Last Updated 11/17/21

By signing any Order Form that incorporates by reference these Terms of Service (“Terms”), or by clicking to accept or agree to these Terms when the option is made available to you, these Terms are entered into by and between you and Streamline Fulfillment LLC, a Washington limited liability company (“Streamline,” “we,” or “us”, and together with you, the “Parties”, and each, a “Party”). These Terms, together with any Order Forms or other documents they expressly incorporate by reference, govern your access to and use of the Streamline services (the “Services”).

We may change or revise these Terms at our discretion. If any change or revision to these Terms is not acceptable to you, your only remedy is to stop using the Services and to send a cancellation email to pfoshee@streamlinefulfill.com. Otherwise you will be bound by the changed or revised terms. We may change or revise these Terms from time to time by providing ten (10) days prior Notice either by emailing the email address associated with your account or by posting a Notice on the website at www.streamlinefulfill.com. Your use of the Services ten (10) days after this Notice shall constitute full acceptance of the revised or changed Terms.

ARTICLE I
TERM

Section 1.01. Term: The “Term” of these Terms shall be the duration of the then in effect Term of the applicable Order Form(s). For the avoidance of doubt, the Term will commence on the Effective Date set forth in the initial Order Form and will continue until all Order Forms are terminated in accordance with ARTICLE X of these Terms, or all Order Forms have expired.

ARTICLE II
SCOPE OF SERVICES

Section 2.01. General: Streamline shall provide you with the Services that are set forth in any Order Form then in effect, which Services may include without limitation (a) account setup and software integration; (b) receiving, initial inventory, and sorting; (c) inventory maintenance and warehousing of goods (the “Goods”) in its facilities (the “Warehouse”); (d) order processing; (e) quality control and palletization pursuant to specifications provided by you; and (f) freight forwarding, including receiving, inventory, storage, order assembly, and outbound freight logistics/small parcel logistics. Any Order Forms are integral parts of these Terms and are hereby incorporated into these Terms by reference. In the event that there is a conflict between any terms or conditions contained in these Terms with any terms or conditions contained in an Order Form, the terms or conditions contained in the Order Form shall take precedence.

ARTICLE III
MANAGEMENT INFORMATION SYSTEMS

Section 3.01. Information Systems Components Used or Supplied by Streamline:

Any management information system, hardware, software and documentation supplied by Streamline in connection with the Services, and any data provided by Streamline or derived from data provided by Streamline (collectively, “Streamline Information Components”), whether owned by Streamline, any of its affiliates, or a third party from which Streamline has purchased or licensed such Streamline Information Components, are and will remain the sole and exclusive property of Streamline or such third party, as applicable.

ARTICLE IV
CHARGES AND PENALTY

Section 4.01. Service Fees: You shall pay Streamline for the Services pursuant to the rates set forth in the applicable Order Form or any attachment thereto.

Section 4.02. Payment Terms: You shall pay Streamline, at the address shown on Service Provider’s invoice, any amounts which become due and payable under these Terms and any applicable Order Form in US Dollar Payment shall be due from you within fifteen (15) days from the date of invoice by Streamline, and you agree to pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable Law, calculated and compounded daily from the date due until paid in full.

Section 4.03. Other Remedies: In addition to all other remedies available under these Terms or at law (which Streamline does not waive by the exercise of any rights hereunder), Streamline shall be entitled to suspend the release of any Goods or cease performance of any Services if you fail to pay any amounts when due hereunder. In addition, with respect to warehousing services, Streamline reserves the right to require payment in full of all amounts owed by you in advance of the release of the related Goods.

ARTICLE V
WAREHOUSING

Section 5.01. Tender of Goods for Storage.

(a) You represent and warrant that you are the owner or have lawful possession of the Goods and all right and authority to store them with Streamline and thereafter direct the release and/or delivery of the Goods. You shall (i) tender any Goods for storage only during Streamline’s posted business hours for the Warehouse; (ii) tender all Goods to the Warehouse properly marked and packed for storage and handling; (iii) provide Streamline with information concerning the Goods that is accurate, complete, and sufficient to allow Streamline to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods; and (iv) furnish at or prior to tender of the Goods for storage a manifest in a form approved by Streamline listing any categories of Goods, brands or sizes to be separately kept and accounted for, and the types of storage and other services requested.

(b) Streamline may refuse to accept any goods for storage if the goods tendered for storage do not conform to the description provided pursuant to Section 5.01(a). Before tendering Goods that require specialized handling or which are dangerous or hazardous, you shall identify such goods and special handling requirements to Streamline in writing and Streamline may decline to store such goods. You are solely responsible for providing complete and accurate handling and storage instructions for any nonconforming Goods, including any applicable safety procedures. If Streamline accepts any such nonconforming goods for storage, you agree to rates and charges as may be assigned and invoiced by Streamline as well as all terms and conditions of these Terms.

Section 5.02.  Access and Release of Goods.

(a) You shall provide Streamline written instructions (each, a “Release Order”) if you desire to order any Goods released from the Warehouse. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, Streamline shall release the requested Goods to you or your designee upon return of the of the warehouse receipt or receipts issued for the applicable Goods, together with the applicable Release Order, signed by you.

(b) You shall give Streamline a reasonable time after Streamline’s receipt of your written instructions to carry out your instructions to release the Goods to you or your designee. Streamline may without liability rely on any information contained in any Release Order or other written communications from you. You shall be responsible for all shipping, handling, and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Goods.

ARTICLE VI
CONFIDENTIALITY

Section 6.01. Scope of Confidential Information. Either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services, forecasts, confidential information and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive, competitive, or proprietary information. Such information constitutes “Confidential Information” hereunder.

Section 6.02. Protection of Confidential Information. The Receiving Party shall:

(a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;

(b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms; and

(c) not disclose any of the Confidential Information to any individual, sole proprietorship, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company, institution, public benefit corporation, joint venture, entity or governmental body (each a “Person”), except to the Receiving Party’s representatives who have a need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms.

Section 6.03. The Receiving Party shall be responsible for any breach of this ARTICLE VI caused by any of its directors, officers, employees, agents, and representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its representatives shall promptly return all Confidential Information (including copies) and all documents and tangible materials that contain, reflect, incorporate or are based on Confidential Information received under these Terms.

ARTICLE VII
REPRESENTATIONS AND WARRANTIES

Section 7.01. Your Representations and Warranties. You represent and warrant that (a) you have the right and authority to enter into these Terms and any Order Form(s); (b) you are either the owner, or the authorized agent of the owner, of any Goods tendered to Streamline; and (c) all documentation you provide to Streamline as required by Streamline will provide full and accurate information as required for the applicable Service.

Section 7.02. Streamline’s Representations and Warranties.

(a) General: Streamline represents and warrants that (i) it has the full and unrestricted right, power and authority to enter into these Terms and any Order Form(s) and to perform its obligations and provide the services, facilities, and resources described in these Terms and any Order Form(s) in accordance with these Terms; and (ii) the performance of its obligations hereunder do not and will not violate (A) any applicable law or regulation, (B) any agreement, obligation or understanding (whether oral or written) to which it is a party, or (C) any third party’s property rights.

(b) Limited Service Warranty. Streamline warrants to you that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

(c) Limited Goods Warranty. Streamline shall not be liable for any loss or damage to the Goods tendered, stored, or handled, however caused, unless such loss or damage resulted from the failure by Streamline to exercise the level of care with regard to the Goods that a reasonably careful person would have exercised under the circumstances. Streamline is not liable for damages which could not have been avoided by the exercise of such care.

Section 7.03. Customer’s Exclusive Remedy for Breach of Warranties.

(a) Except to the extent any claim is actually covered by applicable insurance policies or self-insurance, your exclusive remedy for Streamline’s breach of the service warranty contained in Section 7.02(b) regarding any Services provided is Streamline’s refund of the fees paid by you in connection with the corresponding Service.

(a) Except to the extent any claim is actually covered by applicable insurance policies, your exclusive remedy for Streamline’s breach of the goods warranty contained in Section 7.02(c) is recovery of the actual cost to repair, restore and/or replace any loss or damage to Goods.

THIS SECTION 7.03 SETS FORTH YOUR SOLE REMEDY AND STREAMLINE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 7.02(b) AND 7.02(c).

Section 7.04. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 7.02(b) AND 7.02(c), STREAMLINE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SERVICES OR GOODS, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER IMPLIED, STATUTORY, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY STREAMLINE, OR ANY OTHER PERSON ON STREAMLINE’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 7.02(b) AND 7.03(c).

ARTICLE VIII
LIABILITY

Section 8.01. Title, Risk of Loss, Damage.

(a) It is understood and agreed between the Parties that, unless otherwise expressly agreed to by Streamline, Streamline shall not acquire title to or assume risk of loss for any of the Goods on behalf of you, and shall not, in the course of providing the Services in accordance with these Terms or otherwise, acquire title to or assume risk of loss for, or be deemed to have acquired title to or assumed risk of loss for, the Goods whether on behalf of you or otherwise.

(b) Any salvage value will be deducted from your claim against Streamline for loss or damage. If you choose to not sell or allow the sale of Goods for salvage, the reasonable salvage value shall be deducted from the claim amount due to you.

Section 8.02. Limitations of Liability.

(a) IN NO EVENT SHALL STREAMLINE OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL STREAMLINE’S AGGREGATE LIABILITY TO YOU, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THESE TERMS BY STREAMLINE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO STREAMLINE UNDER ANY ORDER FORM(S) IN THE 3 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

ARTICLE IX
INDEMNIFICATION

Section 9.01. Indemnity by You. You will indemnify, defend, and hold harmless Streamline and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Streamline Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers, incurred by Streamline Indemnitee (collectively, “Losses”), arising out of or resulting from any claim of a third party arising out of or occurring in connection with any and all claims, liabilities, expenses and damages (the “Claims”) arising out of or with respect to:

(a) Your failure to notify Streamline of any shipments containing Hazardous Materials, and your failure to comply with all applicable Hazardous Materials laws and regulations;

(b) Streamline’s acts in accordance with your instructions;

(c) Your breach of these Terms, including a breach of any representation or warranty contained in these Terms; and

(d) any violation by you of applicable laws or regulations.

You shall not have a duty of indemnification to the extent that the Claims arise due to the negligent or willful act or omission of Streamline.

ARTICLE X
TERMINATION

Section 10.01. Termination for Convenience. Either Party may terminate these Terms and any Order Form(s) then in effect for its convenience in whole or in part from time to time, upon giving written notice delivered by certified or registered mail not less than sixty (60) days prior to the termination date specified in the Notice to the other Party. After receipt of the termination Notice, and except as otherwise mutually agreed, Streamline agrees to continue the Services until such termination date.

Section 10.02.Termination by Streamline for Breach. In addition to any remedies that may be provided under these Terms, Streamline may terminate these Terms and any Order Form(s) then in effect with immediate effect upon written Notice to you if: (i) you fail to pay any amount when due and such failure continues for five (5) days after your receipt of written Notice from Streamline stating with specificity the nonpayment; (ii) you have not performed or complied with any of the other material terms or conditions of these Terms, in whole or in part; (iii) you become insolvent, are generally unable to pay, or fail to pay, your debts as they become due, file a petition for bankruptcy or commence or have commenced against you proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (iv) Goods stored by you are a hazard to other property within the Warehouse or to the Warehouse itself or to Persons as a result of the quality or condition of the Goods of which Streamline had no notice at the time of deposit.

ARTICLE XI
FORCE MAJEURE

Section 11.01. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations to make payments to the other Party hereunder), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of any Order Form(s) then in effect; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.

ARTICLE XII
NOTICES

Section 12.01. All notices, requests, consents, claims, demands, waivers and other communications under these Terms (each, a “Notice”) must be in writing and addressed to the other Party at its address provided in the Order Form then in effect. All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid).

ARTICLE XIII
ARBITRATION

Section 13.01. Except for any claims for equitable relief, and claims related to the ownership of any intellectual property, all disputes, claims or controversies arising from or relating to these Terms, the breach of these Terms, or the relationships that result from these Terms, including but not limited to any dispute regarding the validity of this arbitration clause or the entire Terms, shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction.

Section 13.02. The arbitration shall be heard by three (3) neutral arbitrators. Each Party shall choose one arbitrator and those two arbitrators shall choose the third arbitrator, who shall serve as the chair of the arbitration panel. Each arbitrator must be a practicing attorney in good standing with no actual or potential conflicts of interest. To the extent practicable, the arbitrators must have business or legal experience relating to logistics and warehousing. Each arbitrator must be independent of all Parties, witnesses and legal counsel.

Section 13.03. The arbitration hearing shall be conducted in Wenatchee, Washington. Any judicial challenge to the arbitration award shall be filed in a court of competent jurisdiction sitting in Chelan County, Washington.

Section 13.04. The prevailing Party shall be awarded all reasonable fees and costs, including reasonable attorneys’ fees and costs, expert witness fees and costs and the fees and costs of the arbitrators, incurred in the arbitration and related proceedings. If both Parties are awarded relief, the arbitration panel shall determine the prevailing Party.

ARTICLE XIV
GOVERNING LAW; FORUM; JURY TRIAL

Section 14.01. Choice of Law. These Terms, including all Order Forms, schedules, attachments, and appendices incorporated by reference herein, and all matters arising out of or relating to these Terms, are governed by, and construed in accordance with, the laws of the State of Washington, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Washington.

Section 14.02. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Eastern District of Washington or, if such court does not have subject matter jurisdiction, the courts of the State of Washington sitting in Chelan County, Washington, and any appellate court from any thereof.

ARTICLE XV
MISCELLANEOUS

Section 15.01. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

Section 15.02. Neither Party shall assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of the other Party; provided that Streamline may use subcontractors to provide certain services for you. Notwithstanding the above, either Party may assign any of its rights or delegate any of its obligations to any affiliate or to any Person acquiring all or substantially all of its assets without the consent of other Party.

Section 15.03. No waiver by any Party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Section 15.04. Entire Agreement. These Terms (including all Order Form(s) and other documents that incorporate them by reference) constitutes the sole and entire agreement of the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

Section 15.05. These Terms shall not be construed against a Party as the drafter. The Order Form(s), attachments, schedules, exhibits, and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.

Section 15.06. Survival, Limitation of Actions. Subject to the limitations and other provisions of these Terms: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of these Terms for a period of 12 months after such expiration or termination; and (b) any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. All other provisions of these Terms shall not survive the expiration or earlier termination of these Terms.