email, phone, fax or mail. We may use the information to customize the website according to your interests.

Security

We are committed to ensuring that your information is secure. In order to prevent unauthorized access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information we collect online.

How we use cookies

A cookie is a small file which asks permission to be placed on your computer’s hard drive. Once you agree, the file is added and the cookie helps analyze web traffic or lets you know when you visit a particular site. Cookies allow web applications to respond to you as an individual. The web application can tailor its operations to your needs, likes and dislikes by gathering and remembering information about your preferences.

We use traffic log cookies to identify which pages are being used. This helps us analyze data about web page traffic and improve our website in order to tailor it to customer needs. We only use this information for statistical analysis purposes and then the data is removed from the system.

Overall, cookies help us provide you with a better website, by enabling us to monitor which pages you find useful and which you do not. A cookie in no way gives us access to your computer or any information about you, other than the data you choose to share with us. You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. This may prevent you from taking full advantage of the website.

Links to other websites

Our website may contain links to other websites of interest. However, once you have used these links to leave our site, you should note that we do not have any control over that other website. Therefore, we cannot be responsible for the protection and privacy of any information which you provide whilst visiting such sites and such sites are not governed by this privacy statement. You should exercise caution and look at the privacy statement applicable to the website in question.

Controlling your personal information

You may choose to restrict the collection or use of your personal information in the following ways:

• whenever you are asked to fill in a form on the website, look for the box that you can click to indicate that you do not want the information to be used by anybody for direct marketing purposes
• if you have previously agreed to us using your personal information for direct marketing purposes, you may change your mind at any time by writing to or emailing us at sales@fbmfulfillment.com

We will not sell, distribute, or lease your personal information to third parties unless we have your permission or are required by law to do so. We may use your personal information to send you promotional information about third parties which we think you may find interesting if you tell us that you wish this to happen.

You may request details of personal information which we hold about you under the Data Protection Act 1998. A small fee will be payable. If you would like a copy of the information held on you please write to .

If you believe that any information, we are holding on you is incorrect or incomplete, please write to or email us as soon as possible, at the above address. We will promptly correct any information found to be incorrect.

Signature ___________________________________________

Name:  _____________________________________________                                      Date: ________________________

EXHIBIT A

Service Level Agreement

Order Accuracy

FBMFulfillment shall maintain 100% accuracy in fulfilling the orders correctly with the items listed on FBMFulfillment dashboard. If replacement shipments are required due to an error on the part of FBMFulfillment, FBMFulfillment will pay the lesser of the return postage or replacement value of incorrect items shipped, waive all fees on the replacement order, and re-ship the order.

Fragile Wrapping & Breakage

FBMFulfillment shall maintain a <1% breakage rate due to improper packaging (e.g. products shifting and/or lack of wrapping). Claims for goods damaged during the shipping process will be submitted directly to the carrier and not count towards the allotted breakage rate noted above. It is the Company’s responsibility to mark the SKUs as fragile in the FBMFulfillment app for breakage to be tracked and accounted for.

Breakage will be evaluated on a monthly basis and the number of orders that exceed the designated allowance will be credited the average replacement cost (i.e. declared value) of the products damaged in excess of 1% and waive all fees on the replacement order as outlined in the “Order Accuracy” section.

Inventory Accuracy

Due to good faith receiving (i.e. not counting each individual unit) and relying on supplier information noted on the inbound shipments, FBMFulfillment cannot ensure accuracy of inventory counts. Although inner cartons are not opened to account for every unit, cases and pallets are counted as an additional level of verification. FBMFulfillment will limit its liability up to $10/unit for full cartons that are missing after they were received and accounted for in our system. A valid purchase order and proof of payment must be provided before any credit is issued.

FBM Verified Inventory

For an additional charge, Company can enroll in our “FBM Verified Inventory” program. FBMFulfillment will then increase the liability up to $250/unit if there is any inventory shrink after the inventory is counted in full upon receiving.

Receiving

FBMFulfillment shall receive and put-away inventory within three business days provided its published receiving guidelines have been followed. Receipts larger than thirty (30) cartons, four (4) pallets, and containers must be noticed via provided spreadsheets five (5) business days prior to the inventory arriving to ensure receiving commitments can be met.

If the inventory does not meet these guidelines, FBMFulfillment at its sole discretion can reject the inventory or the Company’s shipments may be delayed and Company agrees FBMFulfillment shall not be held liable for any loss or damage as a result of such delay.