Acceptance of Terms

Fulfilled by US, Inc. (“Fulfilled by US,” “we,” or “our”) provides its Services (as defined below or in an ancillary agreement) to you (“you,” “your” or “Merchant”) through its website located at Fulfilled by US (“Site”), subject to these Terms of Service (“Agreement”). In addition, when using certain services, you will be subject to the policies (“Policies”) and fee schedule (“Fee Schedule”) that govern the operation of such services which are posted on the Site or are readily made available to registered users of the Service. All such Policies and Fee Schedule are hereby incorporated by reference.

By accepting this Agreement, by accessing or using the Services, or clicking through on our Site, you acknowledge that you have read, understood, have the authority to, and agree to be bound by this Agreement. The terms of your Order shall not modify this Agreement. If you are an individual, you certify that you are eighteen (18) years of age or older. If you are entering into this Agreement on behalf of a customer, business, or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you,” “your” or “Merchant” shall also refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by this Agreement, you must not accept this Agreement and may not use the Services.

We may change or revise this Agreement at our discretion. If any change or revision to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to mail@fulfilled-by-us.com. Otherwise, you will be bound by the changed or revised terms. Fulfilled by US may change or revise this Agreement from time to time by providing ten (10) days prior notice either by emailing the email address associated with your account, by posting a notice on the Site, or by providing notice on the Fulfilled by US Platform (as defined below) (“Notice”).

Registration

You must register for the Services. As part of the registration process, you will identify an administrative username and password for your account (“Account”). You may use the administrative username and password to create standard users (each with a user password).

Description of Services

The Fulfilled by US “Services” include: (a) providing technology solutions to support the receipt, counting, storage, picking and packaging (“fulfillment”) of physical goods sold by you (the “Goods”) pursuant to your order (“Order”) by Fulfilled by US or by independent third-party warehouses using the Fulfilled by US’s proprietary Warehouse Management System (“WMS”) and referred to as Fulfilled by US Fulfillment Network Providers (“SFN Providers”); (b) providing technology solutions to support the shipment of the Goods by independent third-party carriers (each, a “Carrier”); (c) access to Fulfilled by US’s proprietary platform and associated technology, in object code format only, which is made available by Fulfilled by US to you, for purposes of managing Goods, submitting Orders for Goods and fulfilling Orders (the “Fulfilled by US Platform”); and (d) all data, reports, text, images, sounds, video, and content, including any offline reports, pricing matrices, or other content, made available to you through any of the foregoing (collectively referred to as the “Content”), including, in each case, all modifications and updates.

We may separately enter into a Warehousing and Fulfillment Pricing Agreement (“Fulfillment Agreement”) with you, which may modify the terms of the Services. If we do so, the terms of the Fulfillment Agreement shall take precedence over any conflicting terms of this Agreement. The terms of any Fulfillment Agreement are incorporated into this Agreement by reference. In our sole discretion, we also may provide you additional Services. If we do provide these additional Services, the terms of the Volume Agreement shall be incorporated into this Agreement. The terms of the Volume Agreement shall take precedence over any conflicting terms in this Agreement.

SFN Providers’ Responsibilities

You understand and agree that Fulfilled by US provides a technology platform connecting you with SFN Providers who are responsible for warehousing, picking and packing, and fulfilling your Goods. The Services offered by Fulfilled by US pursuant to this Agreement do not include any of these services when your Goods are serviced by an SFN Provider. Notwithstanding the foregoing, Fulfilled by US may also provide warehouse, pick or pack, or fulfillment services for you, in which case this Agreement will govern Fulfilled by US as a technology platform provider and as a performing SFN Provider.

Fulfilled by US will help facilitate the filing of claims with SFN Providers for Goods that are lost or damaged by an SFN Provider, but Fulfilled by US is not responsible for any shrinkage, loss, or damage caused by an SFN Provider.

When such warehouse, pick or pack, and fulfillment services are performed by an SFN Provider, Fulfilled by US will use its commercially reasonable efforts to facilitate the SFN Provider’s assent to the following terms: (a) SFN Provider must utilize Fulfilled by US’s proprietary Warehouse Management System and follow Fulfilled by US’s fulfillment policies; (b) that the SFN Provider has the necessary approvals, authorities, licenses, and insurance to provide the fulfillment services; (c) that the SFN Provider will comply with all federal, state, provincial, and local laws, regulations, and ordinances including, but not limited to, safety-related laws and regulations; (d) that the SFN Provider accepts the duty of care consistent with all applicable industry best management practices, industry guidelines, and the care a reasonably careful person would exercise under like circumstances and (d) that the SFN Provider will maintain insurance as required by law. Notwithstanding the foregoing, Fulfilled by US does not guarantee the suitability, legality, or ability of any SFN Provider. You agree that Fulfilled by US is not responsible or liable for the SFN Providers’ performance of the warehousing, pick and pack, or fulfillment services and that Fulfilled by US does not guarantee any SFN Provider’s compliance with applicable laws or regulations.

Carriers’ Responsibilities

You understand and agree that Fulfilled by US provides a technology platform connecting you with Carriers who are responsible for the actual shipping of your Goods. Fulfilled by US shall use its proprietary technology to find the best available shipping option with a Carrier based upon the dimensions, desired speed, and final destination of the Order. Fulfilled by US is not a carrier and does not itself ship or arrange to ship your Goods, nor do the Services include any shipping services.

Fulfilled by US will help facilitate the filing of claims with Carriers for Goods that are lost or damaged by a Carrier, but Fulfilled by US is not responsible for any loss or damage caused by a Carrier.

Fulfilled by US will use its commercially reasonable efforts to facilitate the Carrier’s assent to the following terms: (a) that the Carrier has the necessary approvals, authorities, licenses, and insurance to provide the shipping services; (b) that the Carrier will comply with all federal, state, provincial, and local laws, regulations, and ordinances including, but not limited to, safety laws and regulations and (c) that the Carrier will maintain insurance as required by law. Notwithstanding the foregoing, Fulfilled by US will not assess or guarantee the suitability, legality, or ability of any Carrier. You agree that Fulfilled by US is not responsible or liable for the Carriers’ performance of the shipping services and that Fulfilled by US does not guarantee any Carriers’ compliance with applicable laws or regulations.

Access to and Use of the Services – Your Obligations

Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title, and interest in and to the Services (including all intellectual property rights) will remain with and belong exclusively to Fulfilled by US. You shall not: (i) sublicense, resell, rent, lease, transfer, assign, time share, or otherwise commercially exploit or make the Services available to any third party; (ii) use the Services in any unlawful manner (including without limitation in violation of any data, privacy, or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services; or (iii) modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies, or other notices Fulfilled by US provides you or publishes in connection with the Services, and you shall promptly notify Fulfilled by US if you learn of a security breach related to the Services.

Any software made available to you by Fulfilled by US in connection with the Services (“Software”), including but not limited to the Fulfilled by US Platform, contains Fulfilled by US’s proprietary and confidential information that is protected by applicable intellectual property laws and this Agreement. Fulfilled by US hereby grants you a non-transferable, non-sublicensable, and non-exclusive right and license (“License”) to use the object code of any Software, and Content on a single device solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any Content or right in any Software. You agree not to access the Services by any means other than through the interface that is provided by Fulfilled by US. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Fulfilled by US or any third party is granted to you in connection with the Services. The License may be terminated immediately at Fulfilled by US’s sole discretion and shall, in any event, terminate upon the termination or expiration of this Agreement.

You are solely responsible for all data, information, feedback, suggestions, text, content, and other materials that you upload, post, deliver, provide, or otherwise transmit or store in connection with or relating to the Services (“Your Content”). For every email sent outside of your organization via the Services, you acknowledge and agree that Fulfilled by US shall have the right to automatically add an identifying footer in accordance with our policies.

You are solely responsible for maintaining the confidentiality of your login, password, Your Content, account, and for all activities that occur under your login or account. For support purposes, designated Fulfilled by US employees have the ability to access your Fulfilled by US accounts. This access includes but is not limited to production data, including Personally Identifiable Information (“PII”) within the dashboard and data storage locations. This access is audited on a regular basis as a part of Fulfilled by US’s internal audit processes. By posting Your Content on or through the Services, you hereby do and shall grant Fulfilled by US a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, modify, reproduce, distribute, display, publish, and perform Your Content. Fulfilled by US has the right, but not the obligation, to monitor the Services, Content, and Your Content. You further agree that Fulfilled by US may remove or disable any Content (including Your Content) at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or Your Content), or for no reason at all.

You understand that the operation of the Services, including Your Content, may be unencrypted and may involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices; and (iii) transmission to Fulfilled by US’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content. Fulfilled by US will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction, or loss of any of Your Content, and you will indemnify and hold Fulfilled by US harmless for any claims, damages, or liability related to Your Content.

You own all of Your Content or have obtained all permissions, releases, rights, or licenses required to engage in your posting and other activities (and to allow Fulfilled by US to perform its obligations) in connection with the Services without obtaining any further releases or consents. Your Content does not, and will not, violate, infringe, or misappropriate any third party’s intellectual property or privacy rights, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing.

You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including hardware, software, networks, and telephone service (collectively, “Your Equipment”). Your Equipment must comply with all specifications set forth in Fulfilled by US’s policies then in effect. You shall also be responsible for maintaining the security of Your Equipment, your Account, passwords (including but not limited to administrative and user passwords), files, and for all uses of your Account or Your Equipment with or without your knowledge or consent.

You have no right to access Fulfilled by US’s physical facilities or property or any of the SFN Provider’s physical facilities or property. Under no circumstances, and at no time, during the Term of this Agreement or after, are you permitted to enter Fulfilled by US’s or the SFN Providers’ facilities, fulfillment centers, or premises without prior express written notice by Fulfilled by US or the SFN Provider. As your Goods may be commingled with the Goods of other merchants in Fulfilled by US’s or SFN Providers’ facilities, under no circumstances, during the Term or after, may you access the Goods while the Goods are stored in Fulfilled by US’s or SFN Providers’ facilities, without prior express written consent of Fulfilled by US and the SFN Provider. If you are granted access, you will be monitored during the access period and your access can be terminated at Fulfilled by US’s or the SFN Provider’s discretion.

Fulfilled by US reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Fulfilled by US’s Site and in other communication with existing or potential Merchants. To decline Fulfilled by US this right you need to email mail@fulfilled-by-us.com stating that you do not wish to be used as a reference.

Fulfilled by US may provide, at Fulfilled by US’s sole discretion, technical support services, through email, chat, or telephone in accordance with our standard practice.

Fulfilled by US is not the Merchant of Record for any of your Goods or the importer of record for Goods stored at an SFN Provider. Fulfilled by US shall not be held liable for complying with your instructions through the Services. You understand that Fulfilled by US does not inspect your Goods nor does Fulfilled by US take responsibility for the business decisions that you make and implement through the Services. For example, Fulfilled by US cannot control or ensure that a buyer or seller with whom you do business will remit payment for Goods in accordance with your agreement with them.

Your Data Rights

You retain all right, title and interest in and to Your Data, other than the limited rights expressly granted in this Section. For purposes of this Agreement, “Your Data” means any and all information collected and/or stored by or on behalf of Fulfilled by US in connection with your use of the Services, excluding data and information relating to the operation and/or performance of the Fulfilled by US Platform.

You hereby grant Fulfilled by US the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary to provide the Services to you pursuant to the Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Your Data on an aggregate and anonymous basis for marketing purposes.

Service Fees

“Service Fees” are the fees for any Services and any third-party fees (third-party fees include, but are not limited to, Carrier, SFN Provider, and other shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums, or other third-party charges incurred during your use of the Service).

You shall pay the following Service Fees (unless modified by a Warehousing and Fulfillment Pricing Agreement, your Pricing Quotation uploaded through the Fulfilled by US Platform, or Volume Agreement):

• A $25.00 initial receiving fee to inventory and store the Goods, but if receipt of the Goods takes more than two (2) hours, then you shall pay $40.00 per additional hour for the remainder of the time required to inventory and store the Goods;
• A $40.00 monthly pallet fee, $10 monthly shelf fee, or a $5.00 monthly bin fee, whichever is applicable per SKU, that shall be due for any whole or partial month, beginning on the date that inventory is delivered to Fulfilled by US.
• Fulfillment charges, which shall be calculated based on the final destination, dimensions of the final packaged shipment, and speed of shipment selected;
• Above four (4) picks per order will be billed at an additional $0.20 per pick;
• Charges, costs, taxes, and expenses identified in Section 8.5 and 8.6; and
• Any charges or fees incurred by Fulfilled by US associated with your payment for the Services by credit card. In the event of conflict between the Services Fees in these Terms, the Warehousing and Fulfillment Pricing Agreement, Pricing Quotation, or Volume Agreement, the following order of priority shall apply: the Warehousing and Fulfillment Pricing Agreement, the Pricing Quotation, the Volume Agreement, followed by these Terms.

Quotations accepted through the Fulfilled by US Platform are estimates based on the best information available at the time made. The final rates and Service Fees may vary based upon the Goods actually tendered, the work actually performed, or a number of factors such as Carrier shipping prices, the actual characteristics of your Goods, the delivery address, and service requested during the normal course of delivery. Fulfilled by US reserves the right to bill the Service Fees based on actual charges at any time after the Services are rendered. Fulfilled by US specifically disclaims liability for any Carrier shipping rate errors due to inaccurate or incomplete information provided to it, such as dimensions and weights.

All dollar amounts stated in this Agreement and the Site will be in US dollars, unless otherwise specified.

You acknowledge that you are responsible for, and agree to reimburse Fulfilled by US, SFN Providers, and Carriers, as applicable, for, all sales taxes, transportation taxes, Service Fees, reversals, chargebacks, claims, fees, fines, penalties and other liability incurred by Fulfilled by US, SFN Providers, and Carriers, as applicable in connection with the Services. Carrier chargebacks are subject to additional administrative fees as specified in our Policies.

You acknowledge and agree that all Service Fees, charges, and any other rates or amounts charged by Fulfilled by US to you hereunder are exclusive of applicable value added, sales/use or inventory, CDT (as defined below) and service taxes (“Transaction Taxes”) which may be levied in connection with the supply by Fulfilled by US of the Services to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Service Fees or other amounts charged to you by Fulfilled by US.

International CDT. Customs, Duties, and Taxes (“CDT”) on any international shipment charged by the Carrier are your sole responsibility and will be charged back to you regardless of whether they were or were not in the initial estimate, or whether the order was or was not delivered.

Failure to Pay; Abandoned Account; Liquidation. Failure to promptly pay Service Fees is a material breach of this Agreement. If your Service Fees (or any other amounts owed to Fulfilled by US, SFN Providers, or Carriers) remain unpaid for a period greater than thirty (30) days, then Fulfilled by US reserves the right, at its sole discretion, to terminate this Agreement, suspend its performance of Services, and/or reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than sixty (60) days will automatically be deemed an Abandoned Account. TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND GOODS WILL IMMEDIATELY BE FORFEITED BY YOU TO Fulfilled by US. GOODS WILL BECOME IMMEDIATELY AND IRREVOCABLY UNAVAILABLE TO YOU, AND LIQUIDATION PROCEEDINGS WILL BEGIN. You agree such Goods would be free and clear of liability, and that you would assume any liability therefore. You will remain liable for any pending Service Fees above and beyond the liquidation proceeds.

Payment Method and Liens

Payment processing for Services is provided by Stripe and is subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Service Agreement”) set forth at https://stripe.com/ssa. By agreeing to this Agreement or continuing to utilize our Services as a Merchant, you agree to be bound by the Stripe Service Agreement, as modified by Stripe from time to time. As a condition of Fulfilled by US enabling payment processing through Stripe, you agree to provide Fulfilled by US accurate and complete information about you and your business, and you authorize Fulfilled by US to share it and transaction information (including User Data) related to your use of payment processing provided by Stripe.

Unless otherwise specified by Fulfilled by US, Stripe will collect payment from you via credit card or ACH for Service Fees due on a daily, weekly, or monthly basis depending on the account set-up. Fulfilled by US disclaims all liability for any fees charged to you by your bank related to Stripe’s collection or disbursement of such payment.

When you use the Services, all charges for the Services and any additional fees payable to Fulfilled by US will be immediately charged to the credit card associated with your Stripe account. You agree to pay Fulfilled by US the amount that is specified in accordance with this Agreement. If you dispute any charges, you must let Fulfilled by US know within thirty (30) days after the date that Fulfilled by US invoices you.

You agree and acknowledge that either Fulfilled by US or the SFN Provider, depending on which party is performing the warehouse, pick and pick, or fulfillment services shall maintain an actual or constructive general and continuing warehouseman’s lien and security interest under the UCC for all Goods in Fulfilled by US’s or SFN Provider’s possession or control, regardless of whether a specific receipt is issued, to cover all charges, expenses, costs, and Service Fees set forth in this Agreement. In the event Fulfilled by US or an SFN Provider is required to exercise its lien or security interest, you shall be responsible for all necessary and reasonable costs incurred to enforce the lien or security interest including, but not limited to, reasonable attorneys’ fees. You will execute any and all agreements and documents so that Fulfilled by US or an SFN Provider may obtain, perfect, and maintain its lien rights and security interest in the Goods. You will also execute any and all documentation to permit Fulfilled by US to perfect the liens.

Inbound Shipments – Your Obligations

You represent and warrant to Fulfilled by US that (i) you are the legal owner of the Goods and/or have lawful possession or control of the Goods and that you have the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (ii) there are no potential health, safety, or environmental hazards associated with the shipment, warehousing, or fulfillment of the Goods tendered to Fulfilled by US under this Agreement, (iii) the Goods do not contain any material violating any federal, state, or local law (collectively, “Laws”); (iv) the Goods are not and do not contain any hazardous or dangerous materials under applicable Laws and are in compliance with Fulfilled by US’s Dangerous Goods / HAZMAT Policy; and (v) the Goods do not violate Fulfilled by US’s Acceptable Products Policy. You will strictly meet or exceed any compliance obligations under these provisions. Fulfilled by US may, in its sole discretion, reject Goods that Fulfilled by US determines do not meet the above compliance obligations. If the Goods do not meet the foregoing requirements, you may incur additional fees from Fulfilled by US, and if Fulfilled by US rejects the Goods, this may result in a delay or non-shipment, and you agree that Fulfilled by US shall not be liable for any loss or damage as a result of such delay or non-shipment.

You shall provide Fulfilled by US, in a digital format through the Fulfilled by US dashboard, with bills of lading for the inventory of all inbound shipments of Goods prior to the shipment arriving to an SFN Provider’s facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. You represent and warrant that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description and condition of the Goods, is accurate and complete and may be relied upon by Fulfilled by US. If any inbound inventory received does not follow Fulfilled by US’s Warehouse Receiving Order (“WRO”) instructions, it will be classified as an Unidentified Receiving Order (“URO”) and subject to delays and additional fees in accordance with the On-Hold Receiving (URO) Policy. If the items in such a shipment cannot be identified by Fulfilled by US, they may be discarded and Fulfilled by US assumes no responsibility for any associated losses. If the quantity of any SKU (or any SKU in a box or pallet) received at an SFN Provider’s facility is either ten percent (10%) greater, or more than twenty-five (25) units more, than the expected quantity you submitted in the WRO, you will be required to submit a new accurate WRO. The warehouse receiving order shall be attached to the side of the box and the product name shall be clearly and conspicuously written on the outside of box.

You need to make an appointment in advance for any inbound freight shipment (non-parcel).

Shippable Addresses

You are solely responsible for the accuracy and deliverability of Order shipping addresses. Fulfilled by US may, at its sole discretion, verify Order shipping addresses, but this is not a replacement for merchant address diligence and verification by you. You agree and acknowledge that Fulfilled by US has no obligation to verify any shipping addresses provided by you.

If Fulfilled by US provides an Order shipping estimate based on an address later discovered to be inaccurate or incomplete, you are solely responsible for any applicable address correction fees Fulfilled by US incurs from the Carrier, any difference in Carrier shipping cost or for any other costs or fees due to the incomplete or inaccurate address. Examples of discrepancies for which you may be responsible include, but are not limited to, incomplete addresses, incorrect addresses, commercial/residential address status, and rural address status. Fulfilled by US also reserves the right to put the order on hold if addresses are not validated by the Fulfilled by US system.

Delays or Non-Delivery by Third-Parties, including Carriers and SFN Providers

Unless specifically excepted in a Volume Agreement or Warehousing and Fulfillment Pricing Agreement, Fulfilled by US shall not be liable or responsible for any delays in domestic or international shipments of Goods or Orders, and is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third-parties, including Carriers and SFN Providers.

Fraudulent Orders

IT IS YOUR SOLE RESPONSIBILITY TO PROTECT YOURSELF FROM FRAUD. IT IS YOUR SOLE RESPONSIBILITY TO PAY ALL FEES RELATED TO ORDERS WHETHER THE ORDER IS FRAUDULENT OR THE PRODUCT IS DELIVERED OR NOT.

Returns

All non-Carrier related returns (international and domestic) must follow the Return Policy, which may be updated from time to time. Custom returns may be rejected and/or subject to additional fees.

You shall be solely responsible for any fees assessed by any Carrier or SFN Provider as a result of any shipments of Goods that are returned to Fulfilled by US or an SFN Provider by the Carrier for any reason whatsoever.

Fulfilled by US Is Not Liable for International Returns. International shipments that are not delivered are often returned by the Carrier and assessed return shipping, brokerage, and returns processing Carrier fees. These fees assessed by the Carriers are billed through to merchants, often without notice. Fulfilled by US strives to work with you to circumvent international returns or abandoned inventory at your request; however, this is done only on a reasonable efforts basis and Fulfilled by US reserves the right to charge you fees to the value of the original Carrier shipping cost, including all costs and expenses of returns. If a tariff is not available, Fulfilled by US will either put orders on hold until tariff information is available or override the order with no liability to Fulfilled by US.

Required Removals

Fulfilled by US or SFN Provider, as applicable, may, at its sole discretion, require you to remove unsuitable or unsellable Goods from its facility or an SFN Provider’s facility. Fulfilled by US will notify you if it or an SFN Provider has any inventory that requires removal. Pick fees may also be assessed for labor incurred to remove inventory. IF YOU DO NOT REMOVE THE INVENTORY WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, Fulfilled by US OR THE SFN PROVIDER MAY DISPOSE OF THE INVENTORY LISTED IN THE REQUIRED REMOVAL NOTICE. YOU SHALL NOT BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS DISPOSED OF BY Fulfilled by US OR THE SFN PROVIDER IF YOU DO PROMPTLY REMOVE THE GOODS UPON Fulfilled by US’S WRITTEN REQUEST.

Confidentiality

You acknowledge that you may receive materials and information from Fulfilled by US, SFN Providers, or Carriers that are considered by such entity to be proprietary and confidential, including information relating to the platform, Goods, volume, customers, pricing, procedures, processes, technical specifications, designs, computer code, software applications and related documentation, and technology. You agree that all such materials and information acquired or obtained by you hereunder shall be held in confidence, protected with the same degree of care that you employ for the protection of your own confidential and proprietary information of a similar nature (not less than reasonable care), and you shall not reveal or disclose any such information without Fulfilled by US’s prior written consent other than as expressly permitted by this Agreement. You shall not have any obligation, however, to preserve the confidentiality of any such materials and information to the limited extent that it: (a) is in the public domain or generally available to the public; (b) was in the possession of or disclosed to you prior to the date hereof, free of any obligation to keep the same confidential; (c) is lawfully acquired by you from a third party under no obligation of confidentiality to the other Party; or (d) is required to be disclosed by you under law or court order, provided, however, that you shall give prompt written notice thereof to Fulfilled by US (where permitted by law). You agree and acknowledge that a monetary remedy for a breach of this Section may be inadequate and that such breach may cause Fulfilled by US irrevocable harm. In the event of a breach, Fulfilled by US will be entitled, without the posting of a bond and in addition to any monetary damage it may subsequently prove, to seek temporary and permanent injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions. This Section supersedes and supplants any and all prior agreements between the Parties regarding confidential information and/or confidentiality, including, but not limited to, any nondisclosure agreements executed between the Parties. The provisions of this Section shall survive the termination of this Agreement.

Force Majeure

Fulfilled by US shall not be liable for any failure or delay in performance hereunder which may be due, in whole or in part, to fire, explosion, earthquake, storm, flood, drought, or other adverse weather condition, accident, casualty, breakdown of machinery or facilities, strike, lockout, combination of workmen or other labor difficulties (from whatever cause arising, and whether or not the demands of the employees are reasonable or within Fulfilled by US’s power to grant), war, civil disturbance, acts of terrorism, insurrection, riot, act of God or the public enemy, law, act, order, proclamation, decree, regulation, ordinance, instruction or request of Government or other public authorities, judgment or decree of a court of competent jurisdiction, delay or failure of Carriers or of SFN Providers, shippers or contractors, labor shortage or inability to obtain transportation, equipment, operating materials, plant equipment or materials required for our performance, curtailment or suspension of operations to remedy or avoid an actual or alleged violation or violations of Federal, State or local law, as may be in effect from time to time during the Agreement period, or any contingency or delay or failure or cause of any nature beyond the reasonable control of Fulfilled by US, whether or not of the kind hereinabove specified and whether or not any such contingency is presently occurring or occurs in the future. Fulfilled by US shall give notice of any force majeure event as soon as reasonably practicable by giving notice to your administrative email account.

Termination

You have the right to terminate this Agreement at any time, provided you do not have a balance due and owing (other than any amounts subject to a good faith dispute) by sending a termination request to support@Fulfilled by US. Subject to earlier termination as provided below, Fulfilled by US may terminate, at its discretion and without cause, this Agreement (or our facilitation of the shipments of Goods or our Services hereunder) at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Fulfilled by US may also terminate this Agreement upon thirty (30) days’ notice (or ten (10) days’ notice in the case of nonpayment) if you breach any of the terms or conditions of this Agreement. The termination of this Agreement shall also constitute a termination of any Warehousing and Fulfillment Pricing Agreement or Volume Agreement. Fulfilled by US reserves the right to immediately modify, suspend, or discontinue, temporarily or permanently, the Services (or any part thereof) if you are in breach of this Agreement. All of Your Content (if any) may be permanently deleted by Fulfilled by US upon any termination of your account in Fulfilled by US’s sole discretion. However, all rights to payment and all other Sections which by their terms are intended to survive shall survive termination or expiration of this Agreement.

DISCLAIMER OF WARRANTIES

The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Fulfilled by US or by third-party providers, or because of other causes beyond our reasonable control. Fulfilled by US shall use reasonable efforts to provide advance notice in writing or by email of any Services disruption. Fulfilled by US shall not be liable for any such unavailability or disruption of Services.

THE SERVICES, INCLUDING THE Fulfilled by US PLATFORM AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND Fulfilled by US EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS OR ANY ANCILLARY AGREEMENT, YOU ACKNOWLEDGE THAT Fulfilled by US DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR DOES Fulfilled by US MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE, OR SERVICES OBTAINED BY YOU FROM Fulfilled by US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

Fulfilled by US does not represent, warrant, or guarantee that any of its facilities or any of the facilities of SFN Providers will maintain any specific temperature ranges or humidity levels. Fulfilled by US shall not be liable or responsible for fluctuations of temperature or humidity levels at any of its facilities or any of the facilities of SFN Providers.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT WHEN SFN PROVIDERS AND CARRIERS ARE IN POSSESSION OF YOUR GOODS, SFN PROVIDERS AND CARRIERS, AND NOT Fulfilled by US, ARE SOLELY RESPONSIBLE FOR ANY ACTUAL OR ALLEGED HARMS SUSTAINED BY YOU OR YOUR GOODS AS DETERMINED UNDER APPLICABLE LAW.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) SHALL Fulfilled by US BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. FOR AVOIDANCE OF DOUBT, Fulfilled by US IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE GOODS DAMAGE CAP OR THE AGGREGATE LIABILITY CAP SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT.

Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, Fulfilled by US’s LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.

Insurance, Damage and Loss of Goods:

• YOU AGREE THAT THE GOODS STORED OR WAREHOUSED BY Fulfilled by US OR SFN PROVIDERS ARE NOT INSURED AGAINST LOSS OR DAMAGE BY Fulfilled by US OR THE SFN PROVIDER. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING INSURANCE COVERAGE FOR THE GOODS, AND INSURANCE IS AVAILABLE AT YOUR SOLE COST AND EXPENSE. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE COVERAGE, IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF GOODS (“GOODS LOSS”) FOR WHICH Fulfilled by US IS OR MAYBE LEGALLY LIABLE, YOU AGREE THAT Fulfilled by US’S OR SFN PROVIDER’S LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW. FOR INSURANCE TO APPLY TO YOUR CLAIM, YOU MUST PURCHASE THE INSURANCE PRIOR TO THE GOODS LOSS. Fulfilled by US DOES NOT REPRESENT, WARRANT, OR GUARANTY THAT INSURANCE WILL COVER ALL OR A PORTION OF YOUR GOODS LOSS. Fulfilled by US SHALL NOT BE RESPONSIBLE OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF COVERAGE IS DENIED. THE DECISION TO PURCHASE INSURANCE AND ITS EXPENSE IS YOURS ALONE. ALL SUCH INSURANCE IS PROVIDED BY THOSE THIRD-PARTY INSURANCE CARRIERS OR BROKERS YOU MAY SELECT. Fulfilled by US DOES NOT AND WILL NOT SELL INSURANCE AND SHALL NOT BE DEEMED AN INSURANCE PROVIDER.
• IN THE EVENT THAT Fulfilled by US OR THE SFN PROVIDER IS FOUND LEGALLY LIABLE FOR HARMS SUSTAINED BY YOUR GOODS, YOU AGREE THAT Fulfilled by US’S OR THE SFN PROVIDER’S MAXIMUM LIABILITY FOR GOODS LOSS (INCLUDING LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE LIMITED TO THE ACTUAL PRODUCT VALUE OF THE GOODS, WHICH SHALL BE MEASURED BY THE ORIGINAL PURCHASE INVOICE FROM THE MANUFACTURER OR SUPPLIER, SUBJECT TO A CAP OF 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER (“GOODS DAMAGES CAP”).
• FOR GREATER COVERAGE, YOU MUST ADD INSURANCE IN YOUR ACCOUNT SETTINGS ON THE GOODS THAT YOU WISH TO BE COVERED BY INSURANCE, IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE. NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE, OR DESTRUCTION TO ALL OR ANY PORTION OF THE GOODS HAS OCCURRED.

EXCLUSIVE REMEDY. THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST Fulfilled by US OR THE SFN PROVIDER FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE, AND/OR DESTRUCTION OF GOODS, AND SHALL APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).

IN ANY EVENT, Fulfilled by US’S OR SFN PROVIDER’S MAXIMUM AGGREGATE LIABILITY TO YOU, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY Fulfilled by US, OR SFN PROVIDER SHALL NOT EXCEED $2,000 FOR ANY CLAIMS NOT COVERED BY THE GOODS DAMAGE CAP. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT AND THE PARTIES RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

Indemnification

You shall defend, indemnify, and hold harmless Fulfilled by US and SFN Providers from and against any claims, actions or demands, liabilities (including court costs and attorney’s fees), tax obligations, fines, and penalties, including without limitation reasonable legal and accounting fees and expenses, arising or resulting from: (a) your breach of this Agreement; (b) any of Your Content; (c) your negligence, fault, omissions, or willful misconduct; (d) your fraud or misrepresentation in connection with the Services or with your access, contribution to, or use of the Services; (e) any product liability claim arising from use of your Goods; or (f) your misuse of the Services (“Claims”). Fulfilled by US shall provide notice to you of any Claim. Fulfilled by US and SFN Providers reserve the right to assume the exclusive defense and control of any third-party Claims which are subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Fulfilled by US’s or SFN Provider’s defense of such Claim. This indemnity shall include, without limitations, all Claims in tort, contract, by statute or otherwise, including Claims for personal injury (including death) and actual or tangible property damage.

U.S. Government Matters – Your Compliance with Trade Laws.

You may not remove or export from the United States or allow the export or re-export of Goods subject to this Agreement or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. You represent and warrant that you and your financial institution are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority. As defined in FAR section 2.101, the software and documentation installed by Fulfilled by US on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

Assignment

You may not assign or transfer this Agreement without the prior written consent of Fulfilled by US, but Fulfilled by US may assign or transfer this Agreement, in whole or in part, without restriction. This Agreement is binding upon, and will inure to the benefit of, the successors and permitted assigns of the parties.

Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect, and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, representations, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Except as specifically set forth in this Agreement (or a Volume Agreement or Warehousing and Fulfillment Pricing Agreement), the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement. The failure of Fulfilled by US to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and Fulfilled by US, even though it is electronic and is not physically signed by you and Fulfilled by US, and it governs your use of the Services. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Fulfilled by US in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement or otherwise, the substantially prevailing party will be entitled to recover its costs, expenses and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Governing Law, Venue, Jurisdiction

This Agreement and all Claims or disputes between the parties shall be governed by the laws of the State of Illinois without regard to its conflicts of law provisions. The UN Convention on the International Sale of Goods shall not apply. All Claims, lawsuits, causes of action, and disputes between us shall be exclusively brought in the State or Federal Court located in Chicago, Illinois. The parties submit to the exclusive personal jurisdiction and venue of these courts.

2-Day Express Program Terms of Service

Acceptance of Terms

• By electing the Fulfilled by US 2-Day Express Option, you acknowledge that you have selected the Fulfilled by US 2-Day Express Option and you have read, understood, and agree to be bound by these Fulfilled by US 2-Day Express Fee Terms of Service.

Fulfilled by US 2-Day Express Option

• Fulfilled by US provides a Fulfilled by US 2-Day Express Option in qualifying geographic areas.
• While Fulfilled by US aims to provide 100% coverage of zip codes in the continental US, the delivery timing is not guaranteed, and Fulfilled by US is not responsible for any Carrier delays. The “Fulfilled by US 2-Day Express Option” is defined as a facilitated shipment with a Carrier with a transit time of two business days once fulfilled by an SFN Provider, with a cutoff time of 12:00 PM local time Monday through Friday.
• The Fulfilled by US 2-Day Express Option may only be available in select zip codes in the United States, the list of which is available upon request. Fulfilled by US reserves the right to modify such list of qualifying zip codes in its sole discretion and shall not be required to provide you with notice of any such modifications. The qualifying zip codes may also fluctuate in connection with the amount of your on-hand inventory.
• Fulfilled by US will facilitate the fulfillment of Goods by an SFN Provider and the routing of shipments by Carriers. Carriers are responsible for the shipments themselves. Due to Carrier limitations, the following cannot be delivered within two (2) business days from when the Order is fulfilled: out of stock items, dangerous goods, and Orders that Carriers are shipping to Alaska, Hawaii, Puerto Rico, military addresses, and PO boxes.
• During Peak Season, a transit time of two (2) days may be impacted by changes to shipping Carrier Service Level Agreements.

Inventory Levels

• You agree to maintain inventory levels of a minimum of four (4) weeks of “On-Hand Inventory,” which shall be calculated by multiplying the most recent two weeks of sales by two (2).
• You agree to send replenishment inventory to a fulfillment center designated by Fulfilled by US promptly upon request by Fulfilled by US or SFN Provider.
• You agree that Fulfilled by US or SFN Provider may move inventory as reasonably required in Fulfilled by US’s discretion to enable and ensure coverage for the Fulfilled by US 2-Day Express Option.

Fulfilled by US 2-Day Express Option Fee

• Upon receipt of your selection of the Fulfilled by US 2-Day Express Option, Fulfilled by US will advise you of the fee (the “Fulfilled by US 2-Day Express Option Fee”) for such service, and you shall pay the Fulfilled by US 2-Day Express Option Fee.
• The Fulfilled by US 2-Day Express Option Fee shall be considered a Service Fee.