This Warehouse Services Agreement (this “WSA”) is between: 

            Customer,

            Warehouse Operator, and

            Flexe, Inc. (“Flexe”).

Customer and Warehouse Operator are defined in the applicable Statement(s) of Work.  Customer, Warehouse Operator and Flexe are herein referred to individually as a “Party” and collectively as the “Parties.”

The Parties agree as follows:

1.              SERVICES. #

            1.1            Customer Goods. Customer owns (or controls) tangible personal property or merchandise ("Goods”) for which it seeks warehousing, distribution, and/or transportation related services.

            1.2            Warehouse Services. Warehouse Operator shall provide warehousing, distribution, and/or transportation services for Customer (“Warehouse Services”) pursuant to tri-party Statement(s) of Work executed by the Parties (each, an “SOW”). Each SOW shall be in substantially the form attached as Exhibit A to this WSA, including, at minimum and not limited to, the scope of the Warehouse Services (“Scope”), the location of the Warehouse Operator’s facility at which the Warehouse Services shall be performed (“Warehouse”), the Service Level Agreements for the Warehouse Services (“SLAs”), and the applicable Fee Schedules (as defined in Section 3 below). 

            1.3            Flexe Services. 

            (a)             Flexe shall provide access to and use of the Flexe technology platform (the “Platform”) by Customer and Warehouse Operator to support and facilitate the Warehouse Services. The Platform and related services provided by Flexe are referred to collectively as the “Flexe Services.” The Warehouse Services and the Flexe Services are referred to collectively as the “Services.”

            (b)            Customer’s and Warehouse Operator’s access to and use of the Platform are governed by: (a) as between Flexe and Customer, the terms and conditions of the Flexe Platform & Services Agreement between Flexe and Customer (“Customer Platform Agreement”); and (b) as between Flexe and Warehouse Operator, the terms and conditions of the Flexe Platform & Services Agreement between Flexe and Warehouse Operator (“Warehouse Operator Platform Agreement”). The Customer Platform Agreement and the Warehouse Operator Platform Agreement are referred to collectively in this WSA as the “Platform Agreements.” Where Customer or Warehouse Operator has executed or otherwise accepted a Terms of Service agreement with Flexe (“TOS”) governing access to and use of the Platform and that TOS has not been superseded by a Platform Agreement, such TOS shall continue in full force and effect, and the term “Platform Agreement” herein shall include any such TOS. Compliance with the Platform Agreements by Customer and Warehouse Operator is a material term of this WSA.   

            (c)             Flexe does not provide Warehouse Services and does not act as a warehouse operator, transportation carrier, or a customer/depositor/shipper. The Warehouse Services will be performed by Warehouse Operator. Any advice or recommendations provided by Flexe to Warehouse Operator with respect to Warehouse Services are suggestions only. Warehouse Operator is solely and entirely responsible for performance of all Warehouse Services and compliance with all Warehouse Operator obligations under this WSA and any SOW. 

            (d)            Customer acknowledges and agrees that Customer is responsible for the decision to select Warehouse Operator, to enter this WSA, and to enter into any SOW for Warehouse Services.  Flexe’s role under this WSA and any SOW hereunder is as an independent intermediary. Except upon exercise of its lien rights pursuant to Section 8.2, Flexe does not and shall not be deemed to have title to or physical possession of the Goods. FLEXE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING WAREHOUSE OPERATOR’S QUALIFICATIONS, FITNESS, ABILITIES OR QUALITY OF WAREHOUSE SERVICES, AND FLEXE HAS NO RESPONSIBILITY OR LIABILITY FOR ANY WAREHOUSE SERVICES REQUESTED BY CUSTOMER AND/OR PROVIDED BY WAREHOUSE OPERATOR.

2.              OPERATIONAL OBLIGATIONS. #

The Parties agree that the following terms shall apply to all SOWs unless specifically identified as excluded in an SOW:

            2.1            Inbound Deliveries. Customer shall submit all inbound delivery requests to Warehouse Operator (each an “Inbound Delivery”) in accordance with the timeline and requirements set forth in the SLAs. All Inbound Delivery requests must be made through the Platform, and Warehouse Operator shall not accept Inbound Delivery requests received outside the Platform unless otherwise explicitly permitted by the SOW. Warehouse Operator shall provide receiving services in accordance with the timeline and requirements set forth in the SOW.  Any expedited or non-business day receiving service requests for Inbound Deliveries shall be deemed and treated as Additional Services under Section 2.5.

            2.2            Outbound Shipping. Customer shall submit all outbound shipment requests to Warehouse Operator (each an “Outbound Shipment”) through the Platform. Warehouse Operator will confirm receipt of, and accept, Outbound Shipment requests in the Platform. Customer shall not submit, and Warehouse Operator shall not accept, Outbound Shipment requests received outside the Platform. All Fees up to completion of an Outbound Shipment (including, but not limited to, handling out charges) shall be paid by Customer. Warehouse Operator shall provide Outbound Shipment services in accordance with the timeline and requirements set forth in the SLAs. Any expedited or non-business day receiving service requests for Outbound Shipments shall be deemed and treated as Additional Services under Section 2.5.

            2.3            Item Master Data. 

            (a)             Customer is responsible for entering and at all times accurately maintaining in the Platform all item master data for Goods, including, but not limited to, dimensional measurements and quantities by Unit of Measure (“UOM”) (“Item Master Data”). At a minimum, Customer should perform a full audit of Item Master Data once per quarter. Customer has no right to refuse payment, to demand refund, recoupment, or credit, or to assert a claim for any fees or charges (paid or unpaid) or otherwise (including, but not limited to, alleged overcharges or overpayments) for inventory inaccuracies resulting from incorrect Item Master Data, and Customer waives any such rights and claims.

            (b)            Warehouse Operator is responsible for entering and maintaining accurate inventory counts for all Inbound Deliveries, Outbound Shipments, and internal movement of Goods in the Warehouse (including cycle counts).

            2.4            Location.

            (a)             Goods shall be stored only at the Warehouse identified in the SOW. Goods may only be moved to an alternate warehouse facility with mutual written agreement of all Parties.

            (b)            Warehouse Operator may store the Goods at any storage location within the Warehouse unless otherwise specified in the SOW. Warehouse Operator shall maintain accurate data in the Platform for location of the Goods within the Warehouse at all times.

            (c)             Warehouse Operator shall ensure adequate availability of trailer spots and/or dock doors to provide the Warehouse Services to Customer in accordance with the inbound Forecasted Volume (as that term is defined in the SLAs).

            2.5            Additional Services.

             (a)             All requests for Warehouse Services that are expedited, out-of-system, or materially differ from the requirements and specifications set out in a Scope (“Additional Services”) must be submitted in writing by Customer to both Warehouse Operator and Flexe.  Requests for Additional Services are ineffective unless and until accepted by both Warehouse Operator and Flexe in writing (minimum of email or other writing with verification of receipt and acceptance). Any requests for Additional Services not so accepted shall be deemed denied. Warehouse Operator shall not perform, or be paid for, any Additional Services until the Additional Services have been documented and agreed upon by the Parties in accordance with this Section 2.5.

             (b)            Additional Services are subject to additional fees as agreed in writing by the Parties, and shall be billed and paid at the hourly labor rates and supplies and material costs set out in the Fee Schedules unless or until the Parties agree otherwise in a signed writing. The agreed fees for Additional Services will be retroactive to the commencement of the Additional Services. If the Parties are not able to agree upon fees applicable to Additional Services within thirty (30) days, Warehouse Operator may in its discretion cease providing the Additional Services. Additional Services shall not be performed outside Regular Hours (as defined in the applicable SOW) unless requested and approved in accordance with the SOW.

             (c)             Warehouse Operator may require initial time studies to scope and price the requested Additional Services. If Warehouse Operator requests advance approval to conduct initial time studies at Customer’s expense and both Customer and Flexe agree in writing to the request, including as to the scope and extent of the time studies (minimum of email or other writing with verification of receipt and acceptance), the time studies shall be billed and paid at the regular hourly labor rates and supplies and material costs set out in the Fee Schedules or as otherwise agreed between the Parties in a signed writing. Unless such time studies receive advance written approval from both Customer and Flexe, the studies are conducted at Warehouse Operator’s own expense.

             2.6            Packaging & Labeling.

             (a)             Customer shall ensure all Goods are properly and sufficiently prepared and packaged for storage, handling, and transportation, and are labeled in accordance with the Scope and all requirements under Applicable Law.  Without limiting the foregoing, unless expressly agreed otherwise in an SOW, Customer shall ensure: (i) all Goods are consistently packaged (including, but not limited to, no variation in carton quantities between manufacturing source plants or SKU labeling by distribution sites); (ii) all pallets of Goods are of consistent height and stack pattern; and (iii) that Customer apprises Warehouse Operator and Flexe of any changes to labeling strategy for Goods in writing (email is sufficient) no less than ten (10) calendar days prior to a new labeling strategy being deployed, and the new labeling strategy is not deployed until Warehouse Operator and Flexe have confirmed receipt and acceptance of the request (email is sufficient).

             (b)            Customer will provide Warehouse Operator and Flexe with the most current and accurate information and instructions concerning any special characteristics of Goods, including, but not limited to, any applicable safety and health information, toxicological information, environmental data, safety data sheets (SDS), shipping papers and certifications, and all other information relevant to receiving, storing, handling, labeling, shipping, transporting, or disposing of the Goods in accordance with Applicable Law. 

            (c)             Warehouse Operator shall not remove, hide or modify any labels on the Goods except at Customer’s direction, or with Customer’s permission, in writing (email is sufficient).

            2.7            Inbound/Outbound Transportation. 

            (a)             Unless otherwise agreed in accordance with Section 2.7(b) and/or 2.7(c) below, Customer shall independently coordinate and provide all inbound and outbound transportation services for its Goods to and from the Warehouse at Customer’s sole cost and expense (“Customer Transportation”), including, but not limited to: (i) providing forecasts to third-party carrier(s) regarding projected Outbound Shipments; (ii) directly contacting third-party carrier(s) regarding any carrier performance issues; (iii) providing accurate shipment information to third-party carrier(s); and (iv) supplying all shipment documentation required by Warehouse Operator to perform outbound Warehouse Services (including, but not limited to, Bills of Lading and shipping labels) through the Platform. Flexe has no obligation, responsibility or liability regarding Customer Transportation. Warehouse Operator has no obligation, responsibility or liability regarding Customer Transportation, except with respect to the Warehouse Operator’s responsibility for Outbound Shipments as set out in this MWSA and the SOW. Customer Transportation shall be governed by Customer’s contracts with the third-party carrier or transportation broker providing such transportation services.

            (b)            Notwithstanding the foregoing, the Parties may expressly agree in any SOW (or otherwise by signed writing) that the Warehouse Operator may provide transportation services for Goods under this WSA pursuant to and in accordance with Section 11 below (“Warehouse Transportation Services,” as further defined in Section 11).

            (c)             Also notwithstanding the foregoing, upon Customer’s request, Flexe may act as a broker to arrange transportation services for Customer Goods by a third-party carrier (“Flexe-Brokered Transportation Services”); provided, however, Customer and Flexe must execute a separate agreement for any Flexe-Brokered Transportation Services. This WSA, including, but not limited to, Section 11, shall not apply to such Flexe-Brokered Transportation Services.

            2.8            Insurance.  Warehouse Operator must have in place and maintain throughout the term of any SOW the following insurance coverage with a reputable insurance company:

            (a)             Employer’s liability insurance with limits not less than $1,000,000 per occurrence;
            (b)            Workers compensation insurance in the amounts required by Applicable Law; and
            (c)             Comprehensive general liability insurance with contractual coverage limits of not less than $1,000,000 per person per occurrence.

            The above coverage requirements may be satisfied by excess and/or umbrella policies.  Upon request by Customer or Flexe, Warehouse Operator will provide evidence of the above coverage. Customer understands that the Goods may not be insured by the Warehouse Operator against loss or injury however caused, and Customer is solely responsible for obtaining all risk property and other insurance to cover any loss of, destruction of, or damage to the Goods for which Warehouse Operator is not liable.

            2.9            Onsite Inspections & Audits. Customer and/or Flexe shall be permitted reasonable onsite inspections and audits of Customer’s Goods in a Warehouse subject to the following conditions:

            (a)             Onsite inspections and audits shall be conducted by Customer’s employees, Flexe’s employees and/or authorized agents;

            (b)            Customer and any of Customer’s employees or authorized agents participating in an onsite inspection or audit shall accept and agree to the onsite rules, regulations and reasonable requirements of Warehouse Operator and/or Warehouse Operator’s insurers;

            (c)             The Parties shall collaborate in good faith to schedule and conduct visits, inspections and audits at times and in a manner reasonably convenient to all Parties, provided, however that Customer’s request for a visit, inspection or audit must be submitted to Warehouse Operator and Flexe, at least: (i) with respect to inventory audits and any regulatory compliance audits or inspections (including but not limited to food safety inspections), thirty (30) days in advance of the proposed date; and (ii) otherwise, two (2) business days in advance of the proposed date;

            (d)            Flexe has the right to attend Customer scheduled onsite visits, inspections and/or audits at a Warehouse in its discretion; and

            (e)            Customer shall pay Warehouse Operator’s and Flexe’s reasonable fees and charges for supporting such inspections and audits in accordance with Section 3.2(a).

            2.10         Operating Hours. Warehouse Services will be performed during the operating hours as set out in any SOW.

3.              FEES, INVOICING AND PAYMENT. #

            3.1            Fees.

            (a)             Customer shall pay Flexe the fees for all Services under an SOW (“Customer Fees”) pursuant to the fee schedule executed between Customer and Flexe (“Customer Fee Schedule”) under the SOW. A Customer Fee Schedule can be changed only by a written amendment signed by Customer and Flexe.

            (b)            Subject to Section 3.3(c), Flexe shall pay Warehouse Operator the fees for all Warehouse Services under an SOW (“Warehousing Fees”) pursuant to the fee schedule executed between Warehouse Operator and Flexe (“Warehousing Fee Schedule”) under the SOW. A Warehousing Fee Schedule can be changed only by a written amendment signed by Warehouse Operator and Flexe.

            (c)             All Customer Fee Schedules and Warehousing Fee Schedules, and any amendments thereto (collectively, the “Fee Schedules”), are incorporated by reference into the SOWs to which they apply.

            (d)            “Fees” in this WSA or any SOW refers collectively to Customer Fees and Warehousing Fees.

            (e)            The Fees will be invoiced and paid in U.S. Dollars unless otherwise agreed by all Parties in an SOW.

            3.2            Customer Fees.

            (a)             Customer Invoices and Payment. For each SOW, Flexe will generate and issue monthly invoices to Customer for Customer Fees due by Customer to Flexe (“Customer Invoices”). Customer Invoices shall be electronically delivered to Customer through the Platform with email notification to Customer. Customer shall maintain a current active email address for billing in the Platform and promptly update the Platform with any changes. Customer shall pay Customer Invoices in full by electronic payment transfer within thirty (30) days of the date of the Customer Invoice. Payment shall be made without abatement, counterclaim, set-off, recoupment, and free and clear of, and without any deduction or withholding.

            (b)            Overdue Customer Fees.  Any Customer Fees not paid by Customer to Flexe when due will accrue interest from the due date until paid at the lesser of twelve percent (12%) per annum or the maximum rate permitted by Applicable Law. Flexe may take any action available at law or in equity to collect any overdue Customer Fees. Customer shall be liable for all costs and expenses incurred by Flexe in connection with collection activities, including, but not limited to, costs and expenses of a third-party collection agency and reasonable attorneys’ fees and costs. In addition to all other rights and remedies, if Customer fails to pay any Customer Fees as due, Flexe in its discretion may provide written instruction to Warehouse Operator to hold and not release Customer’s Goods and Customer consents to any such instruction. In such circumstances: (i) Flexe may exercise all of the rights and remedies of a secured party under the Uniform Commercial Code; (ii) Warehouse Operator shall hold release of Goods until the earliest of: (A) payment of all outstanding Customer Fees; (B) Flexe’s enforcement of its general lien under Section 8.2; or (C) written instruction from Flexe to release Goods; and (iii) If Warehouse Operator does not hold release of the Goods in accordance with Flexe’s written instruction, or releases the Goods earlier than the date set out in sub-section (ii) above, Flexe will not be liable to Warehouse Operator for payment of Warehousing Fees.  

            3.3            Warehousing Fees.

            (a)             Warehouse Statements. For each SOW, Flexe will generate and issue monthly statements to Warehouse Operator for Warehousing Fees pursuant to the applicable Warehousing Fee Schedule (“Warehouse Statement”) based on: (i) charges for Warehouse Services captured in the Platform, and (ii) charges for Warehouse Services not captured in the Platform (e.g., labor hours, supplies or materials) (“Non-Platform Charges”) submitted by Warehouse Operator in accordance with Section 3.3(b). Warehouse Operator shall not issue any invoices to Flexe. Warehouse Statements shall be electronically delivered to Warehouse Operator through the Platform with email notification to Warehouse Operator. Warehouse Operator shall maintain a current active email address for receipt of Warehouse Statements in the Platform and shall promptly update the Platform with any changes.

            (b)            Non-Platform Charges. Non-Platform Charges must be submitted by Warehouse Operator to Flexe pursuant to the Flexe process for Non-Platform Charges no later than the third (3rd) business day after the month in which the activity underlying the Non-Platform Charges occurred.

            (c)             Warehouse Payment. Flexe will remit Warehousing Fees to Warehouse Operator by electronic payment transfer within seven (7) days of Flexe’s receipt of the applicable Customer Fees from Customer.   

            3.4            Taxes.

            (a)             Other than Taxes on Flexe’s and Warehouse Operator’s net income, Customer is solely responsible for and shall pay all taxes required to be paid by the user of any Warehouse Services or Flexe Services, including, but not limited to, personal property, inventory, gross receipts, sales, and use taxes.

            (b)            Warehouse Operator is responsible for the payment of all Taxes for which Warehouse Operator may be liable in any jurisdiction arising from Warehouse Operator’s provision of Warehouse Services, use of Flexe Services, and/or performance of the Warehouse Services.  Flexe is not responsible for collecting, reporting, paying, or remitting to Warehouse Operator any such Taxes.

            (c)             “Taxes” means any applicable duties, sales taxes, and other taxes, which may be levied with respect to any transaction contemplated by this WSA or an SOW.

            3.5            Final Payments. Customer must ensure that all outstanding Customer Fees are paid prior to final removal of Goods from a Warehouse. The foregoing does not apply to invoices that are not yet past due. Notwithstanding anything in Section 3.2(a) to the contrary, Customer Fees for the final month of Services under an SOW shall be paid to Flexe within thirty (30) days of the date of the Customer Invoice for the final month. Warehouse Operator shall not require pre-payment of any Warehousing Fees or other anticipated fees or charges related to termination of an SOW and exit of Customer from a Warehouse. Except as otherwise permitted in accordance with its lien rights, Warehouse Operator shall continue to perform all obligations under this WSA and any SOWs for Customer, including, but not limited to, outbounding Goods, during termination of an SOW and exit from a Warehouse.

            3.6            Fee Disputes. Any disagreements, disputes or claims (collectively “Disputes,” see Section 12.1(a)) related to Fees (“Fee Dispute”) must be asserted in a Dispute Notice (see Section 12.1(b)) within six (6) months following the date of the Customer Invoice and/or Warehouse Statement at issue. If a Fee Dispute is not asserted in a Dispute Notice by such date, the Parties will be deemed to have accepted the Customer Invoice and/or Warehouse Statement as issued and the Customer Fees and/or Warehousing Fees in those invoices and/or statements will be deemed undisputed and due in full. 

4.              REPRESENTATIONS & WARRANTIES. #

            4.1            Mutual Representations and Warranties. Each Party represents, warrants and covenants as follows:

            (a)             The Party has the full corporate right, power and authority to enter into, and perform the acts required of it under, this WSA;

            (b)            The execution of this WSA, and the performance of obligations under this WSA, do not violate, conflict with, or cause a default under any covenant, agreement, judgment, order, or contract to which the Party is subject; and

            (c)             The Party is and shall remain in full compliance with all applicable laws, statutes, regulations, ordinances, rules, and other requirements imposed by any applicable governmental authority at any level (including municipal, county, state/provincial, or federal/national), as in force and as may be revised from time to time (“Applicable Law”).

            4.2            Warehouse Operator Representations and Warranties. Warehouse Operator represents, warrants and covenants as follows:

            (a)             Warehouse Operator shall furnish all personnel, materials, equipment, supplies, other accessories, and sufficient storage and processing space as necessary to perform the Warehouse Services safely and efficiently and in a good and workmanlike manner;

            (b)            Warehouse Operator shall maintain all applicable licenses, approvals and authority required to perform the Warehouse Services and store the Goods in the Warehouse, including but not limited to ensuring that its employees, any permitted subcontractors, and its equipment are properly licensed and permitted as required by Applicable Law; and

            (c)             Warehouse Operator shall comply with and be solely responsible for its compliance with all Applicable Law.

            4.3            Customer Representations and Warranties. Customer represents, warrants and covenants that:  (a) Customer owns, controls and/or has lawful possession of the Goods with the necessary rights to store the Goods within the Warehouse; (b) the Goods are and will remain in full compliance with all Applicable Law, including but not limited to, all applicable federal, state, and local laws, regulations, or ordinances related to health, safety, and environmental protection; and (c) it has fully and accurately disclosed to Flexe and Warehouse Operator all information regarding any hazardous, regulated, or otherwise restricted materials contained within the Goods, as required by all Applicable Law.

5.              PROHIBITED GOODS & HAZARDOUS MATERIALS. #

            5.1            Prohibited Goods. If Warehouse Operator, acting reasonably, determines that Goods are illegal, dangerous, harmful, unsafe, or noxious, or that the storage of such Goods is, or may become, dangerous or pose a material risk of injury or damage to the Warehouse, to Warehouse Operator’s personnel, or to Warehouse Operator’s property or any third party’s property (collectively, “Prohibited Goods”), then Warehouse Operator may, in its discretion, acting reasonably: (a) refuse to accept any Inbound Delivery of Prohibited Goods for storage at the Warehouse; and/or (b) by Notice (as defined herein) to Customer and Flexe, require Customer to remove Prohibited Goods from the Warehouse or other location within Warehouse Operator’s control and Customer shall remove all Prohibited Goods within seven (7) calendar days of receipt of such Notice. If Customer has not removed all Prohibited Goods within the required period, Section 5.5 will apply.

            5.2            Hazardous Materials. The Goods shall not include any hazardous materials as that term is defined under any Applicable Law (“Hazardous Materials”) unless expressly and specifically identified in the SOW (“Permitted Hazardous Materials”). Customer shall determine all current requirements, obligations and relevant information under Applicable Law pertaining to the classification, marking, labeling and packaging of Permitted Hazardous Materials (including, but not limited to, safety data sheets), and communicate all such relevant requirements, obligations and information to Warehouse Operator and Flexe. Hazardous Materials that are not Permitted Hazardous Materials are referred to herein as “Unauthorized Hazardous Materials.”

            5.3            Unauthorized Hazardous Materials. Warehouse Operator or Customer will provide Notice to the other Parties if it becomes aware that Goods include Unauthorized Hazardous Materials. In such event, Warehouse Operator in its sole discretion may elect to either: (a) continue to provide Warehouse Services with respect to such Goods and charge an additional reasonable surcharge for processing, handling, storage and/or transportation of those Goods, in which case such Goods shall thereafter be deemed Permitted Hazardous Materials subject to the conditions of this Section 5; or (b) by Notice to Customer and Flexe, require Customer to remove the Unauthorized Hazardous Materials from the Warehouse or other location within Warehouse Operator’s control and Customer shall remove all Unauthorized Hazardous Materials within seven (7) calendar days of receipt of such Notice. If Customer has not removed all Unauthorized Hazardous Materials within the required period, Section 5.5 will apply.

            5.4            Warehouse Operator Responsibility. If Warehouse Operator agrees to process, handle, store and/or transport Permitted Hazardous Materials, Warehouse Operator shall assume sole responsibility for determining and adhering to all requirements under Applicable Law pertaining to the handling, outbound processing, storing and/or transportation of the Permitted Hazardous Materials (but excluding requirements as to classification, marking, labeling and packaging of Hazardous Materials, which remain Customer’s responsibility in all instances under Section 5.2). 

            5.5            Removal and Disposal. If Customer has not removed Prohibited Goods and/or Unauthorized Hazardous Materials as required by Sections 5.1 and 5.3 above, Warehouse Operator may remove and dispose of the Prohibited Goods and/or Unauthorized Hazardous Materials, including, but not limited to, hiring a professional and experienced independent contractor holding all required licenses and permits to handle, package, ship, dispose of or destroy Prohibited Goods and/or Unauthorized Hazardous Materials. Customer shall reimburse Warehouse Operator for all reasonable costs associated with such removal and disposal (such costs will be considered fees associated with the Goods for purposes of Warehouse Operator’s general warehouse lien described below).

            5.6            Customer Liability. If Customer violates this Section 5 or any other terms applicable to Prohibited Goods or Hazardous Materials in the SOW or this WSA (including, but not limited to, Permitted Hazardous Materials and Unauthorized Hazardous Materials), Customer shall indemnify, defend and hold Flexe and Warehouse Operator harmless against any and all liability which may arise from or relate to such Prohibited Goods and/or Hazardous Materials, which may include, but is not limited to, any claims for personal injury or death and/or property damage (including, but not limited to, damage to the environment), attorney's fees and costs, and/or any penalties or fines levied by any governing authority.

            5.7            Warehouse Operator Liability. If Warehouse Operator violates this Section 5 or any other terms applicable to Prohibited Goods or Hazardous Materials in the SOW or this WSA (including, but not limited to, Permitted Hazardous Materials and Unauthorized Hazardous Materials), Warehouse Operator shall indemnify, defend and hold Flexe and Customer harmless against any and all liability which may arise from or relate to such Prohibited Goods and/or Hazardous Materials, which may include, but is not limited to, any claims for personal injury or death and/or property damage (including, but not limited to, damage to the environment), attorney's fees and costs, and/or any penalties or fines levied by any governing authority.

            5.8            Flexe Liability. Customer and Warehouse Operator acknowledge and agree that Flexe has no responsibility or liability for Customer’s or Warehouse Operator’s responsibilities, obligations, conditions, commitments, requirements or performance with respect to Prohibited Goods and/or Hazardous Materials (including, but not limited to, Permitted Hazardous Materials and Unauthorized Hazardous Materials).

6.              TECHNOLOGY #

            6.1            IT Hardware. 

            (a)             Flexe may in its sole discretion provide Warehouse Operator with hardware, including, but not limited to, handheld devices, RF scanning devices, charging stations, peripherals, and cabling (collectively “IT Hardware”) for use by Warehouse Operator with the Platform in connection with Warehouse Services provided pursuant to an SOW. The cost of shipping IT Hardware to Warehouse Operator shall be borne by Flexe unless otherwise agreed by Flexe and Warehouse Operator in writing (email is sufficient). 

            (b)            Warehouse Operator shall control access to, and use of, all IT Hardware to prevent loss and/or damage to the IT Hardware.  Warehouse Operator is responsible for any loss and/or damage to the IT Hardware while in Warehouse Operator’s possession, custody or control beyond normal wear and tear. Warehouse Operator is responsible for replacing any batteries required by the IT Hardware as necessary during Warehouse Operator’s possession, custody or control of the IT Hardware. 

            (c)             Within ten (10) days of the effective termination or expiration date of the underlying SOW (or such later date as agreed by Flexe in writing), Warehouse Operator shall return all IT Hardware to Flexe by courier delivery with tracking and delivery confirmation, which shall be promptly provided to Flexe, at Warehouse Operator’s expense. Warehouse Operator will ensure IT Hardware is appropriately and securely packaged to protect the IT Hardware in transit. Warehouse Operator is responsible for any loss or damage occurring during return shipment of the IT Hardware.

            (d)            Warehouse Operator shall return all IT Hardware to Flexe in good working order, normal wear and tear excepted. Any IT Hardware not returned by the requisite date will be deemed lost. Warehouse Operator shall remit payment to Flexe for any lost or damaged IT Hardware at the lesser of: (i) the full replacement cost; or (ii) for damaged IT Hardware only, the cost to repair the damaged IT Hardware, as determined by Flexe in its sole discretion. Warehouse Operator shall remit payment to Flexe for lost or damaged IT Hardware upon the earlier of: (i) identification that IT Hardware has been lost or damaged; or (ii) within thirty (30) days of the expiration date or the effective termination date of the underlying SOW. In its discretion, Flexe may offset the amount of any payment due by Warehouse Operator to Flexe for lost or damaged IT Hardware from any Warehousing Fees due to Warehouse Operator under any SOW, or any other agreement to which Warehouse Operator and Flexe are parties. Flexe may take any action available at law or in equity to collect any amounts due for lost or damaged IT Hardware.  Any amounts for lost or damaged IT Hardware that are not paid by Warehouse Operator when due will accrue interest from the due date until paid at the lesser of twelve percent (12%) per annum or the maximum rate permitted by Applicable Law.  Warehouse Operator shall be liable for all costs and expenses incurred by Flexe in connection with the collection of any amounts due for lost or damaged IT Hardware, including costs and expenses of a third-party collection agency and reasonable attorneys’ fees.

            6.2            Wi-Fi Requirements.  

            (a)             Warehouse Operator shall provide and maintain Wi-Fi connectivity, bandwidth, and upload and download speeds throughout the entirety of each Warehouse (including, but not limited to, receiving dock, storage/racking, MHE aisles, pack stations, outbound dock, manager work station, and all locations that Customer’s Goods pass through) sufficient to enable Warehouse Operator to efficiently and effectively, and without foreseeable downtime or delay, use and administer Wi-Fi connected equipment (including any IT Hardware provided to Warehouse Operator by Flexe) to perform the Warehouse Services. These requirements include, but are not limited to:

                          (i)              Broadband connection meeting a minimum of 10MB/s internet connection (10MB/s download and 10MB/s upload), with at least 0.25MB/s per Flexe RF scanning device in use at a Warehouse; and

                          (ii)             Wi-Fi coverage meeting a minimum signal strength of -67dBm full coverage.

            (b)            Temporary Wi-Fi solutions, such as hot spots, are not permitted to be utilized with the IT Hardware.

            (c)             Warehouse Operator will immediately notify Flexe and Customer of any anticipated or actual loss of Wi-Fi and the Parties will work together to implement an interim solution until Wi-Fi is restored. Warehouse Operator will use its best efforts to ensure any Wi-Fi outage is rectified as soon as reasonably practicable and will communicate regularly with Flexe and Customer regarding status and timeline for restoration of Wi-Fi. Provided that Warehouse Operator meets the foregoing requirements, Warehouse Operator will not be liable for any interruption or failure in Wi-Fi resulting from any Force Majeure Event or otherwise outside Warehouse Operator’s reasonable control.

            6.3            Traceability & Recalls. Unless otherwise explicitly provided for in the SOW, Flexe Services, including, specifically, but not limited to, the Platform will not track lot codes, expiration dates and/or manufacturing dates of Goods (collectively, “Traceability Data”), and shall not be used or relied on by Customer or Warehouse Operator for recalls and/or quarantines of Goods. Where the SOW expressly provides that Traceability Data is required, the following terms will apply:

            (a)             Customer must manually designate Traceability Data tracking for all applicable Goods during the Item Master creation or edit prior to commencing the Inbound Request for delivery of the applicable Goods. 

            (b)            Warehouse Operator will enter every pallet received into the Flexe Platform using the unique LPN assigned by Flexe and/or Customer (as designated in the Scope). Warehouse Operator must enter applicable Traceability Data information (as required by the Item Master created by Customer) into the Platform for each LPN and label the pallet with the LPN label.

            (c)             Warehouse Operator will track the movement of the inbound LPN for each pallet into a storage location in the Warehouse via entry into the Flexe Platform. Warehouse Operator will be responsible to update the location of the pallet in the Platform if moved at any time. Reporting is available to view the information inputted by Warehouse Operator relating to the location of all pallets within the facility and the original shipment details.

            (d)            In the event Customer needs to initiate a recall, Customer must notify Warehouse Operator and Flexe as soon as possible providing the applicable Traceability Data for the Goods that need to be quarantined.  Warehouse Operator will need to immediately quarantine all pallets that contain Goods with the Traceability Data needing to be recalled, by physically and systemically moving the affected pallets to a QA location which is unallocated to future outbound orders. Customer will promptly provide further direction to Warehouse Operator and Flexe on what to do with the quarantined product. Quarantined product stored in the Warehouse will continue to be subject to the applicable Fees, and count towards any Reserved Space, under the SOW.

            (e)            If Customer fails to meet the requirement in Section 6.3(a), the Traceability Data will not be able to be tracked in the Platform, and Warehouse Operator and Flexe will not be liable for any failure to meet the requirements set out in this Section. If Customer requests Traceability Data be entered into the Platform after an Inbound Delivery request has already been created, applicable hourly Fees will apply to the work required by Warehouse Operator to audit and enter information (unless otherwise mutually agreed in writing by the Parties).

            (f)             The Parties will work together to mutually agree and document in writing a Standard Operating Procedure (“SOP”) for initiating and responding to recall requests. Notwithstanding anything to the contrary in this WSA or in any Recall SOP, Customer is solely responsible for providing all required information and instructions to Flexe and Warehouse Operator, and complying with all required notifications and reporting obligations, as required by Applicable Law relating to Traceability Data.

7.              LIABILITY & INDEMNIFICATION. #

            7.1            Warehouse Operator Liability & Indemnification.

            (a)             Warehouse Operator Liability. Warehouse Operator’s liability for any loss of, destruction of, or damage to Goods is subject to: (i) the Shrinkage Allowance (if any) set out in the applicable SLAs; (ii) the Warehouse Operator Standard of Care set out in Section 7.1(b) below; (iii) the limitation of liability set out in Section 7.1(c) below; and (iv) any other limitations or conditions as set out in this WSA or the applicable SOW. Any presumption of conversion imposed by law shall not apply, and a claim by Customer of conversion must be established by affirmative evidence that the Warehouse Operator converted the Goods for Warehouse Operator’s own use.

            (b)            Warehouse Operator Standard of Care. WAREHOUSE OPERATOR SHALL NOT BE LIABLE FOR ANY LOSS OF, DESTRUCTION OF, OR DAMAGE TO GOODS, HOWEVER CAUSED, UNLESS SUCH LOSS, DESTRUCTION OR DAMAGE RESULTED FROM THE FAILURE BY WAREHOUSE OPERATOR TO EXERCISE SUCH CARE IN REGARD TO THE GOODS AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES. WAREHOUSE OPERATOR IS NOT LIABLE FOR LOSS OF, DESTRUCTION OF, OR DAMAGE TO GOODS WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH REASONABLE CARE.  

            (c)             Warehouse Operator Limitation of Liability.

                         (i)              IN THE EVENT OF LOSS OF, DESTRUCTION OF, OR DAMAGE TO GOODS FOR WHICH WAREHOUSE OPERATOR IS LEGALLY LIABLE PURSUANT TO THIS WSA OR APPLICABLE LAW, WAREHOUSE OPERATOR’S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (A) THE ACTUAL COST TO CUSTOMER OF REPLACING OR REPRODUCING THE LOST, DESTROYED OR DAMAGED GOODS TOGETHER WITH ALL COSTS OF TRANSPORTING SUCH REPLACEMENT GOODS TO THE WAREHOUSE; (B) THE FAIR MARKET VALUE OF THE LOST, DESTROYED OR DAMAGED GOODS ON THE DATE CUSTOMER IS NOTIFIED OF SUCH LOSS, DESTRUCTION OR DAMAGE; (C) 50 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO THE LOST, DESTROYED OR DAMAGED GOODS; OR (D) $0.25 PER POUND OF THE LOST, DESTROYED OR DAMAGED GOODS. 

                         (ii)             WHERE GOODS ARE LOST, DESTROYED OR DAMAGED AND WAREHOUSE OPERATOR IS NOT LIABLE UNDER THIS WSA OR APPLICABLE LAW, WAREHOUSE OPERATOR SHALL NOT BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF THE LOST, DESTROYED OR DAMAGED GOODS FROM THE WAREHOUSE AND WAREHOUSE OPERATOR’S PROPERTY AND/OR FOR THE COST OF ANY ENVIRONMENTAL CLEANUP AND SITE REMEDIATION AT THE WAREHOUSE OR ON WAREHOUSE OPERATOR’S PROPERTY CAUSED BY THE LOSS, DESTRUCTION OR DAMAGE.

                         (iii)           Unless expressly stated in this WSA, Warehouse Operator’s limitations of liability to Flexe and Flexe’s limitations of liability to Warehouse Operator are set forth and established in their mutually executed Warehouse Operator Platform Agreement.

            (d)            Warehouse Operator Indemnification. Warehouse Operator shall indemnify, defend and hold harmless Customer and Flexe and their respective shareholders, officers, directors, employees, agents, successors, and assigns from and against any and all liabilities, damages, losses, claims, judgments, demands, assessments, actions, causes of action, costs or expenses (including reasonable attorneys’ fees and expenses) brought by any third party (“Third-Party Claim”) arising out of or resulting from any of the following:

                         (i)              damage or injury (including death) to any property or person (including, but not limited to, employees, contractors and representatives of Customer and/or Flexe) arising or resulting at any time or place from the act or omission of Warehouse Operator;

                         (ii)             the negligence and/or willful misconduct of Warehouse Operator; or

                         (iii)           a material breach of this WSA or any SOW by Warehouse Operator.

            Notwithstanding the foregoing, Warehouse Operator shall not have an indemnity obligation to an indemnified party for any Third-Party Claim to the extent caused or contributed to by the negligence or willful misconduct of that indemnified party. Warehouse Operator shall not settle any Third-Party Claim that imposes obligations or liabilities on Customer and/or Flexe without the prior written consent of Customer and/or Flexe, as applicable (which consent shall not to be unreasonably withheld, conditioned or delayed).  Customer and Flexe shall use reasonable efforts to promptly notify Warehouse Operator of any Third-Party Claim upon becoming aware of it.

            7.2            Customer Liability & Indemnification.

            (a)             WHERE GOODS ARE LOST, DESTROYED OR DAMAGED AND WAREHOUSE OPERATOR IS NOT LIABLE UNDER THIS WSA, CUSTOMER SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF THE LOST, DESTROYED OR DAMAGED GOODS FROM THE WAREHOUSE AND WAREHOUSE OPERATOR’S PROPERTY AND FOR THE COST OF ANY ENVIRONMENTAL CLEANUP AND SITE REMEDIATION AT THE WAREHOUSE OR ON WAREHOUSE OPERATOR’S PROPERTY CAUSED BY THE LOSS, DESTRUCTION OR DAMAGE.

            (b)            Customer shall indemnify, defend and hold harmless Warehouse Operator and Flexe and their respective shareholders, officers, directors, employees, agents, successors, and assigns from and against any Third-Party Claim arising out of or resulting from any of the following:

                         (i)              damage or injury (including death) to any property or person (including, but not limited to, employees, contractors and representatives of Warehouse Operator and/or Flexe) arising or resulting at any time or place from the act or omission of Customer;

                         (ii)             the negligence and/or willful misconduct of Customer; or

                         (iii)           a material breach of this WSA or any SOW by Customer. 

            Notwithstanding the foregoing, Customer shall not have an indemnity obligation to an indemnified party for any Third-Party Claim to the extent caused or contributed to by the negligence or willful misconduct of that indemnified party. Customer shall not settle any Third-Party Claim that imposes obligations or liabilities on Warehouse Operator and/or Flexe without the prior written consent of Warehouse Operator and/or Flexe, as applicable (which consent shall not to be unreasonably withheld, conditioned or delayed).  Warehouse Operator and Flexe shall use reasonable efforts to promptly notify Customer of any Third-Party Claim.

            7.3            Flexe Limitation of Liability. EXCEPT AS OTHERWISE SET FORTH IN THE PLATFORM AGREEMENTS, FLEXE SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, DESTRUCTION OR DAMAGE OF GOODS (INCLUDING ANY SHRINKAGE OR UNEXPLAINED OR MYSTERIOUS DISAPPEARANCE); ANY DAMAGE OR INJURY (INCLUDING DEATH) TO PROPERTY OR PERSONS ARISING OUT OF OR RESULTING FROM THE GOODS; OR ANY DAMAGES, LOSSES, CLAIMS, DEMANDS, ASSESSMENTS, ACTIONS, CAUSES OF ACTION, AND COSTS ARISING OUT OF OR RESULTING FROM ANY FAILURE OR DELAY IN PERFORMANCE (WHETHER OCCURRING DURING PROCESSING, HANDLING, STORAGE, TRANSPORTATION OR OTHERWISE) UNDER THIS WSA OR ANY SOW HEREUNDER.

            7.4            Waiver of Certain Damages. EXCEPT WITH RESPECT TO a BREACH OF CONFIDENTIALITY, FRAUD, AND/OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS SPECIFIED HEREIN, IN NO EVENT SHALL ANY PARTY TO THIS WSA (OR ANY PARTY’S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, INSURERS OR ASSIGNS) BE LIABLE TO THE OTHER PARTIES OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY TYPE OR DESCRIPTION, ARISING FROM OR RELATING TO THIS WSA OR ANY SOW HEREUNDER, INCLUDING, BUT NOT LIMITED TO, CHARGEBACKS, LOST PROFITS, REVENUE, SAVINGS, COMPETITIVE ADVANTAGE, OPPORTUNITY, BUSINESS INTERRUPTION, OR GOODWILL, REGARDLESS OF THE NATURE OF THE CLAIM BEING IN CONTRACT, TORT, OR OTHERWISE, AND WHETHER IN LAW OR IN EQUITY, WHETHER THE PARTY IN BREACH WAS ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES. 

8.              LIENS AND ENFORCEMENT. #

            8.1            Warehouse Operator’s General Warehouse Lien.  Warehouse Operator has a general warehouse lien and a carrier’s lien (if Warehouse Operator is providing Warehouse Transportation Service pursuant to Section 11) on the Goods and on the proceeds thereof for all fees and charges, including, but not limited to, for storage, handling, processing, transportation, insurance, labor, and materials, present or future, with respect to the Goods, advances and loans by Warehouse Operator in relation to the Goods, and for expenses necessary for preservation of the Goods or reasonably incurred in their sale pursuant to Applicable Law, regardless of whether, and even if, Flexe has remitted any Warehousing Fees to Warehouse Operator before receipt of associated Customer Fees from Customer. Warehouse Operator further has a lien on the Goods for all fees, charges, advances and expenses with respect to any other Goods stored by Warehouse Operator for Customer under this WSA at any time in any warehouse owned or operated by Warehouse Operator or its subsidiaries wherever located and whenever deposited and without regard to whether or not the other Goods have been delivered.

            8.2            Flexe’s General Lien. Flexe has a general lien on all Goods in Warehouse Operator’s possession, custody or control as security for: (a) all Customer Fees (including interest accrued) due under this WSA and the SOWs hereunder; and (b) for all fees and other amounts that Customer may owe to Flexe under any other warehouse services agreement with Warehouse Operator or any other warehouse operator. Flexe's general lien applies regardless of whether, and even if, Flexe has remitted any Warehousing Fees to Warehouse Operator before receipt of associated Customer Fees from Customer. This general lien is in addition to any other rights and remedies that Flexe may have under this WSA, any SOW, other agreements, or Applicable Law, and shall survive delivery or release of any Goods.

            8.3            Lien Assignment.  Upon request by Flexe, Warehouse Operator shall assign its general warehouse lien (and carrier lien, if applicable) on the Goods to Flexe. Upon such assignment, Flexe may exercise all Warehouse Operator lien rights in addition to Flexe’s own lien rights, in each case regardless as to whether and as if Flexe had not remitted to Warehouse Operator any Warehousing Fees for which Flexe had not yet received payment from Customer. Customer acknowledges and agrees that Warehouse Operator’s rights arising under the general warehouse lien (and carrier lien, if applicable) on the Goods described herein are assignable by Warehouse Operator to Flexe.

            8.4            Lien Enforcement.  Warehouse Operator and/or Flexe may enforce their liens on Goods stored by Warehouse Operator for Customer by refusal to ship or by sale of the Goods; provided, however, the Party enforcing the lien(s) must provide the other Parties no less ten (10) calendar days prior Notice (defined herein) of its intention to do so. Any Notice required to be given of a sale or other disposition made at least ten (10) days before a proposed action constitutes fair and reasonable Notice. Upon request by Flexe, Warehouse Operator will reasonably cooperate with Flexe to exercise and enforce its lien rights and any other rights and remedies that Flexe has for collection of Customer Fees and any other fees or amounts that Customer may owe to Flexe under this WSA, any SOW, other agreements, or Applicable Law. Any surplus from the sale or other disposition of Goods pursuant to a lien, after deduction for all sums owed to Flexe and/or Warehouse Operator, shall be transmitted to Customer. Customer shall be liable to Flexe and/or Warehouse Operator for any remaining deficiency after the sale or other disposition of Goods.

            8.5            No Other Liens.  Except Warehouse Operator’s general warehouse lien and carrier lien (if applicable) (see Section 8.1), and except Flexe’s general lien (see Section 8.2) and other rights and remedies under this WSA, any SOW, other agreements between any of the Parties, or Applicable Law, all Goods stored at a Warehouse or otherwise in Warehouse Operator’s possession under this WSA remain the property of Customer at all times. No creditor of Warehouse Operator or Flexe shall have a lien on such Goods. Except upon Warehouse Operator’s and/or Flexe’s enforcement of lien rights, Warehouse Operator and Flexe will not: (a) sell, assign, loan, lease, borrow against, pledge or mortgage such Goods to any other person or entity; or (b) represent to any person that such Goods are Warehouse Operator’s own property or the property of anyone other than Customer.

9.              LOSS, DESTRUCTION AND DAMAGE OF GOODS CLAIMS. #

            9.1            Warehouse Operator shall not be liable to Customer for any loss of, destruction of, or damage to the Goods unless:

            (a)             Customer provides Notice of the claim to Warehouse Operator and Flexe no later than sixty (60) days after Customer learned, or in the exercise of reasonable care, should have learned, of the loss, destruction or damage of Goods, including, but not limited to: (i) itemization and description of the nature and value of the alleged lost, destroyed or damaged Goods, and of the alleged destruction or damage to the Goods if applicable; (ii) description of the nature and cause of the alleged loss, destruction or damage to the Goods (if known); and (iii) the amount claimed;

            (b)            Customer timely and reasonably cooperates with Warehouse Operator and Flexe to substantiate its claim, including, but not limited to, compiling and providing to Warehouse Operator and Flexe: (i) copies of all relevant supporting documentation; and (ii) any additional relevant information, documentation or evidence, including, but not limited to, additional information, documentation or evidence reasonably requested by Warehouse Operator or Flexe; and

            (c)             Customer provides Warehouse Operator and Flexe with reasonable opportunity to inspect any alleged destroyed or damaged Goods which are the basis of Customer’s claim.

            9.2            NO LEGAL ACTION (INCLUDING, BUT NOT LIMITED TO, LITIGATION) MAY BE INITIATED BY CUSTOMER AGAINST WAREHOUSE OPERATOR WITH RESPECT TO ANY LOSS OF, DESTRUCTION OF, OR DAMAGE TO THE GOODS UNLESS ALL REQUIREMENTS OF SECTION 9.1 HAVE BEEN COMPLIED WITH AND UNLESS SUCH ACTION IS COMMENCED WITHIN NINE (9) MONTHS AFTER CUSTOMER LEARNED, OR IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED, OF SUCH LOSS, DESTRUCTION AND/OR DAMAGE.  

            9.3            Flexe has no obligation to act and no liability for any claims of loss, destruction or damage to Goods, but, in its discretion, may use commercially reasonable efforts to assist Customer and Warehouse Operator in investigating and resolving any such claims.

10.            WSA TERM & TERMINATION.   #

         10.1         Term of WSA.  The term of this WSA will begin on the SOW Effective Date and will continue in full force and effect until terminated by any Party under this Section 10 or once all applicable SOWs between the Parties have been terminated.

         10.2         Termination for Insolvency.  Notwithstanding anything contained in this WSA to the contrary, any Party may immediately terminate this WSA in the event that any other Party is adjudicated bankrupt, is determined to be insolvent, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors or seeks protection against creditors under any applicable federal or state laws, or if there is a commencement of any bankruptcy, insolvency, receivership or other similar proceeding against such other Party that is not dismissed within sixty (60) days after filing. Termination of this WSA under this Section 10.2 will automatically terminate all SOWs hereunder.

         10.3         Survival.   Those provisions and/or obligations of a Party which expressly or by their nature or context are intended to continue beyond termination this WSA shall survive. 

11.            WAREHOUSE TRANSPORTATION SERVICES. #

         11.1         Scope of Warehouse Transportation Services. The Parties may expressly agree in writing (in an SOW or otherwise) that Warehouse Operator will perform less-than-truckload, full truckload, or other inbound and/or outbound ground transportation services for Customer under this WSA (“Warehouse Transportation Services”). Such Warehouse Transportation Services shall be governed by the terms of this WSA except as modified by this Section 11. In the event of any inconsistency between other terms of the WSA and this Section 11, this Section 11 shall prevail.

         11.2         Excluded Services. Warehouse Transportation Services do not include, and the terms of this Section 11 and the WSA, do not apply to: (a) any Customer Transportation (see Section 2.7(a)), or (b) Flexe-Brokered Transportation Services (see Section 2.7(b)). Warehouse Operator is providing any Warehouse Transportation Services as an independent contractor and is not an employee or agent of Flexe.

         11.3         Standard of Care. Warehouse Operator agrees to provide for Warehouse Transportation Services safely, properly and efficiently.

         11.4         Representations and Warranties. Warehouse Operator represents and warrants that: (a) it has all necessary approvals, authorities, licenses, and insurance to provide or arrange for the Warehouse Transportation Services; (b) it will comply with all Applicable Law, including, but not limited to, safety laws and regulations, in the performance of the Warehouse Transportation Services; (c) it has a motor carrier safety rating of “satisfactory,” “unrated,” or an equivalent rating in the jurisdiction of performance; and (d) to the extent any Goods are transported within the State of California, it will ensure: (i) all 53-foot trailers, including both dry-van and refrigerated equipment, that it operates and the Heavy-Duty Tractors that haul them within California are in compliance with the California Air Resources Board (“ARB”) Heavy-Duty Vehicle Greenhouse Gas (“Tractor-Trailer GHG”) Emission Reduction Regulations, (ii) all refrigerated equipment it operators within California is in full compliance with the California ARB Transportation Refrigeration Unit (“TRU”) Airborne Toxic Control Measure in-use regulations; and (iii) all TRUs it operates within California are registered in ARB’s Equipment Registration (“ARBER”) system. A copy of either the ARBER certification for each TRU or evidence of Warehouse Operator’s inclusion on ARBER’s 100 Percent Compliance List will be provided by Warehouse Operator upon request.

         11.5         Third-Party Brokers. Warehouse Operator shall not subsequently broker to third-party brokers any shipment which it has accepted except upon the prior written consent of Customer and Flexe.

         11.6         Insurance. In addition to any other insurance required by this WSA, to provide Warehouse Transportation Services, Warehouse Operator must have in place and maintain the following insurance with a reputable insurance company:

         (a)             Commercial general liability insurance with minimum coverage of $2,000,000 per occurrence;
         (b)            Auto Liability Insurance in the amount of $1,000,000.00 per occurrence, or (if Hazardous Materials are transported) $5,000,000 per occurrence;
         (c)             Workers’ compensation insurance on all employees as required by Applicable Law;
         (d)            Cargo Insurance in the amount of not less than $100,000 per shipment; and
         (e)            Employer’s liability insurance with minimum coverage of $1,000,000 per accident.

         11.7         Loss, Destruction and Damage of Goods in Transportation Claims. With respect claims for loss of, destruction of, or damage to Goods during Warehouse Transportation Services, Section 9.1(a) of this WSA (Loss, Destruction and Damage of Goods Claims) is modified as follows: (i) Notice of the claim is required within thirty (30) days; and (ii) the Notice must additionally include details of any shipment tracking information available. Section 9 shall otherwise apply fully and in all respects to claims for loss of, destruction of, or damage to Goods during Warehouse Transportation Services.

         11.8         Warehouse Transportation Fees. Notwithstanding anything to the contrary in this WSA or any SOW:

         (a)             Fees payable by Customer for Warehouse Transportation Services (which may include accessorial fees, expenses and surcharges) (“Customer Transportation Fees”) shall be established between Customer and Flexe by any commercially reasonable written means of communication (including by confirmed email or rate card), and shall be paid by Customer to Flexe in accordance with the payment terms set out in Section 3 of this WSA; and

         (b)            Fees payable by Flexe to Warehouse Operator for Warehouse Transportation Services (which may include accessorial fees, expenses and surcharges) (“Warehouse Operator Transportation Fees”) shall be established between Warehouse Operator and Flexe by any commercially reasonable written means of communication (including by confirmed email or rate card), and shall be paid by Flexe to Warehouse Operator in accordance with the payment terms set out in Section 3 of this WSA.

         The Warehouse Operator Transportation Fees are subject to increase upon thirty (30) days’ Notice at any time, and the Customer Transportation Fees are subject to increase upon thirty (30) days’ Notice at any time.

         11.9         Limitation of Liability. THE WAREHOUSE TRANSPORTATION FEES ARE BASED ON LIMITED LIABILITY FOR LOSS, DAMAGE, DESTRUCTION, OR DELAY TO GOODS. THEREFORE, WAREHOUSE OPERATOR’S LIABILITY ARISING FROM ANY LOSS, DAMAGE, DESTRUCTION, OR DELAY ARISING FROM OR RELATING TO THE WAREHOUSE TRANSPORTATION SERVICES SHALL BE DETERMINED IN ACCORDANCE WITH THE CARMACK AMENDMENT, 49 USC 14706, AND LIMITED TO THE LESSER OF THE LIMITATIONS SET OUT ELSEWHERE IN THIS WSA (INCLUDING, BUT NOT LIMITED TO, SECTION 7), OR: (I) $.10/LB. FOR LESS-THAN-TRUCKLOAD SHIPMENTS, AND (II) $100,000 PER TRUCKLOAD FOR FULL TRUCKLOAD SHIPMENTS; UNLESS, BEFORE WAREHOUSE OPERATOR ACCEPTS A BOOKING FOR TRANSPORTATION, CUSTOMER HAS REQUESTED AND WAREHOUSE OPERATOR HAS AGREED IN WRITING TO A HIGHER LIMITATION OF LIABILITY PRIOR TO THE TIME OF SHIPMENT. THE PARTIES EXPLICITLY AGREE AND ACKNOWLEDGE THAT, SUBJECT TO THE LIMITED EXCEPTIONS THAT FLEXE IS EXPRESSLY RESPONSIBLE FOR UNDER THIS WSA OR THE PLATFORM AGREEMENTS, FLEXE HAS NO LIABILITY OR INDEMNIFICATION OBLIGATIONS WITH RESPECT TO WAREHOUSE TRANSPORTATION SERVICES, INCLUDING, BUT NOT LIMITED TO, LIABILITIES ARISING OUT OF LOSS, DAMAGE, DESTRUCTION OR DELAY TO GOODS, AND ANY ACT OR OMISSION OF WAREHOUSE OPERATOR OR ANY THIRD-PARTY MOTOR CARRIER, OR DETENTION, DEMURRAGE, OR THIRD-PARTY CHARGEBACKS OR DEDUCTIONS.

         IN NO EVENT SHALL ANY PARTY (OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS, INSURERS AND ASSIGNS) BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE WAREHOUSE TRANSPORTATION SERVICES, INCLUDING, BUT NOT LIMITED TO, PROVISION OR USE OF WAREHOUSE TRANSPORTATION SERVICES, OR USE OF, OR INABILITY TO USE, WAREHOUSE TRANSPORTATION SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

         11.10      Title 49 U.S.C., Subtitle IV, Part B Waiver. The Parties expressly waive any and all rights and remedies that they may have under Title 49 U.S.C., Subtitle IV, Part B to the extent contrary to the specific provisions of this Section 11 or the WSA.

12.            GENERAL. #

         12.1         Dispute Resolution.

         (a)             Good Faith. The Parties shall endeavor to resolve any disagreements, disputes or potential claims (“Disputes”) arising out of or relating to this WSA and any SOWs hereunder, including, but not limited to, any Disputes regarding Fees or Goods, promptly by good faith in the normal course of business and otherwise in good faith discussions and negotiations following the business escalation process in Section 12.1(b). If a Party refuses to participate in the business escalation process under Section 12.1(b) or does not participate in the process in good faith, the court (or arbitrator, if applicable) may in its discretion award attorneys’ fees and costs against that non-participating Party regardless of the prevailing Party in the litigation (or arbitration).

         (b)            Business Escalation. If any Dispute is not resolved in the normal course of business, any Party may promptly provide the other Parties with Notice of the Dispute (“Dispute Notice”) and invoke the business escalation process in this Section 12.1(b). In response to a Dispute Notice, business managers for each Party with authority to resolve the Dispute will meet and confer in a good faith endeavor to resolve the Dispute in a commercially reasonable manner within ten (10) business days of the Dispute Notice (the “Manager Meeting Deadline”). The Manager Meeting Deadline may be extended only by written consent (email is sufficient) of all Parties’ participating business managers (for example, to allow substantiation or inspection in Disputes regarding loss, destruction or damage to Goods under Section 9.1). If the Parties’ business managers do not resolve the Dispute by the Manager Meeting Deadline, they shall escalate and provide the Dispute Notice and all relevant background and information to an appropriate executive level (Vice President or higher) representative of the Party, and the Parties’ executive representatives will meet and confer in a good faith endeavor to resolve the Dispute in a commercially reasonable manner within ten (10) business days of the escalation (the “Executive Meeting Deadline”). The Executive Meeting Deadline may be extended only by written consent (email is sufficient) of all Parties’ participating executive representatives. Any resolution of a Dispute shall be confirmed in writing by all Parties.

         (c)             Litigation.  If the Parties do not reach a resolution through the business escalation process under Section 12.1(b), any Party may initiate litigation (or, upon mutual agreement of all Parties, mediation or binding arbitration); provided, however, any such legal action must be commenced within two (2) years of the Dispute Notice or any shorter time limitation established elsewhere in this WSA (for example, Disputes regarding loss, destruction or damage to Goods under Section 9.2) or under Applicable Law. Any litigation shall be filed in the appropriate Federal or State court in King County, Washington, and the Parties submit to the exclusive jurisdiction of the Federal and State courts sitting in King County, Washington, and waive any defense of forum non conveniens. EACH OF THE PARTIES WAIVES ANY RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

         (d)            Lien Rights. Nothing in this Section 12.1 affects Warehouse Operator’s or Flexe’s lien rights or collection rights under this WSA.

         12.2         Governing Law. This WSA and all SOWs hereunder shall be governed by the laws of the State of Washington without regard to conflict of law principles.

         12.3         Confidential Information.

         (a)             Each Party (“Receiving Party”) acknowledges that it may receive materials and information from the other Party (“Disclosing Party”) that is considered by the Disclosing Party to be proprietary and confidential, including, but not limited to, information relating to Goods, volume, customers, pricing, procedures, processes, technical specifications, designs, computer code, software applications and related documentation, and technology (“Confidential Information”). The Platform, the terms of this WSA, and any SOWs or Fee Schedules entered hereunder, are considered Confidential Information. Confidential Information includes personal information, personal data, and comparable terms as those terms are defined under Applicable Law in any form, that is, stored, transmitted, accessed, received, collected or otherwise processed by or on behalf of, or made available in the course of providing services under this WSA. Confidential Information specifically excludes De-identified Data and Aggregate Data (as those terms are defined below).

         (b)            Receiving Party shall hold all Confidential Information received from Disclosing Party in confidence, protected with the same degree of care that Receiving Party employs for the protection of its own confidential and proprietary information of a similar nature (not less than reasonable care), and Receiving Party shall not reveal or disclose Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent other than as expressly permitted or required by this WSA or any Platform Agreement. Receiving Party may use Disclosing Party’s Confidential Information, including disclosure to a third party, to the extent necessary for performance under this WSA or any Platform Agreement.

         (c)             The confidentiality obligations in this Section 12.3 do not apply with respect to Confidential Information that: (i) is in the public domain or generally available to the public; (ii) was in the possession of or disclosed to Receiving Party prior to the date of this WSA free of any obligation to keep the information confidential; (iii) is lawfully acquired by Receiving Party from a third party under no obligation of confidentiality to the Disclosing Party; or (iv) is required to be disclosed by Receiving Party under Applicable Law or court order, provided, however, Receiving Party shall give prompt written notice thereof to Disclosing Party (where permitted by Applicable Law). 

         (d)            Receiving Party may use Confidential Information: (1) to create de-identified data so long as that data cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular person or unique device (“De-identified Data”); and (2) to create information that relates to a group or category of person, from which individual person identities have been removed, that is not linked or reasonably linkable to any person, household, or device (“Aggregate Data”). Receiving Party may use De-identified Data and Aggregated Data solely for Receiving Party’s lawful business purposes provided that such use does not enable a third party to identify that Disclosing Party is the source of such data. Receiving Party will implement business process and technical safeguards that prohibit and prevent re-identification of De-identified Data or Aggregate Data and inadvertent release of De-identified Data or Aggregate Data. Receiving Party will not make any attempt to re-identify De-identified Data or Aggregate Data.

         (e)            Receiving Party agrees and acknowledges that a monetary remedy for breach of this Section 12.3 may be inadequate and that such breach may cause Disclosing Party irrevocable harm. In the event of a breach by Receiving Party, Disclosing Party will be entitled, without the posting of a bond and in addition to any monetary damages it may subsequently prove, to immediately seek temporary and permanent injunctive relief or restraining order. The Business Escalation process in Section 12.1(b) above will not apply for alleged breach of this Section 12.3. 

         (f)             This Section supersedes any and all prior agreements between the Parties regarding confidential information and/or confidentiality, including, but not limited to, any nondisclosure agreements executed between any of the Parties; with the exception of the applicable Platform Agreements which will, notwithstanding anything to the contrary in this WSA, govern and supersede this WSA with respect to Confidential Information as between Flexe and Customer, and as between Flexe and Warehouse Operator. Receiving Party may, without limitation, retain Confidential Information of Disclosing Party in accordance with Receiving Party’s back-up procedures and record retention policies and as may be required by Applicable Law or for the purpose of complying with Receiving Party’s financial and legal obligations. The provisions of this Section 12.3 shall survive termination or expiration of this WSA for two (2) years.

         12.4         Force Majeure.

         (a)             Any delay in the performance of any duties or obligations of any Party to this WSA (except the payment of money owed) will not be considered a breach of this WSA and any SOWs entered hereunder if such delay is caused by any event beyond the reasonable control of such Party, including but not limited to the following: (i) hurricanes, floods, earthquakes, storms, weather disturbances, and other Acts of God; (ii) riot, war, explosion, fire, cyberattack, acts of foreign or domestic enemies, hazardous contamination, or pandemics; (iii) the threatened or actual enforcement of any Applicable Law; or (iv) embargoes, strikes, or other labor conflicts (each a “Force Majeure Event”).

         (b)            The delayed Party shall: (i) give Notice of the existence of the Force Majeure Event to the other Parties as soon as reasonably practicable, stating the period of time the Force Majeure is expected to continue; (ii) take reasonable steps to mitigate and minimize the impact of the Force Majeure Event, and use diligent efforts to end the failure or delay; and (iii) resume the performance of its obligations as soon as reasonably practicable after the removal of the cause of the Force Majeure Event.

         12.5         Entire Agreement.

         (a)             The Parties agree that: (1) the applicable Platform Agreements; (2) the Fee Schedules to any SOW; (3) any SOWs entered under this WSA; and (4) this WSA constitute the entire agreement between the Parties regarding the Warehouse Services and supersede any prior agreements, letters of intent, memoranda of understanding, marketing materials, negotiations, representations, discussions, correspondence and/or other statements between the Parties, and in the event of any conflict among the foregoing documents, the order of precedence shall be in the foregoing order as set out in this Section 12.5. 

         (b)            Any standard business forms used by the Parties, including but not limited to purchase orders, bills of lading, waybills, proof of delivery documents and invoices shall be uploaded to the Platform, provided however all such documentation is intended for convenience only and any terms and conditions contained therein do not supplement or alter the provisions of this WSA even if signed, unless signed by all Parties with the express written intent to amend the terms of this WSA.

         12.6         Amendment. This WSA and SOWs hereunder may be modified or amended only by a signed writing of all Parties. 

         12.7         No Waiver. A failure by any Party to exercise or enforce any right or provision of this WSA will not operate as a waiver of such right or provision or any other right or provision under this WSA.

         12.8         Severability. Except as otherwise explicitly stated in this WSA, if any provision of this WSA is, for any reason, held to be invalid or unenforceable, the other provisions of this WSA will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by Applicable Law.

         12.9         Independent Contractor. Each Party is an independent contractor with respect to the other Parties, and nothing in this WSA or the Platform Agreements forms a partnership, agency, joint venture or employment relationship between any of the Parties.  The Parties acknowledge and agree that each Party is solely responsible and liable for the payment of all salaries, fringe benefits and other employer contributions, worker's compensation and unemployment insurance and benefits to its respective personnel as required by Applicable Law. Each Party has, with respect to such Party's personnel, the sole discretion to hire and fire, supervise and control work schedules and conditions of employment, determine rates and methods of payment, and maintain employment records.

         12.10      Subcontracting. Notwithstanding anything to the contrary herein, Warehouse Operator may not subcontract performance of the Warehouse Services except with the prior express written consent of Customer and Flexe. In the event Warehouse Operator engages any subcontractor: (a) Subcontractor must sign the Flexe Platform & Services Agreement prior to engagement; (b) In no event shall Warehouse Operator be relieved of any of obligations under this WSA or any SOW by virtue of any subcontracting; (c) Warehouse Operator shall be liable for the performance of its subcontractors and shall monitor and manage such subcontractors; (d) Warehouse Operator shall remain directly responsible for the performance of Warehouse Services subcontracted by Warehouse Operator; and (e) Warehouse Operator shall remain directly responsible for the acts and omissions of all subcontractors as if they were Warehouse Operator’s own acts and omissions.

         12.11      Assignment. This WSA, and the rights and obligations hereunder, may not be assigned, delegated, or otherwise transferred by any Party except with the prior consent of the other Parties, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void; provided however, any Party may assign this WSA (and all SOWs under this WSA) without consent from the other Parties in connection with a merger, consolidation, change in control or sale of all or at least a majority of such Party’s assets or outstanding voting securities.  The terms of this WSA will be binding upon assignees.

         12.12      No Reliance. Customer and Warehouse Operator each represent and acknowledge that, in executing this WSA, they do not rely and have not relied upon any representation or statement made by any other Party or by any other Party’s agents, attorneys, or representatives with regard to the subject matter, basis or effect of this WSA or otherwise, other than those representations and statements specifically stated in this written WSA.

         12.13      Legal Counsel.  Each Party recognizes that this WSA is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice.  Hence, in any construction to be made of this WSA, the same shall not be construed against any Party on the basis of that Party being the drafter of such language.  Each Party agrees and acknowledges that it has read and understands this WSA, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this WSA and has had ample opportunity to do so.

         12.14      Language. The parties have specifically requested that this WSA and all communications between the parties are written in English. Les parties aux présentes ont demandé spécifiquement que ces terms et conditions soit écrite en anglais.

         12.15      Notice. Notice under this WSA or any SOW (“Notice”) must be provided in writing and delivered to the other Parties by email at the email addresses set out below the signature block to the SOW. This information may be changed only by Notice in accordance with this section.