Terms and Conditions
ACCEPTABLE USE POLICY
The Acceptable Use Policy covers all shipments made from USP facilities or on USP shipping accounts whether through a user’s own web site, the USP application, any online marketplace, or any other forum.
USP reserves the right to take preventive or corrective actions to protect itself and its users at any time. Any user violating this policy voids any implied or express warranties and violates the USP Terms. Violating this policy may also result in temporary or permanent limitation of a user’s Account, a held Account, termination of an account with 30 days’ notice, or immediate termination. This includes the inability to ship merchandise, to remove financial information from an account, and for users to close their Accounts as a way of evading the policy. Additionally, users whose Accounts are permanently limited for violating this policy are barred from future use of USP and its services, and such users are not permitted to directly or indirectly open new or additional USP Accounts on behalf of themselves or others. Please note, additional information on held Accounts and termination is provided in the Support section of this site. If you encounter violations of this policy, please report them to USP immediately.
FULFILLMENT SERVICES AGREEMENT (U.S.)
WHEREAS, the Company is in the business of selling and/or manufacturing certain Products; and
WHEREAS, USP provides to various retailers and manufacturers direct-to-customer order fulfillment services, pursuant to which USP provides storage, packing and shipping products to the retailer’s customers; and
WHEREAS, Company desires to retain USP’s services, and USP desires to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
FULFILLMENT SERVICES AGREEMENT (U.S.)
The Company hereby engages USP to provide, and USP 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 USP policies.
2.1 Term. The term of this Agreement commences on the Effective Date and continues for the initial period of one (1) year, unless and until earlier terminated as provided under this Agreement or applicable law (“Term”). On expiration of the Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a “Renewal Term“). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.
3. USP SERVICES
3.1 Services. USP shall provide the following services to the Company (collectively, the “Services”):
- Receive shipments from the Company of the Product
- Provide storage facilities for the Inventory in USP’s warehousing facilities (“Warehouse”).
- Upon notification by the Company of a purchase of Products by a customer, USP will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”)..
- USP will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion
- Upon request by the Company, USP will include a Company packing slip, and/or other Company marketing materials concerning the Product, to be provided by Company.
- USP will process, package and ship all Product orders in accordance with USP Policies.
- USP will maintain monthly ledger summaries of all orders shipped and received, which shall be made available to the Company through USP billing.
- USP will facilitate any Product returns from the End-User to the Company using Optoro. Terms of services for this third-party service can be found at USP.com/optoro-terms
- In addition to the above described Services, USP shall perform any additional services, including special projects, that the Company desires USP 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. COMPENSATION AND REIMBURSEMENT FOR SERVICES
4.1 Pay as You Go Payments & Invoicing. USP utilizes a “Pay As You Go” model for the payment of Services. Company will load funds into their account and fees are deducted as incurred by Company. Invoice for Services are generated at the end of each 2-week billing period and shall serve as a receipt for the Company.
4.2 Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to the Company. Under no circumstances shall USP accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.
4.3 Late Payment Fee. If USP fails to receive payment from Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.
4.4 Options & Ways to Pay. USP provides the Company with a convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee), or a wire transfer (Free within the U.S.). USP is using a 3rd party payment processing company Stripe. USP does not store any payment information on its own servers; all of Company’s payment information is stored with Stripe. If Company’s invoice remains unpaid for more than 45 days from the issue date, Company agrees that USP shall have the right to auto-charge any payment method that has been used in the past.
4.5 Auto-Pay. Company has the option to agree to opt-in for “auto-pay” service, which will automatically charge the saved payment method on file in order to replenish the Company Pay as You Go account balance. Using the auto-pay service will prevent orders from being delayed in processing due to insufficient balances under the Pay as You Go payment system.
5. TITLE, RISK OF LOSS AND INSURANCE
5.1 Title. Company hereby agrees that at no time during the period that Products are held by USP as Inventory in the Warehouse will USP hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
5.2 Risk of Loss. Company hereby agrees that at no time during the period that Products are held by USP as Inventory in the Warehouse will USP 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. USP shall exercise commercially reasonable standards of care for all of Company’s Products in its possession but specifically disclaims liability of loss except for instances of Gross Negligence by USP.
5.3 Insurance. COMPANY HEREBY AGREES THAT IT IS COMPANY’S RESPONSIBILITY, AT ALL TIMES, TO MAINTAIN AN INSURANCE POLICY THAT COVERS THE COST OF THE PRODUCTS HELD IN INVENTORY. Company has the option of adding the Warehouse as a designated storage location to Company’s general inventory policy. If requested by Company, insurance carrier USP shall allow premises inspection in order to assist Company in obtaining coverage.
5.4 No Insurance. Company can choose not to insure its inventory. In this event, USP will, under no circumstances, be liable for any loss or damage to the inventory stored at USP facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event.
6. COMPANY’S ACCOUNT
6.1 Services Available Through the Account. Subject to Company’s compliance with this Agreement, USP 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 (“USP Services Orders”). All USP Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that USP operates as a third-party warehouse and broker of shipping services; accepting shipments from, and making shipments to, third parties. USP is an independent contractor for all purposes, and only acts as the agent of Company with respect to USP’s custody of the Products in its Inventory.
6.2 Account Balances. Any invoices USP 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 USP’s control. Company agrees and acknowledges that should Company change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services listed on Exhibit A to this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed on the 1st and 15th day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.
6.3 USP 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 USP. Quotations accepted through USP’s online interface are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.
6.4 Pricing Changes & Currency Fluctuations. USP reserves the right to adjust its pricing for its Services, with 30 days’ notice via publication on the USP website and/or directly to the Company due to market forces and/or in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. After the first 90-days, USP reserves the right to automatically revise pricing without notice if actual volume does not meet or exceed the initial volume estimates provided by the Company at the time of contract execution to a rate equal to actual volume. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.
6.5 Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to USP within 30 days of the fee being charged (“Dispute Period”). USP will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
6.6 Account Balance Disputes. If USP becomes aware of, or is notified of, a dispute relating to the Account Balance, then USP will promptly review the dispute. Within five business days after the resolution of the dispute, USP will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
6.7 Abandoned Account and Liquidation. If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then USP reserves the right, at its sole discretion to reclassify Company’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits its rights of ownership of such Company’s Inventory up to the cumulative amount necessary for payment of all Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by USP for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of USP and would be free and clear of liability, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above. Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, the Company would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.
6.8 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activities will be suspended. USP reserves the right to cease shipping orders for a number reasons, including but not limited to the following:
- Account Balance remaining unpaid within 30 days of receipt of invoice;
- if anyone using the Account uses abusive language or otherwise threatens USP or its staff;
- to allow time to resolve or investigate a third party complaint of a violation of this Agreement;
- to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and
- to allow time to pick all inventory for the close out order.
6.9 Termination for Breach. Either party may terminate this Agreement upon thirty (30) days’ notice to the other party in the event of a breach by the other party of any provision of this Agreement if the breaching party fails to cure such breach during the 30 day period; provided, that USP may terminate this Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30 day cure period, a 30 day wind down of the Company Account shall commence (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period for the sole purpose of winding down its use of the account in a commercially reasonable manner. Any Product inventory that remains in USP’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, USP will liquidate the Product inventory in accordance with an Abandoned Account.
6.10 Additional Actions. If Company is in breach of any of the terms of this Agreement, USP may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, USP may also take any additionally available legal actions
6.11 Closing Accounts. Company may close the Account for any reason, upon giving USP 30 days prior written notice. Merchandise will be returned subject to Company paying USP’s standard pick and pack rates outlined in Exhibit A.
7. USP INTELLECTUAL PROPERTY RIGHTS
7.1 USP Property. For purposes of this Agreement, “USP Property” shall mean (a) USP’s methodology for the provision of the Services; and (b) USP’s Confidential Information. USP hereby retains all worldwide right, title and interest in and to the USP Property. Any rights not expressly granted herein to the USP Property shall be retained by USP. Company acknowledges that all right, title and interest to the USP Property is owned by USP.
7.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the USP 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 USP and Company shall not copy, imitate, or use them without USP’s express prior written consent. Company may use HTML logos provided by USP through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to USP.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 USP or the Services, or display them in any manner that implies USP’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 USP’s website or Services for any purpose without USP’s express written permission, (ii) interfere or attempt to interfere with the proper working of USP’s website or any activities conducted on the website, or (iii) bypass any measures USP may use to prevent or restrict access to USP’s website or the Services.
7.3 Client Property. No Confidential Information obtained by USP from Company shall become USP Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants USP a non-exclusive license to the Client Property solely as needed to provide the Services.
7.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in the United States. USP 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. USP will use commercially reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to USP’s attention. Company agrees to immediately notify USP of any suspected security breach by contacting USP customer support.
7.5 Third Party Software. Any third party software application Company uses on the USP 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. USP does not own, control or have any responsibility or liability for any Third Party Software.
8. CONFIDENTIAL INFORMATION
8.1 Scope. From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of this Agreement, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:
- 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);
- all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
- 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;
- 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
- 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.
8.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:
- information that is or becomes generally available to and known by the public;
- information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;
- information published or otherwise made known to the public by Discloser;
- information that was generated independently without reference to the Discloser’s Confidential Information; or
- 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.
8.3 Aggregate Use. Subject to the terms and conditions of this Agreement, Company hereby acknowledges and agrees that USP may compile aggregate results from all of, or a selection of Company’s use of the Services, provided that USP shall not disclose any information that would individually identify Company (“Aggregate Information”). Such Aggregate Information shall be deemed to be USP’s Confidential Information. Company also hereby agrees that USP may review and use Company’s individual use of the Services in order to provide Services to Company, to evaluate USP’s provision of the Services, and to improve USP’s service offerings.
9.1 Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless USP 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:
- breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company;
- 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;
- 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;
- the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by USP;
- any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or
- any failure by Company to comply with any applicable state, federal or international laws.
10.1 As Is. USP’s obligations under this agreement and the attached Exhibits (including the use of USP’s technology) are provided on an “as is” and “as available” basis. USP expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement for the services, USP’s website and any third-party services. the use of services, USP website, or third party services is at Company’s risk.
10.2 No Continuous Access. USP does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of USP’s control. However, USP will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but USP makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
11. LIMITATION ON USP LIABILITY
11.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER USP 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 USP/ OR COULD HAVE BEEN REASONABLY FORESEEN BY USP, 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 USP’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO USP EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). USP MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM USP.
11.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST USP 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 USP CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
11.3 INVENTORY COUNT INACCURACIES. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT USP IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND USP IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND USP’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL USP BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
11.4 PROJECTS. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“SPECIAL PROJECT”), COMPANY AGREES AND ACKNOWLEDGES THAT USP’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO USP FOR THE PROJECT.
12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and USP Services Orders constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
12.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.
12.3 No Waiver. Failure or delay of USP to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
12.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal notices to USP must be sent by postal mail to: USP, Inc., Attention: Legal Department, 201 NW 22nd Ave. Unit 100, Fort Lauderdale, FL 33311
12.5 Conflict of Terms. If there is a conflict between this Agreement and the terms of any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, this Agreement shall control.
12.6 Attorneys’ Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.
12.7 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of Florida without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in Broward County, Florida. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Broward County, Florida. Notwithstanding the foregoing, USP may seek injunctive or other equitable relief to protect USP’s intellectual property rights in any court of competent jurisdiction.
12.8 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event“). Company’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give USP 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 USP, Company shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the Florida Uniform Commercial Code or any similar statute or regulation.