STANDARD TERMS & CONDITIONS

Last Updated: Wednesday, March 31, 2021

Standard Terms and Conditions 

This document outlines Bulu’s Standard Terms and Conditions (the “Terms and Conditions”). Any person, business or entity (“Company”) that signs and executes Bulu’s Standard Fulfillment Services Agreement (“Fulfillment Agreement”) agrees to the Term and Conditions outlined in this document.  The date governing 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”.

Bulu may change or revise these Terms and Conditions at any time and from time to time. Bulu will provide Company with notice of any changes to the Terms and Conditions at least five (5) days prior to the effective date of the Terms and Conditions. Notice from Bulu to the Company will be provided by any of the following means: (1) posting a notice on this web page (www.BuluGroup.com/standard-terms-and-conditions), (2) sending the Company any form of electronic communication to any Company Contact of record or (3) by notifying Company via Company’s web portals with Bulu. If any change or revision to the Terms and Conditions is not acceptable to Company, Company’s sole remedy is to notify Company’s account manager at Bulu. Otherwise, Company is bound by the revised Terms and Conditions. Company’s use of Bulu’s Services after the five (5) day notice period shall constitute full acceptance of the revised Terms and Conditions. 

1. APPOINTMENT

Bulu will provide to the Company the Services (as defined below) 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”). The Fulfillment Agreement, Terms and Conditions and any Other Documents are referred to collectively as the “Agreement.” 

2. TERM

 

2.1 Term.  The Agreement is effective as of the Effective Date and continues for the initial period of one (1) year, unless and until earlier terminated as provided under these Terms and Conditions or applicable law (“Term”). On expiration of the Term, the Agreement will automatically renew for additional successive one (1) year terms ( each a “Renewal Term”) unless and until either Party provides written Notice of termination at least sixty (60) days before the end of the then-current Term or Renewal Term.

 

3. BULU SERVICES

3.1 Services.  Bulu shall provide the following general fulfillment and related services to the Company (collectively, the “Services”):

  1. Bulu will receive shipments from the Company of their products (“Product”).

    1. Requirements for Inbound Products:
      The Company shall provide 48 hours advance shipment notice (“ASN”) of any items, goods or products (“Products”) being sent to the Bulu warehouse via the Bulu Warehouse Management System (“WMS”). Bulu’s WMS serves as Bulu’s purchase order system. Instructions on how to use the WMS will be provided to Company upon execution of the Fulfillment Agreement. The ASN provided shall include an itemized list of each stock keeping unit (“SKU”). In the event that Products are shipped to Bulu without an ASN, Bulu may, at its sole discretion, quarantine the entire shipment until the Company provides the correct ASN. A Bulu agent will contact the Company (via phone or email) to seek a resolution within 5 Business Days of its receipt of such shipment.  If Bulu has contacted the Company and the Company has not provided the ASN in accordance with this paragraph, Bulu may receive, handle, inventory, store and warehouse the Product in whatever way it deems to be reasonable under the circumstances, as determined in its sole discretion. Bulu will track and bill the Company for any additional reasonable fees and charges in connection with performing these services. 

      Products must be received in ready-to-ship format unless previously discussed and confirmed by Bulu via email or other written confirmation. There shall be only one SKU per master carton.

    2. Paperwork:
      Products must be accompanied by a packing list with the following information provided within the packing list or provided in advance to Bulu via email:

      1. Client Name,

      2. SKU,

      3. Product Description,

      4. Packs unit of measure (e.g. 150 cases), and

      5. Total quantity (e.g.: 30 units per case).

    3. Pallets:

      1. Pallet must be a standard four-way entry 40”x 48”.

      2. Maximum height is 60” including pallet unless otherwise agreed upon in writing.

      3. If Pallets are received that fall outside of these maximum dimensions Bulu may, at its sole discretion, assess additional reasonable fees and charges for the additional work required.  

    4. Bulu’s warehouses shall be open for receipt of Products from 8:00 AM to 4:00 PM (central  standard time) each Business Day. Upon arriving at the Bulu warehouse, all Products will be moved to the receiving inspection area. Bulu will compare the pallet and case quantities listed on the paperwork to the actual Products physically received by Bulu. Bulu will verify the count of one case up to 48 units and compare the physical quantity against the incoming paperwork. Bulu will hand count master cases above 48 units upon request and will bill at the Special Project Rate as outlined in the Fulfillment Agreement. 

    5. The delivery address for the Bulu warehouse is: 
      Bulu, Inc. 
      5240 S 19th St.
      Lincoln, NE 68512

  2. Bulu will provide storage facilities for the Products in Bulu’s warehousing facilities (“Warehouse”). Bulu will place inventory in the appropriate pallet space, bin space or overflow space according to the pick frequency. Bulu will bill according to the type of storage space used and will prorate the first month of storage if received after the first day of the month.

  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 Company’s 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. Additional fees for customized packing slips may apply. Bulu will default to not including a packing slip unless otherwise requested.

  6. Bulu will process, package and ship all Product orders in accordance with Bulu policies. Orders will be processed Mondays through Fridays except for national holidays (“Business Days”). “Business Hours” are defined as 8:00 AM local time to 4:00 PM local time. Local time is the time zone of the warehouse from which the Order is being shipped. Order fulfillment may be delayed due to inclement weather or unsafe weather conditions. 

  7. Bulu requests it be notified within 10 days of an expected increase in sales volume from special sales and marketing promotions. If the Company’s order volume increases more than 50% as compared to the average daily order volume of the previous 2 months (excluding Holiday volume), order fulfillment may be delayed by up to 48 hours. 

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

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

  10. 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 or other agreed to written communications between the two Parties. 

 

3.2 Service Level Standard. Bulu will provide the Services agreed to in these Terms and Conditions in accordance with its 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. Company 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 Invoicing for Services. Bulu will bill and send invoices to the Company once a period, on the 1st day of each period. Bulu will bill the Company for the Services provide in the Period that ended. If a period is not designated or specified by the Parties the period shall be one month. All charges and invoices 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, including any and all taxes, duties, or charges of any kind imposed by governmental, regulatory or other authorities for shipments including those delivered outside the United States and its territories, 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 the Company within 15 days from the date of the invoice; 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. Bulu does not store any payment information on its own servers. All of the Company's payment information is stored within Stripe. If Company’s invoice remains unpaid for more than 45 days from the date of the invoice, Company agrees that Bulu shall have the right to auto-charge the Company by any payment method that has been used in the past.

 

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 the 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 THE COMPANY’S RESPONSIBILITY, AT ALL TIMES, TO MAINTAIN AN INSURANCE POLICY THAT COVERS THE VALUE 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 insurance 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 the Agreememnt, Bulu shall perform the Services described herein or as 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 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 the Company with respect to Bulu’s custody of the Products in its Inventory. 

7.2 Account Balances. Any invoices Bulu sends to Company in accordance with these Terms and Conditions shall be based on any balance accrued in the Company’s account with Bulu (the ”Account”). 

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 and other 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 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 Bulu may change and revise, at any time, Company’s pricing upon the delivery of a notice of the change to the Company. 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 Bulu charges or fees (this excludes carrier and 3rd Party fees) invoiced or charged to the Company, Company must submit written notice to Bulu within 30 days of the fee being charged (“Dispute Period”). Bulu will not review customer requests for Usage Fee adjustments that are received after the Dispute Period. 

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, each as is applicable or appropriate. 

 

7.7 Abandoned Account and Liquidation. If any Company fees or amounts due remain 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 to Bulu up to the total cumulative amount required for payment of all fees and amounts due to Bulu as well as any reasonable expenses incurred by Bulu for the preservation and storage of the Inventory. The Inventory on an Abandoned Account will become immediately unavailable to Company and Bulu may exercise its right to liquidate the Products. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of Bulu and will be free and clear of all claims of ownership, title, liability by the Company, its agents or assigns. The Company assumes all liability with respect to its Products including those sold under the terms of this section. 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.

 

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

  1. Company’s Account Balance remaining unpaid for 30 days after receipt of an invoice.

  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 the Agreement;

  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.

 

7.9 Termination. The Agreement may be terminated, for any reason, by either Party, upon giving ninety (90) days’ notice to the other Party. In the event of a breach of the Agreement, either party may terminate the Fulfillment Agreement upon thirty (30) days’ notice to the other party if the breaching party fails to cure such breach during the 30 day period. 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, all 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 as an Abandoned Account. Bulu may terminate the Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Bulu may also terminate the Agreement upon sixty (60) days’ notice to the Company if the Company is not meeting the business expectations presented by the Company to Bulu at the time of the signing of the Fulfillment Agreement. 

 

7.10 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 the Agreement, “Bulu Property” shall mean (a) any and all processes and methods of work and operating that Bulu uses or employs to provide 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 the Agreement. 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 of Company (“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. You hereby grant Bulu the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary to provide the Services to you pursuant to the Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes

 

8.5 Third Party Software. Any third party software application the 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 or its use or operation.

 

 

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 the Agreement, “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 the Agreement, 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 the Agreement, 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 the Agreement 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 the Agreement 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 the Agreement;

  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 the Agreement 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. 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 THE AGREEMENT 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. The Agreement, 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 the Agreement 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 the Agreement shall remain in effect and enforceable in accordance with their terms.

 

13.3 No Waiver. Failure or delay of either Party to exercise a right or power under the Agreement 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 the Agreement(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 the Agreement, a Notice is effective only (a) on receipt by the receiving Party, or (b) if the Party giving the Notice has complied with the requirements of this Section.  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 the Agreement 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, the Agreement 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 the Agreement.

 

13.7 Governing Law and Venue. The 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 Agreement, 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 the Agreement. 

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.