ASSEMBLY MOVE

Effective: August 17th, 2017

WAREHOUSING AND LOGISTICS SERVICES AGREEMENT

WHEREAS, CUSTOMER requires third party logistics management services to provide the storage space, materials handling facilities and personnel necessary for the receipt, storage, and delivery of its Goods (“Goods”), including but not limited to warehousing, order fulfillment, distribution, consolidation, kitting and other value added services;

THEREFORE, CUSTOMER shall also be known as DEPOSITOR;

WHEREAS, ASSEMBLY has certain warehousing facilities and services of the type and kind desired by DEPOSITOR; and

WHEREAS, ASSEMBLY desires to make said facilities and services commercially available to DEPOSITOR subject to the terms herein specified.

THEREFORE, for and in consideration of the mutual agreements, covenants and promises herein contained, it is hereby mutually agreed, covenanted and promised as follows:

1. Term Of Agreement

The term of this Agreement shall commence on the date of its execution by the parties hereto and shall continue thereafter in full force and effect for a period of one (1) year(s)(the “Initial Term”) and shall thereafter automatically renew on a six (6) month basis (each a “Renewal Term”) unless terminated prior to sixty (60) days before the expiration of any term.
If either party shall fail to perform any of the covenants or obligations of performance and payment imposed upon it under and by virtue of this Agreement (except where such failure is excused under other provisions of this Agreement), the other party shall give the defaulting party written notice, stating specifically the cause for which the notice of default is given. If, within a period of twenty (20) days after such notice the defaulting party has not removed and remedied the default, then the party not in default may cancel this Agreement without any further obligation by immediately furnishing the defaulting party a notice of cancellation.
Any amendment or modification to this Agreement shall be effective only if in writing and signed by each Party.

2. Acceptance Of Goods, Rates And Charges

During any term of this Agreement, ASSEMBLY agrees to provide for DEPOSITOR certain warehousing facilities and services described in this Agreement and the attached Schedule “A” that is made a part hereof, and to accept and keep in a neat and orderly condition such Goods described in Schedule “A” as from time to time may be tendered by DEPOSITOR.
ASSEMBLY agrees to furnish personnel, equipment and other accessories necessary to perform efficiently and with safety the services herein described.
Rates and charges for warehousing services are set forth in Schedule “B”. For any services not specified in Schedule “B”. DEPOSITOR shall pay to ASSEMBLY such consideration in compensation as may mutually be agreed upon in writing.
Warehouse labor required for services other than ordinary handling and storage must be authorized by DEPOSITOR in advance. Rates and charges will be provided for herein or as mutually agreed by the parties hereto (See Schedule “B”).
A monthly Base Fee may apply to DEPOSITOR’s account. For the purposes of this Agreement, “Base Fee” shall cover charges for facility intake and customer handling charges, as further described in Schedule B.
Minimum monthly fees, including but not limited to all picking, consolidation and kitting services, may be made, as further detailed in Schedule B.
ASSEMBLY may charge relevant minimum monthly charges to each account when one customer has several accounts, each requiring separate records and billing.

3. Payment Terms For Services Rendered

Consideration for ASSEMBLY’s performance of this Agreement shall be paid to ASSEMBLY by DEPOSITOR within fifteen (15) days after date of ASSEMBLY’s invoice. DEPOSITOR may not dispute invoices after more than thirty (30) days from date of invoice. In addition, DEPOSITOR may not offset payment of invoices for disputed claims without the prior written consent of ASSEMBLY. Any invoice over thirty (30) days past due may be assessed a service charge of 18% APR per month.

4. Services To Be Performed

ASSEMBLY shall receive, store, handle and deliver DEPOSITOR’S Goods at its facilities. The specific services which ASSEMBLY shall provide DEPOSITOR, during any term of the Agreement are set forth on Schedule A.
Any and all services provided for by ASSEMBLY herein shall be subject to ASSEMBLY’s Terms of Service, available at http://assembly.com/legal/tos.

5. Shipping

DEPOSITOR agrees not to ship Goods to ASSEMBLY as the named consignee. If, in violation of this Agreement, Goods are shipped to ASSEMBLY as named consignee, DEPOSITOR agrees to notify carrier in writing prior to such shipment, with a copy of such notice to ASSEMBLY, that ASSEMBLY named as consignee is a warehouseman under law and has no beneficial title or interest in such property. DEPOSITOR further agrees to indemnify and hold harmless ASSEMBLY from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention, or charges of any nature, in connection with Goods so shipped. DEPOSITOR further agrees that, if it fails to notify carrier as required by the preceding sentence, ASSEMBLY shall have the right to refuse such Goods and shall not be liable or responsible for any loss, injury or damage of any nature to, or related to, such Goods.

6. Tender For Storage

All Goods tendered for storage shall be delivered at the warehouse in a segregated manner, properly marked and packaged for handling. DEPOSITOR shall furnish or cause to be furnished at or prior to such delivery, a manifest showing the Goods to be kept and accounted for separately. In the event that Goods tendered to ASSEMBLY do not conform to the description provided to ASSEMBLY by DEPOSITOR, ASSEMBLY may refuse to accept such Goods. If ASSEMBLY accepts such Goods, DEPOSITOR agrees to pay the rates and charges as set forth in this Agreement and the Schedules attached thereto. ASSEMBLY is not a guarantor of the condition of such Goods under any circumstances including but not limited to hidden, concealed, or latent defects in the Goods. Concealed shortages, damage or tampering will not be the responsibility of ASSEMBLY. In no event will ASSEMBLY be liable for loss or damage caused by the events set forth in the Force Majeure section of this Agreement or the inherent vice or nature of the Goods.

7. Transfer Of Goods

Instructions to transfer Goods on the books of ASSEMBLY shall not be effective until said instructions are delivered (in writing) to and accepted by ASSEMBLY, and all charges up to the time transfer is made shall be chargeable to DEPOSITOR. If a transfer involves the rehandling of Goods, it will be subject to rates and charges shown in the attached Schedule B or as otherwise mutually agreed upon. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of such transfer.
ASSEMBLY may move Goods within the warehouse in which they are stored as ASSEMBLY deems necessary to maintain storage and handling efficiencies.
If, as a result of a quality or condition of the Goods of which ASSEMBLY had no notice at the time of deposit, the Goods are a hazard to other property or to the ASSEMBLY facility or to persons, ASSEMBLY shall immediately notify DEPOSITOR and DEPOSITOR shall thereupon claim its interest in the said Goods and remove them from the warehouse at DEPOSITOR’s sole cost and expense. Pending such disposition ASSEMBLY may remove the Goods from the facility, with costs and expenses to DEPOSITOR’S account, and shall incur no liability by reason of such removal.

8. Handling

Handling rates and charges (including but not limited to any Base Fee) shall be as shown in the attached Schedule B shall, unless otherwise agreed, cover the ordinary labor involved in receiving Goods at a warehouse door or dock, placing Goods in storage, and returning Goods to warehouse door or dock. Additional expenses incurred by ASSEMBLY in handling goods or loading or unloading cars or vehicles shall be at rates shown in attached Schedule B or as otherwise mutually agreed upon.
ASSEMBLY shall not be liable for demurrage, detention or delays in unloading inbound vehicles or detention or delays in obtaining and unloading vehicles for outbound shipments unless ASSEMBLY has failed to exercise reasonable care and judgment as determined by industry practice.

9. Standard of Care and Liability, Limitation Of Damages

ASSEMBLY shall not be liable for any loss, damage or destruction to Goods, however caused, unless such loss, damage, or destruction resulted from ASSEMBLY’s failure to exercise such care in regard to the Goods as a reasonably careful warehouseman would exercise under like circumstances. ASSEMBLY will not be liable for damage of any type which could not be avoided by the exercise of such care.
In the event of loss, damage or destruction to stored Goods for which ASSEMBLY is legally liable, DEPOSITOR declares that ASSEMBLY’s liability for damages shall be limited to the lesser of the following amounts (1) the actual cost to DEPOSITOR of replacing or reproducing the damaged Goods together with transportation costs to warehouse; or (2) the sum of total fees paid in the last twelve (12) months (if DEPOSITOR has fewer than twelve (12) months of payment, the amount shall be limited to the average of monthly fees paid by DEPOSITOR multiplied by twelve (12)). In no instance shall any one claim exceed the limit of warehouse legal liability insurance outlined in Section 16 below, provided, however that within a reasonable time after receipt of this agreement, DEPOSITOR may, upon written request, increase ASSEMBLY’s liability in part or on all of the Goods stored under the Agreement, in which case an increased charges will be made based upon such increased valuation; further provided that no such request shall be valid unless made before loss, damage or destruction to any portion of the Goods stored under this Agreement has occurred.
The limitation of liability referred to in paragraph (B) above shall be DEPOSITOR’S exclusive remedy against ASSEMBLY for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of the stored Goods and shall apply to all claims including inventory shortage and mysterious disappearance claims unless DEPOSITOR proves by affirmative evidence that ASSEMBLY converted the Goods to its own use. DEPOSITOR waives any rights to rely upon any presumption of conversion imposed by law. In no event shall DEPOSITOR be entitled to incidental, indirect, special, punitive or other consequential damages.
Goods are not insured by ASSEMBLY against loss or damage however caused. DEPOSITOR acknowledges and agrees that ASSEMBLY is not an insurer or guarantor of any Goods placed in its possession by DEPOSITOR pursuant to this Agreement.
Where loss or injury occurs to DEPOSITOR’S Goods, for which ASSEMBLY is not liable, DEPOSITOR shall be responsible for the cost of removing and disposing of such Goods, as well as the cost of any environmental cleanup and/or site remediation resulting from the loss or injury to such Goods.
Waiver of subrogation. The parties acknowledge that it is the intent of this Agreement to limit ASSEMBLY’s liability in connection with loss or damage to DEPOSITOR’S products resulting from ASSEMBLY’s negligence and covered by ASSEMBLY’s legal liability insurance carried by ASSEMBLY. DEPOSITOR and its insurers hereby waive their rights of recovery against ASSEMBLY for claims in excess of ASSEMBLY’s liability as expressed in this Section 9.

10. Notice Of Loss And Damage And Filing Of Claim

ASSEMBLY agrees to notify DEPOSITOR promptly of any loss or damage, however caused, to Goods handled under the terms of this Agreement.
Claims by DEPOSITOR must be presented in writing to ASSEMBLY not longer than either sixty (60) days after delivery of Goods by ASSEMBLY or sixty (60) days after DEPOSITOR is notified by ASSEMBLY that loss or injury to part or all of the Goods has occurred, which ever time is shorter. Each claim must contain reasonably detailed information necessary to identify the Goods affected, the basis for liability and the amount of the alleged loss or damage, as well as all appropriate supporting documentation which must include: a summary of claims for both damaged and shortages of items, a report of individual carton ID’s and their appropriate claims designation, including claim value, and individual claim forms for each claim that is supported by the report also provided.
No action may be maintained by DEPOSITOR or others against ASSEMBLY for loss or injury to the Goods stored unless timely written claim has been given as provided in paragraph (B) of this section and unless such action is commenced either within nine (9) months after date of delivery by ASSEMBLY or within nine months after DEPOSITOR of record is notified that loss or injury to part or all of the Goods has occurred, whichever time is shorter.

11. Liability For Consequential Damages

ASSEMBLY shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind arising from services or other activities performed pursuant to this Agreement.

12. Liability For Misshipment and Chargebacks

If ASSEMBLY negligently misships Goods, ASSEMBLY shall pay the reasonable transportation charges incurred to return such Goods to ASSEMBLY’s facility. If the consignee fails to return the Goods, ASSEMBLY’s maximum liability for the lost or damaged Goods shall be as specified in Section 9 above, and ASSEMBLY shall have no liability for damages due to the consignee’s acceptance or use of the Goods whether such Goods be those of the DEPOSITOR or another party.
ASSEMBLY shall not be responsible for chargebacks of any kind except as may specifically be set forth herein.
Any and all claims made pursuant to this Section must be in compliance with the requirements set forth in Section 10(B).

13. Mysterious Disappearance

ASSEMBLY shall not be liable for loss of Goods due to inventory shortage (in excess of that set forth in Section 9 above) or unexplained or mysterious disappearance of Goods unless DEPOSITOR establishes such loss occurred because of ASSEMBLY’s failure to exercise the care required of ASSEMBLY under Section 9 above. Any presumption of conversion imposed by law shall not apply to such loss and a claim by DEPOSITOR of conversion must be established by affirmative evidence that ASSEMBLY converted the Goods to ASSEMBLY’s own use.

14. Force Majeure

Neither DEPOSITOR nor ASSEMBLY shall be liable to the other for default in the performance or discharge of any duty or obligation under this Agreement when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of Goods, closure of public highways, railways, airways or shipping lanes, governmental interference or regulations, or other contingencies, similar or dissimilar to the foregoing, beyond the reasonable control of the affected party.
Upon the occurrence of such an event the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires ASSEMBLY to continue to protect the Goods, DEPOSITOR agrees to pay the storage or similar charges associated with ASSEMBLY’s obligation during the continuance of the force majeure.
All Goods are stored, handled, and transported at DEPOSITOR’s sole risk of loss, damage, or delay caused by any of the above.

15. Indemnification

Each party (“the Indemnitor”) shall indemnify and hold the other party (“the Indemnitee”) harmless from and against all liabilities, claims, suits, actions, fines, damages, losses, costs and expenses arising: 1) from breach of this Agreement; or 2) out of injury to or death of any person or damage to or loss or destruction of any property (except for the Goods where liability is covered in Section 9 above) caused by or resulting from any parties’ default, improper performance or non-performance of obligations hereunder by the Indemnitor, its employees or agents.
The Indemnitee shall provide prompt notice of any claim or liability; shall tender defense or settlement to the Indemnitor, and shall fully cooperate in defense of the claim. Should the Indemnitor fail to honor a timely request for indemnification, then the Indemnitee shall be entitled to all costs incurred in the enforcement of the right of indemnification hereunder, which enforcement results in a legal judgment in its favor or an acknowledgement by the Indemnitor that the claimed indemnification is valid in a settlement of such claim.
Any and all indemnification is subject to coverage by an insurer.

16. Insurance

ASSEMBLY shall maintain an insurance policy with at least a $1,000,000 limit.
Insurance covering loss or damage to Depositor’s Goods (a) where Assembly is not liable, or (b) which exceed the limitation of damages if ASSEMBLY is liable, shall be maintained by DEPOSITOR.

17. Right To Store Goods and Warehouseman’s Lien

DEPOSITOR represents and warrants that DEPOSITOR is lawfully in possession of the Goods and has the right and authority to contract with ASSEMBLY for the services contemplated by this Agreement relating to those Goods. DEPOSITOR agrees to indemnify and hold ASSEMBLY harmless from all loss, cost and expense (including reasonable attorneys’ fees) which ASSEMBLY pays or incurs as a result of any claims, dispute or litigation, whether instituted by DEPOSITOR or others, respecting DEPOSITOR’S right, title or interest in the Goods covered by this Agreement.
On Goods in ASSEMBLY’s possession, it shall have a general warehouse lien for any unpaid charges and associated expenses. ASSEMBLY shall not permit any lien or other encumbrance to be placed against the Goods while they are in ASSEMBLY’s possession other than its general warehouseman’s lien.

18. Severability

The provisions of this Agreement are to be considered as independent obligations. Therefore, should one provision be determined to be void and not be legally enforceable, its invalidation shall not excuse compliance with and adherence to the remaining provisions of this Agreement by the parties.

19. Waiver

Compliance with any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term, but any such waiver shall be effective only if in a writing signed by the party against which such waiver is to be asserted. Except as otherwise provided herein, no failure or delay of any party in exercising any power or right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power preclude any other or further exercise thereof or the exercise of any other right or power.

20. Independent Contractor

It is hereby agreed and understood that ASSEMBLY is entering into this Agreement as an independent contractor and that all of ASSEMBLY’s personnel engaged in work to be done under the terms of this Agreement are to be considered as employees of ASSEMBLY and under no circumstances shall they be construed or considered to be employees of DEPOSITOR. ASSEMBLY shall supervise the performance of its own employees in providing services for DEPOSITOR and shall have exclusive control over the manner and means by which its services are performed, subject to the terms of this Agreement as well as any written and mutually agreed upon amendments thereto. Nothing in this Agreement will be interpreted as creating any relationship of principal and agent, partnership or joint venture between the parties. Neither DEPOSITOR nor ASSEMBLY will represent in any manner to any third party that ASSEMBLY is an agent of, or affiliated with, DEPOSITOR in any capacity other than as an independent contractor, and nothing in this Agreement shall be construed to be inconsistent with such status.

21. Notification Of Product Characteristics and Dangerous Articles

DEPOSITOR shall notify ASSEMBLY of the characteristics of any of DEPOSITOR’S products that may in any way be likely to cause damage to ASSEMBLY’s premises or to other products that may be stored by ASSEMBLY.
DEPOSITOR represents that all Goods are in compliance with any applicable laws related to the transportation and storage of its Goods. DEPOSITOR, except to the extent hereinafter specified, represents that none of the Goods which it Assembly has in storage, or will store and handle in the future with ASSEMBLY are adulterated, flammable, hazardous or dangerous materials or articles, explosives or pesticides, as defined under the regulated federal, state or local laws, statutes, ordinances, or regulations, and that any goods it has in storage, or will store and handle in the future with ASSEMBLY which require registration, permits, licenses or similar approvals under federal, state or local laws, statutes, ordinances or regulations are guaranteed to have such registrations, permits, licenses or approvals at the time (or prior, if required by applicable law, regulation or rule) the Goods are tendered to ASSEMBLY and during the time they are in ASSEMBLY’s custody.
DEPOSITOR further represents that the Goods which it has in storage which are defined or are subject to regulation under foreign, federal, state or local laws, statutes, ordinances or regulations including, but not limited to, adulterated, flammable, hazardous or dangerous materials or articles, explosives or pesticides will be individually listed on receiving/shipping document (bill of lading) naming the Goods and designating which laws, statutes, ordinances or regulations apply to the storage, handling and transportation of the Goods, and whenever in the future the undersigned tenders Goods to ASSEMBLY for storage or handling which are defined and subject to regulation under foreign, federal, state or local laws, statutes, ordinances or regulations including but not limited to those applicable to adulterated, flammable, hazardous or dangerous materials or articles, explosives or pesticides it shall, at the time of such tender, advise ASSEMBLY, in writing, with respect to each such item which laws, statutes, ordinances and or regulations apply to the storage, handling and transportation of the Goods.
DEPOSITOR further represents that with respect to any Goods DEPOSITOR has in storage, or will store in the future with ASSEMBLY which, due to such foreign, federal, state or local laws, statutes, ordinances or regulations applicable to the Goods, require special handling, storage, segregation of commodities, documentation, records certification, reports of other treatment beyond that normally afforded by ASSEMBLY to Goods generally, it will furnish ASSEMBLY with complete and correct information and instructions (in writing) necessary to conform with all legal requirements applicable to its Goods.
DEPOSITOR agrees to indemnify and save ASSEMBLY harmless against any and all claims, demands, liabilities, laws, damages, costs or expenses which ASSEMBLY may incur, suffer or be required to pay by reason of any failure or breach of the aforementioned representations, agreements and guarantees of the Depositor.

22. Recall

In the event a recall, a field alert, product withdrawal or field correction may be necessary with respect to any Goods provided under this Agreement, DEPOSITOR shall immediately notify ASSEMBLY in writing. ASSEMBLY will not act to initiate a recall, field alert, product withdrawal or field correction without the express prior written approval of DEPOSITOR, unless otherwise legally required. In the event DEPOSITOR believes a recall, field alert, product withdrawal or field correction may be necessary with respect to any Goods provided under this Agreement, DEPOSITOR shall immediately notify ASSEMBLY in writing and ASSEMBLY shall provide reasonable cooperation and assistance to DEPOSITOR. The cost of any recall, field alert, product withdrawal or field correction shall be borne by DEPOSITOR.