WAREHOUSE AND FULFILLMENT AGREEMENT
This Warehouse and Fulfillment Agreement (this "Agreement"), is entered into as of ("Commencement Date"), by and between , a ("Vendor"), and MintFulfill, LLC, a Utah LLC ("Fulfillment Service"), (each, a Party and together, the "Parties").
The initial term of this Agreement shall begin on the Commencement Date and extended on a month-to-month basis until terminated by providing 30 days advance notice in writing by either Party (the "Term").
2.1 Services. During the Term, Fulfillment Service shall perform certain services for Vendor, as described in Schedule A to this Agreement (collectively, the "Services"). The Services shall be performed by Fulfillment Service in a good and workmanlike manner.
2.2 Rates. Rates and charges for the Services are as set forth in Schedule A to this Agreement. Vendor and Fulfillment Service shall review such rates annually in January of each year. For any services not specified in this Agreement or in Schedule A, Vendor shall pay to the Fulfillment Service such consideration as may be mutually agreed upon in advance in writing. Charges shall be paid by Vendor within fifteen days after receipt of Fulfillment Service’s statement or invoice for such services with terms of net 15 days.
2.3 Warehouse. The warehouse ("Warehouse") shall be located at 1374 West 400 South, Orem, Utah 84058 or at 139 W 900 N, Springville, Utah 84663. Vendor shall have limited access to the Warehouse during normal business hours for the purpose of examining, inspecting, inventorying and counting all or any of its inventory.
Vendor shall register each product with Fulfillment Service prior to sending any product to the Warehouse. Fulfillment Service shall provide Vendor with the product registration form, and Vendor shall provide accurate and complete information about each product (each, a “Good”, and collectively, the “Goods”). Vendor agrees to promptly notify Fulfillment Service regarding any change to product information. Vendor shall not ship to Fulfillment Service any item or product that Vendor has not first registered with Fulfillment Service, and Fulfillment Service shall have no obligation to accept or care for, or have any responsibilities or duties regarding, any items or products not registered by Vendor with Fulfillment Service.
Fulfillment Service shall operate at all times as a warehouseman under the Uniform Commercial Code as adopted in the State of Utah. Vendor shall not ship Goods to Fulfillment Service as a named consignee. All bills of lading, contracts of carriage, declarations, and all other shipping and freight documents and contracts shall identify Vendor as Consignee in care of Fulfillment Service. If any Goods are shipped to the Warehouse naming Fulfillment Service as named consignee on any shipment documentation, Vendor shall promptly notify the carrier in writing that Fulfillment Service is the "in care of party" only and does not have any beneficial title or interest in the shipment. Fulfillment Service may refuse to accept any shipment tendered for storage in violation of this provision, and shall not be liable for any loss or damage to, or misconsignment of, such shipment. Whether Fulfillment Service accepts or refuses Goods shipped in violation of this Agreement, Vendor agrees to indemnify and hold Fulfillment Service harmless from all claims for transportation, storage, handling, and other charges relating to such Goods. Vendor further agrees to indemnify, defend, and hold Fulfillment Service harmless from any costs, liabilities, actions, penalties, or expenses of any kind associated with the improper declaration of Fulfillment Service as consignee.
5.1 Freight. Vendor shall be responsible for all costs incurred to ship Goods to the Warehouse, including costs of freight and transit insurance. Vendor shall be responsible for payment of all customs, duties, taxes, and other charges. Vendor shall package and label all shipments according to the packing and labeling guidelines set forth in Schedule B to this Agreement. In the case of any improperly packaged or labeled shipment, Fulfillment Service may return the shipment to Vendor at Vendor’s expense or re-package or re-label the shipment and assess a fee as set forth in Schedule A to this Agreement.
5.2 Title. Vendor warrants that it is the owner or has lawful possession of the Goods and all right and authority to store them with Fulfillment Service and thereafter direct the release and/or delivery of the Goods. Vendor shall provide Fulfillment Service with information concerning the Goods that is accurate, complete, and sufficient to allow Fulfillment Service to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods. Before tendering Goods that require specialized handling or which are dangerous or hazardous (“Nonconforming Goods”), Vendor shall identify such Nonconforming Goods and special handling requirements to Fulfillment Service in writing and Fulfillment Service may decline to store such Nonconforming Goods. Vendor is solely responsible for providing complete and accurate handling and storage instructions for any Nonconforming Goods, including any applicable safety procedures. If Fulfillment Service accepts any such Nonconforming Goods for storage, Vendor agrees to rates and charges as may be assigned and invoiced by Fulfillment Service as well as all terms and conditions of this Agreement.
5.3 Records. Fulfillment Service shall keep electronic records that track inventory of Goods by identifying the number of and type stored in the Warehouse. Fulfillment Service shall not be required to physically mark or segregate Goods from other inventory units owned by Fulfillment Service, or third parties. If Fulfilment Service elects to commingle Goods with such other inventory, both Parties agree that Fulfillment Service records will be sufficient to identify which products are Goods. Fulfillment Service’s confirmed receipt of delivery does not: (a) indicate or imply that the Goods have been delivered free of loss or damage, or that any loss or damage to Goods later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that Fulfillment Service actually received the number of Goods specified by Vendor for such shipment; or (c) waive, limit, or reduce any of Fulfillment Service’s rights under this Agreement.
5.4 Lien. Fulfillment Service shall have a lien on the Goods and upon the proceeds from the sale thereof to secure Vendor's payment of all fees, charges and expenses hereunder in connection with the storage, transportation, preservation, and handling of the Goods. Fulfillment Service may enforce this lien at any time, including by selling all or any part of the Goods in accordance with applicable law.
6.1 Hazardous condition. If, as a result of the quality or conditions of Goods of which Fulfillment Service had no notice at the time of deposit, Goods are a hazard to other property, the Warehouse or persons, Fulfillment Service shall immediately notify Vendor and Vendor shall thereupon claim its interest in such Goods and remove them from the Warehouse at Vendor’s expense.
6.2 Unsuitable Goods. Fulfillment Service will, at Vendor’s direction, either return or dispose of any Good that is returned by a customer and that is deemed unsuitable to maintain in inventory.
6.3 Disposal. Vendor may, at any time, request that Goods be returned to Vendor or disposed of by Fulfillment Service. Fulfillment Service may dispose of Goods immediately if, in its sole discretion, it determines that the Goods create a safety, health, or liability risk to Fulfillment Service, or any third party. Vendor shall promptly notify Fulfillment Service of any recalls or potential recalls, or safety alerts of any Goods. Vendor shall be responsible for and assume all costs in connection with any recall or potential recall or safety alerts of any Goods.
7.1 Returned Goods. Fulfillment Service shall promptly notify Vendor of any known discrepancy on inbound shipments and shall protect Vendor interest by placing an appropriate notation on the delivering carrier’s shipping documents. Returned Goods shall be governed by Vendor returned goods policy, a copy of which is attached as Schedule C to this Agreement.
7.2 Damage. Fulfillment Service shall immediately notify Vendor if any Goods are tendered that, because of infestation, contamination or damage, might cause infestation, contamination or damage to the Warehouse or other goods stored therein. Fulfillment Service shall determine whether any such Goods should be refused. Fulfillment Service shall have no liability for any demurrage, detention, transportation and other charges by virtue of any such refusal by Vendor, unless the infestation, contamination, or damage is the result of a negligent action or omission of the Fulfillment Service or a violation of the procedures set forth in this Agreement.
8.1 Negligence. Fulfillment Service 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 the failure by Fulfillment Service to exercise the level of care with regard to the Goods that a reasonably careful person would have exercised under the circumstances. Fulfillment Service is not liable for damages which could not have been avoided by the exercise of such care.
8.2 Notice. Fulfillment Service shall not be liable for any breach of this Section 8 unless: (i) Vendor gives written notice to Fulfillment Service of any claim within 30 days after release of the Goods by Fulfillment Service or (ii) Vendor is notified by Fulfillment Service that loss or damage to part or all of the Goods has occurred, as the case may be, reasonably described.
8.3 LIMITATION ON LIABILITY. IN NO EVENT SHALL FULFILLMENT SERVICE’S LIABILITY UNDER THIS SECTION 8 EXCEED THE ACTUAL COST TO REPAIR, RESTORE AND/OR REPLACE ANY DAMAGED GOODS. THE REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE VENDOR'S SOLE AND EXCLUSIVE REMEDY AND FULFILLMENT SERVICE’S ENTIRE LIABILITY FOR ANY BREACH OF FULFILLMENT SERVICE’S OBLIGATIONS SET FORTH IN THIS SECTION 8. IN NO EVENT SHALL FULFILLMENT SERVICE 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, 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 FULFILLMENT SERVICE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, FULFILLMENT SERVICE 'S LIABILITY UNDER SECTION 8 OF THIS AGREEMENT, EXCEED THE TOTAL OF THE AMOUNTS PAID TO WAREHOUSE OPERATOR FOR THE SERVICES RENDERED HEREUNDER OR $10,000, WHICHEVER IS LESS.
8.4 Removal. In the case of loss or damage to Goods for which Fulfillment Service is not liable, Vendor shall be responsible for all 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.
Vendor shall indemnify, defend, and hold harmless Fulfillment Service and its officers, 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 undercharges, rail demurrage, truck/intermodal detention, or related charges and reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Services or from Fulfillment Service's or Vendor's negligence, willful misconduct, or breach of this Agreement (each a "Warehouse Claim"). Vendor shall not enter into any settlement of a Warehouse Claim without Indemnified Party's prior written consent.
10.1 Fulfillment Service. During the Term, Fulfillment Service shall maintain at its expense a legal liability insurance policy. Such policy shall include general liability coverage of at least $1,000,000, employer liability coverage of at least $1,000,000 and statutory workers’ compensation coverage. The cancellation or termination of this Agreement by either Party shall not affect the insurance coverage for losses occurring during the Term.
10.2 Fire and casualty. Fulfillment Service does not represent or warrant that the Warehouse or the contents of the Warehouse cannot be destroyed by fire or any other cause. Fulfillment Service will not be required to maintain a watchman or a sprinkler system, and Vendor acknowledges that Fulfillment Service's failure to do so will not constitute negligence under Section 8 or otherwise. Goods are not insured by Fulfillment Service for the benefit of Vendor against fire or other casualty.
10.3 Vendor. During the term of this Agreement and for a period of 6 months thereafter, Vendor shall, at its own expense, maintain and carry insurance in full force and effect against fire or other casualty in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Fulfillment Service's request, Vendor shall provide Fulfillment Service with a certificate of insurance from Vendor's insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Fulfillment Service as an additional insured. Vendor shall provide Fulfillment Service with 30 days' advance written notice in the event of a cancellation or material change in Vendor's insurance policy. Except where prohibited by law, Vendor shall require its insurer to waive all rights of subrogation against Fulfillment Service's insurers and Fulfillment Service.
11.1 Notice. The Fulfillment Service shall promptly notify Vendor of any loss or damage, howsoever caused, to Goods stored or handled. All claims by Vendor relating to the losses or damages disclosed as a result of a Vendor physical inventory reconciliation, shall be presented in writing to the Fulfillment Service.
11.2 Loss allowance. Fulfillment Service will receive a loss allowance of 0.25% of units received (1 out of 400 units). Fulfillment Service shall reimburse Vendor for any losses or damages to goods in excess of its loss allowance at an amount equal to manufactured price for such Goods.
12.1 Inbound/Outbound reports. Fulfillment Service shall maintain an accurate count of all shipments of Goods into and out of the Warehouse. Fulfillment Service shall report to Vendor the count taken on each inbound and outbound shipment and, once reported to Vendor, such count shall establish the number of units and/or cases and/or pallets received or shipped unless other documentation can prove to the contrary.
12.2 Records. Fulfillment Service shall maintain complete and accurate books and records, recording all inbound and outbound shipments, so as to produce a continuous balance that shows the number of units, cases or pallets of each Vendor product that should be in the Warehouse, based on the Fulfillment Service’s count, at any given time.
12.3 Inspection. Upon request, Vendor shall have the right to examine all of the books and records maintained by Fulfillment Service in connection with this Agreement.
13.1 Independent contractor. Fulfillment Service is performing the Services as an independent contractor of Vendor. Nothing contained in this Agreement shall be construed to place Vendor and Fulfillment Service in a relationship as partners, joint venturers, employer/employee or principal/agent, nor shall Fulfillment Service be considered in any sense an affiliate or subsidiary of Vendor. Fulfillment Service shall not have any authority to create or assume in Vendor name or on its behalf any obligation, express or implied, or to act or purport to act as Vendor agent or legally empowered representative for any purpose whatsoever.
13.2 Personnel. All of Fulfillment Service’s personnel shall be considered employees of Fulfillment Service and under no circumstances shall they be construed or considered to be employees or agents of Vendor. Fulfillment Service shall pay and discharge, at its expense, any and all expenses, charges, fees and taxes arising out of or incidental to the carrying on of its business including, without limitation, workmen’s compensation, unemployment insurance and social security taxes levied or assessed with respect to employees of Fulfillment Service.
Fulfillment Service shall comply with all applicable laws, ordinances, rules and regulations of federal, state, local and other governmental authorities and entities governing the performance of the Services.
15.1 Goods. Vendor represents and warrants that neither the execution and delivery of this Agreement, nor any other document, agreement, certificate and instrument to which it is a party or by which it is bound in connection herewith or therewith, nor the consummation of the transactions contemplated hereunder or thereunder, or the compliance with or performance of the terms and conditions herein or therein will result in the creation or imposition of any material lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of Vendor except as permitted in or anticipated by this Agreement, or is prevented by, limited by, conflicts with or will result in the breach or violation of or a default under the terms, conditions, or provisions of (1) its certificate or articles of incorporation or by-laws and other organic documents, (2) any material indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument of whatever nature to which it is a party or by which it is bound, or (3) any provision of any existing law, rule regulation, order, writ, injunction or decree of any court or governmental authority to which Vendor is subject.
15.2 Legal status. Vendor represents and warrants that (1) it is a legal entity that is organized and validly existing under the laws of its state, and it is authorized to do business in each other jurisdiction wherein its ownership of property or conduct of business legally requires such authorization, licensing or qualification, and (2) it has all requisite power, authority, permits and licenses to (a) execute and deliver this Agreement and other document, agreement, certificate or instrument necessary to consummate the transactions and perform its obligations hereunder and (b) to own its properties and assets and to carry on and conduct its business as presently conducted. All necessary action to authorize the execution, delivery and performance of this Agreement and to consummate the transactions contemplated hereunder has been taken by Vendor.
Either Party may terminate this Agreement with 30 days written notice in which case Vendor shall make arrangements for the removal of its Goods from all Fulfillment Service’s Warehouses at Vendor’s expense.
Upon termination of this Agreement, both Parties shall cooperate in the timely return of Goods or the orderly transition of the Services to another Fulfillment Service.
Neither Party shall, without the prior written consent of the other Party (which consent shall not be unreasonably withheld), assign this Agreement by operation of law or otherwise. Notwithstanding the foregoing consent requirement, but without releasing the Parties of their obligations under this Agreement, either Party may assign this Agreement to one of its wholly-owned affiliates.
18.1 Law and venue. This Agreement shall be governed by, enforced, interpreted and construed under the laws of the State of Utah. Venue for any action to enforce this Agreement shall be in Utah County, State of Utah for any such action filed in state court or in the United States District Court for the District in which the Warehouse is located for any such action filed in federal court.
18.2 Jury trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including exhibits and other attachments to this 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 this Agreement, including any exhibits and other attachments to this Agreement, and the transactions contemplated hereby.
All disputes, claims and other matters in controversy arising directly or indirectly out of or related to this Agreement, or the breach thereof, whether contractual or non-contractual, shall be submitted first to voluntary mediation, by written notice to the other Party. In the mediation process, the Parties will try to resolve their differences voluntarily with the aid of an impartial mediator, who will attempt to facilitate negotiations. The mediator will be selected by agreement of the Parties. If the Parties can not agree on a mediator, a mediator will be designated by the American Arbitration Association in Utah at the request of a Party. The mediation will be conducted as specified by the mediator and agreed upon by the Parties. The Parties agree to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an amicable resolution of the dispute. The mediation will be treated as a settlement discussion and, therefore, will be confidential. The mediator may not testify for either Party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings. Each Party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the Parties. If a dispute can not be resolved within ninety days after the written notice beginning the mediation process (or a longer period, if the Parties agree to extend the mediation), the mediation shall terminate and the Parties shall have the right to file a judicial proceeding in a court with competent jurisdiction seeking equitable or injunctive relief after the expiration of said ninety day or extended period.
Any notice or other communication required or permitted to be given under this Agreement shall be in writing and mailed (by U.S. certified mail, return receipt requested, postage prepaid), or emailed (with acknowledgment of receipt by receiving Party), to the address or email address below.
If to Fulfillment Service:
1374 West 400 South, Orem, Utah 84058, United States
If to Vendor:
All such notices, demands, and communications, if mailed, shall be effective upon the earlier of (1) actual receipt by the addressee, (2) the date shown on the return receipt of such mailing, (3) three days after deposit in the mail, or (4) acknowledgment of receipt by the addressee.
21.1 Headings. The headings contained herein are inserted for convenience only and shall not be deemed to have any substantive meaning.
21.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable in any manner, the remaining provisions of this Agreement shall nonetheless continue in full fume and effect without being impaired or invalidated in any way, and the Parties shall negotiate in good faith to modify this Agreement to give effect to the original intent of the Parties as closely as possible so that the transactions contemplated hereby will be consummated as originally contemplated to the greatest extent possible.
21.3 Entire agreement. Except as otherwise stated in this Agreement, this Agreement contains the entire understanding of the Parties respect to its subject matter, and supersedes all prior or contemporaneous agreements, understandings and negotiations. No modification or alteration of this Agreement shall be deemed effective unless in writing and signed by the Parties.
21.4 Language. The terms used in this Agreement, regardless of the number and gender in which they are used, shall be construed to include the other number (singular or plural), and other genders (masculine, feminine or neuter), as the context or sense of this Agreement or any paragraph or clause may require.
21.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute one Agreement. The signature of any Party to any counterpart shall be deemed to be a signature to, and may be appended to, any other counterpart. Facsimile or scanned signatures shall be deemed effective as originals.
21.6 Time. Time is of the essence. Each Party agrees to sign and deliver all documents, instruments, certificates and applications reasonably necessary to consummate the transactions contemplated by this Agreement.
21.7 Independent review. Each Party acknowledges that they and their counsel have reviewed this Agreement and suggested changes to its language. Therefore, any rule of construction that any ambiguity shall be construed against the drafter of this Agreement shall not apply in interpreting the provisions of this Agreement.
21.8 Benefit. This Agreement is solely for the benefit of the Parties and shall not confer upon third parties any remedy claims or actions or other right.
21.9 Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 8, Section 9 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement. All other provisions of this Agreement shall not survive the expiration or earlier termination of this Agreement.
21.10 Amendments. No amendment to or modification of or rescission of this Agreement is effective unless it is in writing, identified as an amendment to or rescission of this Agreement and signed by each Party.
21.11 Waiver. No waiver by Fulfillment Service of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Fulfillment Service. No failure by Fulfillment Service to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise by Fulfillment Service of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the date first set forth above.
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Name of authorized representative: Jim Little
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Signed by Jim Little
Signed On: June 10, 2021
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Document Name: WAREHOUSE AND FULFILLMENT AGREEMENT
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