TERMS AND CONDITIONS
The Master Warehousing Agreement between Depositor and Smart Warehousing, LLC (“SW”) includes these Terms and Conditions, the Exhibits referenced herein, the additional agreements identified herein, any Statement of Work that may be executed by the Parties referencing the Master Warehousing Agreement, and any changes or amendments thereto, collectively referred to as the “Agreement.”
SECTION 1. APPOINTMENT AND RELATED SERVICES.
1.1 Subject to the terms and conditions of this Agreement, Depositor (and its Affiliates, to the extent applicable) hereby engages SW, and SW hereby accepts such engagement, to provide warehousing, storage, handling, delivery and related services (the “Services”) for the goods tendered by Depositor from time to time under this Agreement (“Goods”). SW shall provide Services in its facility or facilities (the “Warehouse”) identified herein.1.2. Services. SW shall provide Services to Depositor based on the assumptions agreed upon on Exhibit 1– Business Profile & Assumptions and per the rates in Exhibit 2. In the event Depositor requests additional services that are not included in the Core Project Pricing in Exhibit 2, the Accessorial Charge Schedule in Exhibit 2 shall apply. If the additional services are not included in Exhibit 2 or if there is a change to the assumptions as agreed upon in Exhibit 1 (such as for example: increased volume, additional SKUs, special packaging or handling, kitting, transportation services, manual entry), SW shall provide Depositor written notice of the additional costs for said additional services and unless rejected by Depositor in writing within five (5) business day, said additional costs shall be deemed accepted by the Depositor. If Depositor rejects said additional costs, SW shall not provide said additional services. For clarity, if an additional service is required, time sensitive for Depositor (i.e. required to meet Depositor’s business priority) and is not included in Exhibit 1 or 2, SW shall invoice said additional service under the Out of Scope hourly Rate per Exhibit 2.
1.4 Freight Forwarding Services. In the event that SW renders freight forwarding services independently from Services, such freight forwarding services shall be governed by SW’s Freight Forwarding Terms and Conditions which are incorporated herein by reference (“Freight Forwarding Terms”). If SW provides freight forwarding services to Depositor, SW shall invoice Depositor and Depositor agrees to pay for said services. In the event that SW is for any reason held liable for transportation in conjunction with warehousing Services as a freight forwarder and the Freight Forwarding Terms do not apply for any reason, then the collective liability of SW for such freight forwarding services shall be no greater than (and limited to the same extent as) SW’s liability for the Services under this Agreement.
1.5 Depositor acknowledges that SW will only issue non-negotiable warehouse receipts. Depositor acknowledges that the act by SW of receiving or shipping Goods described herein will constitute acceptance of the rates and charges and the terms of this Agreement.
1.6 Depositor acknowledges that SW utilizes a web-based proprietary inventory management software (“SWIMS”) by which Depositor may track Goods stored in the Warehouse and implement Release Orders (as defined below).SECTION 2. TENDER OF GOODS FOR STORAGE.
2.1 Ownership of Goods. Depositor represents and warrants that it is the owner or has lawful possession of the Goods, and that Depositor has the sole legal right to store and thereafter direct the release and delivery of the Goods. Depositor further represents and warrants that there are no potential health, safety or environmental hazards associated with the storage and handling of the Goods tendered to SW under this Agreement. All Goods shall be delivered to SW by Depositor properly marked and packaged for handling and provide SW with information concerning the Goods that is accurate, complete and sufficient to allow SW to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods. Depositor shall furnish SW at or prior to delivery of the Goods, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. SW may, at its sole discretion, reject any shipment of Goods that it deems to be improperly marked, packaged, or contains any hazardous material, unless specifically agreed to by SW. SW is not a guarantor of the condition of such Goods under any circumstances, including, but not limited to hidden, concealed, or latent defects in the Goods. Concealed shortages, damage, inherent vice or tampering will not be the responsibility of SW. Depositor agrees to defend, indemnify, and hold harmless SW, including reasonable attorney’s fees and costs, of and from any claim by a third party relating in any way to the ownership, storage, and release of the Goods.
2.2 Shipments. Depositor agrees that Goods shall be delivered to the warehouse ninety (90) days from the Effective Date (“First Delivery Date”). If Goods are not delivered to the warehouse by the First Delivery Date, SW reserves the right to provide revised pricing or bill 60% of the Estimated Monthly Fulfillment Cost of Storage until the First Delivery Date occurs at SW discretion. Depositor agrees that all Goods shipped to and from Warehouse shall identify Depositor on the bill of lading or other contract of carriage as the named consignee, in care of SW, and shall not identify SW as the consignee. If, in violation of this Agreement, Goods are shipped to SW as named consignee or shipped from the Warehouse with SW as named shipper (contract or carrier) or consignor on the bill of lading or other contract of carriage, Depositor agrees to immediately notify carrier in writing, with copy of such notice provided to SW, that SW is named consignee as the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, SW shall have the right to refuse such Goods and shall not be liable for any loss, mis-consignment, or damage of any nature to, or related to, such Goods. The parties agree that, regardless of whether SW is incorrectly identified as named consignee, or Depositor fails to notify carrier of the incorrect identification on the bill of lading or other contract of carriage, under no circumstances shall SW be considered the consignee, including without limitation, for purposes of identifying the “importer” under 21 U.S.C. § 384a. The parties further agree that, regardless of whether SW is named as an “agent” for purposes of 21 U.S.C. § 350d or receives notification from the U.S. government with respect to confirmation of SW’s status as “agent” under 21 U.S.C. § 350d, under no circumstances shall SW be an agent for purposes of identifying the “importer”. SW shall not be responsible for complying with or performing the duties required of an “importer” under 21 U.S.C. § 384a. Whether SW accepts or refuses Goods shipped in violation of this Section, Depositor agrees to indemnify, defend and hold SW harmless from all claims for transportation, storage, handling, and other charges relating to such Goods, including undercharges, rail demurrage, truck/intermodal detention, and any fines, penalties, costs and expenses (including attorney’s fees), and other charges of any nature whatsoever Depositor agrees that Goods shall be delivered to the warehouse ninety (90) days from the Effective Date (“First Delivery Date”). If Goods are not delivered to the warehouse by the First Delivery Date, SW reserves the right to provide revised pricing or bill 60% of the Estimated Monthly Fulfillment Cost of Storage until the First Delivery Date occurs at SW discretion. Depositor agrees that all Goods shipped to and from Warehouse shall identify Depositor on the bill of lading or other contract of carriage as the named consignee, in care of SW, and shall not identify SW as the consignee. If, in violation of this Agreement, Goods are shipped to SW as named consignee or shipped from the Warehouse with SW as named shipper (contract or carrier) or consignor on the bill of lading or other contract of carriage, Depositor agrees to immediately notify carrier in writing, with copy of such notice provided to SW, that SW is named consignee as the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, SW shall have the right to refuse such Goods and shall not be liable for any loss, mis-consignment, or damage of any nature to, or related to, such Goods. The parties agree that, regardless of whether SW is incorrectly identified as named consignee, or Depositor fails to notify carrier of the incorrect identification on the bill of lading or other contract of carriage, under no circumstances shall SW be considered the consignee, including without limitation, for purposes of identifying the “importer” under 21 U.S.C. § 384a. The parties further agree that, regardless of whether SW is named as an “agent” for purposes of 21 U.S.C. § 350d or receives notification from the U.S. government with respect to confirmation of SW’s status as “agent” under 21 U.S.C. § 350d, under no circumstances shall SW be an agent for purposes of identifying the “importer”. SW shall not be responsible for complying with or performing the duties required of an “importer” under 21 U.S.C. § 384a. Whether SW accepts or refuses Goods shipped in violation of this Section, Depositor agrees to indemnify, defend and hold SW harmless from all claims for transportation, storage, handling, and other charges relating to such Goods, including undercharges, rail demurrage, truck/intermodal detention, and any fines, penalties, costs and expenses (including attorney’s fees), and other charges of any nature whatsoever resulting from Depositor’s failure to comply with the requirements of this Section.
SECTION 3. ACCESS, RELEASE AND TRANSFER OF GOODS.
3.1 Release Order. Depositor shall provide SW reasonable advance written notice and instructions (each, a “Release Order”), per Exhibit 4 – Service Level, if it desires to order any Goods released from the Warehouse. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, SW shall release the requested Goods to Depositor or its designee. All instructions shall be through SWIMS.
3.2 Depositor shall give SW a reasonable time after SW’s receipt of Depositor’s written instructions, as per Exhibit 4, to carry out Depositor's instructions to release the Goods to Depositor or its designee. SW may without liability rely on any information contained in any Release Order or other written communication from Depositor. Depositor shall be responsible for all shipping, handling, and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Goods, whether arranged by SW on behalf of Depositor or arranged by Depositor directly. A Release Order providing instructions to transfer Goods on the books of SW to any other depositor of goods in the Warehouse will not be effective until such Release Order is delivered to and accepted by SW. The depositor of record shall be responsible for all charges up to the time the actual transfer of the applicable Goods is made. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date for the transferee will be established effective on the date of transfer.
3.3 Recall. In the event a recall, field alert, product withdrawal or field correction (together, “Recall”), is necessary with respect to any Goods provided under this Agreement, Depositor shall immediately notify SW in writing. SW will not act to initiate a Recall without the express prior written approval of Depositor unless otherwise required by applicable laws. The cost of any Recall shall be borne by Depositor. Depositor shall indemnify, defend and hold harmless SW from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which SW pays or incurs as a result of a Recall.
3.4 SW reserves the right to move, upon five (5) written days’ notice to Depositor, any Goods in storage from a Warehouse to any of the other Warehouse owned or leased by SW. Cost and responsibility for said move shall be discussed and agreed upon within thirty (30) days from said written notice; provided that SW shall incur the cost for any move that is at SW’s sole direction. SW may, without notice, move any or all of the Goods from one location within the Warehouse to another location within the same Warehouse, at no cost to the Depositor.
3.5 SW may, upon written notice of not less than thirty (30) days to Depositor and any other person known by SW to claim an interest in the Goods, require the removal of any Goods from the Warehouse. If Goods are not removed before the end of the notice period, SW may sell the Goods in accordance with applicable law, including without limitation, UCC 7. If SW in good faith believes that the Goods are about to deteriorate or decline in value to less than the amount of SW’s warehouse lien before the end of the 30-day notice period, SW may specify in the notification any reasonable shorter time for removal of the Goods and if the Goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
3.6 Hazardous Goods. If as a result of a quality or condition of the Goods of which SW had no notice at the time of deposit the Goods are a hazard to other property or to the Warehouse or to persons, SW may sell the Goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the Goods. If SW, after a reasonable effort, is unable to sell the Goods, it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the Goods, SW may remove the Goods from the Warehouse and shall incur no liability by reason of such removal.SECTION 4. WAREHOUSE LIEN.
SW shall have a general warehouse lien pursuant to UCC 7 for all lawful charges for storage and preservation of the Goods; also, for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing coopering, and other charges and expenses in relation to such Goods, and for the balance on any other accounts that may be due. SW further claims a general warehouse lien for all such charges, advances, and expenses with respect to any other Goods stored by Depositor in any other facility owned or operated by SW. In order to protect its lien, SW reserves the right to require advance payment of all charges prior to shipment of Goods. Unless expressly stated otherwise in writing, SW will not subordinate its lien to any lender, financial institution, or any other third party.
SECTION 5. COMPENSATION, RATES, CHARGES.
5.1 Depositor shall pay for the Services as set forth in this Agreement. Rates are subject to change by SW at any time after the one (1) year anniversary of the date of the Agreement, provided that SW provides Depositor written notice of the change thirty (30) days prior to the date the change is to become effective. SW reserves the right to change any rate/fee at any time during the Term of the Agreement if the cost of supplies, Warehouse rent, utilities, labor, or transportation to SW increases by 5% or more, provided that SW provides Depositor written notice of the changes at least thirty (30) days prior to the date the change is to become effective. Storage charges are assessed per Exhibit 2.
5.2 Handling charges cover the ordinary labor involved in receiving Goods at the warehouse door, placing Goods in storage, and returning Goods to the warehouse door for pickup. Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by SW in receiving and handling damaged Goods, and additional expenses in unloading from or loading into cars or other vehicles not at the Warehouse door will be charged to the Depositor. Labor and materials used in loading rail cars or other vehicles are chargeable to Depositor. SW shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless related damages result from SW’s failure to exercise the degree of care required under this Agreement or under applicable law.
5.3 All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Depositor. Depositor shall be responsible for all such charges, costs, and taxes; provided, that Depositor shall not be responsible for any taxes imposed on, or with respect to, SW’s income, revenues, gross receipts, personnel, or real or personal property.
5.4 Depositor is subject to and shall pay the minimum handling charge per receipt or order and a minimum storage charge per month, if applicable and as specified in this Agreement.
5.5 Depositor shall notify SW in writing of any Goods subject to a U.S. Customs Bond. Storage charges may accrue during any required holding period for Goods subject to a U.S. Customs bond. Where a warehouse receipt covers such Goods, it shall be Depositor’s sole obligation to manage the timing of shipment of the Goods to comply with any required holding period. SW will have no liability for Goods seized or removed by U.S. Customs.
5.6 All technology rates charged to cover the ordinary labor involved in the design, scoping, customizing, or developing integrations to SWIMS are due and payable whether Services are implemented or initiated unless otherwise agreed to in writing.
SECTION 6. PAYMENT TERMS.
6.1 All invoices for Services are due and payable fifteen (15) days from date of invoice. Depositor shall make all payments hereunder in US dollars. Depositor shall pay interest on all payments not received within fifteen (15) days of any invoice date at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated and compounded daily from the date due until paid in full. Depositor shall reimburse SW for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which SW does not waive by the exercise of any rights hereunder), SW shall be entitled to suspend the release of any Goods or cease performance of any services (“On Hold”) if Depositor fails to pay any amounts when due hereunder. In addition, SW reserves the right to require payment in full of all amounts owed by Depositor in advance of the release of the related Goods. Depositor shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with SW, whether relating to SW’s breach, bankruptcy or otherwise. Should Depositor be placed On Hold due to non-payment, a Reinstatement Fee shall be applied each time Depositor is reinstated and the On Hold is removed from the account. If Depositor is placed On Hold three times in a one year period, SW shall require not only the Reinstatement Fee but an additional deposit, the amount of the deposit shall be at SW sole discretion, prior to removal of the On Hold status.
6.2 If Exhibit 2 – Core Project Pricing requires ACH/Deposit, Depositor must enroll for automatic payments to be made via ACH or credit card (subject to additional processing fees). All payments will automatically be deducted from Depositor’s designated savings or checking account or credit card on the invoice due date. In addition, a deposit in the amount included in Exhibit 2 – Core Project Pricing is due to SW upon execution of this agreement (the “Deposit”). SW will invoice Depositor for the Deposit and payment will be payable pursuant to Section 6.1. The Deposit will be held by SW as security for fulfillment of all obligations in this Agreement. Upon any non-payment of invoices, SW may apply all or a portion of the Deposit as full or partial payment for unpaid invoices. Any unapplied balance of the Deposit shall be returned to the Depositor once all invoices have been fully paid and Depositor has moved out pursuant to this Agreement.
6.3 In connection with this Agreement, SW shall have the right to seek and obtain a credit check or credit report on Depositor, and Depositor hereby consents to the same. If SW determines that Depositor’s financial condition or creditworthiness is inadequate or unsatisfactory, including based on Depositor’s default of its payment obligations hereunder, then in addition to SW’s other rights, it may without liability or penalty (i) accelerate all amounts due hereunder, and (ii) modify the payment terms, including requiring Depositor to issue a deposit, make payments via ACH or credit card or make advance payment of all storage charges prior to shipment of Goods.
6.4 In order to request a credit with respect to charges for Services, Depositor must notify SW via the SW ServiceNow portal within sixty (60) days after the incident giving rise to such credit request in accordance with SW’s credit process. If Depositor does not notify SW within said time frame, Depositor waives their right to request a credit. SW shall consider the request by Depositor and determine whether a credit will be granted at its sole discretion.
SECTION 7. LIMITED WARRANTY.
7.1 SW shall not be liable for any loss or damage to the Goods tendered, stored, or handled, however caused, unless such loss or damage resulted from SW’s failure to exercise the degree of care required under UCC 7. SW is not liable for damages which could not have been avoided by the exercise of such care. SW is not liable for damages identified at time of receipt, or for all Goods identified as carton fatigue damage while in SW’s care, custody, and control.
7.2 Depositor hereby acknowledges that the Goods are not insured by SW against loss or damage however caused. Depositor hereby agrees that is it Depositor’s responsibility at all times to maintain insurance that covers the cost of the products held in inventory and written on a “All Risk” form. Depositor has the option to add the Warehouse as the designated storage location to Depositors general inventory policy. SW and Depositor hereby agree to carry and maintain during the term of this Agreement insurance coverages to comply with the insurance requirements set forth in Exhibit 6 – Insurance Requirements.
7.3 Depositor shall waive and release all claims and cause its insurers to waive and release all claims against SW for loss or damage to Goods which are covered or capable of being covered by insurance, whether carried or not.
7.4 SW shall not be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods, unless Depositor establishes such loss occurred because of SW’s failure to exercise the degree of care required hereunder or under UCC 7. Any presumption of conversion under applicable law shall not apply to a loss with respect to any Goods, and a claim for conversion must be established through affirmative evidence that SW converted the Goods to its own use. Depositor shall permit SW to inspect any damaged Goods for which a claim is submitted hereunder.
7.5 If SW is negligent in mis-shipping any Goods contracted by SW, it shall pay, as Depositor’s exclusive damages and subject to the limitation of liability contained in Section 7.8, reasonable domestic transportation charges to return only the mis-shipped Goods to the Warehouse using the similar shipping service level as the original shipment and to reship replacement Goods using similar shipping service levels as the original shipment.
7.6 SW shall not be liable for any breach of this Section 7 unless: (i) Depositor gives written notice to SW of any claim within ten (10) days after release of the Goods by SW, or (ii) SW provides Notice to Depositor, including a reasonable description of the facts and circumstances, that loss or damage to part or all of the Goods has occurred, as the case may be. No lawsuit or other action may be maintained by Depositor against SW for loss or damage to the Goods unless a timely written claim has been given by Depositor as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of: six (6) months after the date of delivery of the Goods to Depositor or its nominee by SW or six (6) months after Depositor is notified by SW that loss or damage to part or all of the Goods has occurred.
7.7 As to the Services under the Agreement, and except as otherwise agreed in writing between SW and Depositor, the maximum collective liability of SW and third party subcontractors arising out of or related to loss or damage to Goods, however caused, shall not exceed the lesser of (i) Depositor’s actual damages, or (ii) $0.50 per pound or $1.00 per cubic foot of the portion of the Goods lost or damaged. As to freight forwarding services, the liability of SW shall be limited as set forth in SW’s Freight Forwarding Terms & Conditions per Section 1.4. In no instance shall any one claim exceed the limit of SW’s liability insurance. The remedies set forth in this Section 7 shall be Depositor’s sole and exclusive remedy and SW’s entire liability for any loss, damage, and/or destruction of the Goods. Depositor waives all right of subrogation on behalf of its insurers for any loss or damage in excess of Depositor’s liability as agreed and determined under this Section.
7.8 In the case of loss or damage to tendered, stored, or handled Goods for which SW is not liable, Depositor shall be responsible for all costs and charges incurred in removing and disposing of such Goods, including any environmental clean-up and remediation costs related to such Goods and their removal and disposal.
7.9 THE FOREGOING WARRANTIES ARE IN LIEU OF, AND SW DISCLAIMS, ALL OTHER WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SW DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT ALL DEFECTS WILL BE CORRECTED, OR WILL MEET DEPOSITOR’S REQUIREMENTS. THE SERVICES AND SWIMS ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS AND ARE SUBJECT TO TIME DELAYS.
SECTION 8. TERM AND TERMINATION OF AGREEMENT.
8.1 Term. This Agreement is effective as of the Effective Date and will expire on the dates as set forth herein.
8.2 Termination.
(a)In addition to any remedies that may be provided under the Agreement, SW may terminate the Agreement with immediate effect upon written notice to Depositor, if: (i) Depositor fails to pay any amount when due under the Agreement and such failure continues for ten (10) days after Depositor’s receipt of written notice of nonpayment; (ii) Depositor has not otherwise performed or complied with its obligations under any of the provisions contained in the Agreement, in whole or in part; (iii) Depositor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; (iv) the Goods are a hazard to other property within the Warehouse or to the Warehouse itself or to persons as a result of the quality or condition of the Goods of which SW had no notice at the time of deposit; or (v) the Goods are about to deteriorate or decline in value to less than the amount of the warehouse lien set forth in Section 6 before the end of the next succeeding storage month.
(b)The Agreement may be canceled by either Party upon thirty (30) days’ prior written notice with or without any cause or reason being given or required and may be terminated without notice by either party if no storage or other services are performed under the Agreement for a period of 180 consecutive days.
(c) If the Agreement is terminated for any reason, Depositor shall promptly arrange for the removal of all Goods from the Warehouse, subject to payment of all outstanding fees and charges due hereunder. If Depositor does not promptly remove such Goods, SW may without liability remove the Goods and sell the Goods at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Goods (to the last known place of business of the person to be notified) in the manner provided by law, including UCC 7. If SW, after a reasonable effort, is unable to sell the Goods, it may dispose of them without liability in any lawful manner.
(d) Removal of all Goods shall be subject to the terms and conditions of the SW Move Out Policy, which are incorporated by this reference.
SECTION 9. INDEMNITY.
9.1 Indemnification. Subject to Section 7, each party hereto (“Indemnitor”) shall indemnify, defend and hold harmless the other party and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnitee”) against any and all third party losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including undercharges, rail demurrage, truck/intermodal detention or related charges and reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by Indemnitee to the extent arising out of the gross negligence or willful misconduct of Indemnitor in connection with the Services or this Agreement.9.2 Notification. Each party to this Agreement agrees to (1) promptly notify the other party in writing of any claim arising from or related to performance of the Services or the breach of any representation or warranty herein; (2) at the other party’s request and expense, give assistance reasonably required for the defense of any such claim; and (3) give the other party control of the defense and/or settlement of such claim, provided, however, that the party may participate in such defense and/or settlement at its option and expense, and provided further that the other party shall not enter into any settlement which may affect the party without the prior written consent of the party.
9.3 Aggregate Limitation of Liability. In no event shall SW and its third party subcontractors be responsible or liable for any consequential, indirect, incidental, or special damages of any type or nature whatsoever and however arising, including, without limitation, exemplary, or punitive damages, chargebacks, lost profits or revenues, or diminution in value, arising out of or relating to any breach of any provision of this Agreement, whether or not the possibility of such damages has been disclosed in advance by Depositor or could have been reasonably foreseen by person or entity, 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. In no event shall SW and its third party subcontractors’ aggregate liability under this Agreement exceed the total of the amounts paid to SW for the Services rendered hereunder in the preceding twelve (12) months.
SECTION 10. CONFIDENTIALITY.
10.1 Each party (“Recipient”) will treat as confidential all trade secrets, work product and other information disclosed by the other party (“Discloser”) regarding Discloser’s products, pricing, or business provided or made accessible by a party under this Agreement (the “Confidential Information”). Recipient will not disclose the Confidential Information to any third party, nor use that information, directly or indirectly, other than as contemplated by this Agreement, without the express written consent of Discloser. Further, Recipient acknowledges the confidential and proprietary nature of the Confidential Information, and agrees that it will not assert nor acquire any right of any kind whatsoever with respect to any patent, patent application, copyright, trademark, trade secret or other proprietary right as a result of obtaining and using the Confidential Information, and that Discloser is, and will remain at all times, the sole owner of the Confidential Information. For purposes hereof, the Confidential Information does not include information that: (1) at the time of disclosure, is already in the public domain; (2) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by Recipient; (3) Recipient can establish by competent proof was in Recipient's possession at the time of disclosure and was not acquired, directly or indirectly, from Discloser (or an affiliate thereof); or (4) Recipient receives from a third party (other than an affiliate of Discloser) without any reasonable basis to believe that such third party is under any obligation which would be breached by disclosing such information to Recipient; provided, however, that such information was not obtained by such third party, directly or indirectly, from Discloser or an affiliate. The Confidential Information shall not be deemed to be or have come into the public domain merely because any part of such Confidential Information is embodied in general disclosures or because individual features, components or combinations thereof are or become publicly known.
10.2 Recipient will hold in confidence and take such steps as it normally takes to protect its own confidential and proprietary information, but in any event no less than reasonable steps, to preserve the confidentiality of the Confidential Information disclosed to Recipient by Discloser (including Confidential Information disclosed prior to the date hereof related to this Agreement, the Services or any information necessary for the performance thereof).
10.3 Nothing in this Section shall prohibit Recipient from complying with applicable legal or regulatory requirements or a validly issued subpoena, order of a court of competent jurisdiction or other request for information from a governmental agency, seeking disclosure of any Confidential Information, provided that Recipient provides prompt notice thereof to Discloser (unless legally prohibited) so that Discloser may seek a protective order or other appropriate remedy. Recipient shall thereafter be entitled to comply with such legal or regulatory requirements, subpoena, court order or other request for information. The Confidential Information that is disclosed pursuant to this Section shall remain confidential for all other purposes of this Agreement.
10.4 Recipient agrees that, at Discloser’s request, Recipient will promptly return to Discloser or destroy any of the Confidential Information that Discloser may have delivered to Recipient in writing or in any other tangible form, and that Recipient will retain no copies thereof (except that Recipient’s attorney may retain one (1) copy in a sealed file).
10.5 The provisions of this Section are necessary for the protection of Discloser’s business and goodwill and are considered by the parties to be reasonable for such purpose. Recipient agrees that any breach of this Section will cause Discloser substantial and irreparable harm and, therefore, in the event of any such breach, in addition to other remedies that may be available to Discloser, Discloser shall have the right to seek specific performance and other injunctive and equitable relief.
SECTION 11. GENERAL PROVISIONS.
11.1 Data Privacy. This Agreement incorporates by reference the terms and conditions of the SW Privacy Policy. Notwithstanding anything in this Agreement to the contrary, SW may use and disclose the data that is collected, stored, processed or generated through the Services for any legally permissible purpose.11.2 Applicable Law. Depositor represents and warrants that it has reviewed and is in full compliance with all applicable state and Federal laws and regulations, including without limitation, all shipping obligations and regulations. Depositor agrees to indemnify, defend and hold SW harmless from all claims and any fines, penalties, costs and expenses (including attorney’s fees), and other charges of any nature whatsoever resulting from Depositor’s failure to comply with the requirements of this Section.
11.3 Intellectual Property Rights. SW and Depositor acknowledge that the other has certain intellectual property rights that may be revealed or provided to the other Party in the course of performance the Services. Each Party acknowledges that this Agreement does not grant any right or title of ownership in their respective intellectual property rights to the other unless specifically provided in the Agreement. Any intellectual property remains the originator’s property unless otherwise provided herein. SW retains all right, title and interest, including intellectual property rights and all other rights in SWIMS, the Services and the Work Product. “Work Product” means any documentation, techniques, methodologies, inventions, analysis frameworks, software, or procedures developed, conceived, or introduced by SW in the course of performing the Services, whether acting alone or in conjunction with Depositor or its employees, users, Affiliates or others. Work Product does not include any Confidential Information of Depositor.
11.4 Binding Nature of Agreement; No Third Party Beneficiaries. All the terms and provisions of this Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and personal representatives. It is not the intention of the parties to confer third party beneficiary rights upon any other third party.
11.5 Subcontractors. SW may at its discretion appoint a third party vendor for all or portion of the Services. Depositor hereby grants SW authorization to disclose to third party vendors Depositor’s Confidential information and shipping information reasonably necessary to perform the Services, provided that such third party vendor is subject to confidentiality obligations no less stringent than the obligations under this Agreement.
11.6 Publicity. Neither party will issue a press release or marketing or sales materials regarding the other party or the relationship of the parties without the prior written consent of the other party, which either party may withhold in its sole discretion.
11.7 Force Majeure. The performance by any Party of its respective obligations under this Agreement will be excused during the period of time and to the extent that such performance is delayed or prevented due to any cause beyond the control of such party, including, but not limited to, any act of God, war (whether declared or not) or threat of war, government retaliation against foreign or domestic enemies, invasion, civil unrest, revolution, terrorist act or threats, earthquakes, fires, floods or other natural disasters, order or act of government or government agency or officers, recognized health threats (including any pandemic or epidemic) as determined by the World Health Organization, the Center for Disease Control, local health agency or any other applicable governmental authority, labor disturbances, strikes, disruption of financial institutions, interruption of utilities or transportation or communication lines, embargo, or other causes or acts of a similar nature or force (each of the foregoing, a “Force Majeure Event” and collectively, “Force Majeure Events”). In the event of a Force Majeure Event affecting a Party’s obligations hereunder, the affected Party will use commercially reasonable efforts to notify the other Party and to resume any affected obligations as soon as reasonably practicable. If SW has been unable to remove/deliver the Goods due to any reason specified in this Section, such Goods shall be subject to storage charges until such Goods are actually removed/delivered.
11.8 Assignment. This Agreement may not be assigned by Depositor without the prior written consent of SW, which consent shall not be unreasonably withheld. SW may, by written notice to the Depositor, assign its rights and obligations hereunder to any Affiliate of SW, to a successor or transferee (whether by merger, consolidation, purchase or otherwise) of either (i) all or substantially all of the assets of SW or (ii) all or substantially all of the assets of the business or any part of the business to which this Agreement pertains.
“Affiliate” shall mean, with respect to a party, any individual, corporation or other business entity which, either directly or indirectly, controls the party, is controlled by the party, or is under common control with the party. As used herein, “control” means possession of the power to direct, or cause the direction of the management and policies of a corporation or other entity whether through the ownership of voting securities, by contract or otherwise.
11.9 Governing Law; Venue. This Agreement will be governed by and will be construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to principles of conflicts of law. SW and Depositor hereby agree that, except as expressly noted otherwise in this Agreement, the terms of UCC, Article 7, Documents of Title (2003) apply to and govern the Services and Goods subject to this Agreement (“UCC 7”). All disputes arising out of or relating to or in connection with this Agreement, or the breach or default of this Agreement, will be determined solely by a state or federal trial court located in Johnson County, Kansas, and the Parties consent to the jurisdiction of those courts.
11.10 Litigation Costs and Expenses. Should either Party institute any legal suit, action or proceeding to enforce the Agreement, the prevailing Party shall be entitled to receive, and the other Party shall pay, in addition to all other remedies to which prevailing Party may be entitled, the costs and expenses incurred in conducting the suit, action or proceeding, including attorneys’ fees and expenses, court costs and other expenses, even if not recoverable by law (including, without limitation, all fees, taxes, costs and expenses incident to appellate, bankruptcy and post-judgment proceedings).
11.11 Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under the Agreement, including exhibits and other attachments to the Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement, including any exhibits and other attachments to the Agreement, and the transactions contemplated hereby.
11.12 Survival Subject to the limitations and other provisions of the Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of the Agreement; and (b) sections 4, 8, 9, 10, 11.2, 11.8, 11.9, and 11.10 of the Agreement, as well as any other provision that, in order to give proper effect to its intent, shall survive the expiration or earlier termination of the Agreement.
11.13 Notices. All notices or other communications required or permitted under this Agreement will be in writing and will be deemed duly given either (a) when delivered in person to the recipient party, (b) upon transmittal of an email transmission to the recipient party at the email address designated for the recipient party in the recipient party’s contact information in this Agreement, with reasonable evidence of successful transmission, or (c) seven (7) calendar after being mailed by either registered or certified U.S. mail, return receipt requested, postage prepaid to the recipient party at the mailing address designated for the recipient party in the recipient party’s contact information in this Agreement. Either Party may designate an alternative mailing address or email address for notice to itself at any time upon written notice to the other Party, delivered in accordance with this Section.
11.14 Entire Agreement. This Agreement contains the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written. In the event of a conflict between these Terms and Conditions and any additional terms and conditions, including but not limited to those terms and conditions included in an Exhibit, quote or proposal, invoice, or purchase order, these Terms and Conditions shall govern. The parties are both sophisticated entities. The prices paid, the warranties, warranty disclaimers, limitations of liability, remedy limitations, and all other provisions of this Agreement, were negotiated to reflect and support an informed and voluntary allocation of risks between SW and Depositor, and both parties waive all protections of any trade practices statutes.
11.15 Changes. SW reserves the right, in its sole discretion, to change these Terms and Conditions under which the Services are offered. The most current version of the Terms and Conditions will supersede all previous versions. SW encourages you to periodically review the terms and conditions to stay informed of any updates. Depositor’s continued use of the Services following any changes to these Terms and Conditions shall constitute full acceptance of the updated Terms and Conditions.
11.16 No Waiver. No failure or delay by any party in exercising any right, power, or privilege hereunder will operate as a waiver of any right, power, or privilege hereunder. No waiver of any default on any one occasion will constitute a waiver of any subsequent or other default. No single or partial exercise of any right, power, or privilege will preclude the further or full exercise thereof.
11.17 Severability. The provisions of this Agreement will be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof will not affect the validity and enforceability of the other provisions hereof.11.18 Remedies. The rights and remedies of the parties with respect to failure of a party to comply with the terms of this Agreement are not exclusive, the exercise thereof will not constitute an election of remedies and the aggrieved party will in all events be entitled to seek whatever additional remedies may be available in law or in equity.
11.19 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument.11.20 Consent to Conduct Business Electronically. Except as may be specifically set forth in this Agreement, the parties may use and rely upon electronic records and electronic signatures (a) for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement, and (b) in performing their obligations or exercising their rights under this Agreement. The parties agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files or electronic records are to be in writing or signed by the party to be bound thereby. Each party will bear its own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware and other equipment upgrades and purchases, in order to be able to conduct business electronically.
11.21 Construction. The terms “include,” “including” and similar terms will be construed as if followed by the phrase “without being limited to.” The term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereto,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision or section of this Agreement. Unless otherwise expressly stated, the term “party” means a party hereto and “parties” means, collectively, all parties hereto. All references herein to sections and exhibits will be construed to refer to sections of, and exhibits to, this Agreement. The headings of this Agreement are for purposes of reference only and will not limit or otherwise affect the meaning hereof.