STANDARD TERMS & CONDITIONS

Last Update May 6, 2022

 

Standard Fulfillment Terms and Conditions 

These Standard Bulu Fulfillment Terms and Conditions (the “Terms and Conditions”) are agreed to by and between Bulu, Inc. (“Bulu”) and the individual or business indicated in the signature block below (“Company”). Bulu and the Company have also entered into Bulu’s Standard Fulfilment Services Agreement (“Fulfillment Agreement”) which incorporates by reference these Terms and Conditions. The date governing the Fulfillment Agreement and these Terms and Conditions is the date which corresponds with the date of the last signature on the Fulfillment Agreement (the “Effective Date”). The “Company,” together with Bulu, are referred to as the “Parties,” and each a “Party”.

1. APPOINTMENT

The Company hereby engages Bulu to provide, and Bulu hereby agrees, upon the terms and subject to the conditions set forth in these Terms and Conditions, to provide the Services (as defined below) to the Company for the duration of the Term and the Renewal Term described in Section 2. During the Term, and any Renewal Terms, the conduct of the Parties shall be subject to the terms and conditions of The Fulfillment Agreement, these Terms and Conditions and any other understandings or agreements agreed to in writing by the parties, if any (“Other Agreements”).

 

2. TERM

 

2.1 Term.  The term of these Terms and Conditions commences on the Effective Date and continues for the initial period of one (1) years, unless and until earlier terminated as provided under these Terms and Conditions or applicable law (“Term”). On expiration of the Term, these Terms and Conditions automatically renew for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least sixty (60) days before the end of the then-current term, or unless and until earlier terminated as provided under these Terms and Conditions or applicable Law (each a “Renewal Term“). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of these Terms and Conditions  and any policies, procedures or other agreements incorporated herein by reference during each such Renewal Term, are the same as the terms in effect immediately prior to such renewal.

 

3. BULU SERVICES

 

3.1 Services.  Subject to the more specific terms and specifications, if any, of the Fulfillment Agreement entered into by the parties, Bulu shall provide the following general fulfillment and related services to the Company (collectively, the “Services”):

  1. Receive shipments from the Company of their products (“Product”).

  2. Provide storage facilities for the Product in Bulu’s warehousing facilities (“Warehouse”).

  3. Upon notification by the Company of a purchase of Products by a customer of the Company, Bulu will pick and package the Products from the available Inventory and ship such Products directly to the customer (“Customer”).

  4. Bulu will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.

  5. Upon request by the Company, Bulu will include a Company packing slip, and/or other Company marketing materials concerning the Product, to be provided by Company.

  6. Bulu will process, package and ship all Product orders in accordance with Bulu policies.

  7. Bulu will maintain monthly summaries of all orders shipped and received, which shall be made available to the Company through Bulu billing.

  8. Bulu will facilitate Product returns from the Company’s customers. 

  9. In addition to the above described Services, Bulu shall perform any additional services, including special projects, that the Company desires Bulu to perform, as more fully described in any amendments to these Terms and Conditions. 

 

3.2 Service Level Standard. Bulu will provide the Services agreed to in these Terms and Conditions in accordance with its internal usual and customary Bulu practices and procedures.   

 

4. COMPANY PERFORMANCE

 

4.1 Company Business Conduct. The Company shall at all times comply with all laws, regulations and rules  applicable to its business including the Company's sale of the Products to the Company’s Customers. Without limiting the generality of the foregoing, the Company shall, at its own expense, maintain all certifications, credentials, licenses, permits, notices, disclosures, warnings or authorizations necessary or usual and customary for it to conduct its business relating to the sale of the Products; and shall not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law, regulation or rule. 

 

5. COMPENSATION AND REIMBURSEMENT FOR SERVICES

 

5.1 Product Invoicing. Bulu will bill and send invoices (each an “Invoice” and collectively, the “Invoices”) to the Company once a period, within ten (10) business days , following the conclusion of the period for which such Services were provided. If a period is not designated or specified by the Parties the period shall be one month. All charges and iInvoices will be due upon receipt. The Company shall prepay Bulu for (1) products sourced and purchased by Bulu for the Company, (2) shipping costs and fees, and (3) any other material expenditures incurred by Bulu on behalf of the Company in accordance with this Agreement.

​Any and all amounts to be paid to the Company by the Company’s Customers for any Products, shall be paid directly by the Company’s Customer to the Company. Under no circumstances shall Bulu accept, receive or otherwise be held responsible for payments from the Company’s Customers in exchange for the Product.

 

5.2 Late Payment Fee. If Bulu fails to receive payment from Company on any Invoice  by the due date of said Invoice, the Company shall be in default of its obligations to Bulu and a late payment fee of 5% (with a minimum late payment fee of $30) will be applied to the Invoice. 

 

5.3 Options & Ways to Pay. Bulu provides the Company the ability to pay for their Invoices online through the Company’s account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee), or a wire transfer (Free within the U.S.). Bulu uses Stripe, a 3rd party payment processing company, for its credit card transactions. If Company’s Invoice remains unpaid as of the due date,  e, Company agrees that Bulu shall have the right to auto-charge via ACH (“auto-pay”) any amounts due on that date..

 

5.4 Auto-Pay. Company must  agree to  the ACH “auto-pay” service, which will automatically charge via ACH using the saved payment information. Using the auto-pay service will prevent orders from being delayed in processing due to lack of payment. In the event payment is not received by the due date, via ACH or otherwise, Company’s account will be put in a DELINQUENT status with notificaiton sent to Company via email of such status.  Company will have three business days to satisfy the DELINQUENT status by paying all amounts due.  In the event of a failure to make full payment, Customer’s account will be automatically suspended and all services will be placed on hold until resolved. 

 

6. TITLE, RISK OF LOSS AND INSURANCE

 

6.1 Title. Company hereby agrees that at no time during the period that Products are held by Bulu as Inventory in the Warehouse will Bulu hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by Company until such time as the Products are delivered to the Company’s Customer.

 

6.2 Risk of Loss. Company hereby agrees that at no time during the period that Products are held by Bulu as Inventory in the Warehouse will Bulu carry the risk of loss in the Inventory. Risk of loss in and on the Inventory will continue to be held by Company until such time as the Products are delivered to the Company’s Customer.  Bulu shall exercise commercially reasonable standards of care for all of Company’s Products in its possession but specifically disclaims liability of loss except for instances of Gross Negligence by Bulu.  

 

6.3 Insurance. COMPANY HEREBY AGREES THAT IT IS COMPANY’S RESPONSIBILITY, AT ALL TIMES, TO MAINTAIN AN INSURANCE POLICY THAT COVERS THE COST OF THE PRODUCTS HELD IN INVENTORY. Company has the option of adding the Warehouse as a designated storage location to Company’s general inventory policy.  If requested by Company, upon 14 days notice, Bulu shall allow premises inspection in order to assist Company in obtaining coverage. 

 

6.4 No Insurance. Company can choose not to insure its inventory. In this event, Bulu will, under no circumstances, be liable for any loss or damage to the Inventory stored at Bulu facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event.

 

7. COMPANY’S SERVICES

 

7.1 Services Provided to Company. Subject to Company’s compliance with these Terms and Conditions, Bulu shall perform the Services described herein and as described and agreed to in any form of writing by and between Bulu and the Company. All such agreements in writing are deemed Bulu Service Orders (“Bulu Services Orders”). All Bulu Services Orders are deemed incorporated into, and governed by, the Fulfillment Agreement. By using the Services, Company acknowledges and agrees that Bulu operates as a third-party warehouse and broker of shipping services, accepting shipments from, and making shipments to, third parties. Bulu is an independent contractor for all purposes, and only acts as the agent of Company with respect to Bulu’s custody of the Products in its Inventory. 

 

7.2 Account Balances.   Any Invoices Bulu sends to Company shall be based on any balance accrued in the Company’s account with Bulu (the ”Account”). All other fees for the Services agreed to in writing by the Company and Bulu, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed within ten (10) business days of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued, and will be due upon receipt.

7.3 Bulu Services Estimates. Quotes for 3rd party fees are for informational purposes only, are subject to change without notice and shall not under any circumstances be binding upon Bulu. Quotations accepted through any form of Bulu’s online interface are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business. 

 

7.4 Pricing Changes. Bulu reserves the right to revise pricing, with 60 days notice, if in Bulu’s sole discretion, the specifications, volumes or other characteristics of the Company’s program or project varies materially from those provided by the Company at the time of Fulfillment Agreement. Any written communication, including email, will be deemed adquate notification of such change. All dollar amounts stated in these Terms and Conditions will be in US dollars unless otherwise specified.

 

7.5 Charges and Fee Disputes. Should Company disagree with any sum set out in an Invoice (excluding carrier and 3rd Party fees), Company must submit written notice to Bulu within 15 days of the date of the Invoice (“Dispute Period”). Bulu will not review Company requests for Usage Fee adjustments that are received after the Dispute Period.  All Invoices shall be considered prima facie evidence of the amounts owing and Bulu’s books and records of charges shall be conclusive absent manifest error.  Nothing in this Section 7.5 shall be deemed to require Bulu to take any action or revise any Invoice on the basis of disagreement or submission of written notice by the Company. 

 

7.6 Account Balance Disputes. If Bulu becomes aware of, or is notified of, a dispute relating to the Company’s Account Balance, then Bulu will promptly review the dispute. After the resolution of the dispute, Bulu will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate. 

 

7.7 Abandoned Account and Liquidation. If any Invoice remains unpaid for a period greater than 30 days, then Bulu reserves the right, at its sole discretion, to reclassify Company’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits its rights of ownership of such Company’s Inventory up to the cumulative amount necessary for payment of all fees and amounts as well as any reasonable expenses incurred by Bulu for the preservation and storage of the Inventory or its sale, the Inventory will become immediately unavailable to Company and liquidation proceedings will begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of Bulu and would be free and clear of liability and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount and related expenses necessary for payment as stated above.  Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, the Company would remain liable for any pending fees and amounts due above and beyond the liquidation proceeds.

 

Additionally, upon the termination of the Company’s account, as defined in Sections 7.9 and 7.10, any remaining inventory must be removed from Bulu’s facilities within 15 days. Bulu will then have full rights and authority to dispose of it as it sees fit and in its sole discretion, unless otherwise agreed and at the Company’s expense. The Company will not be entitled to any proceeds that might result from the disposal of such inventory unless otherwise agreed upon. 

 

7.8 Security Interest.  For good and valuable consideration Company does hereby grant, bargain, and convey a continuing security interest in all of Company’s personal property, inventory, and goods now held or stored or hereafter held or stored at the Warehouse, including without limitation all of the Company’s Product stored at the Warehouse or otherwise in the possession of Bulu, and all insurance claims, products and proceeds of the foregoing (collectively, the “Collateral”).  The Security Interest in the Collateral conveyed herein shall secure the prompt payment and fulfillment of all obligations owing from Company to Bulu whether now due or hereafter accruing at any time including, without limitation payment of all sums due under or pursuant to these Terms and Conditions or the Fulfillment Agreement. 

In the event Company fails to make any payment to Bulu when due or fails to perform or fulfill any obligation owed to Bulu when required whether due or required pursuant to these Terms and Conditions, under the Fulfillment Agreement, or pursuant to any other agreement, obligation or contract between Company and Bulu then Company shall be in default.  If the Company is in default, Bulu may take exclusive possession of the Collateral and may sell, lease, or otherwise dispose of any Collateral and collect any deficiency balance with or without resorting to legal process or exercise all other rights available to Bulu under any other written agreement or at law or equity. 

Bulu’s rights hereunder are cumulative and may be exercised together, separately, and in any order.  Unless the Collateral is perishable, threatens to decline speedily in value or is of a type customarily sold on a recognized market, Bulu will provide reasonable notification of the time and place of any sale or intended disposition as required under the Uniform Commercial Code.  Company hereby agrees that ten (10) days’ notice of Bulu’s intent to sell or otherwise dispose of Collateral is commercially reasonable notice.  In the event that Bulu institutes an action to recover any Collateral or seeks recovery of any Collateral by way of a prejudgment remedy in an action against Company, Company waives the posting of any bond which might otherwise be required.  If Company is in default it shall segregate all proceeds of Collateral and hold such proceeds in trust for Bulu.  Bulu’s remedies under this paragraph are in addition to those available at law and equity.

7.9 Termination of the Account. Upon termination of the Fulfillment Agreement and these Terms and Conditions, the Account will be inaccessible to Company, and all activities will be suspended. Bulu reserves the right to delay, postpone or cease shipping orders for a number reasons, including but not limited to the following:

  1. Account Balance unpaid by the due date as described in Section 5;

  2. if anyone using the Account uses abusive language or otherwise threatens Bulu or its staff;

  3. to allow time to resolve or investigate a third party complaint of a violation of these Terms and Conditions;

  4. to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and

  5. to allow time to pick all inventory for the close out order.

 

7.10 Termination. Either party may terminate the Fulfillment Agreement upon thirty (30) days’ notice to the other party in the event of a breach by the other party of any provision of the Agreement, these Terms and Conditions or any Other Documents if the breaching party fails to cure such breach during the 30 day period. Bulu may terminate these Terms and Conditions immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30 day cure period in the event of a breach, a 30 day wind down of the Company Account shall commence (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period for the sole purpose of winding down its use of the account in a commercially reasonable manner. Any Product inventory that remains in Bulu’s inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company’s credit card, at Company’s expense. If no address is available or no balance is available to pay for shipment back to the Company, Bulu will liquidate the Product inventory in accordance with an Abandoned Account. Bulu may also terminate the Fulfillment Agreement upon sixty (60) days’ notice to the Company if the Company is not meeting the business expectations presented by the Company, all as determined in the sole discretion of Bulu.

 

7.11 Additional Actions. If Company is in breach of any of the terms of these Terms and Conditions, Bulu may close, put on hold, or limit access to the Company’s Account or the Services. Without limiting any of the remedies under law or equity, Bulu may also take any additionally available legal actions.

 

8. BULU INTELLECTUAL AND PROPRIETARY PROPERTY RIGHTS

 

8.1 Bulu Property. For purposes of these Terms and Conditions, “Bulu Property” shall mean (a) Bulu’s methodology for the provision of the Services; and (b) Bulu’s Confidential Information. Bulu hereby retains all worldwide right, title and interest in and to the Bulu Property. Any rights not expressly granted herein to the Bulu Property shall be retained by Bulu. Company acknowledges that all right, title and interest to the Bulu Property is owned by Bulu.

 

8.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Bulu Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Bulu and Company shall not copy, imitate, or use them without Bulu’s express prior written consent. Company may use HTML logos provided by Bulu through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to bulugroup.com. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Bulu or the Services, or display them in any manner that implies Bulu’s sponsorship or endorsement. Company shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access Bulu’s website or Services for any purpose without Bulu’s express written permission, (ii) interfere or attempt to interfere with the proper working of Bulu’s website or any activities conducted on the website, or (iii) bypass any measures Bulu may use to prevent or restrict access to Bulu’s website or the Services.

 

8.3 Client Property. No Confidential Information obtained by Bulu from Company shall become Bulu Property. All materials provided by Company shall be deemed “Client Property” for purposes of these Terms and Conditions. Company grants Bulu a non-exclusive, worldwide license to the Client Property solely as needed to provide the Services. 

 

8.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in the United States. Bulu has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. These measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. Bulu will use commercially reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to Bulu’s attention. Company agrees to immediately notify Bulu of any suspected security breach at info@Bulu.com and by contacting the Company’s primary Bulu point of contact.

 

8.5 Third Party Software. Any third party software application Company uses on the Bulu website, to connect to the Services, or related to the Services (“Third Party Software”) is solely subject to any third party software provider software licenses. Bulu does not own, control or have any responsibility or liability for any Third Party Software.

 

9. CONFIDENTIAL INFORMATION

9.1 Scope. From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of these Terms and Conditions, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:

  1. all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models);

  2. all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;

  3. all rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;

  4. all rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and

  5. all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.

 

9.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information: 

  1. information that is or becomes generally available to and known by the public;

  2. information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;

  3. information published or otherwise made known to the public by Discloser;

  4. information that was generated independently without reference to the Discloser’s Confidential Information; or

  5. information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.

 

9.3 Aggregate Use. Subject to the terms and conditions of these Terms and Conditions, Company hereby acknowledges and agrees that Bulu may compile aggregate results from all of, or a selection of Company’s use of the Services, provided that Bulu shall not disclose any information that would individually identify Company (“Aggregate Information”). Such Aggregate Information shall be deemed to be Bulu’s Confidential Information. Company also hereby agrees that Bulu may review and use Company’s individual use of the Services in order to provide Services to Company, to evaluate Bulu’s provision of the Services, and to improve Bulu’s service offerings.

 

10. INDEMNITY

 

10.1 Indemnification. Subject to the terms and conditions of these Terms and Conditions, Company shall indemnify, defend and hold harmless Bulu and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by Indemnified Party or Company customer (collectively, “Losses”), arising out or resulting from any claim of a third party alleging:

  1. breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in these Terms and Conditions by Company;

  2. any negligent or more culpable act or omission of Company (including any recklessness or willful misconduct) in connection with the performance of its obligations under these Terms and Conditions;

  3. any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Company;

  4. the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Bulu;

  5. any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or any other governmental requirement, law, regulation, requirement, or enforceable expectation; or

  6. any failure by Company to comply with any applicable state, federal or international laws.

 

11. DISCLAIMERS

 

11.1 As Is. Bulu’s obligations under these Terms and Conditions and any policies, procedures, documents or agreements incorporated herein (including the use of Bulu’s technology) are provided on an “as is” and “as available” basis. Bulu expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement for the services, Bulu’s website and any third-party services. the use of services, Bulu website, or third party services is at Company’s risk.

 

11.2 No Continuous Access. Bulu does not guarantee continuous, uninterrupted or secure access to the Services. Operation of the Services may be interfered with by numerous factors outside of Bulu’s control. However, Bulu will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Bulu makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.

 

12. LIMITATION ON BULU LIABILITY

 

12.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER BULU NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS AND CONDITIONS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BULU/ OR COULD HAVE BEEN REASONABLY FORESEEN BY BULU, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL BULU’S LIABILITY UNDER THESE TERMS AND CONDITIONS EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO BULU EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). BULU MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM BULU.

 

12.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THESE TERMS AND CONDITIONS PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST BULU FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT BULU CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW. 

 

12.3 INVENTORY COUNT INACCURACIES. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT BULU IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND BULU IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND BULU’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL BULU BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.

 

12.4 PROJECTS. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“SPECIAL PROJECT”), COMPANY AGREES AND ACKNOWLEDGES THAT BULU’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO BULU FOR THE PROJECT.

 

13. GENERAL PROVISIONS.

 

13.1 Entire Agreement. These Terms and Conditions, including and together with any related policies, procedures, documents and agreements and Bulu Services Orders constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

 

13.2 Severability. If any provision of these Terms and Conditions is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of these Terms and Conditions shall remain in effect and enforceable in accordance with their terms.

 

13.3 No Waiver. Failure or delay of Bulu to exercise a right or power under this Terms and Conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.

 

13.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms and Conditions (each, a “Notice”) must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to the Company must be delivered by email to the address provided or designated by the Company, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.  Notwithstanding the foregoing, legal notices to Bulu must be sent by postal mail to: Bulu, Inc., Attention: Legal Department, 5240 S 19th Street, Lincoln,  NE  68512.

 

13.5 Conflict of Terms. If there is a conflict between these Terms and Conditions and the terms of any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, these Terms and Conditions shall control.

 

13.6 Attorneys’ Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys’ fees incurred in enforcing these Terms and Conditions.

 

13.7 Governing Law and Venue. The Fulfillment Agreement and the performance by the Parties thereunder shall be construed in accordance with the applicable laws of the State of Nebraska without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in Lancaster County, Nebraska. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Lancaster County, Nebraska. Notwithstanding the foregoing, Bulu may seek injunctive or other equitable relief to protect Bulu’s intellectual property rights in any court of competent jurisdiction.

 

13.8 Force Majeure. Any delay or failure of either Party to perform its obligations under the Fulfillment Agreement, these Terms and Conditions or the Other Documents, will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event“). Company’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give Bulu prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Company shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under these Terms and Conditions. 

If requested by Bulu, Company shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the Nebraska Uniform Commercial Code or any similar statute or regulation.

 

 

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