TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS OF SERVICE (THE “TERMS”), TOGETHER WITH THE APPLICABLE SUBSCRIPTION FORM(S), (AND ANY API LICENSE, IF APPLICABLE), WHEN ENTERED INTO BY THE PARTIES, CONSTITUTE A LEGALLY BINDING AGREEMENT (COLLECTIVELY THE "AGREEMENT") BETWEEN SHIP ESSENTIAL INC AND THE SUBSCRIBER TO SHIP ESSENTIAL SERVICES ("CUSTOMER"). THESE TERMS GOVERN SHIP ESSENTIAL’S PROVISION OF SERVICES AND CONTENT TO CUSTOMER AND CUSTOMER’S USE OF THOSE SERVICES AND CONTENT. SHIP ESSENTIAL MAY MODIFY THESE TERMS IN ITS SOLE DISCRETION ON 30 DAYS’ ADVANCE NOTICE (BY WEBSITE POSTING OR OTHERWISE) TO BE EFFECTIVE UPON THE BEGINNING OF THE NEXT RENEWAL TERM AFTER SUCH 30 DAY PERIOD, AND CUSTOMER’S CONTINUED USE OF THE SERVICES AND CONTENT AFTER ANY SUCH MODIFICATIONS CONSTITUTES CUSTOMER’S ACCEPTANCE OF THEM EFFECTIVE UPON THE BEGINNING OF THE NEXT RENEWAL TERM AFTER SUCH 30 DAY PERIOD.
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 are hereby acknowledged, the parties agree as follows:
RECITALS
WHEREAS, Company is in the business of selling and/or manufacturing certain products (“Products”);
WHEREAS, Ship Essential provides to various retailers and manufacturers order fulfillment services, pursuant to which Ship Essential provides storage, packing and shipping services to Company’s customers; and
WHEREAS, Company desires to retain Ship Essential’s services, and Ship Essential desires to provide services to Company, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. APPOINTMENT
Company hereby engages Ship Essential to provide, and Ship Essential hereby agrees, upon the terms and subject to the conditions set forth in this Agreement, to provide, the Services (as defined below) to Company, the conduct of the Parties shall be subject to the terms and conditions of this Agreement.
2. Ship Essential SERVICES AND FEES
2.1 Services. Ship Essential shall provide the following services to Company (collectively, the “Services”):
A. Receive shipments from Company or from Company’s suppliers of the Product
B. Provide storage facilities for Company’s goods for sale (“Inventory”) in Ship Essential’s warehousing facilities (“Warehouse”).
C. Upon notification by Company of a purchase of Products by a customer or to otherwise deliver Products to any location, Ship Essential will pick and package the Products from the available Inventory, and ship such Products directly to the customer or such other location (the “End User”).
D. Ship Essential will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
E. Upon request by Company, Ship Essential will include a Company packing slip, and/or other Company materials concerning the Product, to be provided by Company.
F. Ship Essential will process, package and ship all Product orders in accordance with Ship Essential policies.
G. Ship Essential will maintain monthly ledger summaries of all orders shipped and received, which shall be made available to Company through Ship Essential billing.
H. Ship Essential will facilitate any Product returns from the End-User as directed in writing by the Company.
I. In addition to the above described Services, Ship Essential shall perform any additional services, including special projects, that Company desires Ship Essential to perform, on such terms, as the parties may mutually agree upon from time to time.
2.2 Service Levels. Ship Essential shall use its commercially reasonable efforts to provide the Services under this Agreement at levels that are consistent with industry standards for the Products involved and, on such conditions, and requirements as the Parties may mutually agree upon.
3. COMPENSATION AND REIMBURSEMENT FOR SERVICES Payments and Invoicing. Ship Essential shall invoice Company for all
fees and third party expenses on a weekly basis. Payments are made by Company via Auto-Pay within twenty-four (24) hours of invoice receipt. If Ship Essential determines that Company's financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Ship Essential's other rights, it may without liability or penalty (i) accelerate all amounts due hereunder; (ii) modify the payment terms, including requiring Company to make advance payment of all fees and charges prior to the provision of any Services hereunder; or (iii) require the posting of a letter of credit or a guaranty**.**
3.1 Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to Company. Under no circumstances shall Ship Essential accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.
3.2 Late Payment Fee. If Ship Essential fails to receive payment from Company by the due date of the invoice, a late payment fee of one percent (1%) per month will be applied to the invoice, unless the invoice is currently being disputed in good faith, in which case Company must pay the undisputed amount.
3.3 Options and Ways to Pay. Ship Essential provides Company with a convenience to pay for their invoices via bank transfer & ACH transfer (with a 1% convenience fee charged to the Company) or credit card (with a 3% convenience fee charged to the Company). Ship Essential is using a third-party payment processing company and Ship Essential does not store any payment information on its own servers; all of Company’s payment information is stored with the third party provider. If Company’s invoice remains unpaid for more than thirty (30) days from the issue date, Company agrees that Ship Essential shall have the right to auto-charge any payment method that has been used in the past.
4. TITLE, RISK OF LOSS AND INSURANCE
4.1 Title. Title for Products remains with Client and Ship Essential holds no title, or any other rights of ownership in the Products.
4.2 Risk of Loss. Client hereby agrees that at no time during the period that Products are held by Ship Essential will Ship Essential carry the risk of loss in the Products. Risk of Loss in Products will continue to be held by Client until such time as the Products are delivered to the Customer. Ship Essential shall exercise commercially reasonable standards of care for all of Client’s Products in its possession but specifically disclaims liability for any and all losses.
4.3 Insurance. COMPANY HEREBY AGREES THAT IT IS COMPANY’S RESPONSIBILITY, AT ALL TIMES, TO MAINTAIN INSURANCE THAT COVERS THE COST OF THE PRODUCTS HELD IN INVENTORY. Company shall add the Warehouse as a designated storage location to Company’s general inventory policy. If requested by Company, Ship Essential shall allow Warehouse premises inspection during normal business hours and with at least ten (10) days prior notice in order to assist Company in obtaining coverage. Ship Essential may at its election maintain insurance relating to the provision of Services and Products, and it shall be entitled to charge Company its pro rata share of any premiums for such insurance.
4.4 No Insurance. Company can choose not to insure its inventory. In this event, Ship Essential will, under no circumstances, be liable for any loss or damage to Company inventory stored at Ship Essential facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event.
5. COMPANY’S ACCOUNT
5.1 Services Available Through the Account. Subject to Company’s compliance with this Agreement, Ship Essential shall perform the Services described in this Agreement as selected and authorized by Company in its account (the “Account”). Company may order Services through the Account (“Ship Essential Services Orders”). All Ship Essential Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that Ship Essential operates as a third-party warehouse and broker of shipping services; accepting shipments from, and making shipments to, third parties. Ship Essential is an independent contractor for all purposes.
5.2 Account Balances. Any invoices Ship Essential sends to Company in accordance with Section 4 of this Agreement shall be based on any balance accrued in 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. The 3rd Party Fees for Services are billed during the month in which the Services are performed, but such 3rd Party Fees are subject to change due to circumstances beyond Ship Essential’s control. Company agrees and acknowledges that should Company change 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 will be billed following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.
5.3 Ship Essential Services Estimates. Quotes for 3rd Party Fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon Ship Essential. Any quotations that may be accepted through Ship Essential’s online interface or otherwise provided by Ship Essential are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.
5.4 Pricing Changes & Currency Fluctuations. Ship Essential reserves the right to adjust its pricing for its Services, with thirty (30) days’ notice via publication either on the Ship Essential website and/or directly to Company due to market forces and/or in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. At Company’s written request, Ship Essential will consider reducing the monthly minimum if the reduction of volume is outside of the direct control of Company.
5.5 Fee Disputes. Should Company disagree with any fees (other than carrier or third-party fees which shall not be subject to dispute) invoiced or charged against the Account, Company must submit written notice to Ship Essential within ten (10) days of the fee being charged (“Dispute Period”). Ship Essential will not review requests for fee adjustments that are received after the Dispute Period.
5.6 Account Balance Disputes. If Ship Essential becomes aware of, or is notified of, a dispute relating to the Account Balance, then Ship Essential will promptly review the dispute. Within five (5) business days after the resolution of the dispute, Ship Essential will forward a bill for outstanding amounts due, if appropriate.
5.7 Abandoned Account and Liquidation. If Company’s fees or 3rdParty Fees remain unpaid for a period greater than thirty (30) days, then Ship Essential reserves the right, at its sole discretion to reclassify any portion of a Company’s Account with Ship Essential as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than sixty (60) days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits its rights of ownership of such Company’s Inventory up to the cumulative amount necessary for payment of all fees and 3rdParty Fees as well as any reasonable expenses incurred by Ship Essential for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of Ship Essential and would be free and clear of any liability to or claim of Company, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above. Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, Company would remain liable for any pending fees and 3rd Party Fees above and beyond the liquidation proceeds. Ship Essential shall notify Company and confer with its management before taking any of the actions described in this Section 6.7.
5.8 Bankruptcy Provision. In the event Client voluntarily files a Chapter 11 bankruptcy petition (or becomes subject to an involuntary bankruptcy petition), it shall, as soon as practicable thereafter, seek entry of an Order from the U.S. Bankruptcy Court having jurisdiction over Client’s bankruptcy case(s), in form and substance acceptable to Ship Essential, (a) assuming this Agreement, or (b) naming Ship Essential as a “critical vendor” and authorizing the payment of Ship Essential’s pre-petition invoices. Client acknowledges that its failure to timely procure either such Order shall automatically serve as grounds for Ship Essential’s immediate rejection/termination of this Agreement. Client acknowledges that Ship Essential is relying on this provision as an inducement to enter into this Agreement and provide further services to Client from and after the date hereof.
5.9 Termination of the Account. Upon termination of the contract, the Account will be inaccessible to Company, and all activities will be suspended. Ship Essential reserves the right to cease shipping orders for a number of reasons, including but not limited to the following:
A. Account Balance remaining unpaid within twenty (20) days of receipt of invoice; or
B. if anyone using the Account uses abusive language or otherwise threatens Ship Essential or its employees, agents or representatives.
5.10 Termination for Breach. Either Party may terminate this Agreement upon thirty (30) days’ notice to the other Party in the event of a breach by the other Party of any provision of this Agreement if the breaching Party fails to cure such breach during the thirty (30) day period; provided, that Ship Essential may terminate this Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30-day cure period, a thirty (30) day wind-down of Company Account shall commence (“Termination Notice Period”). Company shall have full use of the Account during the Termination Notice Period for the sole purpose of winding down its use of the Account in a commercially reasonable manner. Any Product inventory that remains in Ship Essential’s inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company’s credit card, at Company’s expense. If no address is available or no balance is available to pay for shipment back to Company, Ship Essential will liquidate the Product inventory in accordance with an Abandoned Account. In the event Ship Essential breaches the obligations of this agreement at any time during the Term, Company must notify Ship Essential in writing. If Ship Essential fails to cure within thirty (30) days following receipt of notice, excluding any peak periods of activity, Company shall, within ten (10) days following the cure period be permitted to cancel this agreement. Damages are not applicable if Ship Essential terminates this Agreement due to failure to perform or breach of contract by Company.
5.11 Additional Actions. If Company is in breach of any of the terms of this Agreement, Ship Essential may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, Ship Essential may also take any additionally available legal actions
5.12 Closing Accounts. Company may close the Account for any reason, upon giving Ship Essential thirty (30) days prior written notice. If the account is closed prior to the expiration of the term as defined in Section 2.1, Company will be responsible for all monthly minimum charges for all remaining months of the current term. Merchandise will be returned subject to Company paying Ship Essential’s costs for labor and shipping.
5.13 Products Transfer. Any Products that remain at Ship Essential’s Warehouse at the expiration or earlier termination of this Agreement will be shipped to Client, at Client’s expense, at the address on file and, if an address is not on file, the billing address on Client’s credit card; Client will be responsible for all costs and expenses for shipping and if Client does not have a positive account balance, Ship Essential will require Client pre-pay for such shipment. If no address is available or no balance or pre-pay is available to pay for shipment back to Client, Ship Essential will liquidate the Products in accordance with an Abandoned Account.
6. Ship Essential INTELLECTUAL PROPERTY RIGHTS
6.1 Ship Essential Property. For purposes of this Agreement, “Ship Essential Property” shall mean (a) Ship Essential’s methodology for the provision of the Services; and (b) Ship Essential’s Confidential Information. Ship Essential hereby retains all worldwide right, title and interest in and to the Ship Essential Property. Any rights not expressly granted herein to the Ship Essential Property shall be retained by Ship Essential. Company acknowledges that all right, title and interest to the Ship Essential Property is owned by Ship Essential.
6.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to
modify, translate, decompile, disassemble, or reverse engineer any part of the Ship Essential Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, rent, lease, distribute, or otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Ship Essential, and Company shall not copy, imitate, or use them without Ship Essential’s express prior written consent.
Company may use HTML logos provided by Ship Essential through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to the Ship Essential website. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Ship Essential or the Services, or display them in any manner that implies Ship Essential’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 Ship Essential’s website or Services for any purpose without Ship Essential’s express written permission,
(ii) interfere or attempt to interfere with the proper working of Ship Essential’s website or any activities conducted on the website, or (iii) bypass any measures Ship Essential may use to prevent or restrict access to Ship Essential’s website or the Services.
6.3 Client Property. No Confidential Information obtained by Ship Essential from Company shall become Ship Essential Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants Ship Essential a non-exclusive license to the Client Property solely as needed to provide the Services.
6.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in the United States. Ship Essential has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. These measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. Ship Essential will promptly notify Company of any unauthorized Account access to, or use of, Data that comes to Ship Essential’s attention. Company agrees to immediately notify Ship Essential of any suspected security breach at the website, followed by contacting Ship Essential customer support.
6.5 Third Party Software. Any third party software application Company uses on the Ship Essential website, to connect to the Services, or related to the Services (“Third Party Software”) is solely subject to any Third Party Software provider software licenses. Ship Essential does not own, control or have any responsibility or liability for any Third Party Software.
6.6 Marketing and Promotional Activities. Client and Ship Essential will participate in the following promotional activities:
A. After the Effective Date, Ship Essential may issue a press release that identifies Client as a new partner of Services and Ship Essential as Client’s primary 3PL provider (“Press Release”).
B. Ship Essential may ask Client to participate in written or video case studies, reference calls, or other agreed upon marketing activity (“Marketing Materials”).
C. Ship Essential may use and distribute Marketing Materials which reference Client on Ship Essential’s website and social media channels, and in sales presentations and written communications (e.g., email) to prospective Ship Essential customers.
7. CONFIDENTIAL INFORMATION
7.1 Scope. From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of this Agreement, “Confidential Information” includes any information which, based on the nature of the information or circumstances surrounding its disclosure, is proprietary to the Discloser and non-public, including without limitation Ship Essential’s pricing for the Services, and 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
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; all personally identifiable information relating to Company’s End Users or employees (“Personal Data”), which shall also may be subject to any additional data processing agreement that may be entered into by the Parties relating to this Agreement; and
F. without limiting the foregoing, Ship Essential’s and Company’s business methods and plans, strategies, sources and vendors, customers and prospects.
7.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information (provided that, Personal Data shall always be deemed confidential):
A. information that is or becomes generally available to and known by the public through no fault of the Receiving Party; B. information that is or becomes available to the Recipient on a non-confidential basis from a third-party source not known to be subject to any duty of confidentiality with respect to such information;
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 and cooperate with the Discloser in obtaining a protective order or similar remedy to maintain the confidentiality of such information.
7.3 Aggregate Use. Subject to the terms and conditions of this Agreement, Company hereby acknowledges and agrees that Ship Essential may compile aggregate results from all of, or a selection of, Company’s use of the Services including Confidential Information, provided that Ship Essential shall not disclose any Confidential Information that would individually identify Company or any End User (“Aggregate Information”). Such Aggregate Information shall be deemed to be Ship Essential’s Confidential Information. Company also hereby agrees that Ship Essential may review and use Company’s individual use of the Services in order to provide Services to Company, to evaluate Ship Essential’s provision of the Services, and to improve Ship Essential’s service offerings.
8. INDEMNITY
8.1 Indemnification. Subject to the terms and conditions of this Agreement, each Party shall indemnify, defend and hold harmless the other party and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, “Losses”), arising out or resulting from any claim of a third party alleging:
A. breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by such Party;
B. any grossly negligent or more culpable act or omission of such party (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
C. any bodily injury, death of any person or damage to real or tangible personal property caused by the Products or the acts or omissions of such Party;
D. any failure by Company or the Products to comply with any applicable law, rule, order or regulation, whether federal, state or international, including without limitation the regulations of the Food and Drug Administration (FDA).
8.2 Notwithstanding the foregoing, a party seeking indemnification must first seek recovery from its insurance coverage, and the liability of an Indemnifying Party for any Losses shall only be for such amounts of Losses that are not covered by the Indemnified Party’s insurance.
9. DISCLAIMERS
9.1 As Is. Ship Essential expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose and non-infringement for the Services, Ship Essential’s website and any third-party services.
9.2 No Continuous Access. Ship Essential does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Ship Essential’s control. However, Ship Essential will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Ship Essential makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
10.3 Ship Essential does not guarantee delivery by a specific day or time. It is the Client’s sole responsibility to provide Ship Essential with the correct destination address for the intended recipient, and Client hereby agrees that Ship Essential is not responsible for any loss, damage or other liability caused by delivery of the Product to the address provided. If the delivery address provided cannot be found at the time of delivery, or a signature of receipt cannot be obtained, Ship Essential will attempt to contact either the Client or the recipient for instructions. If unable to complete the delivery, Ship Essential will arrange for the return of the Merchandise to the ship from address. Return to Client trips, re-routing and any re-delivery attempts will result in an additional Service and Delivery charges.
10. LIMITATION ON Ship Essential LIABILITY
10.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION UNDER SECTION 9 AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER Ship Essential NOR ITS EMPLOYEES, AGENTS, CONTRACTORS OR 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 Ship Essential OR COULD HAVE BEEN REASONABLY FORESEEN BY Ship Essential, 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 Ship Essential’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO Ship Essential EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). .
10.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST Ship Essential FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY. IN THE EVENT OF ANY LOSS OF COMPANY INVENTORY WHILE IT IS IN POSSESSION OF Ship Essential DUE TO THE GROSS NEGLIGENCE OF Ship Essential, Ship Essential SHALL PAY THE REPLACEMENT COST FOR SUCH INVENTORY SUBJECT TO THE DAMAGES CAP.
10.3 INVENTORY MATTERS. Ship Essential WILL EMPLOY INDUSTRY-STANDARD METHODS AND RESOURCES TO PREVENT LOSS, THEFT OR SHRINKAGE OF COMPANY’S PROPERTY. Ship Essential SHALL NOT BE RESPONSIBLE FOR INVENTORY LOSS DUE TO INACCURATE INVENTORY COUNTS OR LOSS INVENTORY AT ANY TIME THAT Ship Essential IS IN POSSESSION OF INVENTORY UNLESS COMPANY REASONABLY DEMONSTRATES THAT SUCH LOSS IS DUE TO AN THE GROSS NEGLIGENCE OF Ship Essential .. IN NO EVENT SHALL Ship Essential BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES
10.4 RESERVED.
11. GENERAL PROVISIONS.
11.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.
11.3 No Waiver. Failure or delay of Ship Essential to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
11.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address listed above. Unless otherwise agreed herein, all Notices must be delivered by email, personal delivery, nationally recognized overnight courier or certified or registered mail to the address or email listed above. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal Notices to Ship Essential must be copied to: Wachtel Missry LLP, 885 Second Avenue, New York, NY 10017, Attention: Morris Missry, Esq. The Parties may change their respective Notice addresses and emails by providing Notice as set forth in this Section 12.4
11.5 Conflict of Terms. If there is a conflict between this Agreement and the terms of any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, this Agreement shall control.
11.6 Attorneys’ Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.
11.7 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of New York without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in New York County, New York. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within New York County, New York. Notwithstanding the foregoing, Ship Essential may seek injunctive or other equitable relief to protect Ship Essential’s intellectual property rights in any court of competent jurisdiction.
11.8 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, pandemics, epidemics, embargoes, explosions, government or agency orders and restrictions, riots, wars or acts of terrorism) (each, a "Force Majeure Event”). Company's financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give Ship Essential prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Company shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement. If requested by Ship Essential, Company shall, within thirty (30) days of such request, provide adequate assurances that a Force Majeure Event will not exceed thirty (30) days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the New York Uniform Commercial Code or any similar statute or regulation.