Warehousing and Distribution Terms and Conditions

1. Postal Responsibilities

1. Receiving Inventory.  Postal will receive Customer’s products (such products, the “Inventory”) at a location designated by Postal (such designated location, the “Partner Facility”).  As between Customer and Postal, risk of loss of the Inventory will pass from Customer to Postal upon the Inventory being received, inspected and stowed by Postal at the designated Partner Facility.  
2. Postal’s Receiving Policy.  Customer agrees to comply with Postal’s Warehouse Receiving Order Policy.  Failure to comply with Postal’s Warehouse Receiving Order Policy will result in a fine of five-hundred dollars ($500) per violation, which is used by Postal to offset the additional cost of facilitating receipt of Inventory in breach of the policy.  After the first such violation, Postal shall be entitled, in its sole discretion, to restrict, suspend or terminate Customer’s access and use of the Warehousing Services.
3. Storage of Inventory.  Postal will store the Inventory in a manner consistent with generally accepted industry standards and as set forth herein at the Partner Facility.  During the term of this Agreement, and until removed in accordance with this Agreement, the Inventory will remain in the Partner Facility, and will not be moved without Postal’s prior written consent.  Postal agrees that it will not commingle the Inventory with its own property or that of any third party.  To the extent feasible, Postal will use reasonable efforts to restrict access to the Inventory storage area in the Partner Facility, as necessary for the performance of the obligations hereunder.  Except as expressly set forth in this Agreement, the Inventory will at all times be and remain the sole and exclusive personal property of Customer, and Postal will have no right, title or interest therein or thereto.  
4. Shipment and Delivery of Inventory.  Postal will ship Inventory to Customer’s designated recipients, as instructed by Customer from time to time and at Customer’s sole cost and expense.  Risk of loss will pass from Postal to Customer upon departure of the applicable Inventory from the Partner Facility.  Postal is not responsible for any delays of shipping, stocking or product loss resulting in a failure to adhere to Postal’s Warehouse Receiving Order Policy.  Furthermore, Customer acknowledges that Postal does not assume any liability for the loss, damage, or delay of Inventory caused by the actions, omissions, or negligence of the third-party shipping provider and Customer agrees that any claims or disputes arising from the loss of or damage to Inventory during shipping shall be directed solely to the third-party shipping provider.
5. Lawful Conduct.  Postal, for itself and its agents, representatives and employees, will conduct any and all activities in connection with this Agreement in a lawful manner, consistent with the highest standards of fair trade, fair competition and business ethics.

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2. Customer Responsibilities

1. Import Compliance.  Customer shall comply with all applicable laws and regulations and bear all costs and responsibilities of importing Inventory into a respective country or territory.  Customer shall deliver the Inventory to the Partner Facility location, be the importer of record and payer of all customs, duties, taxes and other charges in connection with the importation and delivery of the Inventory.  Customer shall identify itself on the bill of lading as the “named consignee, in care of Postal,” and shall not identify Postal as the consignee, importer of record or the merchant of record.
2. Prohibited and Restricted Items Policy.  Customers agrees to abide by Postal’s Prohibited & Restricted Items Policy.  Under no circumstances should Customer send any shipment containing items listed on the Prohibited & Restricted Items list (as provided under the aforementioned Prohibited & Restricted Items Policy.  Customers may ask for special permission to store items listed on the Prohibited & Restricted Items list, subject to a permission request sent to Postal at warehousing@postal.com.  Such permission may be granted or denied in Postal’s sole discretion.  Permission is granted on a shipment by shipment basis.  Permission on a particular item does not guarantee permission will be granted on that item in the future.  Under no circumstances will Customer send or Postal receive any items on the Prohibited & Restricted Items list without prior written approval from the Postal.  Should Postal become aware of any violation of the Prohibited & Restricted Items Policy, Postal will immediately suspend any related shipment and send notification of such suspension to Customer.  Any mistakenly received Prohibited & Restricted Items shall be forfeited and disposed of without any additional liability or repayment required by Postal.  Customer agrees to indemnify and hold harmless Postal against all third-party claims asserting damages resulting from a Prohibited & Restricted Item warehoused or sent by Postal’s, with or without Postal’s prior written authorization.

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3. Inactive Inventory; Over Storage

1. Inactive Inventory.  “Inactive Inventory” is defined as those SKUs that Postal received six (6) or more months prior and which Postal has shipped no quantity of within the prior six (6) months.  Inactive Inventory will be identified by Postal and communicated to Customer.  Upon receipt of a notification of Inactive Inventory, Customer shall communicate within fourteen (14) days plan to dispose of such Inactive Inventory (an “Inventory Disposition Plan”).  Any Inventory Disposition Plan must result in the total removal of remaining Inactive Inventory from the Partner Facility within thirty (30) days of Customer’s initial receipt of notice.  Any Inactive Inventory remaining following the completion of the Inventory Disposition Plan shall be forfeited by Customer.  Customer assumes the cost of completing the Inventory Disposition Plan, including but not limited to, shipping, packing, order processing, and cost of destruction or donation.  
2. Over Storage Policy.  Customer agrees to keep storage volumes under the allocated storage maximums, as communicated by Postal to Customer in the applicable Order Form.  If Postal identifies that the Customer has exceeded the storage purchased, Postal will charge Customer overage fees.  Customer may inform Postal (in writing) if Customer wishes to move to a larger storage plan or continue to incur monthly storage fees for the overages.  If the Customer fails to respond within five (5) business days, Postal will assume the Customer wishes to incur monthly storage fees for the overages and will proceed with an invoice for all incurred over storage.

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4. Compensation

1. Fees.  Customer will pay Postal the fees set forth in and in accordance with the applicable order form, quote or other similar document that sets forth the specific pricing (including in relation to overages), and that references this Agreement and is mutually executed by the parties (an “Order Form”).  The fees will be paid in U.S. dollars.  Fees owed by Customer are the fees for the Warehousing Services.
2. Taxes.  Customs, duties, and taxes (“CDT”) on any shipment charged by a carrier are Customer’s sole responsibility and will be charged back to Customer.  Customer acknowledges and agrees that all fees, charges, and any other amounts charged by Postal to Customer are exclusive of applicable value added, sales/use or inventory, CDT, and service taxes (“Transaction Taxes”) which may be levied in connection with the Warehousing Services.  Where applicable, Customer shall pay all Transaction Taxes and indemnify Postal from all claims and liability arising from such Transaction Taxes.
3. Payment.  Unless stated as otherwise in the applicable Order Form, all fees and other payments under this Agreement will be invoiced on a monthly basis (for monthly plans), and will be due and payable thirty (30) days after the invoice date unless subject to a good faith dispute.
4. Abandoned Account; Liquidation.  Failure to promptly pay the fees is a material breach of this Agreement.  If Customer’s fees (or any other amounts owed to Postal) remain unpaid for a period greater than thirty (30) days, then Postal reserves the right, at Postal’s sole discretion, to terminate this Agreement or suspend our performance of Warehousing Services.  If the fees remain unpaid for a period greater than sixty (60) days, then Postal will automatically reclassify Customer’s account as an “Abandoned Account.” TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND INVENTORY WILL IMMEDIATELY BE FORFEITED BY CUSTOMER TO POSTAL.  INVENTORY WILL BECOME IMMEDIATELY AND IRREVOCABLY UNAVAILABLE TO CUSTOMER, AND LIQUIDATION PROCEEDINGS WILL BEGIN.  Customer agrees such Inventory would be free and clear of liability, and that Customer would assume any liability therefore.  Customer will remain liable for any pending costs or fees above and beyond the liquidation proceeds.

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5. Term and Termination

1. Term.  The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below or if otherwise terminated under the terms and conditions of Postal’s Platform Terms of Service.  
2. Termination.  Either party may terminate this Agreement upon notice to the other party in the event that the other party commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach.
3. Effects of Termination.  Upon termination or expiration of this Agreement, all rights and obligations of the parties under this Agreement will cease except that (a) any obligations of Customer to make payments of fees which have accrued as of such termination or expiration, (b) the rights and obligations of the parties under Sections 3.1, 4, 5.3, 6, 8, 9 and 10 hereof will survive termination or expiration of this Agreement, and (c) Postal will immediately deliver all Inventory to Customer, at Customer’s sole cost and expense.  If this Agreement is terminated by Customer due to Postal’s uncured material breach, Postal shall provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term.

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6. Representation and Warranties

1. Mutual Warranties.  Each party represents and warrants to the other party that such party has the required rights, power and authority to enter into this Agreement and to grant all rights and perform all obligations hereunder, and that such party will comply with all federal, state, local and foreign laws, rules and regulations applicable to its performance of obligations or exercise of rights under this Agreement.  
2. Postal Warranties.  Postal represents and warrants that it will perform its services hereunder in a professional and workmanlike manner consistent with industry practices.
3. Customer Warranties.   Customer further represents and warrants the Customer is the legal owner of the Inventory, including any underlying intellectual property, and/or have lawful possession of the Inventory and have the sole legal right to store and thereafter direct the release and/or delivery of the Inventory, (iii) the Inventory does not violate Postal’s Prohibited & Restricted Items Policy or any applicable laws, including without limitation the Food, Drug and Cosmetic Act (as amended); (iv) there are no potential health, safety, or environmental hazards associated with the shipment, warehousing, or fulfillment of the Inventory; (iv) the Inventory is mislabeled, misbranded, adulterated, flammable, hazardous or dangerous materials, explosives, or pesticides as defined under applicable law; and (v) Customer’s activities related to the promotion, sale and distribution of the Inventory comply with all applicable laws.  Customer will strictly meet or exceed any compliance obligations under these provisions.  Postal may reject Inventory, in its sole discretion, if they do not meet the above compliance obligations.  Rejected Inventory may incur additional fees and/or result in a delay or non-shipment for which Postal shall not be liable.

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7. Force Majeure

Postal shall not be liable, nor in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from acts of God, fire, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, or other similar occurrences outside of Postal’s reasonable control.  Upon the occurrence of a force majeure event, Postal shall immediately inform the Customer of such circumstances.  Subject to the last two sentences in this Section, the performance of obligations hereunder shall be suspended during, but not longer than, the period of existence of such cause and the period reasonably required to perform the obligations in such cases.  During the force majeure event, Postal will use best efforts to avoid, reduce or eliminate the force majeure event’s prevention, restriction or delay of its performance of its obligations under this Agreement.  

8. Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL POSTAL OR ITS AFFILIATES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF POSTAL OR ITS AFFILIATES HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  IN ADDITION, CUSTOMER WILL NOT BE LIABLE TO POSTAL FOR ANY DIRECT DAMAGES, COSTS, OR OTHER LIABILITIES IN EXCESS OF THE AMOUNTS ACTUALLY PAID TO POSTAL BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE POSTAL’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE.  THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.  

9. General

The terms and conditions of this Agreement are severable.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Neither party may assign this Agreement without the other party’s prior written consent; provided, that, either party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise.  Any assignment or attempted assignment by either party in violation of the foregoing will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.  Both parties agree that this Agreement and the applicable order form(s) are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and Postal’s Platform Terms of Service with respect to the Warehousing Services, the terms of this Agreement will prevail.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever.  All notices under this Agreement will be in writing and sent to the recipient’s contact address provided and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.  For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of  the state and federal courts located in Los Angeles Country, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts.  Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  This Agreement may not be amended in any respect other than by written instrument executed by the party against whom enforcement is sought.

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