TERMS AND CONDITIONS
ACCEPTABLE USE POLICY
The Acceptable Use Policy covers all shipments made from KIT facilities or on KIT shipping accounts whether through a user’s own web site, the KIT application, any online marketplace, or any other forum.
KIT reserves the right to take preventive or corrective actions to protect itself and its users at any time. Any user violating this policy voids any implied or express warranties and violates the KIT Terms. Violating this policy may also result in temporary or permanent limitation of a user’s Account, a held Account, termination of an account with 30 days’ notice, or immediate termination. This includes the inability to ship merchandise, to remove financial information from an account, and for users to close their Accounts as a way of evading the policy. Additionally, users whose Accounts are permanently limited for violating this policy are barred from future use of KIT and its services, and such users are not permitted to directly or indirectly open new or additional KIT Accounts on behalf of themselves or others. Please note, additional information on held Accounts and termination is provided in the Support section of this site. If you encounter violations of this policy, please report them to KIT immediately.
FULFILLMENT SERVICES AGREEMENT (U.S.)
WHEREAS, the Company is in the business of selling and/or manufacturing certain Products; and
WHEREAS, KIT provides to various retailers and manufacturers direct-to-customer order fulfillment services, pursuant to which KIT provides storage, packing and shipping products to the retailer’s customers; and
WHEREAS, Company desires to retain KIT’s services, and KIT desires to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
FULFILLMENT SERVICES AGREEMENT (U.S.)
The Company hereby engages KIT to provide, and KIT hereby agrees, upon the terms and subject to the conditions set forth in this Agreement, 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 this Agreement, including conformance with the various KIT policies.
2.1 Term. The term of this Agreement commences on the Effective Date and continues for the initial period of one (1) year, unless and until earlier terminated as provided under this Agreement or applicable law (“Term”). On expiration of the Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement 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 this Agreement, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.
3.1 Services. KIT shall provide the following services to the Company (collectively, the “Services”):
4.1 Pay as You Go Payments & Invoicing. KIT utilizes a “Pay As You Go” model for the payment of Services. Company will load funds into their account and fees are deducted as incurred by Company. Invoice for Services are generated at the end of each 2-week billing period and shall serve as a receipt for the Company.
4.2 Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to the Company. Under no circumstances shall KIT accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.
4.3 Late Payment Fee. If KIT fails to receive payment from Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.
4.4 Options & Ways to Pay. KIT provides the Company with a convenience 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.). KIT is using a 3rd party payment processing company Stripe. KIT does not store any payment information on its own servers; all of Company’s payment information is stored with Stripe. If Company’s invoice remains unpaid for more than 45 days from the issue date, Company agrees that KIT shall have the right to auto-charge any payment method that has been used in the past.
4.5 Auto-Pay. Company has the option to agree to opt-in for “auto-pay” service, which will automatically charge the saved payment method on file in order to replenish the Company Pay as You Go account balance. Using the auto-pay service will prevent orders from being delayed in processing due to insufficient balances under the Pay as You Go payment system.
5.1 Title. Company hereby agrees that at no time during the period that Products are held by KIT as Inventory in the Warehouse will KIT 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 End-User.
5.2 Risk of Loss. Company hereby agrees that at no time during the period that Products are held by KIT as Inventory in the Warehouse will KIT carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User. KIT 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 KIT.
5.3 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, insurance carrier KIT shall allow premises inspection in order to assist Company in obtaining coverage.
5.4 No Insurance. Company can choose not to insure its inventory. In this event, KIT will, under no circumstances, be liable for any loss or damage to the inventory stored at KIT facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event.
6.1 Services Available Through the Account. Subject to Company’s compliance with this Agreement, KIT shall perform the Services described in this Agreement as selected and authorized by Company in the Account, and described on Exhibit A attached hereto. Company may order Services through the Account (“KIT Services Orders”). All KIT Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that KIT operates as a third-party warehouse and broker of shipping services; accepting shipments from, and making shipments to, third parties. KIT is an independent contractor for all purposes, and only acts as the agent of Company with respect to KIT ‘scustody of the Products in its Inventory.
6.2 Account Balances. Any invoices KIT sends to Company in accordance with Section 5 of this Agreement shall be based on any balance accrued in the Company’s Account. “3rd Party Fees” are the fees for postage, shipping and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums or other charges given during Company’s use of Services) ordered through the Account and any special or additional fees assessed against the Account as permitted in this Agreement. The 3rd party fees for Services are billed during the month in which the Services are performed, but such 3rd Party Fees are subject to change due to circumstances beyond KIT ‘s control. Company agrees and acknowledges that should Company change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services listed on Exhibit A to this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed on the 1st and 15th day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.
6.3 KIT Services Estimates. Quotes for 3rd party fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon KIT. Quotations accepted through KIT ‘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.
6.4 Pricing Changes & Currency Fluctuations. KIT reserves the right to adjust its pricing for its Services, with 30 days’ notice via publication on the KIT website and/or directly to the Company due to market forces and/or in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. After the first 90-days, KIT reserves the right to automatically revise pricing without notice if actual volume does not meet or exceed the initial volume estimates provided by the Company at the time of contract execution to a rate equal to actual volume. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.
6.5 Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to KIT within 30 days of the fee being charged (“Dispute Period”). KIT will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
6.6 Account Balance Disputes. If KIT becomes aware of, or is notified of, a dispute relating to the Account Balance, then KIT will promptly review the dispute. Within five business days after the resolution of the dispute, KIT will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
6.7 Abandoned Account and Liquidation. If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then KIT 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 Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by KIT for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of KIT 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 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 Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.
6.8 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activities will be suspended. KIT reserves the right to cease shipping orders for a number reasons, including but not limited to the following:
6.9 Termination for Breach. Either party may terminate this Agreement upon thirty (30) days’ notice to the other party in the event of a breach by the other party of any provision of this Agreement if the breaching party fails to cure such breach during the 30 day period; provided, that KIT may terminate this Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30 day cure period, 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 KIT ‘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, KIT will liquidate the Product inventory in accordance with an Abandoned Account.
6.10 Additional Actions. If Company is in breach of any of the terms of this Agreement, KIT may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, KIT may also take any additionally available legal actions
6.11 Closing Accounts. Company may close the Account for any reason, upon giving KIT 30 days prior written notice. Merchandise will be returned subject to Company paying KIT ‘s standard pick and pack rates outlined in Exhibit A.
7.1 KIT Property. For purposes of this Agreement, “KIT Property” shall mean (a) KIT ‘smethodology for the provision of the Services; and (b) KIT ‘s Confidential Information. KIT hereby retains all worldwide right, title and interest in and to the KIT Property. Any rights not expressly granted herein to the KIT Property shall be retained by KIT. Company acknowledges that all right, title and interest to the KIT Property is owned by KIT.
7.2 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 KIT 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 KIT and Company shall not copy, imitate, or use them without KIT ‘sexpress prior written consent. Company may use HTML logos provided by KIT through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to KITbyusp.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 KIT or the Services, or display them in any manner that implies KIT ‘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 KIT ‘s website or Services for any purpose without KIT ‘s express written permission, (ii) interfere or attempt to interfere with the proper working of KIT ‘s website or any activities conducted on the website, or (iii) bypass any measures KIT may use to prevent or restrict access to KIT ‘s website or the Services.
7.3 Client Property. No Confidential Information obtained by KIT from Company shall become KIT Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants KIT a non-exclusive license to the Client Property solely as needed to provide the Services.
7.4 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. KIT 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. KIT will use commercially reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to KIT ‘s attention. Company agrees to immediately notify KIT of any suspected security breach by contacting KIT customer support.
7.5 Third Party Software. Any third party software application Company uses on the KIT 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. KIT does not own, control or have any responsibility or liability for any Third Party Software.
8.1 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 this Agreement, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:
8.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:
8.3 Aggregate Use. Subject to the terms and conditions of this Agreement, Company hereby acknowledges and agrees that KIT may compile aggregate results from all of, or a selection of Company’s use of the Services, provided that KIT shall not disclose any information that would individually identify Company (“Aggregate Information”). Such Aggregate Information shall be deemed to be KIT ‘s Confidential Information. Company also hereby agrees that KIT may review and use Company’s individual use of the Services in order to provide Services to Company, to evaluate KIT ‘s provision of the Services, and to improve KIT ‘s service offerings.
9.1 Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless KIT 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 this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, “Losses”), arising out or resulting from any claim of a third party alleging:
10.1 As Is. KIT ‘s obligations under this agreement and the attached Exhibits (including the use of KIT ‘s technology) are provided on an “as is” and “as available” basis. KIT 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, KIT ‘s website and any third-party services. the use of services, KIT website, or third party services is at Company’s risk.
10.2 No Continuous Access. KIT does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of KIT ‘s control. However, KIT will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but KIT 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.
11.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER KIT 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 THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY KIT / OR COULD HAVE BEEN REASONABLY FORESEEN BY KIT, 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 KIT ‘S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO KIT EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). KIT MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM KIT.
11.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST KIT 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 KIT CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
11.3 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 KIT IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND KIT IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND KIT ‘S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL KIT BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
11.4 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 KIT ‘S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO KIT FOR THE PROJECT.
12.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and KIT 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.
12.2 Severability. If any provision of this 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 this Agreement shall remain in effect and enforceable in accordance with their terms.
12.3 No Waiver. Failure or delay of KIT to exercise a right or power under this 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.
12.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this 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 Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, 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 KIT must be sent by postal mail to: KIT, Inc., Attention: Legal Department, 201 NW 22nd Ave. Unit 100, Fort Lauderdale, FL 33311
12.5 Conflict of Terms. If there is a conflict between this 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, this Agreement shall control.
12.6 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 this Agreement.
12.7 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of Florida 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 Broward County, Florida. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Broward County, Florida. Notwithstanding the foregoing, KIT may seek injunctive or other equitable relief to protect KIT’S intellectual property rights in any court of competent jurisdiction.
12.8 Force Majeure. Any delay or failure of either Party to perform its obligations under this 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 KIT 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 this Agreement.
If requested by KIT, 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 Florida Uniform Commercial Code or any similar statute or regulation.