THIS FULFILLMENT SERVICES AGREEMENT ("Agreement") is entered into and effective as of the date per the signature below by and between the Fulfillment Services Client (name, company and address above) and Quality Playing Cards, Inc. d.b.a. Shuffled Ink, having its principal place of business at 3724 Vineland Road Orlando, FL 32811 ("Supplier").
Term
This Agreement will become effective as of the Effective Date and remain in effect for twelve (12) consecutive months. Thereafter, this Agreement shall be automatically renewed for consecutive twelve (12) month terms, unless terminated by either party by providing at least thirty days (30) written notice as applicable. The Client may terminate the agreement at any time, for any reason, and incur no cancellation or termination fees. The Client will be responsible for any freight and logistics costs associated with the shipment of remaining inventory from the Supplier’s possession.
Services
During the Term of this Agreement, Supplier agrees to provide the warehousing, packaging, shipping, and related services as set forth on Exhibit A attached hereto (the “Fulfillment Services”).
Payment
In consideration for the Fulfillment Services, Client agrees to pay Supplier the Fulfillment Services fees set forth on Exhibit A attached hereto. Supplier will provide an invoice to Client at the end of each month, and payment of invoice will be due upon receipt. If any payment(s) become past due for a period equal to or greater than thirty (30) days, Supplier will suspend Fulfillment services until balances are paid and current.
Confidentiality
Each party agrees not to disclose any Confidential Information of the other party to third parties and to take all commercially reasonable precautions to prevent its unauthorized dissemination, both during and after the Term of this Agreement. Without limiting the scope of this obligation, Supplier agrees to take commercially reasonable steps to ensure that it limits its distribution of Client Confidential Information to those employees and approved subcontractors (if any) who have a need to know Client's Confidential Information to perform the Fulfillment Services and who have agreed to be bound by confidentiality terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure than, those of this Agreement. Each party agrees not to use any Confidential Information of the other party for its own benefit or for the benefit of anyone else except for the purpose of performing under this Agreement. “Confidential Information” means information that is disclosed by one party to the other and that the receiving party knows is confidential to the disclosing party or that is of such a nature that someone familiar with the type of business of the disclosing party would reasonably understand is confidential to it. Without limitation, Confidential Information includes financial and other business information of either party. Notwithstanding the foregoing, Confidential Information does not include information that the receiving party can prove: (a) is in the public domain or is generally publicly known through no improper action or inaction by the receiving party, (b) was rightfully in the receiving party’s possession or known by it prior to receipt from the disclosing party, (c) is rightfully disclosed without restriction to the receiving party by a third party without violation of obligation to the disclosing party; or, (d) is independently developed for the receiving party by third parties without use of the Confidential Information of the disclosing party.
Supplier Limitation
Supplier shall not be liable to Client for any indirect, incidental, special, or consequential damages of any kind, including but not limited to, loss of profits, damage to business reputation, arising out of any Inventory or service provided under this Agreement, any performance of, or failure to perform, this Agreement, or any conduct in furtherance of the provisions or objectives of this Agreement, on any theory of liability, whether in an action for contract, strict liability or tort (including negligence) or otherwise, whether or not Supplier has been advised of the possibility of such damages. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SUPPLIER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, REGARDING THE SERVICES UNDER THIS AGREEMENT, OR THE SUCCESS OF ANY ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. IN NO EVENT SHALL SUPPLIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CLIENT TO SUPPLIER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. BECAUSE SUPPLIER IS NOT INVOLVED IN TRANSACTIONS BETWEEN CLIENT AND ITS CUSTOMERS, IF A DISPUTE ARISES BETWEEN CLIENT AND ITS CUSTOMERS, CLIENT AND EACH CUSTOMER RELEASES SUPPLIER (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Force Majeure
Neither party shall be liable for any failure or delay in its performance under this Agreement due to causes which are beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, fire, epidemic, flood, earthquake, riot, war, sabotage, labor shortage or dispute, and governmental action; provided that the delayed party: (a) gives the other party written notice of such cause within five (5) days of occurrence thereof; and (b) uses its reasonable efforts to correct such failure or delay in its performance. The delayed party's time shall be extended for a period equal to the duration of the cause or thirty (30) days, whichever is less.
Applicable Law; Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America. Each party irrevocably submits to the exclusive jurisdiction of the closest federal and state courts located in Orange County, State of Florida, United States of America, for the purposes of any action or proceeding arising out of or relating to this Agreement. Each party consents to such jurisdiction and agrees that venue shall lie therein with respect to any claim or cause of action arising under or relating to this Agreement. Each party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder. In any suit or proceeding between the parties relating to this Agreement, the prevailing party will have the right to recover from the other party its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment.
Severability
If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
Shipping
Supplier will exercise commercially reasonable efforts to ensure that each and every package shipped from its facility is appropriately and safely packaged for shipment. Once Client's package leaves the facility, the package is acknowledged, by both Client and Supplier, as being out of the control of Supplier, and in the complete and total control of the shipper, as to how it will be handled by the shipping company. Supplier shall not be liable for any loss or damages relating to transportation carriers or packaging deficiencies.
