1. ACCEPTANCE OF TERMS
a) 3PL Prep LLC and/or its affiliates (“3PLprep”, “we” or “our”) provides its Services to you (“you” or “your”) which are exclusively governed by these Terms & Conditions (“Agreement”). By accepting this Agreement, by accessing or using the Services, or clicking through on our website, you acknowledge that you have read, understood, have the authority to, and agree to be bound by this Agreement. The terms of your Order shall not modify this Agreement. If you are an individual, you certify that you are 18 years of age or older. If you are entering into this Agreement on behalf of your 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” or “your” 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 and may not use the Services.
b) We may change or revise this Agreement at our discretion without notice. 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 notice by email to support@3PLprep.com. Otherwise, you will be bound by the changed or revised terms.
2. SERVICES
The “Services” include, without limitation, (a) receipt, counting, storage, processing, packaging, and shipment of physical goods sold or shipped by you (the “Goods”) pursuant to the order (“Order”), (b) use of 3PLprep’s proprietary platform and associated technology, which is made available by 3PLprep to you.
3. USE OF SERVICES
a) Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title, and interest in and to the Services (including all intellectual property rights) will remain with and belong exclusively to 3PLprep. You shall not (i) sublicense, resell, rent, lease, transfer, assign, time-share, or otherwise commercially exploit or make the Services available to any third party; (ii) 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; or (iii) modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies, or other notices 3PLprep provides you or publishes in connection with the Services, and you shall promptly notify 3PLprep if you learn of a security breach related to the Services.
b) Any software made available to you by 3PLprep in connection with the Services (“Software”), including but not limited to the 3PLprep Platform, contains our proprietary and confidential information that is protected by applicable intellectual property laws and this Agreement. 3PLprep 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 3PLprep. Any rights not expressly granted herein are reserved and no license or right to use any trademark of 3PLprep or any third party is granted to you in connection with the Services. The License may be terminated immediately at 3PLprep’s sole discretion and shall, in any event, terminate upon the termination or expiration of this Agreement.
c) You are solely responsible for all data, information, feedback, suggestions, text, content, and other materials that you upload, post, deliver, provide, or otherwise transmit or store in connection with or relating to the Services (“Your Content”).
d) You are solely responsible for maintaining the confidentiality of your login, password, Your Content, and account and for all activities that occur under your login or account. For support purposes, designated 3PLprep employees have the ability to access your 3PLprep accounts. This access includes but is not limited to production data, including Personally Identifiable Information. By posting Your Content on or through the Services, you hereby do and shall grant 3PLprep a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, modify, reproduce, distribute, display, publish, and perform Your Content. 3PLprep has the right, but not the obligation, to monitor the Services, Content, or Your Content. You further agree that 3PLprep may remove or disable any Content (including Your Content) at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or Your Content), or for no reason at all.
e) You understand that the operation of the Services, including Your Content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices; and (iii) transmission to 3PLprep’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content. 3PLprep will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction, or loss of any of Your Content, and you will indemnify and hold 3PLprep harmless for any claims, damages, or liability related to Your Content.
f) You own all Your Content or have obtained all permissions, releases, rights, or licenses required to engage in your posting and other activities (and allow 3PLprep to perform its obligations) in connection with the Services without obtaining any further releases or consents; Your Content and other activities in connection with the Services, and 3PLprep’s exercise of all rights and licenses granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing.
g) You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long-distance and local telephone service (collectively, “Your Equipment”). You shall be responsible for ensuring that Your Equipment is compatible with the Services. You shall also be responsible for maintaining the security of Your Equipment, your Account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of your Account or Your Equipment with or without your knowledge or consent.
h) You have no right to access our physical facilities or property. Under no circumstances, and at no time, during the Term of this Agreement or after, are you permitted to enter 3PLprep’s facilities, fulfillment centers, or premises without prior express written notice by us. As your Goods may be commingled with the Goods of other vendors in 3PLprep’s facilities, under no circumstances, during the Term or after, may you access the Goods while the Goods are stored in 3PLprep’s facilities, without prior express written consent of 3PLprep. If you are granted access, you will be monitored during the access period and your access can be terminated at our sole discretion.
i) 3PLprep reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on 3PLprep’s website and in other communication with existing or potential 3PLprep customers. To decline 3PLprep this right, you need to email support@3PLprep.com stating that you do not wish to be used as a reference.
j) 3PLprep may (but has no obligation to) provide technical support services, through email or other means in accordance with our standard practice. 3PLprep bears no liability for such technical support services.
k) 3PLprep is not the importer of record for Goods stored at 3PLprep. 3PLprep shall not be held liable for complying with your instructions through the 3PLprep Services. You understand that 3PLprep does not inspect your Goods nor does 3PLprep take responsibility for the business decisions that you make and implement through the Services. 3PLprep is not the Merchant of Record for any of your Goods. 3PLprep is not responsible for items damaged during the pick and pack process or for breakage of items during transit that have been picked and packed by 3PLprep.
4) SERVICE FEES.
a) “Service Fees” are the fees for any Services and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums, taxes, or other charges incurred during your use of the Service).
b) Quotations for the Services and Service Fees are for informational purposes only, are subject to change without notice, and shall not under any circumstances be binding upon 3PLprep. Quotations accepted through our online interface 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 product, the delivery address, and service requested during the normal course of delivery. 3PLprep reserves the right to bill the Service Fees based on actual charges at any time after the Services are rendered. 3PLprep specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information provided to it, such as dimensions and weights.
c) 3PLprep reserves the right, in its sole discretion, to adjust its pricing for any of its Services.
d) You acknowledge that you are responsible for, and agree to reimburse 3PLprep for, all sales taxes, transportation taxes, Service Fees, reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by 3PLprep (including costs and related expenses) in connection with the Services.
e) All dollar amounts stated in this Agreement and our website will be in US dollars unless otherwise specified.
f) Failure to promptly pay Service Fees is a material breach of this Agreement and 3PLprep may immediately suspend Services if prompt payment is not made by You. All Service Fees shall be payable as set forth in this Agreement. Time is of the essence for your payment obligations to us.
5) PAYMENTS AND LIENS.
a) Payment processing for Services is provided by third-party Payment Processing Companies (PPC) and is subject to the PPC connected account Agreement, which includes the PPC Terms of Service (collectively, the “PPC Service Agreement). By agreeing to this Agreement or continuing to operate as a User on the Services, you agree to be bound by the Service Agreement of our PPC, as the same may be modified from time to time. As a condition of 3PLprep enabling payment processing Service through a PPC, you agree to provide 3PLprep accurate and complete information about you and your business, and you authorize 3PLprep to share it, and transaction information (including User Data) related to your use of the payment processing Service provided by the PPC.
b) Unless otherwise specified by 3PLprep, the PPC may collect payment from you via credit card or ACH for Service Fees; 3PLprep cannot control any fees that may be charged to you by your bank related to the PPC’s collection or disbursement of such payment, and 3PLprep disclaims all liability in this regard.
c) When you use the Services, applicable charges for the Services and any additional fees payable to 3PLprep may be charged to the credit card associated with your PPC account. You agree to pay 3PLprep the amount that is specified in accordance with this Agreement. If you dispute any charges, you must let 3PLprep know within ten (10) days after the date that 3PLprep invoices you.
d) You acknowledge and agree that 3PLprep shall maintain a warehouseman’s lien and security interest under the UCC for all Goods in 3PLprep’s possession or control, regardless of whether a specific receipt is issued by 3PLprep, to cover all charges, expenses, costs and Service Fees set forth in this Agreement. In the event 3PLprep is required to exercise its lien or security interest, you shall be responsible for all necessary and reasonable costs incurred by 3PLprep to enforce the lien or security interest including, but not limited to, reasonable attorney fees. You will execute all agreements and documents so that 3PLprep may obtain, perfect and maintain its lien rights and security interest in the Goods. You will execute all documentation to permit us to perfect our liens.
6) INBOUND GOODS.
a) You represent and warrant to 3PLprep that (i) you are the legal owner and/or have lawful possession or control of the Goods and 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 3PLprep under this Agreement, (iii) the Goods do not contain any material violating any federal, state, or local law (collectively, “Laws”); (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. 3PLprep may, in its sole discretion, reject Goods that 3PLprep determines do not meet the above. If the Goods do not meet the foregoing requirements, You may incur additional fees from 3PLprep, and if 3PLprep rejects the Goods, this may result in delays or non-shipment, and You agree that 3PLprep shall not be liable for any loss or damage as a result of such delays or non-shipment.
b) You shall provide 3PLprep, inventory of all inbound shipments of Goods prior to the shipment arriving to 3PLprep’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 3PLprep.
c) You need to make an appointment in advance for any inbound freight shipment.
7) ONBOARDING.
a) All inbound shipments must be received and inventoried before the Goods shall be shipped.
b) Upon receipt, 3PLprep may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that 3PLprep has no obligation to verify the quantity, content, condition or quality of the Goods delivered to 3PLprep for storage and/or delivery. 3PLprep may, at its sole discretion, reject to store and/or deliver any Goods that it deems, in its sole discretion, to be improperly labeled or packaged or, any Goods that contain any hazardous or illegal material.
c) You shall be solely responsible for the accuracy of any information provided to 3PLprep and/or inputted onto 3PLprep’s website. You agree that 3PLprep shall not be liable for any delay, loss, damage or costs as a result of any inaccurate information provided by you to 3PLprep or any information inputted incorrectly by you onto 3PLprep’s website.
8) SHIPPING ADDRESSES.
a) You are solely responsible for the accuracy and deliverability of Order shipping addresses. 3PLprep may, at its sole discretion, verify Order shipping addresses, but this is not a replacement for merchant address diligence and verification by You. You agree and acknowledge that 3PLprep has no obligation to verify any shipping addresses provided by You.
b) 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. 3PLprep also reserves the right to put an order on hold if addresses are not validated by the 3PLprep system.
9) DELAYS OR NON-DELIVERY.
3PLprep shall not be liable or responsible for any delays in domestic or international shipments of Goods or Orders, and is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third-parties, including carriers.
10) FRAUDULENT ORDERS.
It is your sole responsibility to protect yourself from fraud. It is your sole responsibility to pay all fees related to orders whether the order is fraudulent or the product is delivered or not.
11) RETURNS.
Returns may be rejected and/or subject to additional fees. You shall be solely responsible for any fees assessed by any Carrier as a result of any shipments of Goods that are returned to 3PLprep by the Carrier for any reason whatsoever.
12) GOODS REMOVAL.
a) 3PLprep may, at its sole discretion, require you to remove unsuitable or unsellable Goods from its distribution centers. 3PLprep will notify You if it has any inventory that requires removal. Fees may also be assessed for labor incurred to remove inventory. If you do not remove the inventory within 10 days of receiving a required removal notice, 3PLprep may dispose of the inventory listed in the required removal notice.
b) You shall not be entitled to any damages or reimbursement for the value of Goods disposed of by 3PLprep.
13) ABANDONED ACCOUNT.
If your Service Fees (or any other amounts owed 3PLprep) remain unpaid for a period greater than 30 days, then 3PLprep reserves the right, at its sole discretion, to terminate this Agreement, suspend its performance, and/or reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 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 would then immediately be forfeited by you. Goods will become immediately and irrevocably unavailable to you, and liquidation proceedings would begin. You agree such Goods would be free and clear of liability, and that you would assume any liability therefore. You would have no rights to the liquidation proceeds. You would also remain liable for any pending Service Fees above and beyond the liquidation proceeds.
14) FORCE MAJEURE.
3PLprep 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 3PLprep’s power to grant), war, civil disturbance, acts of terrorism, insurrection, riot, act of God or the public enemy, law, act, order, 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, 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 3PLprep, whether or not of the kind hereinabove specified and whether or not any such contingency is presently occurring or occurs in the future. 3PLprep shall give notice of any force majeure event as soon as reasonably practicable by giving notice to your administrative email account.
15) TERMINATION.
You have the right to terminate this Agreement at any time, 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@3PLprep.com. 3PLprep may terminate, at its discretion and without cause, this Agreement (or our shipments of Goods or Services hereunder) at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, 3PLprep may also terminate this Agreement upon ten (10) days’ notice in the case of nonpayment, or if you breach any of the terms or conditions of this Agreement. 3PLprep 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 3PLprep upon any termination of your account in 3PLprep’s sole discretion. However, all rights to payment and the terms shall survive termination or expiration of this Agreement.
16) WARRANTY DISCLAIMERS.
a) The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by 3PLprep or by third-party providers, or because of other causes beyond our reasonable control. 3PLprep shall use reasonable efforts to provide advance notice by email, or other means, of any Services disruption. 3PLprep shall not be liable for any such unavailability or disruption of Services.
b) The services, including the 3PLprep 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 3PLprep expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Except as expressly set forth in this or any ancillary agreement, you acknowledge that 3PLprep does not warrant that the services will be uninterrupted, timely, secure, error-free or virus-free, nor does 3PLprep 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 us shall create any warranty not expressly stated in this agreement.
c) 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, the company’s liability will be limited to the greatest extent permitted by law under the terms of this agreement.
d) 3PLprep does not represent, warrant, or guarantee that any of its facilities will maintain any specific temperature ranges or humidity levels.
17) LIMITATION OF LIABILITY (Acknowledged and accepted herewith and furthermore acknowledged and accepted separately).
a) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) SHALL 3PLprep 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, 3PLprep IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE GOODS DAMAGES CAP OR THE AGGREGATE LIABILITY CAP SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT. 3PLprep WILL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR, ANY PRODUCT DAMAGE, LOSS, OR DETERIORATION DUE TO ANY CAUSES, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN TEMPERATURE OR HUMIDITY LEVELS.
b) INSURANCE, DAMAGE AND LOSS OF GOODS:
i) YOU ARE RESPONSIBLE TO PURCHASE YOUR OWN INSURANCE AT YOUR SOLE COST AND EXPENSE. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE COVERAGE, IN THE EVENT OF ANY LOSS, DAMAGE OR DESTRUCTION OF GOODS (“GOODS LOSS”) FOR WHICH 3PLprep IS OR MAY BE LEGALLY LIABLE, YOU AGREE THAT 3PLprep’S LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW. 3PLprep SHALL NOT BE RESPONSIBLE OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF COVERAGE IS DENIED.
ii) 3PLprep’S MAXIMUM LIABILITY FOR ANY GOODS LOSS (INCLUDING BUT NOT LIMITED TO LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE CAPPED AT ONE MONTH OF THE AVERAGE BILLABLE STORAGE (“GOODS DAMAGES CAP”). FOR GOODS LOSS COVERAGE, YOU MUST PURCHASE YOUR OWN INSURANCE.
c) EXCLUSIVE REMEDY:
THE GOODS DAMAGES CAP SET FORTH ABOVE SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST 3PLprep 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 BUT NOT LIMITED TO CONVERSION OR THEFT CLAIMS).
d) IN ANY EVENT, 3PLprep’S MAXIMUM AGGREGATE LIABILITY TO YOU, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY 3PLprep, SHALL NOT EXCEED $500 OR THE GOODS DAMAGES CAP, WHICHEVER IS LOWER. THE PROVISIONS OF THIS LIMITATION OF LIABILITY ALLOCATE THE RISKS UNDER OUR AGREEMENT AND THE PARTIES RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
18) INDEMNIFICATION.
You shall defend, indemnify, and hold harmless 3PLprep 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, or (e) your misuse of the Services (“Claims”). 3PLprep shall provide notice to you of any claim. 3PLprep reserves 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 3PLprep’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.
19) COMPLIANCE.
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. As defined in FAR section 2.101, the software and documentation installed by 3PLprep on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
20) ASSIGNMENT.
You may not assign this Agreement without the prior written consent of 3PLprep, but 3PLprep may assign or transfer this Agreement, in whole or in part, without restriction.
21) MISCELLANEOUS.
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, representation 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. Except as specifically set forth in this Agreement, the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement. The failure of 3PLprep to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and 3PLprep, even though it is electronic and is not physically signed by you and 3PLprep, 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 3PLprep in any respect whatsoever. In any 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. 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.
22) GOVERNING LAWS.
This Agreement and all Claims or disputes between the parties shall be governed by the laws of the State of New Jersey 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 New Jersey. The parties submit to the exclusive personal jurisdiction and venue of these courts. The substantially prevailing party in any dispute or litigation between us, including those related to this Agreement or the Services, shall be awarded their reasonable court costs, expenses and reasonable attorneys’ fees.
