Business Fulfillment Agreement

BUSINESS FULFILLMENT AGREEMENT

RECITALS

This Business Fulfillment Agreement (the "Agreement") is entered into by and between Client Name: , with principal address at , and Fulfillment Provider Name: , with principal address at .

WHEREAS, Client engages Provider to perform order fulfillment, inventory management, packing, shipping and related services described herein; and

WHEREAS, Provider has the expertise, facilities and personnel necessary to perform the fulfillment services and agrees to perform such services for Client on the terms and conditions set forth in this Agreement.

SCOPE OF WORK

Provider shall provide fulfillment services including receipt and inspection of Client inventory, warehousing, pick and pack, order processing, labeling, packaging, shipment coordination, returns processing, and related logistics support as further specified below. Final deliverables, service levels and performance metrics shall be governed by this Section and any appendices attached hereto.

PAYMENT TERMS

Client shall pay Provider for services rendered in accordance with the following fees, schedule and invoicing procedures.

All invoices are payable in United States dollars unless otherwise agreed in writing. Provider's invoices shall itemize services provided, units processed, shipping charges and reimbursable expenses. Client must notify Provider in writing of any disputed charges within ten (10) days of receipt of an invoice; undisputed amounts shall remain payable as provided above.

TERM AND TERMINATION

This Agreement commences on Start Date: and continues until End Date: unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for convenience upon written notice to the other party given not less than days prior to the effective termination date. Either party may terminate immediately for material breach if the breaching party fails to cure the breach within thirty (30) days following written notice of such breach.

CONFIDENTIALITY

"Confidential Information" means any non-public information disclosed by either party to the other related to operations, pricing, customer lists, product specifications, business plans, or other proprietary information. Recipient shall: (a) use Confidential Information solely to perform its obligations under this Agreement; (b) restrict disclosure to employees and subcontractors who have a need to know and who are bound by confidentiality obligations no less protective than those herein; and (c) exercise at least the same degree of care to protect Confidential Information as it uses to protect its own confidential information, but never less than reasonable care.

Confidential Information shall not include information that: (i) is or becomes generally available to the public through no breach by Recipient; (ii) was known to Recipient prior to disclosure as shown by Recipient's written records; (iii) is received from a third party without breach of an obligation of confidentiality; or (iv) is independently developed by Recipient without use of Confidential Information. The confidentiality obligations survive termination of this Agreement for three (3) years, except for trade secrets which shall be protected for as long as they remain trade secrets under applicable law.

LIMITATION OF LIABILITY & INDEMNIFICATION

Each party shall indemnify and defend the other against claims arising from its gross negligence, willful misconduct or material breach of this Agreement. EXCEPT FOR LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, AND PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO PROVIDER IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of laws principles. Any dispute arising out of or in connection with this Agreement shall be resolved in the state or federal courts located within the same state.

NOTICES

All notices required or permitted under this Agreement must be in writing and sent to the addresses set forth below or to such other address as either party may designate by notice in accordance with this Section.

MISCELLANEOUS

Assignment: Neither party may assign this Agreement or its rights hereunder without the prior written consent of the other party, except that Provider may assign to an affiliate or in connection with a sale of substantially all of its assets or business.

Subcontracting: Provider may engage subcontractors to perform fulfillment services provided Provider remains responsible for the performance of subcontractors and compliance with the terms of this Agreement.

Amendment: This Agreement may be amended only by a written instrument executed by authorized representatives of both parties.

Severability: If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect.

ENTIRE AGREEMENT

This Agreement, together with all schedules and appendices referenced herein and executed contemporaneously, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, statements or understandings, whether written or oral.

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