Effective upon signature, you (hereinafter referred to as CLIENT) agree to the following terms and conditions set forth by Rush Order (hereinafter referred to as RUSH ORDER).
Whereas CLIENT agrees to purchase and RUSH ORDER agrees to provide some or all of its services in accordance with the terms and conditions of this Agreement, the parties agree as follows:
AUTHORIZATION / AUTHORIZE / AUTHORIZED. CLIENT may AUTHORIZE services and / or work to be performed as part of this Agreement by verbal or written instructions delivered in person, by mail or electronically.
NOTIFICATION / NOTIFIED / NOTICE. Consists of written, email, web chat, or phone communication between CLIENT and RUSH ORDER, as well as alerts in the RUSH ORDER web portal.
CUSTOMER. The purchaser or recipient of a product or service from CLIENT.
GOODS. Product tendered for storage under this Agreement.
TERM AND INITIAL SET UP.
This Agreement is valid for a period of one (1) year and shall be renewed each year after provided either party has not given notice to terminate 30 days prior to the anniversary date of the agreement. Furthermore, CLIENT may terminate this Agreement at any time upon 30 day Notice.
RUSH ORDER will configure its systems for CLIENT, based on CLIENT provided data. RUSH ORDER will complete the setup within two weeks of (i) RUSH ORDER’S receipt of the following information, where applicable to CLIENT’S desired services, and (ii) receipt of the setup fees.
Account Information. Including information to be provided to CLIENT’S customers, CLIENT’S Tax Identification Number(s), Data to be provided on customer invoices or packing lists and all other material information related to CLIENT’S policies and practices.
Inventory. CLIENT will provide an item number or stock keeping unit (SKU) and all material descriptions of each product included in the setup. This information will include but is not limited to: Product description; SKU; Universal Product Code (UPC); declared value(s); low inventory indicators; serial capture requirements; and selling prices, determining factors for selling prices and taxable status of each product. CLIENT represents and warrants that CLIENT is lawfully possessed of the Goods and has the right to and authority to store them with RUSH ORDER. CLIENT agrees to indemnify and hold harmless RUSH ORDER from all loss, cost, and expense (including reasonable attorneys’ fees) that RUSH ORDER pays or incurs as a result of any dispute or litigation, whether instituted by RUSH ORDER or others, respecting CLIENT’s right, title, or interest in the Goods. Such amounts shall be charges in relation to the Goods and subject to RUSH ORDER’s warehouse lien.
Source Codes. CLIENT may provide a code limited to nine alphanumeric characters identifying each advertisement, promotion, order source, channel partner, cost center, or any other identifiable data point CLIENT wishes to be used in sales and returns reporting.
Shipping Methods. Subject to the freight rate schedule provided by RUSH ORDER, CLIENT will specify service levels to be utilized. RUSH ORDER has no obligation to make such an offer and retains the right to rescind use of its carrier accounts for any reason, including failure to pay on time or in full as described in Paragraph 19.3.
Standard Communication. CLIENT will provide guidelines for any desired Notifications to be sent to Customers.
Return Policy. CLIENT will provide guidelines for return authorization, returned item inspection and disposition, and any resulting credits or refunds due to Customers.
Business Rules. CLIENT will provide any business rules specific to its products, services, and methods with which it expects to facilitate transactions with its Customers.
Insurance. CLIENT will provide proof in the form of a current policy or certificate that CLIENT’S inventory is insured in all RUSH ORDER facilities in accordance with Paragraph 19, as well as provide updated proof of insurance when policies are renewed or updated.
Customer Support and Other Training. CLIENT will conduct RUSH ORDER staff training(s) and supply relevant training materials related to all topics if utilizing RUSH ORDER’s Customer Support services.
Export Information. CLIENT will provide guidelines for any international order taking requirements, shipping methods, excluded shipment destinations, and declared order values.
CUSTOMER EXPERIENCE / CUSTOMER SUPPORT.
Subject to Customer Experience fees, RUSH ORDER may provide support to CLIENT and CLIENT’s Customers by performing activities prescribed by or Authorized pursuant to this Agreement.
Non-Order Inquiries. RUSH ORDER may receive inbound customer service inquiries on behalf of CLIENT for issues including, but not limited to: Company and product questions; account balance questions; order tracing, return authorization requests; and presales questions and other CLIENT business.
Customer Care. RUSH ORDER may conduct tasks necessary to the resolution of a Customer inquiry through the use of phone, fax, mail, email, web-based chat, text message / SMS, and social media, and conduct additional research or special projects as needed.
Dedicated Team. In the event CLIENT Authorizes a dedicated customer care team, CLIENT and RUSH ORDER will agree in writing in advance to a minimum number of man hours on a rolling one month basis. Any reduction in the minimum quantity of man hours is subject to the one month rolling period and a minimum of thirty (15) days Notice by CLIENT to RUSH ORDER.
RUSH ORDER will receive on CLIENT’S behalf, orders for product(s), promotional item(s), and literature request(s) via automated web based import, telephone, chat, and manual entry. Information captured as part of this service is limited to available information from the Customer or Customer’s correspondence and RUSH ORDER systems. Orders lacking specified data and/or payment terms will be entered and placed on hold pending the required information by attempting to contact the customer by outbound Notices.
Subject to Warehouse Service fees provided, RUSH ORDER may pick, pack, and ship CLIENT’S orders from any CLIENT Authorized warehouse location.
Product Pick and Pack. Items ordered shall be picked from CLIENT’S inventory located at a RUSH ORDER warehouse, packed in a suitable shipping container, if necessary, and labeled. RUSH ORDER may include one copy of the packing list with the order. CLIENT shall deliver the Goods to the Facilities in a segregated manner, properly marked and packaged for handling. Prior to delivery of the Goods, CLIENT shall furnish a manifest showing the Goods to be tendered for storage, with any instructions concerning storage, services, accounting, segregation, or any other requirements relating to the Goods. RUSH ORDER 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, inherent vice or tampering will not be the responsibility of RUSH ORDER.
Shipping. Subject to CLIENT instruction, RUSH ORDER shall arrange shipping of orders via third party carriers. CLIENT agrees that all Goods shipped to and from RUSH ORDER shall identify CLIENT on the bill of lading or other contract of carriage as the named consignee, in care of RUSH ORDER, and shall not identify RUSH ORDER as the consignee. If, in violation of this Agreement, Goods are shipped to RUSH ORDER as named consignee or shipped from RUSH ORDER as named shipper or consignor on the bill of lading or other contract of carriage, CLIENT agrees to immediately notify carrier in writing, with copy of such notice to RUSH ORDER, that RUSH ORDER named as consignee is the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, RUSH ORDER shall have the right to refuse such Goods and shall not be liable for any loss, mis-consignment, or damage of any nature to, or related to, such Goods. The parties agree that, regardless of whether RUSH ORDER is incorrectly identified as named consignee, or CLIENT fails to notify carrier of the incorrect identification on the bill of lading or other contract of carriage, under no circumstances shall RUSH ORDER be considered the consignee for purposes of identifying the “importer” under 21 U.S.C. § 384a. The parties further agree that, regardless of whether RUSH ORDER is named as an “agent” for purposes of 21 U.S.C. § 350d or receives notification from the U.S. government with respect to confirmation of RUSH ORDER’S status as “agent” under 21 U.S.C. § 350d, under no circumstances shall RUSH ORDER be an agent for purposes of identifying the “importer”. RUSH ORDER shall not be responsible for complying with or performing the duties required of an “importer” under 21 U.S.C. § 384a. Whether RUSH ORDER accepts or refuses Goods shipped in violation of this Section, CLIENT agrees to indemnify and hold RUSH ORDER harmless from all claims for transportation, storage, handling, and other charges relating to such Goods, including undercharges, rail demurrage, truck/intermodal detention, and any fines, penalties, costs and expenses (including attorney’s fees), and other charges of any nature whatsoever resulting from CLIENT’S failure to comply with the requirements of this Section.
Receiving. RUSH ORDER will receive merchandise on CLIENT’S behalf during the hours of 9:00 am to 4:00 p.m. local time, Monday through Friday, excluding national holidays. Deliveries will be logged at time of arrival. RUSH ORDER will inspect the delivery for obvious damage and number of cartons/skids. Any discrepancies will be noted on the carrier’s bill of lading (BOL), if a BOL is provided, and a RUSH ORDER warehouse employee will sign the receipt unless delivery is made by small parcel carrier where such signatures are not possible on a carton by carton basis. RUSH ORDER will count the cartons received and determine the completeness of the delivery against the accompanying packing slip or advanced shipment notification (ASN). The packing slip or ASN must be provided in advance by CLIENT to ensure speedy receiving and put away. Upon completion of the aforementioned steps, a Receiving Tag will be prepared within 24 hours, excluding weekends and national holidays, by RUSH ORDER for each shipment. Receiving Tags shall note quantities and contents, as well as any damage and discrepancies. A copy of the Receiving Tag will be made available to CLIENT immediately.
Storage. RUSH ORDER shall store and hold CLIENT inventory in accordance with the Storage fees provided.
Special Projects & Shipments. CLIENT may wish to have special or bespoke projects and shipments performed and billed at the hourly Special Projects rate provided. From time to time, CLIENT may Notify RUSH ORDER and/or Authorize such work with detailed instructions of the work to be performed. RUSH ORDER shall accept this work by either completing the instructions or by Notification to CLIENT. RUSH ORDER will create a work order will be created indicating any special instructions, the start time and end time, and person(s) performing the work.
Physical Inventory & Cycle Counts. CLIENT will Authorize physical inventory counts as required by its own business practices, as well as ongoing and recurring cycle counts. CLIENT will specify the portion or entirety of the inventory to be counted. Regular Cycle Counts are included in the Storage fees provided. Annual or other frequency “wall to wall” physical inventory counts will be performed according to the following procedure at the special projects hourly rate provided.
Schedule the full physical inventory count within thirty (30) days of CLIENT’S request;
Fill all orders printed and pending;
Tabulate any printed invoices not shipped;
Count and record inventory;
Tag each bin or location electronically with an inventory confirmation notice;
A second count shall be performed on any inventory count for items that have a variance greater than three percent (3%) of perpetual inventory counts;
Inventory count report will be sent to CLIENT.
Upon Authorization from CLIENT, RUSH ORDER may generate reports.
Standard Web Based Reporting Package. RUSH ORDER will provide the following reports as part of the standard web based reporting package.
Order Lookup Report shall include aggregated order summaries and individual order details searchable by order number, order number range, date range, customer information, and order information.
Inventory Report shall include units received, currently in stock, committed to pending orders, unsold, and on backorder, sorted by product and warehouse location.
Returns and Return Merchandise Authorization (RMA) reporting shall provide open and closed RMA details, searchable by date range, as well as customer and order information.
Receiver Report shall provide copies of all inbound inventory receipt acknowledgements.
Custom web Based Reports. CLIENT may request custom or bespoke reports to be developed by RUSH ORDER pursuant to the Software Development fee provided.
Standard Monthly Reporting Package. RUSH ORDER will provide the following monthly reports for the benefit of CLIENT’S accounting reconciliation.
Inventory Report shall include beginning and ending balances, as well as a summary of sales, returns, and adjustments recorded throughout the month.
Sales Tax Collected Report shall indicate the sales by taxing jurisdiction provided as part of paragraph 2.2 or subsequently amended by Notice, and sales tax invoiced for the reporting month.
Journal Account Activity Report shall list cash in reporting of each transaction sub sorted by payment type, and a listing by order for each completed invoice and adjustment transaction.
Accounts Receivable / Accounts Payable Report shall include a listing of all accounts with open balances and all prepaid unfilled orders.
Custom Monthly Reports. CLIENT may request custom or bespoke reports to be developed by RUSH ORDER pursuant to the Software Development fee provided.
LIST REQUESTS & ONE TIME REPORTS.
Subject to Consulting and Software Development fees and upon CLIENT AUTHORIZATION, RUSH ORDER shall create any one off lists or reports CLIENT desires based on available data in the RUSH ORDER system. The lead time for such reports will depend on current workload by RUSH ORDER consulting and software development staff, but RUSH ORDER will make its best effort to meet CLIENT deadlines.
Subject to Consulting and Software Development fees listed, CLIENT may AUTHORIZE technology related work from time to time. These activities may include but are not limited to custom reports, list creation, data conversions, systems integrations, and research. RUSH ORDER shall retain ownership of the software code and will, whenever possible, use portions of existing code from other projects to reduce time and expense. RUSH ORDER will use reasonable efforts to ensure all custom applications and other software development projects are error free.
Subject to fees provided, RUSH ORDER will accept customer returns. Customers’ records shall be amended with the details of the return including:
Reason for return (Each return will be audited for reason of the return.)
Merchandise returned by a customer will be inspected to determine the condition of the merchandise. This inspection will be subject to the guidance of CLIENT. Resalable merchandise will be returned to inventory. Damaged merchandise will be batched and disposed of or reworked as per CLIENT’S Authorization.
Customer record updated. The customer’s record will be credited for the amount Authorized by CLIENT.
Credit card refund. Upon CLIENT Authorization, RUSH ORDER will process refunds to customers’ credit card accounts for the Authorized credit amounts when each customer (a) is due a refund and (b) paid by credit card.
ACCOUNT MANAGEMENT AND SUPPORT.
Subject to the monthly fee provided, RUSH ORDER shall assign one or more employee(s) the responsibility of coordinating the details of CLIENT’s project(s) via phone, email, and chat. CLIENT may from time to time Authorize work to be performed not covered in any other paragraph of this Agreement. These tasks shall be coordinated and performed as Authorized within the timeframes agreed to by CLIENT and RUSH ORDER. A work order shall be completed to indicate the scope of the work, the duration, and the name of the individual(s) performing the work
PASS THROUGH CHARGES.
Postage and freight costs. RUSH ORDER shall make CUSTOMER orders ready for shipment. CLIENT remains the shipper and RUSH ORDER shall place shipment in transit as CLIENT’S agent. If offered by RUSH ORDER, all shipments are made on CLIENT’S behalf via third-party carrier on RUSH ORDER’s account as a pass-through expense. Carrier shipment costs are the responsibility of CLIENT, including all carrier surcharges such as but not limited to residential, delivery area, fuel, address correction, and oversize handling. CLIENT acknowledges RUSH ORDER makes no warranty of carrier performance. An outline of rates and discounts on RUSH ORDER’s carrier accounts is provided in the freight rate schedule provided. Freight discounts are subject to change. If discounts are reduced, RUSH ORDER shall Notify CLIENT within 30 days or as quickly as reasonably practical. The freight rate schedule provided is not comprehensive and, upon mutual written agreement, CLIENT and RUSH ORDER may add carriers and service options at any time. RUSH ORDER reserves the right to substitute carriers for shipments while maintaining reasonably equivalent service levels and price. For purposes of planning and evaluating shipping options, CLIENT may request and RUSH ORDER shall provide detailed rate tables for the desired carrier service(s) RUSH ORDER supports. RUSH ORDER will make its best good faith effort to ensure, but does not guarantee, the accuracy of carrier rate tables.
Boxes and shipping material. RUSH ORDER will purchase required packaging material not supplied by CLIENT. RUSH ORDER will prorate this expense based on the current packaging needs and will revise this cost based on expense adjustment from time to time. Charges for shipping materials are considered a pass-through expense and subject to a 15% markup.
Telephone Expenses. Telephone costs, if required, are considered a pass-through expense and subject to a 15% markup. All direct expenses incurred related to phone lines, usage, taxes, hook-up fees and any and all associated costs billed to RUSH ORDER for services directly related to this Agreement shall be borne by CLIENT.
Other Expenses. RUSH ORDER may, upon Authorization from CLIENT, purchase materials, products, services, and other items not supplied by CLIENT as a pass through-expense and subject to a 15% markup.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS.
(A) No GOODS shall be delivered or transferred except on receipt by RUSH ORDER of CLIENT’S complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, email or similar communication, provided RUSH ORDER has no liability when relying on the information contained in the communication as received. GOODS may be delivered upon instruction by telephone or electronically in accordance with CLIENT’S prior written authorization, but RUSH ORDER shall not be responsible for loss or error occasioned thereby. RUSH ORDER shall not be liable for failure to carry out such instructions and GOODS remaining in storage will continue to be subject to regular storage charges. When GOODS are ordered out, a reasonable time shall be given to RUSH ORDER to carry out instructions.
(B) RUSH ORDER reserves the right to move, at its expense, 14 days after Notice is sent by email, mailing of a letter via certified mail, or overnight delivery to CLIENT, any GOODS in storage from the facilities in which they may be stored to any other of RUSH ORDER’S facilities. RUSH ORDER will store the GOODS at the facilities and may without notice move the GOODS within and between, any one or more of its warehouse buildings.
(C) RUSH ORDER reserves the right to require advance payment of all past, present, and future charges prior to removal of the GOODS from the facilities.
(D) If RUSH ORDER in good faith believes the GOODS are about to deteriorate or decline in value to less than the amount of RUSH ORDER’S lien, RUSH ORDER may specify upon written notification to CLIENT, and any other person known by RUSH ORDER to claim an interest in the GOODS, any reasonable time for removal of the GOODS and if the GOODS are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
(E) If, after a reasonable effort, RUSH ORDER is unable to sell the GOODS, RUSH ORDER may dispose of the GOODS in any lawful manner and shall incur no liability by reason of such disposition.
Liability and Limitation of Damages.
(A) RUSH ORDER shall not be liable for any loss or damage to GOODS tendered, stored, or handled however caused unless such loss or damage resulted from the failure by RUSH ORDER to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances. RUSH ORDER is not liable for damages that could not have been avoided by the exercise of such care.
(B) GOODS are not insured by RUSH ORDER against loss or damage however caused.
(C) In the event of loss or damage to the GOODS for which RUSH ORDER is legally liable, CLIENT declares that RUSH ORDER’S liability for damages are limited to the lesser of (i) the amount of the actual damages incurred by CLIENT or (ii) an amount which will not exceed one month’s average total charges paid by CLIENT for the applicable Services provided pursuant hereto during the twelve months preceding the month in which the damage or injury is alleged to have occurred, or such lesser number of months if CLIENT has not received twelve months of such Services. In no instance shall any one claim exceed the limit of RUSH ORDER’S liability insurance.
(D) The limitation of liability referred to above shall be CLIENT’S exclusive remedy against RUSH ORDER for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of the GOODS and shall apply to all claims including inventory shortage and mysterious disappearance claims unless CLIENT proves by affirmative evidence that RUSH ORDER converted the GOODS to its own use. Any presumption of conversion imposed by law shall not apply.
(E) Where loss or damage occurs to tendered, stored, or handled goods, for which the RUSH ORDER is not liable, CLIENT shall be responsible for the cost of removing and disposing of such GOODS and the cost of any environmental cleanup and site remediation resulting from the loss or damage to the GOODS.
LIABILITY FOR CONSEQUENTIAL DAMAGES.
With respect to any claim arising from or related to this Agreement, or otherwise arising from the relationship of the parties, in no event will RUSH ORDER be liable for special, indirect, exemplary, punitive, or consequential damages of any kind, including but not limited to lost profits, lost sales, or damages due to business interruption, regardless of whether such damages were foreseeable or RUSH ORDER had notice of the possibility of such damages.
LIABILITY FOR MIS-SHIPMENTS AND CHARGEBACKS.
(A) If RUSH ORDER negligently mis-ships GOODS, RUSH ORDER shall pay the reasonable transportation charges incurred to return the mis-shipped GOODS to the facilities. If the consignee fails to return the GOODS, RUSH ORDER’S maximum liability shall be for the lost or damaged GOODS as specified in Section 13(C) above, and RUSH ORDER shall have no liability for damages due to the consignee’s acceptance or use of the GOODS whether such GOODS be those of the CLIENT or another.
(B) RUSH ORDER shall not be responsible for chargebacks of any kind.
(C) Any and all claims made pursuant to this Section must be in compliance with the requirements set forth in Paragraph 23.
In the event a recall, field alert, product withdrawal or field correction (together, “Recall”) may be necessary with respect to any GOODS provided under this Agreement, CLIENT shall immediately notify RUSH ORDER in writing. RUSH ORDER will not act to initiate a Recall without the express prior written approval of CLIENT unless otherwise required by applicable laws. The cost of any Recall shall be borne by CLIENT. CLIENT shall indemnify and hold harmless RUSH ORDER from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which RUSH ORDER pays or incurs as a result of a Recall.
ACCESS TO SERVICES.
CLIENT agrees that it will obtain the Services provided hereunder in accordance with the conditions, rules and regulations as may be established or specified by RUSH ORDER from time to time, or as may be set forth in other manuals, material, documents or instructions related to the Services furnished by RUSH ORDER to CLIENT hereunder.
SECURITY AND RETENTION.
All data, working papers, or other material relating to CLIENT’S business which is required to be submitted by CLIENT to RUSH ORDER pursuant to this Agreement, and which is designated as confidential by CLIENT, will be safeguarded by RUSH ORDER to the same extent that RUSH ORDER safeguards data and material relating to its own business.
RUSH ORDER will take reasonable precautions to prevent the loss of or alteration to CLIENT’S files and records retained by RUSH ORDER, but RUSH ORDER cannot guarantee against any such loss or alteration. Accordingly, CLIENT will keep copies of the source documents and/or the information delivered to RUSH ORDER and will maintain a procedure external to the RUSH ORDER system for reconstruction of loss or altered files and records to the extent deemed necessary by CLIENT.
RUSH ORDER shall retain CLIENT files and records in accordance with and to the extent provided by its then prevailing record retention policies for a period of one year.
CLIENT customer records remain the exclusive property of CLIENT. Under no circumstance shall RUSH ORDER sell, license, distribute or otherwise transfer to a third party CLIENT’S customer records without CLIENT’S prior Authorization.
CLIENT acknowledges all inventories are not and shall not at any time be insured by RUSH ORDER. It is agreed the service fees assessed hereunder do not include any insurance fees. CLIENT shall, at its sole cost and expense, maintain in full force and effect adequate inventory and cargo insurance deemed by CLIENT’S own estimate as sufficient for its business.
CLIENT shall, at its own discretion, instruct RUSH ORDER to insure all or some combination of cargo serviced by third party carriers. CLIENT hereby acknowledges any AUTHORIZATION to purchase third party carrier insurance does not imply any warranty by RUSH ORDER that such insurance will be purchased, nor does such an AUTHORIZATION imply any warranty of performance by a third party’s insurance services.
RETURN OF RECORDS.
Upon termination of this Agreement for any reason, RUSH ORDER, at CLIENT’S request, will return to CLIENT all of CLIENT’S records then retained by RUSH ORDER, provided that RUSH ORDER has been paid in full for all Services provided hereunder to the date of termination and provided further, that RUSH ORDER is paid for its then standard rates for providing the Services necessary to return such records.
RUSH ORDER shall have a general warehouse lien for all lawful charges for storage and preservation of the GOODS; also, for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses in relation to such GOODS, and for the balance on any other accounts that may be due. RUSH ORDER further claims a general warehouse lien for all such charges, advances, and expenses with respect to any other GOODS stored by the CLIENT in any other facility owned or operated by RUSH ORDER. In order to protect its lien, RUSH ORDER reserves the right to require advance payment of all charges prior to shipment of GOODS. Unless expressly stated otherwise in writing, RUSH ORDER will not subordinate its lien to any lender, financial institution, or any other third party.
FEES; TAXES; PAYMENTS.
Agreement to pay. CLIENT agrees to pay RUSH ORDER for the services performed hereunder at the rates set forth in written quotations provided by RUSH ORDER. Should the actual Services required vary from services described within this Agreement, RUSH ORDER reserves the right to renegotiate contract terms immediately.
Annual rate increase. Upon or after the anniversary of this Agreement, RUSH ORDER retains the right to increase quoted rates by no more than 10% per year.
All invoices shall be paid by CLIENT in full upon 7 days receipt thereof. If CLIENT fails to pay any amount due under this Agreement, whether by acceleration or otherwise, CLIENT, upon demand, shall pay late fee equal to 10% and interest at the rate of 1% per month (but not exceed the maximum allowed by law) on such delinquent amount from the due date thereof, until the date of payment. CLIENT agrees to reimburse RUSH ORDER for any and all expenses RUSH ORDER may incur, including interest and reasonable attorney fees, in taking action to collect any amount due to RUSH ORDER hereunder.
Disputes and Amendments. Each party has up to ninety (90) days from date of invoice to amend or dispute an invoice, in writing.
DEFAULT BY CLIENT: REMEDIES UPON DEFAULT.
Should CLIENT (a) default in the payment of any sum of money hereunder; (b) default in the performance of any other of its obligations under this Agreement; or (c) become the subject of any proceeding under the Bankruptcy Act or become insolvent, or if any substantial part of CLIENT’S property becomes subject to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency, then, in any such event, RUSH ORDER, at its option, may, upon 30 day written notice thereof and CLIENT has not remedied such default or cured such act, as the case may be, (i) terminate this Agreement and (ii) declare all amounts due and to become due hereunder immediately due and payable.
DEFAULT BY RUSH ORDER: REMEDIES UPON DEFAULT.
Should RUSH ORDER (a) default in the performance of any of its obligations under this Agreement; or (b) become the subject of any proceeding under the Bankruptcy Act or become insolvent, or if any substantial part of RUSH ORDER’S property become subject to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency, then in any such event, CLIENT, at its option, may, upon 30 day written notice thereof, and RUSH ORDER has not remedied such default or cured such act, as the case may be, terminate this Agreement.
Each party agrees, during the term of this Agreement and for a period of six (6) months thereafter, it will not solicit for employment any employee or contractor of the other party known to the first party by reason of the relationship established by this Agreement.
CLIENT acknowledges it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement.
Governing Law. This Agreement and the legal relations between the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of California. The parties hereto agree to submit to the personal and exclusive jurisdiction and venue of the Federal and State Courts of the State of California with respect to the breach or interpretation of this Agreement or the enforcement of any and all rights, duties, liabilities, obligations, powers and the other relations between the parties arising under this Agreement.
Force Majeure. Neither party shall be liable to the other for default in the performance or discharge of any duty or obligation under this Agreement, except for CLIENT’S obligation to pay for services rendered by RUSH ORDER, 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, cyber-attacks, viruses, 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, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations (including but not limited to quarantine or other employee restrictions) or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the 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 RUSH ORDER to continue to protect the GOODS the CLIENT agrees to pay the storage or similar charges associated with the RUSH ORDER’S obligation during the continuance of the force majeure. All GOODS are stored, handled, and transported at CLIENT’S sole risk of loss, damage, or delay caused by any of the above.
Headings. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.
Entire Agreement. This Agreement supersedes all proposals, oral or written, all negotiations, conversations or discussions between the parties relating to this Agreement and all past course of dealing or industry custom. The term and conditions of this Agreement shall prevail, notwithstanding any variance with the written instrument submitted by either party unless both parties agree, in writing. This Agreement consists of a facing page, this document, and the exhibits specified in the first page of this Agreement.
Remedies. The parties stipulate that the legal remedies of the other party in the event of any default or threatened default by the other party in the performance of or compliance with any of the terms of this Agreement are not and shall not be adequate, and that such terms may be specifically enforced by a decree for specific performance of any Agreement contained herein or by an injunction against a violation of any of the terms of this Agreement or otherwise. No remedies in this Agreement are exclusive of any other remedies but shall be cumulative and shall include all remedies available hereunder or under any other written Agreement or in law or equity, including rights of offset.
Attorneys’ Fees. In the event that any legal action, including arbitration, is required in order to enforce or interpret any of the provisions of this Agreement, the prevailing party in such action shall recover all reasonable costs and expenses, including attorney’s fees, incurred in connection therewith.
Notice of CLAIM AND FILING OF SUIT.
(A) Claims by CLIENT and all other persons must be presented in writing to RUSH ORDER within a reasonable time, and in no event any later than the earlier of: (i) sixty (60) days after delivery of the Goods by RUSH ORDER, or (ii) sixty (60) days after CLIENT is notified by RUSH ORDER that loss or damage to part or all of the Goods has occurred, whichever time is shorter. Each claim must contain 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.
(B) No lawsuit or other action may be maintained by CLIENT or others against RUSH ORDER for loss or damage to the Goods unless timely written notice of claim has been given as provided above and unless such lawsuit or other action is commenced by no later than the earlier of: (i) nine (9) months after the date of delivery by RUSH ORDER, or (ii) within nine (9) months after CLIENT is notified by RUSH ORDER that loss or damage to part or all of the Goods has occurred, whichever time is shorter.
(C) When GOODS have not been delivered, notice may be given of known loss or damage to the GOODS by email, mailing of a letter via certified mail, or overnight delivery to CLIENT. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by RUSH ORDER.