Fulfillment Services Agreement

FULFILLMENT SERVICES AGREEMENT

This Fulfillment Services Agreement (the Agreement) is entered into as of Effective Date: by and between:

Service Provider Name: ; Address for Notices:

Client Name: ; Address for Notices:

WHEREAS

WHEREAS, Service Provider operates facilities and provides order fulfillment, warehousing, pick-and-pack, inventory management and shipping coordination; and

WHEREAS, Client engages Service Provider to perform fulfillment services for Client's products under the terms and conditions set forth in this Agreement; and

WHEREAS, the parties desire to set forth their respective duties, rates, standards of performance, confidentiality obligations, and remedies in this Agreement.

SCOPE OF WORK

Service Provider shall provide fulfillment services including, but not limited to, inbound receiving, inspection, storage, inventory control, pick-and-pack, labeling, order consolidation, outbound shipping coordination, returns processing, and reporting (collectively, the Services). Specific operational requirements, service levels, product handling instructions, and packaging requirements shall be described below and may be supplemented by operational addenda or schedules executed by the parties.

PAYMENT TERMS

Compensation for the Services shall consist of fees for inbound receiving, storage (per unit or per pallet), pick-and-pack, shipping and handling, special handling, returns processing and any agreed pass-through charges. Fees will be charged as follows:

All fees are payable in the currency specified on the invoice. Client shall be responsible for sales, use, value added or other taxes applicable to the Services, except for taxes based on Service Provider's net income. Disputed invoice items must be submitted in writing within ten (10) days of invoice receipt; undisputed amounts remain payable on the due date.

TERM AND TERMINATION

Commencement Date: . Initial Term: . Thereafter this Agreement shall automatically renew for successive terms of the same duration unless either party provides written notice of non-renewal at least prior to the end of the then-current term.

Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days after receipt of written notice specifying the breach. Either party may terminate without cause upon sixty (60) days' prior written notice. Upon termination, Service Provider shall, at Client's direction and subject to payment of all outstanding fees, return or dispose of Client's inventory in accordance with the parties' written instructions. Client shall remain responsible for all fees and costs incurred prior to and in connection with termination, including reasonable inventory disposition charges.

CONFIDENTIALITY

Each party (the Receiving Party) shall keep confidential and shall not disclose to any third party any Confidential Information of the Disclosing Party. "Confidential Information" includes, without limitation, pricing, customer lists, order data, product specifications, trade secrets, business plans and personally identifiable information of end-customers. The Receiving Party shall use Confidential Information solely for the performance of this Agreement and shall restrict access to employees and agents with a need to know who are bound by confidentiality obligations at least as protective as those set forth herein.

Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party; (b) was in the Receiving Party's possession prior to receipt from the Disclosing Party without restriction; (c) is received by the Receiving Party from a third party without breach of any obligation of confidentiality; or (d) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information. Confidentiality obligations shall survive termination of this Agreement for a period of three (3) years, except with respect to trade secrets which shall remain protected for as long as they qualify as trade secrets.

LIABILITY, INSURANCE AND INDEMNIFICATION

Each party agrees to maintain insurance appropriate to the scope of its obligations, including commercial general liability and, where applicable, cargo/warehouse legal liability. Service Provider shall maintain warehouse legal liability coverage for loss of or damage to Client's inventory while in Service Provider's care, custody and control, subject to the policy limits and any exclusions identified in writing to Client.

Each party shall indemnify, defend and hold harmless the other party from and against claims, liabilities, losses and expenses (including reasonable attorneys' fees) arising from its breach of this Agreement, negligence, willful misconduct or violation of law. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY, NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

COMPLIANCE; AUDITS; DATA SECURITY

Each party shall comply with all applicable laws and regulations in performing its obligations under this Agreement, including export controls, customs requirements and data protection laws. Service Provider shall implement commercially reasonable administrative, physical and technical safeguards to protect Client data and personally identifiable information. Client has the right to audit Service Provider's performance and inventory records upon reasonable prior notice and during normal business hours, subject to confidentiality and the parties' mutually agreed audit procedures.

NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below (or such other address as a party designates by notice). Notices shall be deemed given when received by hand, one business day after deposit with a nationally recognized overnight courier, or three business days after mailing by certified or registered mail.

GOVERNING LAW; DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of law principles. The parties shall endeavor in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation. If the dispute is not resolved by negotiation within sixty (60) days, either party may seek resolution through litigation in the state or federal courts located in the county of the governing state.

ENTIRE AGREEMENT; AMENDMENT

This Agreement, including all schedules, exhibits and written addenda executed by the parties, constitutes the entire agreement between the parties with respect to the Services and supersedes all prior and contemporaneous agreements, proposals, representations and understandings, whether written or oral. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.

MISCELLANEOUS

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign to a successor in connection with a merger, acquisition or sale of substantially all of its assets. The parties are independent contractors and nothing in this Agreement creates an agency, partnership, joint venture or employment relationship.

EXECUTION

The parties have executed this Agreement by their duly authorized representatives as of the Effective Date set forth above.

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