These Fulfillment Terms and Conditions are incorporated into and made part of the Agreement entered into by and between Ernest and Customer.
Ernest, LLC, agrees to store Customer’s Goods in warehouse. Customer understands and agrees that Ernest, LLC is not in the business of designing, assembling, fabricating, producing, constructing, or otherwise preparing a product, a component of a product, or a good and offers no warranty regarding the same as to Customer’s Goods. Customer further understands that Ernest, LLC is not a retailer, wholesaler, or distributor and is not engaged in the business of selling a product or good, whether such sale is for resale or for use of consumption and accordingly offers no warranty regarding the same as to Customer’s Goods. Rather, Ernest, LLC is acting as an independent contractor under this agreement, performing obligations with it’s own employees who they are solely responsible for. ERNEST, LLC MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, THAT THE GOODS STORED BY ERNEST, LLC SHALL BE MERCHANTABLE OR FIT OR SUITABLE FOR ANY PARTICULAR USE OR PURPOSE. ERNEST, LLC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, EXCEPT AS IS EXPRESSLY SET FORTH HEREIN, ALL SUCH OTHER WARRANTIES BEING HEREBY DISCLAIMED.
Customer shall be solely responsible for adequate packing of Goods to protect them in transit to Ernest against weather conditions, impact damage, and other transport risks, and for the provision of suitable stillages, pallets, and other containers. Customer shall use packing materials suitable for re-use, whenever possible, by Ernest, LLC where Ernest, LLC is responsible for delivering the Goods to No warranty whatsoever is given by Ernest, LLC that packing materials, cases, cartons, and pallets will be returned to Customer. Unless otherwise agreed and stated in the quote or order, Customer shall provide adequate and appropriate equipment and personnel for off-loading its Goods at Ernest, LLC’s facility.
The Goods shall remain for the account and at the sole risk of Customer during transportation to and from Ernest, LLC’s facility, during loading and unloading, and while located at Ernest, LLC’s facility. Goods will not be moved to a different physical location without prior permission from Customer. Ernest, LLC has no responsibility for insuring the Goods. Ernest, LLC shall maintain proper business insurance for the facilities that store Customer’s Customer warrants that it has in place insurance to cover the full replacement value of the Goods and agrees to produce certificates of insurance as proof thereof acceptable to Ernest, LLC prior to storage of any of Customer’s goods. Customer warrants that the Goods will not represent any hazard, environmental or otherwise, to Ernest, LLC’s facilities or personnel. Customer further warrants that it is either the owner of the Goods or that it is authorized by the owner of the Goods to accept this Agreement on the owner’s behalf.
Ernest, LLC shall not be liable for alleged shortage in weight or count unless the claim therefore is presented within five working days after receipt of the Goods by Customer, and then only in the event such shortage in weight or count, if any, is verified by Ernest, In the event of suspension of work at Customer’s request or as a result of the inadequacy or inaccuracy of Customer’s specifications, any price quoted by Ernest, LLC may be increased to cover any additional costs or expenses incurred by Ernest, LLC as a result thereof.
Customer agrees Ernest, LLC shall in no event be liable for any special, indirect, incidental, consequential, or liquidated damages arising from or in connection with Ernest, LLC’s storage or transportation of Customer’s Goods or for the breach of any of the obligations owed to Customer’s sole and exclusive remedy from Ernest, LLC shall be an amount equal to Customer’s documented direct and actual damages, provided such damages shall not exceed the lesser of the fair market value of the Goods or the value of the services rendered by Ernest, LLC. This limitation of liability does not apply to damage or injury arising from Ernest, LLC’s gross negligence or willful and wanton misconduct.
To the fullest extent permitted by the law, Customer shall indemnify Ernest, LLC and hold Ernest, LLC harmless from and against any and all claims, damages, losses, expenses, or costs, including, but not limited to attorneys’ fees, arising from or relating to the Goods, or the use or misuse of the Goods, including all claims arising under the North Carolina Products Liability Act, or a similar products liability act of another state, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this section.
Customer shall be permitted to enter onto Ernest, LLC’s premises to inspect, examine, or otherwise work with Customer’s stored goods. By entering onto Ernest, LLC premises, Customer agrees that Customer is voluntarily assuming any and all risks associated with entering onto Ernest, LLC’s premises. Customer hereby releases Ernest, LLC, its employees, owners, directors, volunteers, independent contractors, agents, and representatives (“Released Parties”) from any and all liability for any loss, damage, expense or injury, including death that Customer may suffer from entering onto Ernest, LLC’s premises. This release extends to claims arising from any cause whatsoever, including negligence of a Released Party, breach of contract, products liability, or breach of a duty to protect Customer from risks or hazards associated with entering onto Ernest, LLC’s premises, excepting gross negligence or intentionally wrongful conduct. All visitors need to check-in at the front office.
Charges for the Services are due from date of billing without any right of set-off unless otherwise mutually agreed, in writing, and signed by Customer and an authorized representative of Ernest, LLC prior to the time the Services are rendered. Ernest, LLC reserves the right on any past due accounts to (i) place past due accounts on C.O.D. status, (ii) suspend performance of any order for the Customer and/or withhold delivery of any of the Customer’s Goods, (iii) exercise other remedies provided herein, by credit agreements between Customer and Ernest, LLC, if any, and/or as otherwise permitted by law, and/or (iv) to charge interest at the lesser of the maximum legal rate permitted by law or 18% per year until paid in full. Ernest, LLC claims a security interest in Customer’s goods for charges of storage, expenses, money advanced, services rendered, and all other obligations Customer may owe Ernest, LLC. Additionally, the Customer and Ernest, LLC are responsible for their own legal expenses unless as a prevailing party in a law suit such expenses are assigned to the other party. Ernest, LLC shall be entitled collect any amounts owed by Customer and for any action brought to enforce or interpret the terms hereof.
Customer agrees to pay any excise, sales, gross receipts, uses or occupation tax or other tax levied upon any service, contract, shipment, or delivery incident thereto. Customer agrees to be responsible for complying with all applicable import/export laws of the United States or any foreign country from where the Goods originate before they are delivered to Ernest, LLC’s facility or to where the Goods are delivered after leaving Ernest, LLC’s facilities. Ernest, LLC shall not permit any liens or other encumbrances to be placed on Customer’s goods while in custody.
Each order shall be subject to Ernest, LLC being satisfied as to Customer’s credit status both prior to and during the period of the order. If Ernest, LLC becomes dissatisfied with Customer’s credit status at any time, Ernest, LLC may suspend performance of the order or withhold delivery of the Goods until Customer provides adequate assurances as provided by the North Carolina Uniform Commercial Code as to Customer’s creditworthiness or gives Ernest, LLC such additional security as Ernest, LLC shall deem appropriate in its reasonable judgment. A declaration of bankruptcy by either party shall allow either party to immediately terminate this agreement.
Customer agrees that Ernest, LLC’s pricing structure is confidential. Customer understands that Ernest, LLC’s pricing structure is specifically customized to meet Customer’s needs and is based on a special expertise developed by Ernest, LLC which is not known to the public in general. Customer agrees to maintain the Ernest, LLC’s pricing structure information in confidence and not to disclose the same to any third party or use it without the prior written consent of Ernest,
Ernest, LLC may from time to time update the terms of this Agreement by providing at least thirty (30) days’ notice to Customer; provided that such updates shall not materially interfere with Customer’s rights under this Agreement or impose any additional material obligations on Customer. Customer acknowledges that Customer’s continued use of Ernest’s services beyond such thirty (30)-day period will constitute acceptance of such updated terms. Customer acknowledges that Ernest may serve notice of any changes to services, fees, or other updates through community-wide emails sent out, and Customer agrees to accept and review such community-wide notices.
By requesting that Ernest, LLC provide these services, Customer hereby agrees that these Terms and Conditions contained herein this Agreement shall apply notwithstanding any contrary provisions contained in any document delivered by Customer to Ernest, LLC, including, without limitation, any purchase order, shipping document, or acknowledgment form provided by Customer or its agents, even if such documents contain language mandating that the provisions contained in such documents override any contrary provisions contained in this Agreement. By paying Ernest, LLC’s invoices for the Services, Customer agrees that this Agreement shall apply to the Services covered by said invoice and that no provision stated herein shall be modified by any provision in any document presented by Customer at any time. Should Ernest, LLC accept an offer by Customer for the performance of any service, Ernest, LLC’s acceptance is expressly conditioned on assent by Customer to this Agreement.
Ernest, LLC shall not be responsible for breach or delays in performance due to war, acts of God or of the public enemy, acts of government, fire, floods, strikes, labor trouble, interruption of utilities, inability to obtain supplies or fuel, sabotage, equipment problems, freight or transportation shortages or delays, and other delays or causes beyond its control.
This Agreement will be governed and construed according to North Carolina law, and the Parties consent to the exclusive jurisdiction and venue of courts in Buncombe County, North Carolina to determine and adjudicate any disputes under this Agreement. The Parties shall be entitled to all rights and remedies in law and equity under North Carolina law except as expressly set forth in this agreement.
In the event a dispute shall arise between the parties to this agreement, it is hereby agreed that the dispute shall be referred to arbitration according to the rules of the American Arbitration Association . The arbitrator’s decision shall be final and binding and judgment may be entered thereon. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with arbitrator’s award, the other party is entitled of costs of suit including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.
No agent, employee, or representative of Ernest, LLC is authorized to alter, amend or waive this Agreement or to assume any other obligation or liability for Ernest, LLC except in writing duly approved by an authorized officer of Ernest, LLC.
Times quoted for services are estimates only and time shall not be of the essence in respect thereof.
This Agreement or any section thereof shall not be construed against any party due to the fact that said Agreement or any section thereof was drafted by said party.
This Agreement may be executed in any number of duplicate original or counterparts, each of such duplicate original or counterparts will be deemed to be an original and taken together will constitute but one and the same document. The Parties agree that their respective signatures may be delivered by facsimile and that facsimile signatures will be treated as original for all purposes.
The Parties executing this Agreement warrant that they have the power and authority to execute this Agreement on behalf of the corporation or entity that they represent and that their signatures bind the entities to this Agreement. This Agreement and all of the Parties’ obligations are binding upon their respective successors and assigns, and together with the rights and remedies of the Parties under this Agreement, inure to the benefit of the Parties and their respective successors and assigns.
Except as otherwise provided herein, no delay or failure of either Party to exercise any right, power, or privilege hereunder will affect such right, power or privilege, nor will any single or partial exercise thereof preclude any further exercise thereof, nor the exercise of any other right, power or privilege.
Should any provision of this Agreement be held invalid or unenforceable, the remainder of this Agreement will not be affected thereby.
Should any provision of this Agreement conflict with a provision in any other agreement between the Parties, the provisions of this Agreement shall control.
Notwithstanding any termination or suspension in accordance with this Agreement, Customer shall pay Ernest, LLC for all work done up to and including the date of such suspension or termination and shall in addition indemnify Ernest, LLC against any resulting out of pocket expense incurred by Ernest, LLC in connection with such suspension or termination. In the event of termination or suspension, Ernest, LLC shall ship all Customer Goods back promptly with proper packing and insurance.
THIRD PARTY INDEMNIFICATION TERMS
Customer’s Third Party Provider Indemnification For Ernest, LLC
As part of the Ernest Portal performance and capability to incorporate the Customer’s third party provider(s), it is agreed that Ernest, LLC is providing a platform for which the Customer, of it’s own volition, can incorporate or allow to be incorporated into the Ernest Portal the Customer’s third party provider product, pricing and description. It is understood that any provider, other than Ernest, LLC is considered to be a third party provider, and as such, the Customer will be responsible for maintaining communication and relationship directly with it’s third party provider and to defend Ernest, LLC against any claim or demand made against Ernest, LLC by a third party provider alleging Customer’s or Authorized Customer’s use of third party provider(s) products, pricing, taxation, or services was not kept current, infringes or misappropriates such third party provider’s intellectual property rights, or violates applicable law (a “Claim Against Ernest, LLC”) and will indemnify Ernest, LLC from any damages and attorney fees awarded against Ernest, LLC, provided that Ernest, LLC (a) promptly give Customer written notice of the Claim Against Ernest, LLC, (b) give Customer sole control of the defense and settlement of the Claim Against Ernest, LLC, and (c) give Customer all reasonable assistance.
Without prejudice to the generality of the foregoing, Ernest, LLC shall not be liable for any indirect, special or consequential damages, or loss of profits, business, revenues or contracts, suffered by the Customer or it’s third party provider as a result of a claim against Ernest, LLC.
