WHEREFORE, the Company sells and/or manufactures certain Products ; and
WHEREFORE, COD NETWORK provides direct-to-customer order fulfillment services to various retailers and manufacturers, under which COD NETWORK stores, packs, and ships products to the retailer's customers; and
WHEREFORE, Company wishes to retain the services of COD NETWORK, and COD NETWORK wishes to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE, the Parties agree as follows in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged:
The Company hereby engages COD NETWORK to provide, and COD NETWORK hereby agrees to provide, the Services (as defined below) to the Company for the duration of the Term and the Renewal Term described in Section 2. The conduct of the Parties during the Term and any Renewal Terms shall be subject to the terms and conditions of this Agreement, including compliance with the various COD NETWORK policies.
This Agreement's term begins on the Effective Date and lasts for one year, unless and until earlier terminated as provided in this Agreement or applicable law ("Term"). This Agreement automatically renews for additional successive one (1) year terms upon the expiration of the Term, unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided in this Agreement or applicable Law (each a "Renewal Term"). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement, as well as any Exhibits attached hereto, are the same as the terms in effect immediately prior to such renewal.
(a) Receive product shipments from the company.
(b) Provide inventory storage in COD NETWORK's warehousing facilities ("Warehouse").
(c) When the Company receives notification of a customer's purchase of Products, COD NETWORK will pick and package the Products from the available Inventory and ship such Products directly to the customer ("End-User").
(d) At its discretion, COD NETWORK will use appropriate packaging material (e.g., bubble wrap, boxes with void fill, etc.).
(e) COD NETWORK will include a Company packing slip.
(f) COD NETWORK will process, package, and ship all Product orders in accordance with COD NETWORK Policies, as well as any additional terms specified on Exhibit A.
(g) COD NETWORK will keep monthly ledger summaries of all orders shipped and received, which will be made available to the Company upon request.
(h) COD NETWORK will facilitate any Product returns from the End-User to the Company.
(i) COD NETWORK shall perform any additional services, including special projects, that the Company desires COD NETWORK to perform, as more fully described on the attached Exhibit A, which may be amended from time to time as agreed by the Parties.
The Company shall at all times comply with all laws applicable to this Agreement and its obligations under this Agreement, including the sale of the Products to End-Users. Without limiting the generality of the foregoing, the Company shall, at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the sale of the Products; and not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law.
The Company agrees to pay COD NETWORK for the Services in the amounts specified on Exhibit A, which may be amended from time to time as agreed upon by the Parties.
COD NETWORK shall send invoices to the Company Based on what was agreed on in the contract, on the agreed upon date of each month, for the previous period following the conclusion of the period for which such Services were provided. All charges and invoices need to be prepaid by default.
Any and all fees due for the cost of the Product must be paid directly to the Company by the End-User. Under no circumstances will COD NETWORK accept, receive, or be held liable for payments made by an End-User in exchange for the Product.
COD NETWORK provides the Company with a convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee). COD NETWORK is using a 3rd party payment processing company Paypal. COD NETWORK does not store any payment information on its own servers; all of Company’s payment information is stored with PayPal. If Company’s invoice remains unpaid for more than 45 days from the issue date, COD NETWORK reserves the right to auto-charge any payment method that has been used in the past.
Company hereby agrees that COD NETWORK will not hold title or any other rights of ownership in the Inventory at any time during the period that Products are held by COD NETWORK as Inventory in the Warehouse. Title in Inventory will be retained by the Company until the Products are delivered to the End-User.
Company hereby agrees that COD NETWORK will not bear the risk of loss in the Inventory at any time during the period that Products are held by COD NETWORK as Inventory in the Warehouse. The risk of inventory loss will be retained by the Company until the Products are delivered to the End-User.
COD NETWORK will not be held liable for any loss or damage to inventory stored at COD NETWORK facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster, or any other event that was not caused directly by COD NETWORK.
In order to create an account with COD NETWORK, Company will provide COD NETWORK with identifying information, a password, company information and information about the Products (“Registration Information”). Company agrees to provide accurate Registration Information and to update such Registration Information as needed. Company will be sent validation and activation instructions after COD NETWORK accepts Company's request to register for an account ("Account"). Only authorized users have access to and use of the Account. Company agrees not to share password(s), account information, or account access information. Company is responsible for maintaining the confidentiality of password(s) and Account information, and is liable for any and all activities that occur under Company's password(s) or Account(s), or as a result of Account access (s). Any unauthorized use of the Account must be reported to COD NETWORK immediately. COD NETWORK accepts no responsibility for any unauthorized use of the Account. Company will select various Services through the Account, in addition to or in accordance with Exhibit A. COD NETWORK is not responsible for any shipping rate errors caused by incorrect or incomplete Company information in the Account.
COD NETWORK shall perform the Services described in this Agreement as selected and authorized by Company in the Account, as described on Exhibit A attached hereto, subject to Company's compliance with this Agreement. The Account allows the Company to order Services ("COD NETWORK Services Orders"). All COD NETWORK Services Orders are deemed to be part of and governed by this Agreement. By using the Services, the Company acknowledges and agrees that COD NETWORK is a broker of third-party warehouse and shipping services, accepting and delivering shipments from and to third parties. COD NETWORK is an independent contractor for all purposes and only acts as the Company's agent in relation to COD NETWORK's custody of the Products in its Inventory.
Any invoices sent to the Company by COD NETWORK in accordance with Section 5 of this Agreement will be based on the balance accrued in the Company's Account. “3rd Party Fees” are the fees for postage, shipping and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums or other charges given during Company’s use of Services) ordered through the Account and any special or additional fees assessed against the Account as permitted in this Agreement. Third-party fees for Services are billed during the month in which the Services are performed, but they are subject to change due to circumstances beyond COD NETWORK's control. Unless otherwise specified in exhibit A, all account balances must be pre-paid. The Company agrees and acknowledges that if the Company changes the Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services listed on Exhibit A to this Agreement, such as Pick & Pack, Storage, Special Requests, Hourly Rates, and so on, will be billed after the end of the month in which such Services were provided, or after an Account Balance has accrued.
Quotes for third-party fees are provided for informational purposes only, are subject to change without notice, and are not binding on COD NETWORK in any way. Quotes accepted via COD NETWORK's online interface are estimates based on the information available at the time of submission. The final rates and service fees may vary depending on the shipment actually tendered, the work actually performed, or a variety of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, and other variations that occur in the normal course of business.
COD NETWORK reserves the right to adjust its Services pricing in response to currency fluctuations, including but not limited to currency conversion rate changes, conversion fee changes, and/or discount rate changes. Unless otherwise specified, all dollar amounts stated in this Agreement will be in US dollars.
If Company disagrees with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must notify COD NETWORK in writing within 30 days of the fee being charged ("Dispute Period"). Customer requests for Usage Fee adjustments received after the Dispute Period will not be reviewed by COD NETWORK.
COD NETWORK shall have a first priority security interest in all Products in Inventory and the proceeds thereof to secure payment of all Usage Fees and 3rd Party Fees, as well as any reasonable expenses incurred by COD NETWORK for the preservation or sale of the Inventory. In connection therewith, Company hereby (a) grants to COD NETWORK a first priority security interest in all Inventory and the proceeds thereof to secure the payment of the User Fees and fees for Services, (b) consents to and grants to COD NETWORK the right to deliver and file any documentation required under applicable laws and regulations to perfect such security interest, and (c) irrevocably waives any requirements for its signature on any document filed by COD NETWORK under this Section 8.7.
If COD NETWORK becomes aware of, or is notified of, a dispute involving the Account Balance, COD NETWORK will promptly investigate the dispute. COD NETWORK will forward a bill for outstanding amounts due within 5 days of the resolution of the dispute, or will credit the Account Balance accordingly, if appropriate.
If Company's Usage Fees or 3rd Party Fees are not paid within 30 days, COD NETWORK reserves the right, at its sole discretion, to reclassify Company's Account as a "Abandoned Account." Furthermore, any Account that is unpaid for more than 60 days will be considered an Abandoned Account. When an Account becomes an Abandoned Account, the Company immediately relinquishes all rights to such Company's Inventory. Company's inventory will become immediately and irreversibly unavailable, and liquidation proceedings will begin. The Company agrees that the Inventory will be free and clear of liability, and the Company accepts any liability as a result. The Company has no rights to any liquidation proceeds resulting from an Abandoned Account and would be liable for any outstanding Usage Fees and 3rd Party Fees in excess of the liquidation proceeds.
If this Agreement is terminated, the Account will be inaccessible to the Company, and all activity will be suspended. We reserve the right to place an Account on hold for a variety of reasons, including but not limited to: (a) Account Balance remaining unpaid within 30 days of receipt of invoice; (b) suspicious activity on or through the Account; (c) if anyone using the Account uses abusive language or otherwise threatens COD NETWORK or its staff; (d) to allow time to resolve or investigate a third party complaint of a violation of this Agreement; (e) to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and (f) to allow time for COD NETWORK to comply with any extraordinary support requests.
COD NETWORK reserves the right to cancel an Account for any reason after 30 days' notice ("Termination Notice Period"). Company may have full or limited access to the Account during the Termination Notice Period, at the discretion of COD NETWORK. Any Product inventory that remains in COD NETWORK's inventory at the end of the Termination Notice Period will be shipped to the Company at the address on file and, if no address is on file, the billing address on Company's credit card, at the expense of the Company. COD NETWORK will liquidate the Product inventory in accordance with an Abandoned Account if no address is available or no balance is available to pay for shipment back to the Company.
If Company violates any of the terms of this Agreement, COD NETWORK reserves the right to close, suspend, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, COD NETWORK may also take any actions available, including, without limitation, any of the following : (a) contact End-Users who have received Products, contact Company’s bank or credit card issuer, and warn other users, law enforcement, or impacted third parties of Company’s actions; (b) refuse to provide the Services in the future; (c) hold Account funds and Inventory for up to 180 days if reasonably needed to protect against the risk of liability; and (d) take any available legal action.
Company may close the Account for any reason with 30 days' prior written notice to COD NETWORK.
For purposes of this Agreement, “COD NETWORK Property” shall mean
(a) COD NETWORK’s methodology for the provision of the Services; and
(b) COD NETWORK’s Confidential Information.
COD NETWORK hereby expressly reserves all worldwide right, title, and interest in and to the COD NETWORK Property. COD NETWORK reserves all rights to the COD NETWORK Property that are not expressly granted herein. Company acknowledges that COD NETWORK owns all right, title, and interest in the COD NETWORK Property.
Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the COD NETWORK Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. To be clear, all page headers, custom graphics, button icons, and scripts are COD NETWORK service marks, trademarks, and/or trade dress, and Company may not copy, imitate, or use them without COD NETWORK's express prior written consent. Without prior written consent, the Company may use HTML logos provided by COD NETWORK through Services, auction tools features, or affiliate programs solely for the purpose of directing web traffic to FulfillmentBridge.com. Company shall not alter, modify, or change such HTML logos in any way, use them in a manner disparaging or otherwise adverse to COD NETWORK or the Services, or display them in any manner implying COD NETWORK's sponsorship or endorsement. Company shall not (and shall not permit others to):
(i) use any robot, spider, scraper or other automated means to access COD NETWORK’s website or Services for any purpose without COD NETWORK’s express written permission,
(ii) interfere or attempt to interfere with the proper working of COD NETWORK’s website or any activities conducted on the website, or
(iii) bypass any measures COD NETWORK may use to prevent or restrict access to COD NETWORK’s website or the Services.
No Confidential Information obtained by COD NETWORK from the Company shall be considered COD NETWORK Property. For the purposes of this Agreement, all materials provided by Company shall be deemed "Client Property." The Company grants COD NETWORK a non-exclusive license to the Client Property for the sole purpose of providing the Services.
Any third-party software application that Company uses on the COD NETWORK website to connect to the Services or in connection with the Services ("Third Party Software") is solely subject to the software licenses of any third-party software provider. COD NETWORK does not own, control, or bear any responsibility or liability for Third-Party Software.
From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of this Agreement, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:
(a) all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models);
(b) all rights in and to US, and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
(c) all rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;
(d) all rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and
(e) all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.
Information that is subject to one of the following exclusions shall not be Confidential Information:
(a) information that is or becomes generally available to and known by the public;
(b) information that is or becomes available to the Recipient on a nonconfidential basis from a third-party source;
(c) information published or otherwise made known to the public by Discloser;
(d) information that was generated independently without reference to the Discloser’s Confidential Information; or
(e) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
Recipient shall protect and safeguard the confidentiality of Discloser’s Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and not disclose any such Confidential Information to any Person, except:
(i) to Recipient’s representatives who need to know the Confidential Information to assist Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or
(ii) pursuant to applicable law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Recipient shall first provide Discloser with: (A) prompt Notice of such requirement so that Discloser may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Recipient is liable for any violation of this Section 10.3 caused by any of its representatives. The provisions of this Section 10.3 shall survive the termination or expiration of this Agreement for any reason for a period of five years following such termination or expiration. Each party admits to the breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of thisSection 10.3.
Except for transactional information retained in the ordinary course of COD NETWORK's business, each party shall promptly return all Confidential Information or confirm that such Confidential Information has been destroyed upon receipt of a written request from the other party.
Subject to the terms and conditions of this Agreement, Company hereby acknowledges and agrees that COD NETWORK may compile aggregate results from all of, or a selection of Company’s use of the Services, provided that COD NETWORK shall not disclose any information that would individually identify Company (“Aggregate Information”). Such Aggregate Information shall be deemed to be Confidential Information of COD NETWORK. Company also agrees that COD NETWORK may review and use Company's individual use of the Services to provide Services to Company, evaluate COD NETWORK's provision of the Services, and improve COD NETWORK's service offerings.
THE OBLIGATIONS OF COD NETWORK UNDER THIS AGREEMENT AND THE ATTACHED EXHIBITS (INCLUDING THE USE OF COD NETWORK'S WEB SITE) ARE PROVIDED "AS IS" AND "AS AVAILABLE." COD NETWORK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT FOR THE SERVICES, COD NETWORK'S WEB SITE, AND ANY THIRD PARTY SERVICES. THE USE OF SERVICES, THE COD NETWORK WEB SITE, OR THIRD PARTY SERVICES IS AT THE COMPANY'S OWN RISK.
COD NETWORK does not guarantee continuous, uninterrupted, or secure service access. The operation of the Services may be hampered by a variety of factors beyond COD NETWORK's control. COD NETWORK will, however, make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner; however, COD NETWORK makes no representations or warranties regarding the amount of time required to complete processing because the Service is dependent on many factors beyond its control.
EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER COD NETWORK 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 COD NETWORK/ OR COULD HAVE BEEN REASONABLY FORESEEN BY COD NETWORK, 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 COD NETWORK’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO COD NETWORK EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). COD NETWORK MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM COD NETWORK.
THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST COD NETWORK 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 COD NETWORK CONVERTED THE INVENTORY TO ITS OWN USE. THE COMPANY HEREBY WAIVES ANY RIGHTS TO RELY ON ANY LEGAL PRESUMPTION OF CONVERSION.
IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT COD NETWORK IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND COD NETWORK IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND COD NETWORK’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. COD NETWORK SHALL NOT BE LIABLE FOR ANY LOST SALES REVENUE RESULTING FROM INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
COMPANY AGREES AND ACKNOWLEDGES THAT COD NETWORK'S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO COD NETWORK FOR THE PROJECT 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").
This Agreement, including and together with any related Exhibits, invoices and COD NETWORK 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.
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 current address. Unless otherwise agreed, all Notices to Company must be delivered to the address listed in the Account via email, personal delivery, nationally recognized overnight courier, or certified or registered mail. Except as otherwise provided in this Agreement, a Notice is only effective (a) upon receipt by the receiving Party and (b) if the Party giving the Notice has met the requirements of this Section. Regardless of the foregoing, legal notices to COD NETWORK must be mailed to: COD NETWORK
Company may not transfer or assign any rights or obligations under this Agreement without the prior written consent of COD NETWORK. Any attempted assignment will be null and void unless that consent is obtained. COD NETWORK reserves the right, at any time, to transfer or assign this Agreement or any right or obligation arising from it. This Agreement shall be binding on and inure to the benefit of the parties' successors and assigns, subject to the foregoing provisions of this Section.
If this Agreement and the terms on any air waybill, bill of lading, or other transit documentation issued by the contracted carrier conflict, the terms of the contracted carrier will take precedence. If the carrier's terms do not state otherwise, this Agreement takes precedence.