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Exclusivity: Elevate reserves the right to also offer services to other third parties, including, but not limited to, third parties that may sell, market, promote, or distribute products substantially similar to Client’s products. Client agrees to hire Elevate as Client’s exclusive provider of the services provided by Elevate under this Agreement. In addition, any new fulfillment opportunities or other logistical services to be provided to Client will be presented first to Elevate for the purpose of bidding on the new opportunity.
Services:
Elevate shall use its commercially reasonable efforts to store such products or other items of personal property received from or behalf of Client or any of its subsidiaries or affiliates (collectively, “Products”) and to provide the services pursuant to the description set forth set forth in Appendix A (collectively, the “Services”).
It is agreed that Elevate shall use as much space as necessary, as determined by Elevate in its reasonable judgment, to store the Products and Client will compensate Elevate in accordance with the pricing schedule set forth in Appendix A attached hereto, and made a part hereof.
Elevate shall use its commercially reasonable efforts to meet the service standards set forth on Appendix C.
Client agrees that Elevate may refuse at any time to mail any copy, photographs, illustrations, or products of any kind that in Elevate’s sole judgment does not comply with specific terms of the order, or is fraudulent, an invasion of privacy, degrading, libelous, unlawful, profane, obscene, pornographic, tends to ridicule or embarrass, is in bad taste, is a potential infringement on a trademark, trade name, service mark, or copyright belonging to others, is in violation of the F.T.C.’s mail or Telephone Order Merchandise Trade Regulation Rule, or is, or could reasonably be anticipated to be, harmful to the business, interests, or reputation of Elevate.
Client agrees that Elevate may refuse, without liability of any kind, acceptance of Products (a) that, because of their condition, might cause, in Elevate’s reasonable judgment, infestation, contamination, or damage to Elevate’s facilities or to other goods in the custody of Elevate, or (b) that may be deemed illegal goods, contain illegal materials, are manufactured illegally, or may violate any applicable law.
Elevate shall not be liable for any costs or delays due to Elevate’s refusal or rejection of Products or other materials in accordance with this Section 3 and Elevate may dispose of such Products and other materials as Elevate sees fit and may charge Client reasonable disposal fees.
Fees and Other Charges:
Client shall pay to Elevate the fees set forth on Appendix A for the Services. Elevate shall be entitled to charge Client a minimum monthly fee of $1,000 in any calendar month in which the aggregate fees charged for Services (excluding bulk mail services, setup charges, list works, and printing) is less than $1,000.
Elevate may condition commencement of Services on receipt from Client of all deposits and fees, which may include, without limitation, initiation fees, security deposits, postage/freight deposits, custom development and integration fees, first month account management fee, as set forth on Appendix B. Client acknowledges and agrees that all deposits and startup fees are non-refundable for any work or project that is in progress or complete. Client also agrees that any custom development arranged or completed by Elevate is the property of Elevate and may not be used with any third-party without written consent from Elevate or its agents.
The fees set forth in Appendix A are based upon Elevate’s understanding of the specifications submitted and samples provided by Client. If there is a change in specifications, instructions, systems, method of shipping, packaging or volume resulting in additional costs, the work performed will be billed on an hourly basis according to the labor rate outlined in Appendix A until the parties agree on any modification to the fees resulting from such changes.
Except as set forth in Section 4.3, all fees described in Appendix A shall be guaranteed for a period of six (6) months from the Effective Date. Elevate may increase the fees described in Appendix A thereafter upon thirty (30) days’ written notice to Client.
Fees quoted herein do not include postage or freight expenses. Client shall provide a credit card or banking account to be used for weekly freight billing purposes on Appendix C herein. All price quotes for shipping through common carriers, full truck loads, LTL, or other carriers are valid for 24 hours unless otherwise noted. Elevate is not responsible for changes in price due to incomplete or invalid information. Client agrees that, unless otherwise agreed to by Elevate, all outbound shipments shall be under “house” agreements and accounts managed solely by Elevate. Client agrees that Elevate will manage and negotiate all aspects of “house” agreements and contracts. Client acknowledges and agrees that fees set forth in Appendix A are based upon the utilization these accounts. Elevate reserves the right to hold all shipments in the event any payments of freight/postage charges are past due. Any adjustments in freight/postage charges shall be billed when received by Elevate.
Payment:
Elevate reserves the right to invoice Client on a weekly basis.
All fees (including for management, storage, or other activities but excluding freight/postage charges) shall be due within thirty (30) days from the invoice date.
Freight/postage charges shall be due within fourteen (14) day from the invoice date. Upon the request of Client, Elevate will provide additional information as necessary, as determined in Elevate’s reasonable discretion, for Client to verify the freight/postage charges.
Amounts not paid when due (other than freight/postage charges) shall accrue interest at a rate of one and one-half percent (1.5%) per month from the invoice date. Freight/postage charges not paid when due shall accrue interest at a rate of ten percent (10%) per week.
If at any time Client has fees outstanding in excess of 30 days all Products of Client in the possession of Elevate may be held to ensure payment in full.
Client will be required to establish a payment history with Elevate for sixty (60) days after the Effective Date. During such period, Elevate may charge any invoiced fees to the credit card or bank information listed in Appendix C. After payment history has been established payment terms will be as otherwise set forth in this Section 5.
Term of Agreement: This Agreement shall commence on the Effective Date and continue for a period of twelve (12) months (the “Initial Term”). The Agreement will automatically renew for successive one-year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) until either party terminates this Agreement pursuant to Section 7.
Termination:
Elevate shall have the right, in its sole and absolute discretion, to declare this entire Agreement in material default and immediately cease performance under this Agreement:
Client fails to pay any sum when due pursuant to this Agreement and after the due date such sum remains unpaid for ten (10) days after written notice thereof by Elevate; or
Client breaches any material term, condition, or obligation under this Agreement and fails to cure the same within thirty (30) days’ written notice thereof.
Client shall have the right to terminate this Agreement if Elevate breaches any material term, condition, or obligation under this Agreement and fails to cure the same within thirty (30) days’ prior written notice thereof from Client.
This Agreement may be terminated by mutual written agreement of the parties.
This Agreement may be terminated by either party with or without cause or penalty by delivering written notice of termination to the other party at least thirty (30) days prior to such termination.
Client shall have the right to terminate this Agreement during the ten (10) days following receipt of notice from Elevate of an increase in the fees pursuant to Section 4.4.
Effect of Termination: The following obligations of Client shall survive the termination of this Agreement for any reason: (a) Client shall pay any and all Fees for (i) Services provided by Elevate to Client up through the date of termination and (ii) any Services that Elevate continues to provide after the date of termination until the Products are removed from Elevate’s facilities; and (b) Client shall remove its Products from Elevate’s facilities within thirty (30) days after the date of termination. Client shall compensate Elevate in full for any work or services performed in connection with the removal of Client’s Products upon termination of this Agreement at the labor rate outlined in Appendix A, plus any costs involved in scrapping or preparing the material for shipment, the cost of preparing a final inventory, and the cost of any supplies, goods or services purchased prior to cancellation.
Exclusive Remedy: Client’s exclusive remedies with respect to this Agreement or the Services provided hereunder by Elevate shall be (a) in the event of a breach of this Agreement by Elevate to terminate this Agreement pursuant to Section 8 and (b) to be reimbursed by Elevate for the replacement value (cost) of any Products that are stolen, destroyed, or damaged resulting solely from the gross negligence or willful misconduct on the part of Elevate, its agents, or employees while the Products are in possession of Elevate.
Errors:
Elevate shall not be liable for any failures of shipments to be made timely and accurately as a result of any mistakes in labeling or markings of the Products that were not directly caused by Elevate. The burden of proof shall be upon the Client to prove that any such inaccuracies were a direct result of errors or omissions committed by Elevate or its staff. Elevate shall not be responsible for orders or inventory not processed or managed using Elevate’s Warehouse Management System (“WMS”).
In case of errors in the shipping services provided by Elevate for Client that are solely caused by Elevate, Elevate shall be liable only to the extent of re-mailing a correction or correcting a job as soon as possible to rectify the mistake, and damages shall be limited to Elevate’s fees for the work performed and shipping charges and speeds used in the original shipment. However, the shipping method and shipping speed will be negotiated on a case by case basis. In no case will Elevate be liable for loss of business, printing costs, or implied damages or costs in excess of billing for services related to the specific job or shipment.
Hours of Operation: Elevate operates between the hours of 9:00 AM and 5:00 PM. With receiving hours between the hours of 10:00 AM and 3:00 PM. Any and all projects or work completed outside of these regular hours of operation at Client’s request may be billed at double the applicable rates in Appendix A. Please note that multiple charges may apply. Client may be permitted to perform quality control testing at the Elevate facility with twenty four (24) hours advance notice to Elevate and subsequent approval from Elevate.
Procedures: Client agrees to submit all orders and requests directly to Elevate’s WMS.
Processing Deadlines: All orders and requests submitted by the client must be submitted directly to Elevate’s WMS by 3:00 PM to be processed the same day. Orders submitted via any other method will have a longer processing time and will be charged applicable Warehouse Labor and Data Entry Fees.
Order imports/pushes must be scheduled and executed in a fashion that will prevent large spikes in order volume but maintain a consistent flow throughout the day.
If technical issues cause delays in the transfer of order information directly to Elevate’s WMS orders imported after 12 pm may be delayed.
If batches are delayed or a large spike of orders is received Elevate shall communicate revised shipment dates to Client.
Limitations: Order volumes above 50% of forecasted volume and requests outside of the scope of work will be processed at the discretion of Elevate to ensure quality and accuracy and Elevate communicate any changes in shipping dates Client no later than the following business day.
Priorities: All orders and requests submitted to Elevate will be processed in order of submission subject to the delays and limitations set forth in Sections 12.1 and 12.2. Orders and requests processed per special instruction will be assessed fees accordingly as outlined in Appendix A. Please note that multiple charges may apply.
Changes: Changes to orders and requests properly submitted will be reflected within 24 hours of submission. Changes to orders will result in a delay of processing and additional fees may apply.
Holds: Orders and requests to be held as per special instruction from the Client are subject to additional fees. Orders and requests held as a result of Elevate’s exercising options outlined in Section 12.1.2 herein will not be subject to holding fees until Elevate communicates to Client that said orders and requests are complete and ready to ship.
Large Orders: Orders exceeding a unit count of 150 items will be allotted an additional business day for processing to assure accuracy and completion of shipping documentation. Special shipping methods may be subject to additional fees as outlined in Appendix A and may require additional time to complete.
Additional Setup/Training: Client agrees to pay for the implementation of changes to processes, methods, and procedures proportional to the change in scope and scale as it differs from the normal course of business.
Materials: Elevate assumes and conditions all quotations on the condition that all material provided will permit efficient handling on automated equipment, and meets equipment manufacturer’s specifications. All materials which are not up to acceptable operations standards due to poor folding, facing, trimming, packing, sticking together of material, insufficient leeway between enclosures and envelopes, square envelope flaps or other causes, will be subject to pricing at special rates. Client will be notified when a deficiency is discovered and approval will be obtained for handling at special rates before proceeding with work; and a new delivery schedule may result.
Receipt of Products: Elevate agrees to receive deliveries of Client’s Products at Elevate’s facilities; provided, that Elevate is notified of such deliveries not less than one (1) business day prior to delivery.
Collect shipments will be accepted only if approval is given to Elevate in advance by the Client, and a service fee equal to fifteen percent (15%) or $50, whichever is greater, of said charges will be added to the actual freight charges.
Each incoming carton or pallet must bear an identity, item code, quantity and a sample clearly visible. Each pallet must have only one material version, unless clearly marked and separated. Multiple items should not be included within a single carton, pallet or container unless noted thereon and on supplied paperwork. Any pallets with product stacked more than sixty inches (60”) high (measured from the floor), or weighing more than two thousand five hundred (2,500) pounds, or those which are other than a standard size of a forty inches by forty-eight inches (40”x48”) pallet, shall be subject to a re-stacking fee.
All items must be clearly coded. Elevate will not be responsible for picking, packing, or receiving errors, which result from Client’s failure to code or from any mistake of items. Items that are not clearly coded may be subject to additional fees and delays. The burden of proof shall be upon the Client to prove that inaccuracies were a direct result of errors or omissions committed by Elevate or its staff.
Spoilage, Counts, and Shrinkage: Client acknowledges that all fulfillment, printing, bindery, assembly, and direct mail handling and processing involves spoilage. Allowances for spoilage should be taken into consideration in ordering material. Elevate will use its commercially reasonable efforts to handle Client’s materials with frugality and to prevent undue spoilage. Nevertheless, Elevate is not responsible for shortages of materials as a result of normal spoilage in processing to the extent of five (5) percent.
Printed delivery tickets must be provided or accompany material delivered to Elevate prior to acceptance and should show the number of skids or cartons, the quantity per skid or carton, and the total delivery quantity.
Client is responsible for requesting spot checks on inbound material receipts, weighing cartons or pallets, or counting items to verify the accuracy of the shipper’s counts. Elevate may charge additional fees according to pricing set forth in Appendix A for such spot checks.
Elevate is frequently asked to accept printer or manufacturer’s counts until processing. Elevate assumes no responsibility for shortages discovered at the time of processing or inventory counts.
Client agrees to the following shrinkage allowances:
If Elevate is not authorized to perform counts of material received, no verification shall be made, there shall be no ability to develop shrinkage estimates, and Elevate shall not be responsible for inventory shrinkage.
If Elevate performs test counts, spot checks or weight counts, the standard for shrinkage will not exceed five (5) percent of the material received.
In all instances, the liability for any losses shall be limited to Client’s actual cost of the materials, and not incidental costs, such as development costs, loss of sales, or retail value.
Addressing/Labels: Addressing/labels must be within equipment manufacturer’s published specifications for addressing/labeling equipment. Quoted prices are based upon the address placement being positioned in the most advantageous location for production speed. Additional charges may be billed in the event the address placement is not in the most advantageous location for production speed.
Packaging and Materials: Elevate shall itself or through its vendors provide for all materials and supplies required to complete the services and meet its obligations unless other arrangements have been made by Client. Any future opportunities need to be discussed and agreed to in writing. Elevate shall provide materials and supplies requisite and sufficient to meet the packaging requirements for safe transport and delivery of the specified carrier. Elevate shall provide supplies and materials sufficient for storage and movement within its facilities. Client agrees that materials and supplies will be utilized at the sole discretion of Elevate and will be billed accordingly.
Prices quoted assume the most advantageous packaging, crating, or assembly for order and production speeds. Unless otherwise agreed upon, specific or custom requests may result in additional charges being billed.
Prices quoted assume usage of Elevate’s standard cartons, envelopes, and packaging materials. Custom or specified materials may involve additional materials and handling charges and longer lead times.
Overages: Client must advise Elevate as to the disposition of material extras in advance of completing a job. Extras may be returned to Client, stored, or destroyed. If returned to Client, Client shall pay postage/shipping charges. Storage and delivery charges will be added when applicable, and material may be automatically destroyed after sixty (60) days if Client has failed to respond to disposition requests or failed to pay for storage. Premium storage rates may be applied to old materials or materials for which dispositions have not been designated.
Delivery Schedules: Elevate will use its commercially reasonable efforts to meet scheduled delivery dates, but because of the many factors outside its control, Elevate accepts no liability for failure to meet scheduled dates beyond this requirement. In addition, Elevate has no control over routine U.S. Postal Service, United Parcel Service, or other common carriers’ delivery schedules and cannot guarantee when mail or shipments will be delivered by them. All orders are accepted contingent to delay due to fire, accident, acts of God, technical problems with hardware, software, mechanical breakdown or other causes beyond Elevate’s reasonable control. Since the time element is an integral part of this business, quoted prices are based upon a specific set of time schedules described or agreed upon by both parties at commencement of assignment. Late material may affect the completion date of the order by a greater degree than the actual elapsed time the material is late. Late shipments may result in additional fees.
Attorney’s Fees: Client shall pay all costs and reasonable attorney’s fees and expenses incurred by Elevate in collection of all past due invoices, accounts, or other obligations incurred.
Property Title/Insurable Interest: Client shall retain title to and the insurable interest for its materials and Products. Elevate may carry insurance or elect to self-insure against loss of Client’s Products due to acts of negligence on the part of Elevate’s employees or agents in the normal course of business. If other specific insurance coverage is desired by Client, the premium of such insurance shall be paid by Client.
Client Information: Elevate does not accept liability or responsibility for compiling lists or databases of Client’s information, nor for any intangible or special value attached thereto. Elevate will exercise reasonable care in the protection against the loss of Client’s information.
Taxes: Client shall be solely responsible from all personal property taxes that may be assessed against the Products stored pursuant to this Agreement. Elevate will have no responsibility for payment or collection of any sales tax or other tax directly attributed to the sales transacted between Client and Client’s customers for the sale and purchase of the Products. Client will be responsible for the collection and payment of all taxes associated and directly attributable with the sales of the Products and agrees to complete the preparation and filing of all sales tax documentation and comply with all sales tax laws.
Representations and Warranties:
Elevate and Client each hereby represents and warrants to the other as follows: (a) such party has the full authority and legal right to carry out the terms of this Agreement; (b) the terms of this Agreement will not violate the terms of any agreement, contract, or other instrument to which it is a party and no consent or authorization of any other third party is required in order to enter into and carry out the terms of this Agreement; (c) such party has taken all corporate and other action necessary to authorize the execution and delivery of this Agreement; and (d) this Agreement is a legal, valid, and binding obligation of Elevate and Client as the case may be, enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws of general application relation to or affecting the enforcement of the rights of creditors or by equitable principles, whether enforcement is sought in equity or at law.
Client agrees to use its commercially reasonable efforts to request that suppliers or manufacturers warrant that all Products delivered to Elevate hereunder: (a) are, at the time of delivery, new Products; (b) are free from any design defects or defects in workmanship or materials; (c) conform to all of the technical specifications for such Products and perform in the manner for which such Products were designed; (d) vest good and valid title to such Product, fee and clear of all liens, security interests, encumbrances, burdens, and other claims; and (e) all intellectual rights embodied or contained therein do not infringe upon or violate any intellectual property right, including, without limitation, copyright, trademark, service mark, patent, patent application, trade dress, trade name, trade secret, mask work, mask right, or any other proprietary right of any third parties.
Indemnification: Client will defend, indemnify, and hold harmless Elevate and Elevate’s respective directors, officers, employees, agents, distributors, customers, assignees, and licensees (each an “Elevate Indemnified Party”) from and against any and all costs, claims, harm, damages, liabilities, losses, and expenses (including, without limitation, all reasonable attorneys’ fees, professional fees, and disbursements) of any and every nature and kind whatsoever (collectively, “Damages”) incurred, suffered, or sustained by any Elevate Indemnified Party arising from, or otherwise attributable to, (a) Client’s breach of or non-compliance with, any of its representations, warranties, covenants, and agreements contained in or arising under the terms of this Agreement, except to the extent that such Damages result from the gross negligence or willful misconduct of an Elevate Indemnified Party, and (b) third party claims related to Client’s business, operations, or Products.
Limitation of Liability: In no event will either party be liable for any indirect, incidental, special, or consequential damages incurred or suffered by the other party, including, without limitation, lost revenue, loss of income, or loss of business advantage, even if the other party has been advised of the possibility of such damages.
Notices: All notices under this Agreement shall be deemed duly given at the address herein set forth or to such other address as any party to this Agreement may designate in writing from time to time.
Upon delivery if delivery by hand; or
Upon date of postmark if sent by U.S. Mail to a party hereto; or
Upon the date signed from a receipt by a party hereto if sent by U.S. Mail Certified, Return Receipt Requested.
The individuals representing the above parties hereto who are to receive notice are: Elevate Fulfillment Inc, 795 Lindsay Blvd, Idaho Falls, ID 83402
Confidentiality: The parties covenant and agree not to disclose the terms, pricing, and conditions of this Agreement to any third party except as required in the normal conduct of their respective businesses or as agreed to by the other party with advanced written notice or permission or as required by applicable law or regulation. Client may not share pricing schedules for fulfillment, transportation, shipping, or any other service provided by Elevate without written consent.
Governing Authority: This Agreement shall be construed and enforced in accordance with the laws of the State of Idaho without regard to conflicts-of-laws principles that would require the application of any other law. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may only be brought against a party in the State or Federal courts serving Idaho Falls, Idaho and each party consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objections to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
Severability: If any provision of this Agreement of application thereof to any party of circumstances shall, to any extent, now or hereafter be or become invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the full extent permitted by law.
Collection Risks: Notwithstanding anything herein to the contrary, the parties acknowledge and agree that Elevate will not be required to make any collection efforts on behalf of Client and will share no risk with respect to any failure of Client to collect monies owed on any order.
Disclaimer of Warranties: Except as expressly set forth in this Agreement, neither party makes any representation or extends any warranty of any kind, either express or implied, including warranties as to merchantability or fitness for a particular purpose.
Force Majeure: Neither party will be liable for failures or delays in delivery or in performance due (except for payment obligations) to causes beyond its reasonable control, including, without limitation, acts of God or civil or military authority, epidemics, war, riot, strikes or labor stoppages. In the event of any such delay or failure, the party affected will promptly notify the other party in writing and use all commercially reasonable efforts to overcome the event or circumstance causing the delay or failure as soon as practicable.
Assignment: Neither party may assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party (which consent will not be unreasonably withheld).
Counterparts; Electronic Delivery: This Agreement may be executed in one or more counterparts, all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed copy of this Agreement by telecopy or other means of electronic communication producing a printed copy will be deemed to be an execution and delivery of this Agreement on the date of such communication by the parties so delivering such a copy. Any party so delivering such a copy via electronic communication shall deliver an executed original of this Agreement to the other parties upon request.
Services:
Elevate shall use its commercially reasonable efforts to store such products or other items of personal property received from or behalf of Client or any of its subsidiaries or affiliates (collectively, “Products”) and to provide the services pursuant to the description set forth set forth in Appendix A (collectively, the “Services”).
It is agreed that Elevate shall use as much space as necessary, as determined by Elevate in its reasonable judgment, to store the Products and Client will compensate Elevate in accordance with the pricing schedule set forth in Appendix A attached hereto, and made a part hereof.
Elevate shall use its commercially reasonable efforts to meet the service standards set forth on Appendix C.
Client agrees that Elevate may refuse at any time to mail any copy, photographs, illustrations, or products of any kind that in Elevate’s sole judgment does not comply with specific terms of the order, or is fraudulent, an invasion of privacy, degrading, libelous, unlawful, profane, obscene, pornographic, tends to ridicule or embarrass, is in bad taste, is a potential infringement on a trademark, trade name, service mark, or copyright belonging to others, is in violation of the F.T.C.’s mail or Telephone Order Merchandise Trade Regulation Rule, or is, or could reasonably be anticipated to be, harmful to the business, interests, or reputation of Elevate.
Client agrees that Elevate may refuse, without liability of any kind, acceptance of Products (a) that, because of their condition, might cause, in Elevate’s reasonable judgment, infestation, contamination, or damage to Elevate’s facilities or to other goods in the custody of Elevate, or (b) that may be deemed illegal goods, contain illegal materials, are manufactured illegally, or may violate any applicable law.
Elevate shall not be liable for any costs or delays due to Elevate’s refusal or rejection of Products or other materials in accordance with this Section 3 and Elevate may dispose of such Products and other materials as Elevate sees fit and may charge Client reasonable disposal fees.
Fees and Other Charges:
Client shall pay to Elevate the fees set forth on Appendix A for the Services. Elevate shall be entitled to charge Client a minimum monthly fee of $1,000 in any calendar month in which the aggregate fees charged for Services (excluding bulk mail services, setup charges, list works, and printing) is less than $1,000.
Elevate may condition commencement of Services on receipt from Client of all deposits and fees, which may include, without limitation, initiation fees, security deposits, postage/freight deposits, custom development and integration fees, first month account management fee, as set forth on Appendix B. Client acknowledges and agrees that all deposits and startup fees are non-refundable for any work or project that is in progress or complete. Client also agrees that any custom development arranged or completed by Elevate is the property of Elevate and may not be used with any third-party without written consent from Elevate or its agents.
The fees set forth in Appendix A are based upon Elevate’s understanding of the specifications submitted and samples provided by Client. If there is a change in specifications, instructions, systems, method of shipping, packaging or volume resulting in additional costs, the work performed will be billed on an hourly basis according to the labor rate outlined in Appendix A until the parties agree on any modification to the fees resulting from such changes.
Except as set forth in Section 4.3, all fees described in Appendix A shall be guaranteed for a period of six (6) months from the Effective Date. Elevate may increase the fees described in Appendix A thereafter upon thirty (30) days’ written notice to Client.
Fees quoted herein do not include postage or freight expenses. Client shall provide a credit card or banking account to be used for weekly freight billing purposes on Appendix C herein. All price quotes for shipping through common carriers, full truck loads, LTL, or other carriers are valid for 24 hours unless otherwise noted. Elevate is not responsible for changes in price due to incomplete or invalid information. Client agrees that, unless otherwise agreed to by Elevate, all outbound shipments shall be under “house” agreements and accounts managed solely by Elevate. Client agrees that Elevate will manage and negotiate all aspects of “house” agreements and contracts. Client acknowledges and agrees that fees set forth in Appendix A are based upon the utilization these accounts. Elevate reserves the right to hold all shipments in the event any payments of freight/postage charges are past due. Any adjustments in freight/postage charges shall be billed when received by Elevate.
Payment:
Elevate reserves the right to invoice Client on a weekly basis.
All fees (including for management, storage, or other activities but excluding freight/postage charges) shall be due within thirty (30) days from the invoice date.
Freight/postage charges shall be due within fourteen (14) day from the invoice date. Upon the request of Client, Elevate will provide additional information as necessary, as determined in Elevate’s reasonable discretion, for Client to verify the freight/postage charges.
Amounts not paid when due (other than freight/postage charges) shall accrue interest at a rate of one and one-half percent (1.5%) per month from the invoice date. Freight/postage charges not paid when due shall accrue interest at a rate of ten percent (10%) per week.
If at any time Client has fees outstanding in excess of 30 days all Products of Client in the possession of Elevate may be held to ensure payment in full.
Client will be required to establish a payment history with Elevate for sixty (60) days after the Effective Date. During such period, Elevate may charge any invoiced fees to the credit card or bank information listed in Appendix C. After payment history has been established payment terms will be as otherwise set forth in this Section 5.
Term of Agreement: This Agreement shall commence on the Effective Date and continue for a period of twelve (12) months (the “Initial Term”). The Agreement will automatically renew for successive one-year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) until either party terminates this Agreement pursuant to Section 7.
Termination:
Elevate shall have the right, in its sole and absolute discretion, to declare this entire Agreement in material default and immediately cease performance under this Agreement:
Client fails to pay any sum when due pursuant to this Agreement and after the due date such sum remains unpaid for ten (10) days after written notice thereof by Elevate; or
Client breaches any material term, condition, or obligation under this Agreement and fails to cure the same within thirty (30) days’ written notice thereof.
Client shall have the right to terminate this Agreement if Elevate breaches any material term, condition, or obligation under this Agreement and fails to cure the same within thirty (30) days’ prior written notice thereof from Client.
This Agreement may be terminated by mutual written agreement of the parties.
This Agreement may be terminated by either party with or without cause or penalty by delivering written notice of termination to the other party at least thirty (30) days prior to such termination.
Client shall have the right to terminate this Agreement during the ten (10) days following receipt of notice from Elevate of an increase in the fees pursuant to Section 4.4.
Effect of Termination: The following obligations of Client shall survive the termination of this Agreement for any reason: (a) Client shall pay any and all Fees for (i) Services provided by Elevate to Client up through the date of termination and (ii) any Services that Elevate continues to provide after the date of termination until the Products are removed from Elevate’s facilities; and (b) Client shall remove its Products from Elevate’s facilities within thirty (30) days after the date of termination. Client shall compensate Elevate in full for any work or services performed in connection with the removal of Client’s Products upon termination of this Agreement at the labor rate outlined in Appendix A, plus any costs involved in scrapping or preparing the material for shipment, the cost of preparing a final inventory, and the cost of any supplies, goods or services purchased prior to cancellation.
Exclusive Remedy: Client’s exclusive remedies with respect to this Agreement or the Services provided hereunder by Elevate shall be (a) in the event of a breach of this Agreement by Elevate to terminate this Agreement pursuant to Section 8 and (b) to be reimbursed by Elevate for the replacement value (cost) of any Products that are stolen, destroyed, or damaged resulting solely from the gross negligence or willful misconduct on the part of Elevate, its agents, or employees while the Products are in possession of Elevate.
Errors:
Elevate shall not be liable for any failures of shipments to be made timely and accurately as a result of any mistakes in labeling or markings of the Products that were not directly caused by Elevate. The burden of proof shall be upon the Client to prove that any such inaccuracies were a direct result of errors or omissions committed by Elevate or its staff. Elevate shall not be responsible for orders or inventory not processed or managed using Elevate’s Warehouse Management System (“WMS”).
In case of errors in the shipping services provided by Elevate for Client that are solely caused by Elevate, Elevate shall be liable only to the extent of re-mailing a correction or correcting a job as soon as possible to rectify the mistake, and damages shall be limited to Elevate’s fees for the work performed and shipping charges and speeds used in the original shipment. However, the shipping method and shipping speed will be negotiated on a case by case basis. In no case will Elevate be liable for loss of business, printing costs, or implied damages or costs in excess of billing for services related to the specific job or shipment.
Hours of Operation: Elevate operates between the hours of 9:00 AM and 5:00 PM. With receiving hours between the hours of 10:00 AM and 3:00 PM. Any and all projects or work completed outside of these regular hours of operation at Client’s request may be billed at double the applicable rates in Appendix A. Please note that multiple charges may apply. Client may be permitted to perform quality control testing at the Elevate facility with twenty four (24) hours advance notice to Elevate and subsequent approval from Elevate.
Procedures: Client agrees to submit all orders and requests directly to Elevate’s WMS.
Processing Deadlines: All orders and requests submitted by the client must be submitted directly to Elevate’s WMS by 3:00 PM to be processed the same day. Orders submitted via any other method will have a longer processing time and will be charged applicable Warehouse Labor and Data Entry Fees.
Order imports/pushes must be scheduled and executed in a fashion that will prevent large spikes in order volume but maintain a consistent flow throughout the day.
If technical issues cause delays in the transfer of order information directly to Elevate’s WMS orders imported after 12 pm may be delayed.
If batches are delayed or a large spike of orders is received Elevate shall communicate revised shipment dates to Client.
Limitations: Order volumes above 50% of forecasted volume and requests outside of the scope of work will be processed at the discretion of Elevate to ensure quality and accuracy and Elevate communicate any changes in shipping dates Client no later than the following business day.
Priorities: All orders and requests submitted to Elevate will be processed in order of submission subject to the delays and limitations set forth in Sections 12.1 and 12.2. Orders and requests processed per special instruction will be assessed fees accordingly as outlined in Appendix A. Please note that multiple charges may apply.
Changes: Changes to orders and requests properly submitted will be reflected within 24 hours of submission. Changes to orders will result in a delay of processing and additional fees may apply.
Holds: Orders and requests to be held as per special instruction from the Client are subject to additional fees. Orders and requests held as a result of Elevate’s exercising options outlined in Section 12.1.2 herein will not be subject to holding fees until Elevate communicates to Client that said orders and requests are complete and ready to ship.
Large Orders: Orders exceeding a unit count of 150 items will be allotted an additional business day for processing to assure accuracy and completion of shipping documentation. Special shipping methods may be subject to additional fees as outlined in Appendix A and may require additional time to complete.
Additional Setup/Training: Client agrees to pay for the implementation of changes to processes, methods, and procedures proportional to the change in scope and scale as it differs from the normal course of business.
Materials: Elevate assumes and conditions all quotations on the condition that all material provided will permit efficient handling on automated equipment, and meets equipment manufacturer’s specifications. All materials which are not up to acceptable operations standards due to poor folding, facing, trimming, packing, sticking together of material, insufficient leeway between enclosures and envelopes, square envelope flaps or other causes, will be subject to pricing at special rates. Client will be notified when a deficiency is discovered and approval will be obtained for handling at special rates before proceeding with work; and a new delivery schedule may result.
Receipt of Products: Elevate agrees to receive deliveries of Client’s Products at Elevate’s facilities; provided, that Elevate is notified of such deliveries not less than one (1) business day prior to delivery.
Collect shipments will be accepted only if approval is given to Elevate in advance by the Client, and a service fee equal to fifteen percent (15%) or $50, whichever is greater, of said charges will be added to the actual freight charges.
Each incoming carton or pallet must bear an identity, item code, quantity and a sample clearly visible. Each pallet must have only one material version, unless clearly marked and separated. Multiple items should not be included within a single carton, pallet or container unless noted thereon and on supplied paperwork. Any pallets with product stacked more than sixty inches (60”) high (measured from the floor), or weighing more than two thousand five hundred (2,500) pounds, or those which are other than a standard size of a forty inches by forty-eight inches (40”x48”) pallet, shall be subject to a re-stacking fee.
All items must be clearly coded. Elevate will not be responsible for picking, packing, or receiving errors, which result from Client’s failure to code or from any mistake of items. Items that are not clearly coded may be subject to additional fees and delays. The burden of proof shall be upon the Client to prove that inaccuracies were a direct result of errors or omissions committed by Elevate or its staff.
Spoilage, Counts, and Shrinkage: Client acknowledges that all fulfillment, printing, bindery, assembly, and direct mail handling and processing involves spoilage. Allowances for spoilage should be taken into consideration in ordering material. Elevate will use its commercially reasonable efforts to handle Client’s materials with frugality and to prevent undue spoilage. Nevertheless, Elevate is not responsible for shortages of materials as a result of normal spoilage in processing to the extent of five (5) percent.
Printed delivery tickets must be provided or accompany material delivered to Elevate prior to acceptance and should show the number of skids or cartons, the quantity per skid or carton, and the total delivery quantity.
Client is responsible for requesting spot checks on inbound material receipts, weighing cartons or pallets, or counting items to verify the accuracy of the shipper’s counts. Elevate may charge additional fees according to pricing set forth in Appendix A for such spot checks.
Elevate is frequently asked to accept printer or manufacturer’s counts until processing. Elevate assumes no responsibility for shortages discovered at the time of processing or inventory counts.
Client agrees to the following shrinkage allowances:
If Elevate is not authorized to perform counts of material received, no verification shall be made, there shall be no ability to develop shrinkage estimates, and Elevate shall not be responsible for inventory shrinkage.
If Elevate performs test counts, spot checks or weight counts, the standard for shrinkage will not exceed five (5) percent of the material received.
In all instances, the liability for any losses shall be limited to Client’s actual cost of the materials, and not incidental costs, such as development costs, loss of sales, or retail value.
Addressing/Labels: Addressing/labels must be within equipment manufacturer’s published specifications for addressing/labeling equipment. Quoted prices are based upon the address placement being positioned in the most advantageous location for production speed. Additional charges may be billed in the event the address placement is not in the most advantageous location for production speed.
Packaging and Materials: Elevate shall itself or through its vendors provide for all materials and supplies required to complete the services and meet its obligations unless other arrangements have been made by Client. Any future opportunities need to be discussed and agreed to in writing. Elevate shall provide materials and supplies requisite and sufficient to meet the packaging requirements for safe transport and delivery of the specified carrier. Elevate shall provide supplies and materials sufficient for storage and movement within its facilities. Client agrees that materials and supplies will be utilized at the sole discretion of Elevate and will be billed accordingly.
Prices quoted assume the most advantageous packaging, crating, or assembly for order and production speeds. Unless otherwise agreed upon, specific or custom requests may result in additional charges being billed.
Prices quoted assume usage of Elevate’s standard cartons, envelopes, and packaging materials. Custom or specified materials may involve additional materials and handling charges and longer lead times.
Overages: Client must advise Elevate as to the disposition of material extras in advance of completing a job. Extras may be returned to Client, stored, or destroyed. If returned to Client, Client shall pay postage/shipping charges. Storage and delivery charges will be added when applicable, and material may be automatically destroyed after sixty (60) days if Client has failed to respond to disposition requests or failed to pay for storage. Premium storage rates may be applied to old materials or materials for which dispositions have not been designated.
Delivery Schedules: Elevate will use its commercially reasonable efforts to meet scheduled delivery dates, but because of the many factors outside its control, Elevate accepts no liability for failure to meet scheduled dates beyond this requirement. In addition, Elevate has no control over routine U.S. Postal Service, United Parcel Service, or other common carriers’ delivery schedules and cannot guarantee when mail or shipments will be delivered by them. All orders are accepted contingent to delay due to fire, accident, acts of God, technical problems with hardware, software, mechanical breakdown or other causes beyond Elevate’s reasonable control. Since the time element is an integral part of this business, quoted prices are based upon a specific set of time schedules described or agreed upon by both parties at commencement of assignment. Late material may affect the completion date of the order by a greater degree than the actual elapsed time the material is late. Late shipments may result in additional fees.
Attorney’s Fees: Client shall pay all costs and reasonable attorney’s fees and expenses incurred by Elevate in collection of all past due invoices, accounts, or other obligations incurred.
Property Title/Insurable Interest: Client shall retain title to and the insurable interest for its materials and Products. Elevate may carry insurance or elect to self-insure against loss of Client’s Products due to acts of negligence on the part of Elevate’s employees or agents in the normal course of business. If other specific insurance coverage is desired by Client, the premium of such insurance shall be paid by Client.
Client Information: Elevate does not accept liability or responsibility for compiling lists or databases of Client’s information, nor for any intangible or special value attached thereto. Elevate will exercise reasonable care in the protection against the loss of Client’s information.
Taxes: Client shall be solely responsible from all personal property taxes that may be assessed against the Products stored pursuant to this Agreement. Elevate will have no responsibility for payment or collection of any sales tax or other tax directly attributed to the sales transacted between Client and Client’s customers for the sale and purchase of the Products. Client will be responsible for the collection and payment of all taxes associated and directly attributable with the sales of the Products and agrees to complete the preparation and filing of all sales tax documentation and comply with all sales tax laws.
Representations and Warranties:
Elevate and Client each hereby represents and warrants to the other as follows: (a) such party has the full authority and legal right to carry out the terms of this Agreement; (b) the terms of this Agreement will not violate the terms of any agreement, contract, or other instrument to which it is a party and no consent or authorization of any other third party is required in order to enter into and carry out the terms of this Agreement; (c) such party has taken all corporate and other action necessary to authorize the execution and delivery of this Agreement; and (d) this Agreement is a legal, valid, and binding obligation of Elevate and Client as the case may be, enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws of general application relation to or affecting the enforcement of the rights of creditors or by equitable principles, whether enforcement is sought in equity or at law.
Client agrees to use its commercially reasonable efforts to request that suppliers or manufacturers warrant that all Products delivered to Elevate hereunder: (a) are, at the time of delivery, new Products; (b) are free from any design defects or defects in workmanship or materials; (c) conform to all of the technical specifications for such Products and perform in the manner for which such Products were designed; (d) vest good and valid title to such Product, fee and clear of all liens, security interests, encumbrances, burdens, and other claims; and (e) all intellectual rights embodied or contained therein do not infringe upon or violate any intellectual property right, including, without limitation, copyright, trademark, service mark, patent, patent application, trade dress, trade name, trade secret, mask work, mask right, or any other proprietary right of any third parties.
Indemnification: Client will defend, indemnify, and hold harmless Elevate and Elevate’s respective directors, officers, employees, agents, distributors, customers, assignees, and licensees (each an “Elevate Indemnified Party”) from and against any and all costs, claims, harm, damages, liabilities, losses, and expenses (including, without limitation, all reasonable attorneys’ fees, professional fees, and disbursements) of any and every nature and kind whatsoever (collectively, “Damages”) incurred, suffered, or sustained by any Elevate Indemnified Party arising from, or otherwise attributable to, (a) Client’s breach of or non-compliance with, any of its representations, warranties, covenants, and agreements contained in or arising under the terms of this Agreement, except to the extent that such Damages result from the gross negligence or willful misconduct of an Elevate Indemnified Party, and (b) third party claims related to Client’s business, operations, or Products.
Limitation of Liability: In no event will either party be liable for any indirect, incidental, special, or consequential damages incurred or suffered by the other party, including, without limitation, lost revenue, loss of income, or loss of business advantage, even if the other party has been advised of the possibility of such damages.
Notices: All notices under this Agreement shall be deemed duly given at the address herein set forth or to such other address as any party to this Agreement may designate in writing from time to time.
Upon delivery if delivery by hand; or
Upon date of postmark if sent by U.S. Mail to a party hereto; or
Upon the date signed from a receipt by a party hereto if sent by U.S. Mail Certified, Return Receipt Requested.
The individuals representing the above parties hereto who are to receive notice are: Elevate Fulfillment Inc, 795 Lindsay Blvd, Idaho Falls, ID 83402
Confidentiality: The parties covenant and agree not to disclose the terms, pricing, and conditions of this Agreement to any third party except as required in the normal conduct of their respective businesses or as agreed to by the other party with advanced written notice or permission or as required by applicable law or regulation. Client may not share pricing schedules for fulfillment, transportation, shipping, or any other service provided by Elevate without written consent.
Governing Authority: This Agreement shall be construed and enforced in accordance with the laws of the State of Idaho without regard to conflicts-of-laws principles that would require the application of any other law. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may only be brought against a party in the State or Federal courts serving Idaho Falls, Idaho and each party consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objections to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
Severability: If any provision of this Agreement of application thereof to any party of circumstances shall, to any extent, now or hereafter be or become invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the full extent permitted by law.
Collection Risks: Notwithstanding anything herein to the contrary, the parties acknowledge and agree that Elevate will not be required to make any collection efforts on behalf of Client and will share no risk with respect to any failure of Client to collect monies owed on any order.
Disclaimer of Warranties: Except as expressly set forth in this Agreement, neither party makes any representation or extends any warranty of any kind, either express or implied, including warranties as to merchantability or fitness for a particular purpose.
Force Majeure: Neither party will be liable for failures or delays in delivery or in performance due (except for payment obligations) to causes beyond its reasonable control, including, without limitation, acts of God or civil or military authority, epidemics, war, riot, strikes or labor stoppages. In the event of any such delay or failure, the party affected will promptly notify the other party in writing and use all commercially reasonable efforts to overcome the event or circumstance causing the delay or failure as soon as practicable.
Assignment: Neither party may assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party (which consent will not be unreasonably withheld).
Counterparts; Electronic Delivery: This Agreement may be executed in one or more counterparts, all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed copy of this Agreement by telecopy or other means of electronic communication producing a printed copy will be deemed to be an execution and delivery of this Agreement on the date of such communication by the parties so delivering such a copy. Any party so delivering such a copy via electronic communication shall deliver an executed original of this Agreement to the other parties upon request.
