Fulfillment Services Agreement (Hong Kong SAR)

THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”), dated as of “Effective Date”, is entered into by and between Esky Professional Services Limited, a Hong Kong SAR limited liability company doing business as Fulfillment Bridge , and “Company” together with Fulfillment Bridge, the “Parties,” and each a “Party”).

RECITALS

WHEREAS, the Company is in the business of selling and/or manufacturing certain Products; and

WHEREAS, Fulfillment Bridge provides to various retailers and manufacturers direct-to customer order fulfillment services, pursuant to which Fulfillment Bridge provides storage, packing and shipping products to the retailer’s customers; and

WHEREAS, Company desires to retain Fulfillment Bridge’s services, and Fulfillment Bridge 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:

1. Appointment

The Company hereby engages Fulfillment Bridge to provide, and Fulfillment Bridge 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 Fulfillment Bridge policies.

2. Terms

2.1 Term.

The term of this Agreement commences on the Effective Date and continues for a period of 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. Fulfillment Bridge SERVICES

3.1. Services

Fulfillment Bridge shall provide the following services to the Company (collectively, the “Services”):

(a) Receive shipments from the Company of the Product.
(b) Provide storage facilities for the Inventory in Fulfillment Bridge’s warehousing facilities (“Warehouse”).
(c) Upon notification by the Company of a purchase of Products by a customer, Fulfillment Bridge will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”).
(d) Fulfillment Bridge will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
(e) Upon request by the Company, Fulfillment Bridge will include a Company packing slip,to be provided by Company.
(f) Fulfillment Bridge will process, package and ship all Product orders in accordance with Fulfillment Bridge Policies, and as may be further specified on Exhibit A.
(g) Fulfillment Bridge will maintain monthly ledger summaries of all orders shipped and received, available upon request by the Company.
(h) Fulfillment Bridge will facilitate any Product returns from the End-User to the Company.
(i) In addition to the above described Services, Fulfillment Bridge shall perform any additional services, including special projects, that the Company desires Fulfillment Bridge to perform, as more fully described on the attached Exhibit A, to be amended from time to time as agreed upon by the Parties.

4. COMPANY PERFORMANCE

4.1. General Compliance with laws covenant

The Company shall at all times comply with all laws applicable to this Agreement and its obligations under this Agreement, including the Company's sale of the Products to End-Users. Without limiting the generality of the foregoing, the Company shall, at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the sale of the Products; and not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law.

5. Fulfillment Bridge SERVICES

5.1. Fulfillment Bridge Fees

The Company agrees to pay Fulfillment Bridge for the Services, in the amounts described on the attached Exhibit A, to be amended from time to time as agreed upon by the Parties.

5.2. Invoicing

5.2 Invoicing

Fulfillment Bridge shall send invoices to the Company once a month, on the 1st of each month, for the previous period following the conclusion of the period for which such Services were provided. All charges and invoices need to be pre-paid by default, unless otherwise defined in exhibit A.

5.3. 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 Fulfillment Bridge accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.

5.4. Failure of company to make timely payments

If Fulfillment Bridge fails to receive payment from Company within 15 days after the due date of an invoice, all Services shall stop until Fulfillment Bridge receives payment.

5.5. Late PAYMENTS Fee

If Fulfillment Bridge 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.

5.6. Options & ways to pay

Fulfillment Bridge provides the Company with a convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee). Fulfillment Bridge is using a 3rd party payment processing company Paypal. Fulfillment Bridge does not store any payment information on its own servers; all of Company’s payment information is stored with PayPal. If Company’s invoice remains unpaid for more than 45 days from the issue date, Fulfillment Bridge reserves the right to auto-charge any payment method that has been used in the past.

6. REPRESENTATIONS AND WARRANTIES

6.1. FULFILLMENT BRIDGE’S REPRESENTATIONS AND WARRANTIES

Fulfillment Bridge hereby represents and warrants to Company that:

(a) it is duly organized, validly existing and in good standing in the jurisdiction of its formation.
(b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement.
(c) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement.
(d) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of Fulfillment Bridge.
(e) when executed and delivered by each of Fulfillment Bridge and Company, this Agreement will constitute the legal, valid and binding obligation of Fulfillment Bridge, enforceable against Fulfillment Bridge in accordance with its terms; and
(f) to the best of Fulfillment Bridge’s knowledge, the execution, delivery and performance of this Agreement by Fulfillment Bridge will not violate, conflict with, require consent under or result in any breach or default under:
- (i) any of Fulfillment Bridge’s organizational documents; or
- (ii) any applicable law.

6.2. Company’s Representations and Warranty

(a) it is duly organized, validly existing and in good standing in the jurisdiction of its formation.
(b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement.
(c) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement.
(d) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Company.
(e) when executed and delivered by each of Fulfillment Bridge and Company, this Agreement will constitute the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms; and
(f) to the best of Company’s knowledge, it is in material compliance with all laws applicable to this Agreement, the Products and the operation of its business.

7. TITLE, RISK OF LOSS AND INSURANCE

7.1. Title

Company hereby agrees that at no time during the period that Products are held by Fulfillment Bridge as Inventory in the Warehouse will Fulfillment Bridge 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.

7.2. Risk of Loss

Company hereby agrees that at no time during the period that Products are held by Fulfillment Bridge as Inventory in the Warehouse will Fulfillment Bridge 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.

7.3. 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.

7.4. No Insurance

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

8. COMPANY’S ACCOUNT

8.1. Company’s Account

In order to create an account with Fulfillment Bridge, Company will provide Fulfillment Bridge with identifying information, a password, company information and information about the Products (“Registration Information”). Company agrees to provide accurate Registration Information and will promptly update such Registration Information as necessary, but in no event later than 30 days after any applicable change. Upon Fulfillment Bridge’s acceptance of Company’s request to register for an account (“Account”), Company will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. Company agrees not to share the following: password(s), Account information, or Account access information. Company is responsible for maintaining the confidentiality of password(s) and Account information, and is responsible for all activities that occur under Company’s password(s) or Account(s) or as a result of access to the Account(s). Company shall notify Fulfillment Bridge immediately of any unauthorized use of the Account. Fulfillment Bridge shall not be liable for any unauthorized use of the Account. Through the Account, Company will select various Services, in addition to or in conformance with Exhibit A. Fulfillment Bridge will not be liable for any shipping rate errors due to inaccurate or incomplete Company information in the Account.

8.2. Services Available Through the Account

Subject to Company’s compliance with this Agreement, Fulfillment Bridge 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 (“Fulfillment Bridge Services Orders”). All Fulfillment Bridge Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that Fulfillment Bridge is a broker of third-party warehouse and shipping services; accepting shipments from, and making shipments to, third parties. Fulfillment Bridge is an independent contractor for all purposes, and only acts as the agent of Company with respect to Fulfillment Bridge’s custody of the Products in its Inventory

8.3. Account Balances

Any invoices Fulfillment Bridge 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 Fulfillment Bridge’s control. All account balance need to be pre-paid, unless otherwise specified in exhibit A. 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 day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.

8.4. Fulfillment Bridge 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 Fulfillment Bridge. Quotations accepted through Fulfillment Bridge’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.

8.5. Currency Fluctuations

Fulfillment Bridge reserves the right to adjust its pricing for the Services in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.

8.6. 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 Fulfillment Bridge within 30 days of the fee being charged (“Dispute Period”). Fulfillment Bridge will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.

8.7. Liens

Fulfillment Bridge shall have a priority security interest in all Products in Inventory and on the proceeds thereof to secure the payment of all Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by Fulfillment Bridge for the preservation of the Inventory or its sale. In connection therewith, Company hereby (a) grants to Fulfillment Bridge a first priority security interest in all Inventory and the proceeds thereof to secure the payment of the User Fees and fees for Services, (b) consents to and grants to Fulfillment Bridge the right to deliver and file any documentation required under applicable laws and regulations to perfect such security interest, and (c) irrevocably waives any requirements for its signature on any document filed by Fulfillment Bridge under this Section 8.7.

8.8. Account Balance Disputes

If Fulfillment Bridge becomes aware of, or is notified of, a dispute relating to the Account Balance, then Fulfillment Bridge will promptly review the dispute. Within 5 days after the resolution of the dispute, Fulfillment Bridge will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.

8.9. Abandoned Account and Liquidation

If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then Fulfillment Bridge 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 all rights of ownership of such Company’s Inventory. Inventory will become immediately and irrevocably unavailable to Company, and liquidation proceedings would begin. Company agrees the Inventory 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 and would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.

8.10. Termination of the Account

Upon termination of this Agreement, the Account will be inaccessible to Company, and all activity will be suspended. Fulfillment Bridge reserves the right to place an Account on hold for a number reasons, including but not limited to the following: (a) Account Balance remaining unpaid within 30 days of receipt of invoice; (b) suspicious activity on or through the Account; (c) if anyone using the Account uses abusive language or otherwise threatens Fulfillment Bridge or its staff; (d) to allow time to resolve or investigate a third party complaint of a violation of this Agreement; (e) to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and (f) to allow time for Fulfillment Bridge to comply with any extraordinary support requests.

8.11. Termination with 30 days’ Notice

Fulfillment Bridge reserves the right to terminate an Account for any reason upon 30 days’ Notice (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period, subject to Fulfillment Bridge’s discretion. Any Product inventory that remains in Fulfillment Bridge’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, Fulfillment Bridge will liquidate the Product inventory in accordance with an Abandoned Account.

8.12. Additional Actions

If Company is in breach of any of the terms of this Agreement, Fulfillment Bridge may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, Fulfillment Bridge may also take any actions available, including, without limitation, any of the following : (a) contact End-Users who have received Products, contact Company’s bank or credit card issuer, and warn other users, law enforcement, or impacted third parties of Company’s actions; (b) refuse to provide the Services in the future; (c) hold Account funds and Inventory for up to 180 days if reasonably needed to protect against the risk of liability; and (d) take any available legal action.

8.13. Closing Accounts

Company may close the Account for any reason, upon giving Fulfillment Bridge 30 day’s prior written Notice. Merchandise will be returned at a rate of $0.5 / item.

9. Fulfillment Bridge INTELLECTUAL PROPERTY RIGHTS

9.1. Fulfillment Bridge Property

For purposes of this Agreement, “Fulfillment Bridge Property” shall mean

(a) Fulfillment Bridge’s methodology for the provision of the Services; and
(b) Fulfillment Bridge’s Confidential Information.

Fulfillment Bridge hereby retains all worldwide right, title and interest in and to the Fulfillment Bridge Property. Any rights not expressly granted herein to the Fulfillment Bridge Property shall be retained by Fulfillment Bridge. Company acknowledges that all right, title and interest to the Fulfillment Bridge Property is owned by Fulfillment Bridge.

9.2. 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 Fulfillment Bridge 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 Fulfillment Bridge and Company shall not copy, imitate, or use them without Fulfillment Bridge’s express prior written consent. Company may use HTML logos provided by Fulfillment Bridge through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to FulfillmentBridge.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 Fulfillment Bridge or the Services, or display them in any manner that implies Fulfillment Bridge’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 Fulfillment Bridge’s website or Services for any purpose without Fulfillment Bridge’s express written permission,
(ii) interfere or attempt to interfere with the proper working of Fulfillment Bridge’s website or any activities conducted on the website, or
(iii) bypass any measures Fulfillment Bridge may use to prevent or restrict access to Fulfillment Bridge’s website or the Services.

9.3. Client Property

No Confidential Information obtained by Fulfillment Bridge from Company shall become Fulfillment Bridge Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants Fulfillment Bridge a non-exclusive license to the Client Property solely as needed to provide the Services.

9.4. Data Security

The Services are currently provided from Hong Kong SAR. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in Hong Kong SAR. Fulfillment Bridge 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. Fulfillment Bridge will use reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to Fulfillment Bridge’s attention. Company agrees to immediately notify Fulfillment Bridge of any suspected security breach at support@eskypro.com, followed by contacting Fulfillment Bridge customer support.

9.5. Third Party Software

Any third party software application Company uses on the Fulfillment Bridge 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. Fulfillment Bridge does not own, control or have any responsibility or liability for any Third Party Software.

10. CONFIDENTIAL INFORMATION

10.1. 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:

(a) all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models);
(b) all rights in and to US, Hong Kong and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
(c) all rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;
(d) all rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and
(e) all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.

10.2. Exclusion

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

(a) information that is or becomes generally available to and known by the public;
(b) information that is or becomes available to the Recipient on a nonconfidential basis from a third-party source;
(c) information published or otherwise made known to the public by Discloser;
(d) information that was generated independently without reference to the Discloser’s Confidential Information; or
(e) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.

10.3. Protection of Confidential Information

Recipient shall protect and safeguard the confidentiality of Discloser’s Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and not disclose any such Confidential Information to any Person, except:

(i) to Recipient’s representatives who need to know the Confidential Information to assist Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or
(ii) pursuant to applicable Hong Kong SAR law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Recipient shall first provide Discloser with: (A) prompt Notice of such requirement so that Discloser may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Recipient shall be responsible for any breach of this Section 10.3 caused by any of its representatives. The provisions of this Section 10.3 shall survive termination or expiration of this Agreement for any reason for a period of 5 year after such termination or expiration. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of thisSection 10.3.

10.4. Return or Destruction

Other than transactional information that is retained in the ordinary course of Fulfillment Bridge’s business, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed promptly after receipt of written request from the other party.

10.5. Aggregate Use

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

11. INDEMNITY

11.1. Company Indemnification

Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless Fulfillment Bridge 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:

(a) breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company;
(b) any negligent or more culpable act or omission of Company (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(c) any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Company;
(d) the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Fulfillment Bridge;
(e) any failure by Company to comply with any applicable Hong Kong SARl or international laws.

12. DISCLAIMERS

12.1. AS IS

Fulfillment Bridge’S OBLIGATIONS UNDER THIS AGREEMENT AND THE ATTACHED EXHIBITS (INCLUDING THE USE OF Fulfillment Bridge’S WEB SITE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Fulfillment Bridge EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES, Fulfillment Bridge’S WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF SERVICES, Fulfillment Bridge WEB SITE, OR THIRD PARTY SERVICES IS AT COMPANY’S RISK.

12.2. No Continuous Access

Fulfillment Bridge does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Fulfillment Bridge’s control. However, Fulfillment Bridge will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Fulfillment Bridge 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.

13. LIMITATION ON Fulfillment Bridge LIABILITY

13.1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTYLIABILITY.

EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER Fulfillment Bridge 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 Fulfillment Bridge/ OR COULD HAVE BEEN REASONABLY FORESEEN BY Fulfillment Bridge, 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 Fulfillment Bridge’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO Fulfillment Bridge EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). Fulfillment Bridge MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM Fulfillment Bridge.

13.2. EXCLUSIVE REMEDY

THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST Fulfillment Bridge 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 Fulfillment Bridge CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.

13.3. 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 Fulfillment Bridge IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND Fulfillment Bridge IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND Fulfillment Bridge’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL Fulfillment Bridge BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.

13.4. 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 ACKNOWLEDGE’S THAT Fulfillment Bridge’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO Fulfillment Bridge FOR THE PROJECT.

14. GENERAL PROVISIONS

14.1. Entire Agreement

This Agreement, including and together with any related Exhibits, invoices and Fulfillment Bridge 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.

14.2. 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.

14.3. No Waiver

Failure or delay of Fulfillment Bridge 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.

14.4. 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 Fulfillment Bridge must be sent by postal mail to: Fulfillment Bridge, Esky Professional services limited, Attention: Legal Department,22B, 22/F, Kiu Yin Commercial Building, 361-363 Lockhart Road, Wanchai, Hong Kong.

14.5. Assignment

Company may not transfer or assign any rights or obligations under this Agreement without Fulfillment Bridge’s prior written consent. Any attempted assignment without that consent will be void. Fulfillment Bridge reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing provisions of this Section, this Agreement shall be binding on and inure to the benefit of the parties’ successors and assigns.

14.6. Conflict of Terms

If there is a conflict between this Agreement and the terms on 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.

14.7. Attorneys’ Fees and Costs

Fulfillment Bridge shall have the right to collect from Company any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.

14.8. Governing Law

This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws Hong Kong SAR. Notwithstanding the foregoing, Fulfillment Bridge may seek injunctive or other equitable relief to protect Fulfillment Bridge’s intellectual property rights in any court of competent jurisdiction.

14.9. 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 Fulfillment Bridge 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 Fulfillment Bridge, 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.