PHASE V FULFILLMENT TERMS AND CONDITIONS
(the “Agreement”)
1. Definitions. “Phase V” shall mean and include service provider, Phase V of Florida LLC. “Client” shall mean any party using Phase V’s Services pursuant to a signed proposal and including its employees, agents, officers, directors and their users of Phase V’s Services. “Goods” shall mean any physical items handled by Phase V for the Client in connection with Phase V’s Services. “Records” shall mean any data, documents, lists, messages or orders taken by or handled by Phase V for the Client. “Services” shall mean order fulfillment services and related storage, packing and shipping and/or as otherwise described in the Client proposal.
2. Independent Contractor. Phase V shall, for all purposes, be deemed an independent contractor and shall be fully independent in performing any Services and shall not act or hold itself out as an agent, servant, or employee of Client. It is expressly understood and agreed that all Services provided under the terms of this Agreement shall be performed by the employees or independent contractors of Phase V and that no employee or independent contractor of Phase V shall be considered an employee of Client for any purpose whatsoever. Each of Phase V and Client will be responsible for its own expenses, wages, employee benefits, and all taxes, contributions and withholdings under all applicable federal, state, or local laws or regulations, and insurance coverage (including workers’ compensations) related thereto. In addition, neither Phase V employees nor Client employees are eligible for any benefit programs available to the other’s employees or any of the other’s affiliates, subsidiaries, divisions, or other related corporate entities. Except for the enforcement of personnel and property safety rules and regulations at Client sites, if and when applicable, Client shall not have the authority to control and/or direct the details of the performance of this Agreement by the employees or subcontractors of Phase V.
3. NO WARRANTIES/LIMITATION OF LIABILITY. PHASE V’S OBLIGATIONS UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PHASE V EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES, PHASE V’S WEB SITE AND ANY THIRD-PARTY SERVICES. EXCEPT AS A RESULT OF PHASE V’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PHASE V NOR ITS REPRESENTATIVES AND/OR SUBCONTRACTORS IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN BY PHASE V, 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. PHASE V’s MAXIMUM AGGREGATE LIABILITY TO CLIENT FOR ANY CLAIMS, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS UNDER THIS AGREEMENT, INCLUDING THE BREACH OF THIS AGREEMENT BY PHASE V, SHALL NOT EXCEED THE LESSER OF: (i) $2,000 OR (ii) 100% OF THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR SERVICES, NOT INCLUDING CARRIER CHARGES, DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PROVISIONS OF THIS CLAUSE ALLOCATE THE RISKS UNDER THIS AGREEMENT, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. PHASE V MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR CLIENT WAIVES ALL DAMAGES FROM PHASE V. THE PROVISIONS OF THIS AGREEMENT PROVIDE CLIENT’S EXCLUSIVE REMEDY AGAINST PHASE V FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT PHASE V CONVERTED THE INVENTORY TO ITS OWN USE. CLIENT HEREBY WAIVES ITS RIGHT TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
4. Shrinkage. Phase V will use commercially reasonable efforts to reduce, and/or eliminate, inventory shrinkage. Although not obligated to do so, Phase V may credit Client in an amount equal to the cost of goods for shrinkage that exceeds 1.5% of shipped value after Force Majeure, concealed shortages and damages have been deducted as applicable. Moreover, any such credit will be subject to a full physical inventory being requested by Client and completed, and such shrinkage being affirmatively acknowledged by both Parties. Further, in the event Phase V issues any credit as specified herein, the issuance of such credit shall not serve to limit or waive the limitation of liability specified in Section 3 above.
5. Representations and Warranties/Compliance/Indemnification/Insurance. Client hereby represents and warrants to Phase V (a) it is duly organized, validly existing and in good standing in the jurisdiction of its formation, (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, (c) it has the full power and authority to enter into this Agreement, to grant the rights granted to Phase V under this Agreement, (d) its execution of the Client Proposal has been duly authorized by all necessary action of the Client, (e) the Client Proposal and this Agreement will constitute the legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms, and (f) it shall at all times comply with all laws applicable to this Agreement and its obligations under this Agreement, including Client’s sale of the Goods, and the Client shall at its own expense maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the sale of the Goods and not engage in any activity or transaction involving the Goods, by way of shipment, use or otherwise, that violates any law.
Client hereby agrees that at no time during the period that Goods are held by Phase V will Phase V carry the risk of loss, which will continue to be held by Client until such Goods are delivered to proper recipient.
Client hereby agrees that it is at all times the Client’s responsibility to maintain an insurance policy that covers the cost of the Goods held in inventory by Phase V. Client can choose not to insure its inventory, but at no time will Phase V be liable for any loss or damage to the inventory stored at a Phase V facility, unless due to the willful misconduct of Phase V.
Client agrees to hold harmless, release and indemnify Phase V from all liability arising from or related to Client Goods and Records, breach of any representations or warranties or any other error or omission in contravention of this Section.
6. Pricing and Rates. Client pricing is described in their Proposal document. Client acknowledges that Phase V will subcontract the performance of some or all of the Services. Phase V’s rates, fees, charges, and rules are subject to change. Any such changes in the rates for this Agreement will be effective subject to Section 20 below. Phase V reserves the right to review prices at any time and will inform Client of any such increases in writing before they take effect.
7. Invoices/Payments/Security Interest/Lien. Invoices are due upon receipt. Phase V requires Client to provide a valid credit card or ACH for automatic debit (autopay) of all invoices. Phase V will invoice and collect payment monthly but may do so more frequently at its discretion. Phase V may also invoice for postage and services in advance at its discretion if a Client anticipates significant levels of shipments and services. Client hereby grants Phase V the right to charge the ACH info or credit card associated with the Client’s account for all amounts due, including, but not limited to, service charges, and interest. If paying by credit card there will be a 3.5% surcharge to the total of your invoice. If paying by ACH there are no additional payment surcharges.
If payment declines or is rejected and the invoice is not paid within 3 business days, the Client’s account shall be considered to be in arrears. A late charge of $25.00 or 2% of the balance on the unpaid balance from the invoice date, whichever is greater (and only to the extent permitted by applicable law), may be posted to the Client’s account and, in addition, Phase V may terminate or suspend Services without any further notice. Phase V may withhold Goods, Services and Records from any Client who is in arrears in the payment of his account.
Any client that is in arrears more than 2 times in any 12-month period may, at the discretion of Phase V, be required to pre-pay estimated monthly Services in order to continue Services with Phase V. Service estimates will be based on the previous 3 months.
If Phase V commences collections proceedings and/or legal action to obtain payment of the Client’s account, the Client agrees to pay reasonable attorneys’ fees, all costs of collection, court costs and applicable interest on the unpaid balance from the invoice date until the account is resolved (whether or not such interest is ever posted to any invoice).
8. Intellectual Property. Neither party shall, by virtue of this Agreement, acquire any ownership license or any other rights in any pre-existing software, documentation, or intellectual or technological property of the other party. Notwithstanding the foregoing, Client hereby acknowledges and agrees that Phase V may use Client as a reference and may use Client’s logo on marketing materials as a Phase V customer.
9. Non-Solicitation. During the term of this Agreement and for 365 days after any termination of this Agreement:
a. Client will not directly or indirectly, on its own behalf or in the service or on behalf of others, in any capacity induce or attempt to induce any officer, director, employee or subcontractor to leave Phase V.
b. Client will not directly or indirectly, on its own behalf or in the service or on behalf of others, in any capacity solicit the business of any customer or consultant of Phase V.
c. Client will not directly or indirectly disparage Phase V’s reputation with a third party(ies).
10. Records/Confidentiality. Phase V will receive dispatch and/or transmit Client Records while exercising ordinary and reasonable care. Phase V and Client shall treat all Records as confidential with the exception that it shall respond to legal process after giving notice to the other party of any such attempt to subpoena records from either Phase V or the Client.
11. Force Majeure. If any party to this Agreement is unable to meet its obligations under this Agreement as a result of flood, earthquake, hurricane, storm, pandemic, epidemic or other acts of God including; fire, derailment, accident, strike, lockout, explosion, war, insurrection, riot, embargo, terrorist activity, act of government or governmental agency or other similar cause beyond the reasonable control (“Force Majeure”) of the parties, such party will be excused from performing its obligations (except Client’s obligations to pay indebtedness hereunder) for the duration of the Force Majeure.
12. Client Risk. The Client assumes the risk of service interruptions, equipment breakdowns, delays, errors, failures and risk of loss and/or damage. Phase V shall not be liable for such risks unless the result of its intentional wrongdoing or gross negligence. In addition, while Phase V will make reasonable efforts to maintain reliable and continuous service, there will be some scheduled and nonscheduled downtime, usually for maintenance reasons. Phase V will not be liable for any claimed damages from such downtime.
13. Non-Exclusive. It is agreed and understood between the parties hereto, that Phase V is free to provide similar services to other customers.
14. Receiving. All shipments of Goods to our warehouse should adhere to our Receiving Requirements
15. Service Level Agreement. Performance of all services and turnaround times are defined on our Service Level Agreement page.
16. Additional Services. The Client may from time-to-time request Additional Services or special requests not listed in the Client Proposal. Any service not listed in the fee structure outlined in the Proposal is subject to hourly fees. Our Admin Time and Special Requests page outlines examples of additional services billed by the hour and corresponding fees.
17. Shipping. Phase V operates as a broker of shipping services. It shall allow Client to ship using Phase V accounts as permissible in order to reduce Clients shipping costs only when fulfilling orders through Phase V. Quotations for Shipping are for informational purposes only, are subject to change without notice, and shall not under any circumstances be binding upon Phase V. The final rates may vary based upon a number of factors such as carrier shipping prices, the actual characteristics of the product, the delivery address, and service requested during the normal course of delivery. Phase V reserves the right to bill the Shipping Fees based on actual charges, plus a modest markup, at any time after the Services are rendered. Phase V specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information provided to it, such as dimensions and weights. Phase V will work to resolve all shipping issues through the shipping providers authorized channels. Client agrees to be bound by the results of all shipping provider investigations and agrees that Phase V’s liability is limited solely to the amounts recouped from such investigations.
18. Inspection. Phase V shall, upon reasonable written notice from the Client, provide access to its offices during normal business hours for the purpose of conducting an inspection of Client’s Goods. Phase V shall cooperate with the Client in its inspection.
a. Conduct of Inspection. The Client shall conduct any inspection in a manner so as not to unreasonably disrupt Phase V’s business and subject to the Phase V’s standard security procedures. The Client shall restrict the scope, manner, and duration of any inspection to that reasonably necessary to achieve its purpose.
b. The Client shall keep confidential any information that it obtains from any inspection or audit, except as may be required to exercise its rights under this Agreement.
19. Term. This agreement may be terminated by Client with a 30 day written notice to Phase V. Notwithstanding the foregoing, it is expressly understood that Phase V may terminate this Agreement and any related proposal for any reason, at any time, upon thirty (30) days prior, written notice to Client. Phase V may also terminate this agreement with (10) ten days of notice for non-payment.
20. Effective Date. The Client agrees that these terms and conditions shall apply retroactively to the time the Client first used any Phase V service if any such service was rendered prior to execution hereof.
21. Miscellaneous. PHASE V MAY UPDATE AND MODIFY THESE TERMS AND CONDITIONS FROM TIME TO TIME. IN THE EVENT PHASE V UPDATES OR MODIFIES THESE TERMS AND CONDITIONS IT WILL NOTIFY CLIENT OF SUCH UPDATE OR MODIFICATION BY EMAIL, OR OTHER FORM OF NOTICE, USING CLIENT’S MOST RECENT CONTACT INFORMATION PROVIDED TO PHASE V. IN THE EVENT CLIENT DOES NOT WISH TO BE BOUND BY SUCH UPDATE OR MODIFICATION, CLIENT MUST NOTIFY PHASE V IN WRITING BY EMAIL SENT TO ORDERSUPPORT@PHASEV.COM WITHIN TEN (10) DAYS OF ITS RECEIPT OF SUCH NOTIFICATION. UPON RECEIVING SUCH NOTIFICATION FROM CLIENT, PHASE V IN ITS SOLE DISCRETION MAY DISCONTINUE PROVIDING ITS SERVICES TO CLIENT WITHIN A PERIOD OF TEN (10) DAYS THEREAFTER AND THE PARTIES’ RELATIONSHIP WILL TERMINATE UPON PHASE V’S NOTIFICATION TO CLIENT WITH RESPECT THERETO. No Client writing, document or assertion of any kind will serve to modify this Agreement without the express, written approval of an authorized Phase V officer. Any conflict between these terms and conditions and any other writing shall be resolved in favor of the terms and conditions herein set forth. Waiver of any of these terms and conditions by Phase V in any one or more instances or occasions shall not operate or be construed as a waiver of any subsequent instance or occasion. Further, in the event any word, phrase, sentence, paragraph, provision or sub part of this agreement is unenforceable or void as a matter of law, this shall not affect the other provisions herein stated. Sections 1,2,3,5,7 through 10, and 21 and 22 shall survive the termination of this Agreement.
22. MEDIATION AND ARBITRATION. Disputes arising under this Agreement must first be mediated by a Florida Supreme Court Certified Circuit Civil Mediator in Miami-Dade County, Florida. The parties agree that the mediation shall occur within thirty (30) days of the date mediation is requested by either party. The Mediator shall be agreed upon in good faith but if the parties are unwilling or unable to agree within fifteen (15) days from the date mediation is requested by either party, the parties agree to proceed to arbitration as specified below. The parties agree to abide by the Mediator’s agreement, pay Mediator fees promptly and share them on an equal basis. Arbitration may not be commenced until after mediation has been (i) declared as being at an impasse by the Mediator or (ii) terminated in writing by one or both of the parties. The confidentiality provisions of the “Mediation Confidentiality and Privilege Act” or the related section of Florida Statutes shall attach to any such pre-suit mediation.
In the event, a dispute is not resolved via mediation as specified above, any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association American under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Miami, Florida. Florida law shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Notwithstanding the above, disputes relating solely to payments due for Services provided may be brought by the aggrieved party in the courts, state or federal, located in Miami-Dade County, Florida, which both parties agree shall be the sole and exclusive venue for such disputes. Such disputes shall be governed by Florida law. The prevailing party shall be entitled to reasonable legal fees/costs through any appeals.