Terms of Service | Klutch Cargo

Klutch Cargo, LLC

Date of Last Revision: February 7, 2023.

Acceptance of Terms

Klutch Cargo, LLC (“Klutch,” “we,” or “our”) provides its Services (as defined below or in an ancillary agreement) to you (“you,” “your” or “Owner”), subject to these Terms of Service (“Agreement”) and any mutually executed Price Term Sheet. All such Price Term Sheets are hereby incorporated in their entirety by reference.
By signing the Price Term Sheet, you acknowledge that you have read, understood, have the authority to, and agree to be bound by this Agreement. The terms of the Price Term Sheet shall not modify this Agreement, other than in regard to pricing for various services. If you are an individual, you certify that you are eighteen (18) years of age or older. If you are entering into this Agreement on behalf of a customer, business, or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you,” “your” or “Owner” shall also refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by this Agreement, you must not accept this Agreement.
We may change or revise this Agreement at our discretion. If any change or revision to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to support@Klutch.com. Otherwise, you will be bound by the changed or revised terms. Klutch may change or revise this Agreement from time to time by providing ten (10) days prior notice either by emailing the email address associated with your account, by posting a notice on the Site, or by providing notice on Klutch Platform (as defined below) (“Notice”). You can review the most current version of this Agreement at any time at https://www.Klutchcargo.com/terms-of-service. Your use of the Services ten (10) days after Notice shall constitute full acceptance of the revised or changed terms.

Definitions

4. “Goods” or “Stored Goods”: shall mean the goods delivered to Klutch for storage and/or, unloading, breakdown, repacking or reloading, and such packaging supplies and other similar items, if any, that may be furnished by or on behalf of Owner to Klutch.

5. “Owner”: shall mean the owner of the Stored Goods as well as its agents and authorized representatives, and shall include the holder of a negotiable receipt, any party with a security interest in the Stored Goods and the party delivering the Stored Goods to Klutch. Owner represents that it is an Owner and that the Goods are stored in the course of its business.

6. “Klutch” shall mean Klutch Cargo, LLC as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns.

7. Klutch agrees to provide certain warehousing and related services as set forth on the Price Term Sheet (the “Services”) at the facility or facilities identified in the Price Term Sheet (collectively the “Facility” or the “Warehouse”). You understand and agree that Klutch may connect you with fulfillment providers who are responsible for warehousing, picking

and packing, and fulfilling your Goods. The Services offered by Klutch pursuant to this Agreement do not include any of these services when your Goods are serviced by third- party fulfillment providers (“Fulfilment Provider”). Notwithstanding the foregoing, Klutch may also provide warehouse, pick or pack, or fulfillment services for you, in which case this Agreement will govern Klutch as a fulfillment provider. Klutch will help facilitate the filing of claims with Fulfillment Providers for Goods that are lost or damaged by a Fulfillment Provider, but Klutch is not responsible for any shrinkage, loss, or damage caused by a Fulfillment Provider.

8. When such warehouse, pick or pack, and fulfillment services are performed by a Fulfillment Provider, Klutch will use its commercially reasonable efforts to facilitate the Fulfillment Provider’s assent to the following terms: (a) follow Klutch’s fulfillment policies; (b) that the Fulfillment Provider has the necessary approvals, authorities, licenses, and insurance to provide the fulfillment services; (c) that the Fulfillment Provider will comply with all federal, state, provincial, and local laws, regulations, and ordinances including, but not limited to, safety-related laws and regulations; (d) that the Fulfillment Provider accepts the duty of care consistent with all applicable industry best management practices, industry guidelines, and the care a reasonably careful person would exercise under like circumstances and (d) that the Fulfillment Provider will maintain insurance as required by law. Notwithstanding the foregoing, Klutch does not guarantee the suitability, legality, or ability of any Fulfillment Provider. You agree that Klutch is not responsible or liable for the Fulfillment Providers’ performance of the warehousing, pick and pack, or fulfillment services and that Klutch does not guarantee any Fulfillment Provider’s compliance with applicable laws or regulations.

9. In providing the Services, Klutch shall exercise such care with respect to the Goods in its custody and control as a reasonably careful company would exercise under like circumstances (the “Standard of Care”). Klutch reserves the right to make such reasonable rules and regulations regarding the Services rendered as may be necessary for the care, safety, management and security of the Facility.

10. The rates and charges set forth in the Price Term Sheet cover ordinary labor and administration involved in receiving the Goods at the Facility’s door or dock, placing the Goods in storage at the Facility and returning the Goods to the Facility’s door or dock. Outbound shipments will be coordinated between Klutch and the Owner. Klutch shall report to the Owner the count taken on each inbound and outbound shipment and, once reported to the Owner, such count shall establish the number of cases and/or pallets received or shipped, unless Owner presents written documentation to the contrary within five days of receipt of Klutch’s count.

Carriers’ Responsibilities
11. Klutch shall use reasonable efforts to quote available shipping option with a Carrier based

upon the dimensions, desired speed, and final destination of a shipment of Goods. Klutch is not a carrier and does not itself ship or arrange to ship your Goods, nor do the Services include any shipping services.

12. Klutch will help facilitate the filing of claims with Carriers for Goods that are lost or damaged by a Carrier, but Klutch is not responsible for any loss or damage caused by a Carrier.

13. Klutch will use its commercially reasonable efforts to facilitate the Carrier’s assent to the following terms: (a) that the Carrier has the necessary approvals, authorities, licenses, and insurance to provide the shipping services; (b) that the Carrier will comply with all federal, state, provincial, and local laws, regulations, and ordinances including, but not limited to, safety laws and regulations and (c) that the Carrier will maintain insurance as required by law. Notwithstanding the foregoing, Klutch will not assess or guarantee the suitability, legality, or ability of any Carrier. You agree that Klutch is not responsible or liable for the Carriers’ performance of the shipping services and that Klutch does not guarantee any Carriers’ compliance with applicable laws or regulations.

Access to and Use of the Services – Your Obligations.

14. Subject to the terms and conditions of this Agreement, you use the Services only for

lawful purposes. You shall not: use the Services in any unlawful manner (including without limitation in violation of any data, privacy, or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services. You shall comply with any codes of conduct, policies, or other notices Klutch provides you.

15. Any software made available to you by Klutch in connection with the Services (“Software”), including but not limited to Klutch Platform, contains Klutch’s proprietary and confidential information that is protected by applicable intellectual property laws and this Agreement. Klutch hereby grants you a non-transferable, non-sublicensable, and non-exclusive right and license (“License”) to use the object code of any Software, and Content on a single device solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any Content or right in any Software. You agree not to access the Services by any means other than through the interface that is provided by Klutch. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Klutch or any third party is granted to you in connection with the Services. The License may be terminated immediately at Klutch’s sole discretion and shall, in any event, terminate upon the termination or expiration of this Agreement.

16. You have no right to access Klutch’s physical facilities or property or any of the Fulfillment Provider’s physical facilities or property. Under no circumstances, and at no time, during the Term of this Agreement or after, are you permitted to enter Klutch’s or the Fulfillment Providers’ facilities, fulfillment centers, or premises without prior express written notice by Klutch or the Fulfillment Provider. As your Goods may be commingled with the Goods of other Owners in Klutch’s or Fulfillment Providers’ facilities, under no circumstances, during the Term or after, may you access the Goods while the Goods are stored in Klutch’s or Fulfillment Providers’ facilities, without prior express written consent of Klutch and the Fulfillment Provider. If you are granted access, you will be

monitored during the access period and your access can be terminated at Klutch’s or the

Fulfillment Provider’s Discretion.

17. Klutch reserves the right to use your name and/or company name as a reference for

marketing or promotional purposes on Klutch’s Site and in other communication with existing or potential Owners. To decline Klutch this right you need to
email support@Klutch.com stating that you do not wish to be used as a reference.

18. Klutch may provide, at Klutch’s sole discretion, technical support services, through email, chat, or telephone in accordance with our standard practice.

19. Klutch is not the Owner of Record for any of your Goods or the importer of record for Goods stored at a Fulfillment Provider. Klutch shall not be held liable for complying with your instructions through the Services. You understand that Klutch does not inspect your Goods, other than verifying quantities of product received or shipped, nor does Klutch take responsibility for the business decisions that you make and implement through the Services. For example, Klutch cannot control or ensure that a buyer or seller with whom you do business will remit payment for Goods in accordance with your agreement with them.

Service Fees.

20. “Service Fees” are the fees for any Services and any third-party fees (third-party fees

include, but are not limited to, Carrier, Fulfillment Provider, and other shipping fees, rates of duty, international brokerage charges, freight charges, or other third-party charges incurred during your use of the Service). Service fees do not include insurance. Goods stored are not insured by Klutch and the charges do not include insurance unless specified in writing in the Price Term Sheet

21. You shall pay the following Service Fees (unless modified by a fully executed Pricing Price Term Sheet)

i. A $75.00 initial receiving fee to inventory and store the Goods, but if receipt of the Goods takes more than two (2) hours, then you shall pay $65.00 per additional hour for the remainder of the time required to inventory and store the Goods;

ii. A $50.00 monthly pallet fee, $10 monthly shelf fee, or a $5.00 monthly bin fee, whichever is applicable per SKU, that shall be due for any whole or partial month, beginning on the date that inventory is delivered to Klutch;

iii. Above four (4) picks per Price Term Sheet will be billed at an additional $0.20 per pick;

iv. Charges, costs, taxes, and other expenses; and

v. Any charges or fees incurred by Klutch associated with your payment for the

Services by credit card. In the event of conflict between the Services Fees in these Terms, and Pricing Price Term Sheet, the following Price Term Sheet of priority shall apply: the Pricing Price Term Sheet, followed by these Terms.

22. Price Term Sheets accepted by the Parties are estimates based on the best information available at the time made. The final rates and Service Fees may vary based upon the Goods actually tendered, the work actually performed, or a number of factors such as Carrier shipping prices, the actual characteristics of your Goods, the delivery address, and service requested during the normal course of delivery. Klutch reserves the right to bill the Service Fees based on actual charges at any time after the Services are rendered. Klutch specifically disclaims liability for any Carrier shipping rate errors due to inaccurate or incomplete information provided to it, such as dimensions and weights.

23. You acknowledge that you are responsible for, and agree to reimburse Klutch, Fulfillment Providers, and Carriers, as applicable, for, all sales taxes, transportation taxes, Service Fees, reversals, chargebacks, claims, fees, fines, penalties and other liability incurred by Klutch, Fulfillment Providers, and Carriers, as applicable in connection with the Services. Carrier chargebacks are subject to additional administrative fees as specified in our Policies.

24. You acknowledge and agree that all Service Fees, charges, and any other rates or amounts charged by Klutch to you hereunder are exclusive of applicable value added, sales/use or inventory, CDT (as defined below) and service taxes (“Transaction Taxes”) which may be levied in connection with the supply by Klutch of the Services to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Service Fees or other amounts charged to you by Klutch.

25. Failure to Pay; Abandoned Account; Liquidation. Failure to promptly pay Service Fees is a material breach of this Agreement. If your Service Fees (or any other amounts owed to Klutch, Fulfillment Providers, or Carriers) remain unpaid for a period greater than thirty (30) days, then Klutch reserves the right, at its sole discretion, to terminate this Agreement, suspend its performance of Services, and/or reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than sixty (60) days will automatically be deemed an Abandoned Account. TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND GOODS WILL IMMEDIATELY BE FORFEITED BY YOU TO KLUTCH. GOODS WILL BECOME IMMEDIATELY AND IRREVOCABLY UNAVAILABLE TO YOU, AND LIQUIDATION PROCEEDINGS WILL BEGIN. You agree such Goods would be free and clear of liability, and that you would assume any liability therefore. You will remain liable for any pending Service Fees above and beyond the liquidation proceeds.

Payment Method and Liens.
26. You agree to provide Klutch accurate and complete information about you and your

business. Unless otherwise specified by Klutch, Klutch will collect payment from you via credit card or ACH for Service Fees due on a daily, weekly, or monthly basis depending on terms at account set-up.

27. You agree to pay Klutch the amount that is specified in accordance with this Agreement and invoices issued pursuant to this Agreement. If you dispute any charges, you must let Klutch know within thirty (30) days after the date that Klutch invoices you.

28. You agree and acknowledge that either Klutch or the Fulfillment Provider, depending on which party is performing the warehouse, pick and pick, or fulfillment services shall maintain an actual or constructive general and continuing Klutch’s lien and security interest under the UCC for all Goods in Klutch’s or Fulfillment Provider’s possession or control, regardless of whether a specific receipt is issued, to cover all charges, expenses, costs, and Fees set forth in this Agreement and the Price Term Sheet. In the event Klutch or a Fulfillment Provider is required to exercise its lien or security interest, you shall be responsible for all necessary and reasonable costs incurred to enforce the lien or security interest including, but not limited to, reasonable attorneys’ fees. You will execute any and all agreements and documents so that Klutch or a Fulfillment Provider may obtain, perfect, and maintain its lien rights and security interest in the Goods. You will also execute any and all documentation to permit Klutch to perfect the liens.

Inbound Shipments – Your Obligations.
29. You represent and warrant to Klutch that (i) you are the legal owner of the Goods

and/or have lawful possession or control of the Goods and that you have the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (ii) there are no potential health, safety, or environmental hazards associated with the shipment, warehousing, or fulfillment of the Goods tendered to Klutch under this Agreement, (iii) the Goods do not contain any material violating any federal, state, or local law (collectively, “Laws”); and (iv) the Goods are not and do not contain any hazardous or dangerous materials under applicable Laws. You will strictly meet or exceed any compliance obligations under these provisions. Klutch may, in its sole discretion, reject Goods that Klutch determines do not meet the above compliance obligations. If the Goods do not meet the foregoing requirements, you may incur additional fees from Klutch, and if Klutch rejects the Goods, this may result in a delay or non-shipment, and you agree that Klutch shall not be liable for any loss or damage as a result of such delay or non-shipment.

30. For any hazardous waste that is generated from the Goods during Klutch’s performance of the Services, Owner shall be considered the waste generator and waste transporter. Klutch’s and/or Fulfillment Provider obligations with respect to such hazardous waste shall be limited to preparing such waste for pickup at the Facility in accordance with Owner’s procedures for pickup and disposal by an Owner-approved and licensed carrier or transporter, under contract with Owner, for disposal at a permitted and licensed disposal site. Klutch shall not be liable or responsible for the actual disposal of such hazardous waste.

31. When loss or damage occurs to Goods for which Klutch is not liable, Owner shall be responsible for removing and disposing of such Goods and for the associated costs, including any environmental cleanup or site remediation resulting from the loss or damage to the Goods. If non-hazardous waste is generated from the Goods, Klutch and/or Fulfilment Provider may dispose of it at Owner’s expense or require the Owner to dispose of it.

32. Klutch reserves the right to move the Stored Goods five (5) days after notice is given to the Owner from the warehouse in which they may be stored to any other utilized warehouse.

33. You shall provide Klutch, in a digital format through Klutch dashboard, with bills of lading for the inventory of all inbound shipments of Goods prior to the shipment arriving to a Fulfillment Provider’s facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. You represent and warrant that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description and condition of the Goods, is accurate and complete and may be relied upon by Klutch. If any inbound inventory received is not properly labeled and clearly identified it will be classified as an Unidentified Receiving Price Term Sheet (“URO”) and subject to delays and additional fees. If the items in such a shipment cannot be identified by Klutch, they may be discarded and Klutch assumes no responsibility for any associated losses. If the quantity of any SKU (or any SKU in a box or pallet) received at a Fulfillment Provider’s facility is either ten percent (10%) greater, or more than twenty-five (25) units more, than the expected quantity you submitted in the bill of lading, you will be required to submit a new accurate bill of lading. The warehouse receiving Price Term Sheet shall be attached to the side of the box and the product name shall be clearly and conspicuously written on the outside of box.

34. You need to make an appointment in advance with Klutch for any inbound and/or outbound freight shipment.

Onboarding.
35. All inbound shipments must be received and inventoried before the Goods shall be

prepared to be shipped by the Carriers. Klutch is not be responsible for delays in loading or unloading, nor for demurrage charges or other time penalties arising from any delay.

36. Upon receipt, Klutch or Fulfillment Provider shall verify the quantity of the Goods and visually inspect for any damage to exterior packaging. You acknowledge and agree that Klutch or Fulfillment Provider has no obligation to verify the quantity (other than pallet count received), content, condition, or quality of the Goods delivered to Fulfillment Provider’s facility for storage and/or delivery. Klutch or Fulfillment Provider may, at its sole discretion, reject storing and/or delivering any Goods that Klutch or Fulfillment Provider deems, in its sole discretion, to be improperly labeled or packaged as a URO, or any Goods that contain any hazardous or illegal material.

i. If there are any outstanding or pending Price Term Sheets that need to be fulfilled first, you shall notify Klutch of the number of Price Term Sheets to be sent initially and the expected timeline of processing such Price Term Sheets.

ii. Unless otherwise specified, upon actual receipt of the Goods, you can expect a minimum of three (3) business days for Goods to be inventoried at Klutch or a Fulfillment Provider’s facility. After three (3) business days, your Price Term Sheets will begin to be processed and labeled, beginning with outstanding and pending Price Term Sheets. These timelines are subject to change during Peak Season (as defined below) or other holiday days.

iii. Klutch will facilitate fulfillment of the number of Price Term Sheets as communicated during onboarding every day. Additional time may be required for special kitting, picking or any alterations in regular process.

iv. Klutch or Fulfillment Providers, as applicable, shall thereafter process, package, and facilitate the shipment of all Price Term Sheets by Carriers within one (1) business day of actual receipt of the Price Term Sheet from you provided that proper inventory amounts exist and there are no issues with the Price Term Sheet. This provision shall not apply to Price Term Sheets that are altered, Price Term Sheets with low inventory items (less than ten (10) items in stock), held Price Term Sheets and bulk Price Term Sheets.

v. You shall provide Klutch with an expectation of the date for Klutch or the Fulfillment Provider to begin facilitating Carriers to ship your Goods, which shall conform to the terms of this Agreement.

37. You shall be solely responsible for the accuracy of any information provided to Klutch. You agree that Klutch shall not be liable for any delay, loss, damage or costs as a result of any inaccurate information provided by you to Klutch.

a. Owners with inconsistent volume with frequent and infrequent spikes without prior notice to Klutch create difficulty in predicting the labor required. Infrequent high volume makes it difficult for Klutch to predict and plan labor and other resources. Accordingly, the following terms apply:

1. If Price Term Sheet volume is expected to be greater than two (2) times the previous thirty (30) day average (“large Price Term Sheet”) and the Price Term Sheet count is greater than 100 Price Term Sheets on a particular day, then ninety-six (96) hour written notice is required to maintain services.

2. If you do not provide ninety six (96) hour notice of a large Price Term Sheet to facilitate the fulfillment of those Price Term Sheets, Klutch shall provide the services on an as-able-to-basis.

ii. Klutch will facilitate the increase of labor on hand to fulfill large Price Term Sheet volumes on the same day. In the event these large Price Term Sheet drops do not occur, Klutch will charge a fee to help recoup the costs of unnecessary additional labor. Owner may cancel a stated large Price Term Sheet drop at no fee if they provide forty-eight (48) hour written notice.

iii. The following additional charges for Services shall apply to volume Uploads and large Price Term Sheets:

1. If at least 50% of stated Price Term Sheet volume is placed, no charge and (2) if under 50% of stated Price Term Sheet volume is placed, a charge of $1.25 per Price Term Sheet for all Price Term Sheets from the stated volume to the realized volume will be assessed to recoup labor costs. (For example, if you stated you would place 200 Price Term Sheets and only placed 50 Price Term Sheets, you would be assessed a fee of $187.50, with 150 Price Term Sheets at $1.25 per Price Term Sheet).

Shippable Addresses.
38. You are solely responsible for the accuracy and deliverability of Price Term Sheet

shipping addresses. Klutch may, at its sole discretion, verify Price Term Sheet shipping addresses, but this is not a replacement for Owner address diligence and verification by you. You agree and acknowledge that Klutch has no obligation to verify any shipping addresses provided by you.

39. If Klutch provides an Price Term Sheet shipping estimate based on an address later discovered to be inaccurate or incomplete, you are solely responsible for any applicable address correction fees Klutch incurs from the Carrier, any difference in Carrier shipping cost or for any other costs or fees due to the incomplete or inaccurate address. Examples of discrepancies for which you may be responsible include, but are not limited to, incomplete addresses, incorrect addresses, commercial/residential address status, and rural address status. Klutch also reserves the right to put the Price Term Sheet on hold if addresses are not validated by Klutch system.

Delays
40. Delays or Non-Delivery by Third-Parties, including Carriers and Fulfillment Providers.

Unless specifically excepted in a written agreement, Klutch shall not be liable or responsible for any delays in domestic or international shipments of Goods or Price Term Sheets, and is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third-parties, including Carriers and Fulfillment Providers.

Fraudulent Price Term Sheets.
41. IT IS YOUR SOLE RESPONSIBILITY TO PROTECT YOURSELF FROM FRAUD. IT IS YOUR SOLE

RESPONSIBILITY TO PAY ALL FEES RELATED TO PRICE TERM SHEETS WHETHER THE PRICE TERM SHEET IS FRAUDULENT OR THE PRODUCT IS DELIVERED OR NOT.

Returns.
42. All non-Carrier related returns (international and domestic) must follow Klutch’s Return

Policy, which may be updated from time to time. Custom returns may be rejected

and/or subject to additional fees.
43. You shall be solely responsible for any fees assessed by any Carrier or Fulfillment

Provider as a result of any shipments of Goods that are returned to Klutch or Owner or a

Fulfillment Provider by the Carrier for any reason whatsoever.
44. Klutch Is Not Liable for International Returns. International shipments that are not

delivered are often returned by the Carrier and assessed return shipping, brokerage, and returns processing Carrier fees. These fees assessed by the Carriers are billed through to Owners, often without notice. Klutch strives to work with you to circumvent international returns or abandoned inventory at your request; however, this is done only on a reasonable efforts basis and Klutch reserves the right to charge you fees to the value of the original Carrier shipping cost, including all costs and expenses of returns. If a tariff is not available, Klutch will either put Price Term Sheets on hold until tariff information is available or override the Price Term Sheet with no liability to Klutch.

Required Removals.
45. Klutch or Fulfillment Provider, as applicable, may, at its sole discretion, require you to

remove unsuitable or unsellable Goods from its facility or a Fulfillment Provider’s facility. Klutch will notify you if it or a Fulfillment Provider has any inventory that requires removal. Pick and disposal fees may also be assessed for labor incurred to remove and/dispose of inventory.

46. IF YOU DO NOT REMOVE THE INVENTORY WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, KLUTCH OR THE FULFILLMENT PROVIDER MAY DISPOSE OF THE INVENTORY LISTED IN THE REQUIRED REMOVAL NOTICE. YOU SHALL NOT BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS DISPOSED OF BY KLUTCH OR THE FULFILLMENT PROVIDER IF YOU DO NOT PROMPTLY REMOVE THE GOODS UPON KLUTCH’S WRITTEN REQUEST.

Confidentiality.
47. You acknowledge that you may receive materials and information from Klutch,

Fulfillment Providers, or Carriers that are considered by such entity to be proprietary and confidential, including information relating to the platform, Goods, volume, customers, pricing, procedures, processes, technical specifications, designs, computer code, software applications and related documentation, and technology. You agree that all such materials and information acquired or obtained by you hereunder shall be held in confidence, protected with the same degree of care that you employ for the protection of your own confidential and proprietary information of a similar nature (not less than reasonable care), and you shall not reveal or disclose any such information without Klutch’s prior written consent other than as expressly permitted by this Agreement.

48. You shall not have any obligation, however, to preserve the confidentiality of any such materials and information to the limited extent that it: (a) is in the public domain or generally available to the public; (b) was in the possession of or disclosed to you prior to the date hereof, free of any obligation to keep the same confidential; (c) is lawfully acquired by you from a third party under no obligation of confidentiality to the other Party; or (d) is required to be disclosed by you under law or court Price Term Sheet, provided, however, that you shall give prompt written notice thereof to Klutch (where permitted by law). You agree and acknowledge that a monetary remedy for a breach of this Section may be inadequate and that such breach may cause Klutch irrevocable harm. In the event of a breach, Klutch will be entitled, without the posting of a bond and in addition to any monetary damage it may subsequently prove, to seek temporary and permanent injunctive relief, including temporary restraining Price Term Sheets, preliminary injunctions and permanent injunctions. This Section supersedes and supplants any and all prior agreements between the Parties regarding confidential information and/or confidentiality, including, but not limited to, any nondisclosure agreements executed between the Parties. The provisions of this Section shall survive the termination of this Agreement.

Force Majeure.
49. Klutch shall not be liable for any failure or delay in performance hereunder which may

be due, in whole or in part, to fire, explosion, earthquake, storm, flood, drought, or other adverse weather condition, accident, casualty, breakdown of machinery or facilities, strike, lockout, combination of workmen or other labor difficulties (from whatever cause arising, and whether or not the demands of the employees are reasonable or within Klutch’s power to grant), war, civil disturbance, acts of terrorism, insurrection, riot, act of God or the public enemy, law, act, Price Term Sheet, proclamation, decree, regulation, ordinance, instruction or request of Government or other public authorities, judgment or decree of a court of competent jurisdiction, delay or failure of Carriers or of Fulfillment Providers, shippers or contractors, labor shortage or inability to obtain transportation, equipment, operating materials, plant equipment or materials required for our performance, curtailment or suspension of operations to remedy or avoid an actual or alleged violation or violations of Federal, State or local law, as may be in effect from time to time during the Agreement period, or any contingency or delay or failure or cause of any nature beyond the reasonable control of Klutch, whether or not of the kind hereinabove specified and whether or not any such contingency is presently occurring or occurs in the future. Klutch shall give notice of any force majeure event as soon as reasonably practicable by giving notice to your administrative email account.

Termination.

50. You have the right to terminate this Agreement at any time, unless otherwise agreed in

a Price Term Sheet, provided you do not have a balance due and owing (other than any amounts subject to a good faith dispute) by sending a termination request to support@Klutch.com. Subject to earlier termination as provided below, Klutch may terminate, at its discretion and without cause, this Agreement (or our facilitation of the shipments of Goods or our Services hereunder) at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account.

51. In addition to any other remedies we may have, Klutch may also terminate this Agreement upon thirty (30) days’ notice (or ten (10) days’ notice in the case of nonpayment) if you breach any of the terms or conditions of this Agreement. The termination of this Agreement shall also constitute a termination of any Warehousing and Fulfillment Pricing Agreement or Volume Agreement. Klutch reserves the right to immediately modify, suspend, or discontinue, temporarily or permanently, the Services (or any part thereof) if you are in breach of this Agreement. All of Your Content (if any) may be permanently deleted by Klutch upon any termination of your account in Klutch’s sole discretion. However, all rights to payment and all other Sections which by their terms are intended to survive shall survive termination or expiration of this Agreement.

DISCLAIMER OF WARRANTIES.
52. The Services may be temporarily unavailable or for unscheduled emergency

maintenance, either by Klutch or by third-party providers, or because of other causes beyond our reasonable control. Klutch shall use reasonable efforts to provide advance notice in writing or by email of any Services disruption. Klutch shall not be liable for any such unavailability or disruption of Services.

53. THE SERVICES, INCLUDING KLUTCH PLATFORM AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND KLUTCH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF OWNERABILITY, TITLE, FITNESS

FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS OR ANY ANCILLARY AGREEMENT, YOU ACKNOWLEDGE THAT KLUTCH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR DOES KLUTCH MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE, OR SERVICES OBTAINED BY YOU FROM KLUTCH SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

54. Unless prior agreed in writing, Klutch does not represent, warrant, or guarantee that any of its facilities or any of the facilities of Fulfillment Providers will maintain any specific temperature ranges or humidity levels. Klutch shall not be liable or responsible for fluctuations of temperature or humidity levels at any of its facilities or any of the facilities of Fulfillment Providers.

LIMITATION OF LIABILITY.
55. The quality, condition, contents and value of the Goods are not known to Klutch except

as declared on the packing list by the Owner. The Klutch shall have no responsibility for errors resulting from the corruption of electronically transmitted data, or from verbal or telephoned shipping instructions, unless written confirmation of such instructions is received from Owner not less than twenty four (24) hours prior to the shipment of the Goods

56. Klutch shall in no circumstances be liable for loss or damage or deterioration to the Goods, or delay in the delivery, resulting from any of the following perils or circumstances: inaccuracies, obliteration or absences of marks, numbers, address or description; fire, explosion from any cause, flood, wind, storm, earthquake or other acts of God; irresistible force, war, insurrection, riot, civil or military authority, strikes, picketing or any labor trouble; shrinkage in weight, loss in quality or the inherent or perishable nature of the Stored Goods; insufficient boxing, crating or packaging; wear and tear; leakage or failure to detect the same; concealed damage; breakage, theft, mice, vermin, sprinkler leakage, steam, frost, heating or corruption, rust, decay or water or other damages resulting from defects in the structure of the warehouse, including the water system, sewer, drainage, electricity, theft or vandalism at the Warehouse; any cause that is beyond the control of Klutch.

57. Any and all Klutch’s charges incurred with respect to Goods lost or damaged as a result of any such peril, including without limitation the costs of removing and disposing of such Goods and the costs of any environmental cleanup and site remediation, shall constitute a charge on the remaining Stored Goods against the Owner.

58. YOU ACKNOWLEDGE AND AGREE THAT WHEN FULFILLMENT PROVIDERS AND CARRIERS ARE IN POSSESSION OF YOUR GOODS, FULFILLMENT PROVIDERS AND CARRIERS, AND NOT KLUTCH, ARE SOLELY RESPONSIBLE FOR ANY ACTUAL OR ALLEGED HARMS SUSTAINED BY YOU OR YOUR GOODS AS DETERMINED UNDER APPLICABLE LAW.

59. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) SHALL KLUTCH BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST

DATA. FOR AVOIDANCE OF DOUBT, KLUTCH IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE GOODS DAMAGE CAP OR THE AGGREGATE LIABILITY CAP SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT.

60. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, KLUTCH’s LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.

Insurance, Damage and Loss of Goods:
61. YOU AGREE THAT THE GOODS STORED OR WAREHOUSED BY KLUTCH OR FULFILLMENT

PROVIDERS ARE NOT INSURED AGAINST LOSS OR DAMAGE BY KLUTCH OR THE FULFILLMENT PROVIDER. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING INSURANCE COVERAGE FOR THE GOODS, AND INSURANCE IS AVAILABLE AT YOUR SOLE COST AND EXPENSE. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE COVERAGE, IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF GOODS (“GOODS LOSS”) FOR WHICH KLUTCH IS OR MAYBE LEGALLY LIABLE, YOU AGREE THAT KLUTCH’S OR FULFILLMENT PROVIDER’S LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW.

62. FOR INSURANCE TO APPLY TO YOUR CLAIM, YOU MUST PURCHASE THE INSURANCE PRIOR TO THE GOODS LOSS. KLUTCH DOES NOT REPRESENT, WARRANT, OR GUARANTY THAT INSURANCE WILL COVER ALL OR A PORTION OF YOUR GOODS LOSS. KLUTCH SHALL NOT BE RESPONSIBLE OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF COVERAGE IS DENIED. THE DECISION TO PURCHASE INSURANCE AND ITS EXPENSE IS YOURS ALONE. ALL SUCH INSURANCE IS PROVIDED BY THOSE THIRD-PARTY INSURANCE CARRIERS OR BROKERS YOU MAY SELECT. KLUTCH DOES NOT AND WILL NOT SELL INSURANCE AND SHALL NOT BE DEEMED AN INSURANCE PROVIDER.

63. IN THE EVENT THAT KLUTCH OR THE FULFILLMENT PROVIDER IS FOUND LEGALLY LIABLE FOR HARMS SUSTAINED BY YOUR GOODS, YOU AGREE THAT KLUTCH’S OR THE FULFILLMENT PROVIDER’S MAXIMUM LIABILITY FOR GOODS LOSS (INCLUDING LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE LIMITED TO THE ACTUAL PRODUCT VALUE OF THE GOODS, WHICH SHALL BE MEASURED BY THE ORIGINAL PURCHASE INVOICE FROM THE MANUFACTURER OR SUPPLIER, SUBJECT TO A CAP OF 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER (“GOODS DAMAGES CAP”).

64. EXCLUSIVE REMEDY. THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST KLUTCH OR THE FULFILLMENT PROVIDER FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE, AND/OR DESTRUCTION OF GOODS, AND SHALL APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).

a. IN ANY EVENT, KLUTCH’S OR FULFILLMENT PROVIDER’S MAXIMUM AGGREGATE LIABILITY TO YOU, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY KLUTCH, OR

FULFILLMENT PROVIDER SHALL NOT EXCEED $2,000 FOR ANY CLAIMS NOT

COVERED BY THE GOODS DAMAGE CAP.
b. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS

AGREEMENT AND THE PARTIES RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

Indemnification.
65. You shall defend, indemnify, and hold harmless Klutch and Fulfillment Providers from

and against any claims, actions or demands, liabilities (including court costs and attorney’s fees), tax obligations, fines, and penalties, including without limitation reasonable legal and accounting fees and expenses, arising or resulting from: (a) your breach of this Agreement; (b) any of Your Content; (c) your negligence, fault, omissions, or willful misconduct; (d) your fraud or misrepresentation in connection with the Services or with your access, contribution to, or use of the Services; (e) any product liability claim arising from use of your Goods; or (f) your misuse of the Services (“Claims”). Klutch shall provide notice to you of any Claim. Klutch and Fulfillment Providers reserve the right to assume the exclusive defense and control of any third- party Claims which are subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Klutch’s or Fulfillment Provider’s defense of such Claim. This indemnity shall include, without limitations, all Claims in tort, contract, by statute or otherwise, including Claims for personal injury (including death) and actual or tangible property damage.

U.S. Government Matters – Your Compliance with Trade Laws.
66. You may not remove or export from the United States or allow the export or re-export

of Goods subject to this Agreement or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. You represent and warrant that you and your financial institution are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.

Assignment.
67. You may not assign or transfer this Agreement without the prior written consent of

Klutch, but Klutch may assign or transfer this Agreement, in whole or in part, without restriction. This Agreement is binding upon, and will inure to the benefit of, the successors and permitted assigns of the parties.

Miscellaneous.

68. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect, and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, representations, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

69. Except as specifically set forth in this Agreement or the Price term Sheet, the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement. The failure of Klutch to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.

70. You acknowledge that this Agreement is a contract between you and Klutch, even if it is electronic and is not physically signed by you and Klutch, and it governs your use of the Services. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Klutch in any respect whatsoever.

71. You agree to pay Klutch’s attorney reasonable attorney’s fees, including in-house attorneys, in regard to the cost of any collection action brought against you by Klutch and/or Fulfillment Provider. In any other action or proceeding to enforce rights under this Agreement or otherwise, the substantially prevailing party will be entitled to recover its costs, expenses and attorneys’ fees.

72. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Governing Law, Venue, Jurisdiction.
73. This Agreement and all Claims or disputes between the parties shall be governed by the

laws of the State of Illinois without regard to its conflicts of law provisions. The UN Convention on the International Sale of Goods shall not apply. All Claims, lawsuits, causes of action, and disputes between us shall be exclusively brought in the State or Federal Court located in Chicago, Illinois. The parties submit to the exclusive personal jurisdiction and venue of these courts.

B2B Price Term Sheets:
74. Klutch allows the use of pre-paid labels or Owner-directed freight shipments for items

being shipped to a business. When submitting a B2B Price Term Sheet for facilitation through Klutch, the following conditions apply:

I. Klutch will notify you via email once a pre-paid parcel or Owner-arranged freight Price Term Sheet has been packed.

ii. After this notification, you will have three (3) business days to upload/submit a shipping label for pre-paid parcel shipments or to have a freight provider pick up your Owner-arranged freight Price Term Sheet.

iii. After three (3) business days if the conditions in step 2 have not been met, you will be assessed a $50.00 fee per day for pre-paid parcel Price Term Sheets or a $75.00 fee per day for Owner arranged freight Price Term Sheets.

iv. After three (3) business days from the time an Price Term Sheet was packed, if you have not yet uploaded shipping labels for your parcel Price Term Sheet or have not yet had a Carrier pick up your Owner-arranged freight Price Term Sheet, Klutch will facilitate the restocking of your B2B Price Term Sheet and you will be assessed a cancellation fee. This cancellation fee will be equal to the Fulfillment Provider’s total cost to prepare the Price Term Sheet, including, but not limited to, pick fees, prepaid label fees, and any other costs incurred to prepare the Price Term Sheet.

v. If you cancel a B2B Price Term Sheet after the Fulfillment Provider has started to pick your B2B Price Term Sheet, you will also incur the above cancellation fee in addition to the original fee to prepare your B2B Price Term Sheet.

vi. Klutch reserves the right to charge for a prepaid Price Term Sheet once it has been packed.

vii. If the Fulfillment Provider does not pack a B2B Price Term Sheet, Klutch will cover costs if you provide proof of invoice for you having to reschedule freight, up to a maximum of $500.00. In this circumstance, Klutch will not assess a late fee and also will arrange for the Fulfillment Provider to hold the Price Term Sheet for up to fifteen (15) business days before restocking, and restocking will be done free of cost. If the Fulfillment Provider fails to pack an Price Term Sheet, and you contact Klutch to request a hold, Klutch will arrange for the Fulfillment Provider to hold the packed B2B Price Term Sheet for up to thirty (30) calendar days.

viii. Klutch, Fulfillment Providers and Carriers shall not be responsible for any chargebacks, penalties, fines, or liquidated damages of any kind, including those from your customers.