US Warehouse and Fulfillment - Terms & Conditions
FULFILLMENT SERVICES AGREEMENT
THIS SERVICES AGREEMENT: ("Agreement") is entered into as of ________________ (today’s date) and is effective upon authorized signatures (the "Effective Date") by and between __________________ having its principal place of business at XXX (hereinafter referred to as the “Client”), and Sparx Logistics, having its principal place of business at 5630 Renwick Dr, Houston, TX, 77081 (hereinafter referred to as the "Supplier"). Individually known as the “Party”, collectively as the “Parties”.
RECITALS WHEREAS: Client wishes to have Supplier perform certain procurement, warehousing, packaging, shipping, inventory management, and other services on a non- exclusive basis for use by Client, and WHEREAS Supplier is willing to perform such services for Client, on the terms and conditions set forth in this Agreement.
AGREEMENT: Client and Supplier hereby agree as follows:
TERM: This Agreement will become effective as of the Effective Date and remain in effect for an initial term of twelve (12) months from the Effective Date of this Agreement. Thereafter, this Agreement shall be automatically renewed on a 12-month term basis, unless sooner terminated by either party with sixty (60) days written notice.
Client represent and warrant to the Supplier that (i) the Client is the legal owner and/or have lawful possession or control of the Goods and have the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (ii) there are no potential health, safety, or environmental hazards associated with the shipment, warehousing, or fulfillment of the Goods tendered to Supplier under this Agreement, (iii) the Goods do not contain any material violating any federal, state, or local law (collectively, “Laws”); (iv) the Goods are not and do not contain any hazardous or dangerous materials under applicable Laws. The Client will strictly meet or exceed any compliance obligations under these provisions. The Supplier may, in its sole discretion, reject Goods that it determines does not meet the above. If the Goods do not meet the foregoing requirements, The Client may incur additional fees from the Supplier, and if the Supplier rejects the Goods, this may result in delays or non-shipment. The Client agrees that the Supplier shall not be liable for any loss or damage as a result of such delays or non-shipment.
The Client shall provide the Supplier, inventory of all inbound shipments of Goods prior to the shipment arriving to the Supplier’s facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. The Client will represent and warrant that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description, and condition of the Goods, is accurate and complete and may be relied upon by the supplier.
The Client will need to make an appointment in advance for any inbound freight shipment.
All inbound shipments must be received and inventoried before the Goods shall be shipped.
Upon receipt, the Supplier may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. Client shall acknowledge and agree that the Supplier has no obligation to verify the quantity, content, condition, or quality of the Goods delivered to it for storage and/or delivery. The Supplier may, at its sole discretion, reject to store and/or deliver any Goods that it deems, in its sole discretion, to be improperly labeled or packaged or, any Goods that contain any hazardous or illegal material.
The Client shall be solely responsible for the accuracy of any information provided to the Supplier and/or the information that is put on the Supplier’s website. The Client agrees that the Supplier shall not be liable for any delay, loss, damage, or costs as a result of any inaccurate information provided by the Client to the Supplier or any information inputted incorrectly by the Client onto the Supplier’s website.
The Client is solely responsible for the accuracy and deliverability of Order shipping addresses. The Supplier may, at its sole discretion, verify Order shipping addresses, but this is not a replacement for merchant address diligence and verification by the Client. The Client agrees and acknowledges that the Supplier has no obligation to verify any shipping addresses provided by the Client.
Discrepancies for which the Client may be responsible for, includes but is not limited to, incomplete addresses, incorrect addresses, commercial/residential address status, and rural address status. The Supplier also reserves the right to put an order on hold if addresses are not validated by the Suppliers’ system.
DELAYS OR NON-DELIVERY.
The Supplier shall not be liable or responsible for any delays in domestic or international shipments of Goods or Orders, and is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third parties, including carriers.
It is the Client’s sole responsibility to protect itself from fraud. It is the Client’s sole responsibility to pay all fees related to orders whether the order is fraudulent, or the product is delivered or not.
Returns may be rejected and/or subject to additional fees. The Client shall be solely responsible for any fees assessed by any Carrier as a result of any shipments of Goods that are returned to the Supplier by the Carrier for any reason whatsoever.
The Supplier may, at its sole discretion, require the Client to remove unsuitable or unsellable Goods from its distribution centers. The Supplier will notify the Client if it has any inventory that requires removal. Fees may also be assessed for labor incurred to remove inventory. If the Client does not remove the inventory within 10 days of receiving a required removal notice, the Supplier may dispose of the inventory listed in the required removal notice. The Supplier may allow a cure period at its discussion.
The Client shall not be entitled to any damages or reimbursement for the value of Goods disposed of by the Supplier.
If the Client’s Service Fees (or any other amounts owed to the Supplier) remain unpaid for a period greater than 30 days, then the Supplier reserves the right, at its sole discretion, to terminate this Agreement, suspend its performance, and/or reclassify the Client’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. To the fullest extent permitted by law, upon an Account becoming an Abandoned Account, all rights to ownership of the Account Balance and Goods would then immediately be forfeited by the Client. Goods will become immediately and irrevocably unavailable to the Client, and liquidation proceedings would begin, pursuant to Tex. Bus. Com. Code, U.C.C, Title 1, Chapter 7, Subchapter B, § 7.210. The Client would also remain liable for any pending Service Fees above and beyond the liquidation proceeds.
The Supplier’s Right to Amend Agreement/Pricing: The Supplier may amend the range, and pricing of Services offered to the Client on a Monthly basis upon notice to the Client in accordance with the terms herein. Each amendment to this Agreement shall become effective thirty (30) days following the date such notice is sent to the Client. If the Client does not accept the terms or conditions of the amendment, the Client has twenty (20) days to notify the Supplier of its decision and must remove its goods from the Supplier’s warehouse(s) immediately thereafter. The absent such timely notification to the Supplier and the absence of removal of goods will be deemed an acceptance of the terms of the amendment.
BREACH OF PAYMENT: If the Client is in breach of payment terms, the Supplier has the right to claim title to Inventory and sell/auction Inventory as necessary to settle any outstanding debts owed to the Supplier by the Client. The Supplier has the right to commence the enforcement of Warehouseman’s Lien, pursuant to TX Bus & Com Code (§) 7.210 (2019). The Client acknowledges and agrees that the Supplier shall maintain a warehouseman’s lien and security interest under UCC-Chapter 7 for all Goods in the Supplier’s possession or control, regardless of whether a specific receipt is issued by the Supplier, to cover all charges, expenses, costs and Service Fees set forth in this Agreement. In the event that the Supplier is required to exercise its lien or security interest, the Client shall be responsible for all necessary and reasonable costs incurred by the Supplier to enforce the lien or security interest including, but not limited to, reasonable attorney fees. The Client will execute all agreements and documents so that the Supplier may obtain, perfect, and maintain its lien rights and security interest in the Goods. The Client will execute all documentation to permit the Supplier to perfect its liens. In addition, The Supplier reserves the right to stop processing orders, accepting containers and or other related tasks if the Client’s account is more than 14 days delinquent in its payments to the Supplier.
GENERAL INDEMNIFICATION: Both Parties agree to indemnify, hold harmless from any loss, cost and expense, and upon the other’s request, defend the requesting party, and its parents, shareholders, subsidiaries, affiliates, directors, officers, employees and agents from and against all claims and losses of any type (including reasonable fees of attorneys and other professionals) arising out of or in connection with, in whole or in part: (a) any negligent act, omission or willful misconduct of the non-requesting party or its employees, agents or subcontractors (if any), including but not limited to any act or omission that contributes to any personal injury, sickness, disease or death, and/or damage to or destruction of property of the other or any loss of use resulting there from; or (b) any violation by the non-requesting party of any statute, ordinance, federal, state or local law, or regulation.
TERMINATION: After sixty days (60) from the effective date of this Agreement, either Party may terminate this Agreement for its convenience, with or without any reason, by giving sixty (60) days written notice to the other. If the Client so terminates for convenience, it will pay the Supplier all outstanding fees before release of Inventory. If the Client terminates without giving a full 60 days of notice, the Supplier will assess an additional charge equal to two (2) times the total storage charges in addition to handling fees assessed for the months immediately preceding the Supplier’s receipt of termination notice or preceding the Company’s material departure from the assumptions set forth in this Agreement. The Parties agree that this fee is not a penalty but represents a reasonable calculation of the loss to the Supplier’s time it would take to find a replacement for the sudden open space and the loss of revenue-producing work for the storage and shipping services provided to the Client, which could have be avoided had the Supplier been given the 60-day written
notice required under this paragraph. Notwithstanding any expiration or termination of this Agreement, the obligations of the Parties as appropriate, shall survive.
SUPPLIER LIMITATION: The Supplier shall not be liable for any goods tendered that are damaged or stolen unless caused by The Supplier’s gross negligence. In addition, the Supplier shall not be liable for any damages incurred due to without limitation, inherent defects, lack of any special care or precaution, damage to articles insufficiently protected or arising from the nature of the goods, loss of weight, insufficient boxing, crating, or packaging, ordinary wear and tear in handling, leakage, concealed damage, or any cause beyond the reasonable control of the Supplier. Lastly, the Supplier shall not be liable to the Client for any consequential damages of any kind, including but not limited to, loss of profits, damage to business reputation, however caused and on any theory of liability, whether in an action for contract, strict liability or tort
(Including negligence) or otherwise, whether or not such party has been advised of the possibility of such damages.
SPECIAL CIRCUMSTANCES: If the Client is requesting to ship 30% or more of the beginning month’s goods held in storage, the Supplier may require payment on the current balance and any fees associated with the outbound order. In addition, if the Client chooses to ship all of its products out of the warehouse, all invoices, current balances and any and all fees associated with the move out are to be paid in full by wire transfer prior to move out.
COMMENCEMENT DATE: Upon the signatures of both Parties on this Agreement.
CONFIDENTIALITY: the Client may receive confidential information of the Supplier during the course of this Agreement. Confidential Information includes, without limitation, information relating to data, software, prices, marketing plans, costs, processes, technological advances, shipping rates, terms and conditions, logistics, and supply chain procedures, and partners. The Client agrees not to disclose any Confidential Information of The Supplier to third parties and to take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. Without limiting the scope of this obligation, the Supplier agrees to take steps to ensure that it limits its distribution of the Client’s Confidential Information to its employees and approved subcontractors. In the event that the Client believes it needs to disclose Confidential Information to a third party in order to perform its services, then the Client must obtain the prior written consent of the Supplier. The Client shall ensure that an undertaking is in place with the third party to retain confidentiality as described herein. The Client shall remain liable to the Supplier for any breach of this paragraph. Both Parties agree 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.
CYCLE COUNT / INVENTORY MAINTENANCE:
INVENTORY: The Supplier will maintain inventory counts on all of the Company's products kept at the Supplier’s warehouse(s) and will provide the Company with access to those records via the Supplier’s online inventory system.
The Supplier agrees to maintain the Company's product in a safe and clean environment.
MONTHLY CYCLE COUNTING: The Supplier will perform periodic cycle counts at the Client’s request. Certain charges may apply. Please refer to the Client’s Rate Agreement for additional details. The Supplier will review the rates periodically and may adjust these rates based upon changes in scope of work and operational profile. Any rate adjustment will be intended to better reflect hard costs and the actual scope or services provided rather than the original underlying assumptions.
ANNUAL INVENTORY: An annual physical inventory (see Standard Physical Inventory as it Procedures) will be taken each year. The dates will be set up in coordination between the Supplier and the Company’s representative. The inventory is performed and charged at the hourly rate listed on the Rate Agreement noted above unless the overall inventory results falls below 99% net aggregate accuracy (over and under quantities offset). Inventory shortages less than 1% net aggregate accuracy will be deemed reasonable and within normal operating procedures: resulting in no claims for shortages. Reasonable Care is understood if the net aggregate inventory accuracy outcome is 99% accurate or better. If an annual physical inventory is refused by the Company, all claims pertaining to inventory variations will be null and void. A new inventory baseline will be established when/if a future physical inventory is authorized. In the absence of a physical inventory, the Supplier will not be held accountability for any actual or alleged inventory exceptions or losses by SKU, count, or condition.
INVENTORY SHRINKAGE ALLOWANCE: The Supplier will be allowed a minimum aggregated annual product through-put inventory shrinkage allowance of 1% (One Percent). This is deemed to be the net total variance of all overages and shortages across the entire span of product stored during a contiguous 12-month period. This allowance will be calculated and applied at the point of the annual physical inventory.
VISITING Supplier: Non-Supplier Personnel are allowed to walk through the warehouse only when accompanied by a Supplier representative
NON-Supplier PERSONNEL LABOR: Supplier does not allow any non-Supplier personnel to conduct any physical labor / projects within Supplier facility.
INSURANCE: The Client is responsible for securing adequate insurance coverage via their own provider for the total value of their product.
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 and without limitation to 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 sixty (60) days, whichever is less.
ENFORCEABILITY AND COMPLIANCE CLAUSE: If any provision of this Agreement, or any application thereof should be construed or held to be void, invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby but shall remain in full force and effect. The Supplier’s failure to require strict compliance with any provision of this Agreement shall not constitute a waiver to later demand strict compliance with that or any other provisions of this Agreement. The provisions of this Agreement shall be binding upon the Client’s heirs, executors, successors and/or assigns and cannot be modified except by a subsequent written agreement.
Applicable Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, Harris County, United States of America. Any litigation or other dispute resolution between the parties relating to this Agreement shall take place in Harris County, The State of Texas, United States of America. The parties’ consent to the personal jurisdiction of and venue in the state and federal courts within that District with respect to this Agreement.
Non-Waiver: The failure of either Party to exercise or enforce any provision of this Agreement will not be deemed a waiver of such provision(s), nor will it affect the party’s right to fully enforce such provision(s) on other occasions.
Standard Operating Procedure:
All Clients are required to use the system for entering orders & creating ASN's.
SKU Set up in Supplier system:
The Client is required to fill out the item import template which will be supplied during integration. Once completed please return to Supplier CSR team and CSR team will consult back if there are any questions. Once the item set up is complete, Supplier CSR team will upload the new items to Supplier system. Whenever Client is bringing in new items, Client must fill out an item import and send back to Supplier CSR team or Client will not be able to create the ASN.
Product arriving at the warehouse is required to be labeled with the SKU that was uploaded in the system. If it arrives at the warehouse with no labels identifying the proper SKU, Supplier will be required to run a "Special Project" to create labels, sort and identify the items and charge for labeling as per agreed upon rates.
All Containers, Truck Loads, Rail, LTL Shipments, or Small Parcel shipments inbound to the warehouse require an ASN entered into Supplier system.
ASN= advanced shipping notice; AKA “entering a receiving”
A receiving must be entered in 3 business days prior to arrival. All inbound shipments require an appointment, either by calling or emailing Supplier CSR Team.
All floor loaded containers or trailers are required to be dropped at the warehouse. Supplier will not schedule floor loaded containers/trailers for live unload.
Any inbound shipment that arrives at the warehouse without an appointment will either be turned away, or, if possible, worked into the schedule, will be subject to a $50.00 fee accessed on the shipment. Any waiting time assessed by the delivering carrier is not Supplier responsibility.
In addition, if a receiving inbound to the warehouse is received without ASN in the system, receiving will be subject to a fee of $50.00
All orders must be entered into Supplier system one of 3 ways.
Manually by logging into supplier system.
Through an API or EDI integration if applicable.
Using supplier order import template.
Supplier will not accept orders by email/fax or phone call.
Shipping Methods - Each order must have a Carrier, Service Level, Bill to, Account number (if applicable). Errors on order information, is the responsibility of the Client.
Orders requiring any special labeling or kitting, time to complete will vary depending on the complexity. Please inquire with Supplier CSR team with the details to receive an approximate time frame.
Supplier asks for any special projects please inquire with the CSR Team to confirm pricing, timeline and understanding of the project.
Any special project or request after regular business hours will be considered overtime and must be preapproved prior to any work being completed.
FULFILLMENT FEES. The Fulfillment fees are listed above in this document.