BLACKBOX TERMS AND CONDITIONS OF SERVICES

Effective as of April 1st, 2024
  1. Preliminary.  Blackbox Systems, L.L.C. (hereinafter “Blackbox”) is a third-party logistics provider (A “3PL” Provider). The services we provide to you, our Client, shall be defined by the quotation that has been separately supplied to you and acknowledged by you. In addition to defining the services we will provide, the quotation will set forth the Billing and Payment parameters for these services.

  2. Agreement to Terms.  The Client represents that they have read and understand these Terms and Conditions as published.  In accepting and acknowledging the quotation, the Client hereby accepts and consents to these Terms and Conditions.  Blackbox reserves the sole discretion and right to change, modify, add, or remove portions of these Terms and Conditions at any time. It is your responsibility to review the Terms and Conditions periodically for changes.  Continued use of the services means that you accept and agree to the changes.  Blackbox reserves the right to change the Billing and Payment parameters set forth in the Quotation.

  3. Fees and Charges. Fees and charges shall be billed and paid in US dollars. The Client shall pay Blackbox for all services provided, as well as all costs incurred by us that are associated with the Client’s products. The Client acknowledges that the fees set forth in the quotation are estimates that shall be subject to adjustment, depending upon market conditions and fluctuations in shipping, freight, and carrier costs at the time of performance, as well as final transaction volume and increases in labor costs, raw resources, and materials. The Client will be invoiced for all actual charges and fees. Blackbox will not begin performance or continue to provide services until the Invoice is paid in full.

    1. Modifications. The Client may modify their services or request custom services that were not initially included in the quotation. In such instance(s), the Client shall notify us in writing of a particular modification or custom request. Blackbox shall issue a new quotation for the same.

    2. International charges and Taxes. All taxes, customs, duties, and tariffs imposed on any shipment charged by the carrier are solely the Client’s responsibility and will be charged to the Client, regardless of whether the order was delivered. The Client acknowledges that they are responsible for all such charges and shall indemnify Blackbox against the same.

    3. Carrier charges. The Client acknowledges that they are responsible for all charges and fee increases imposed by the carrier. The Client further acknowledges that they shall be solely responsible for all fees and costs imposed by the carrier that may be incurred due to Owner’s provision of inaccurate product specifications.

    4. Payment Security. Blackbox shall be entitled to all amounts owed to it for services provided and may hold the Client’s products in its possession until all outstanding sums are paid in full. However, the Client will be allowed to substitute collateral acceptable to Blackbox in lieu of this provision upon written request and at our sole discretion.

  4. Billing and Payment. Blackbox shall provide the Client with Invoices for services. The Client shall pay all amounts due by automated clearing house (“ACH”) or credit card payments. Payments are due on the date specified on the invoice. The Client will provide Blackbox with valid and current ACH or credit card information. For all services, the Client hereby authorizes Blackbox to charge the provided payment method monthly, after the invoice dispute period defined below in 4(a).  If the Client’s payment is declined, dishonored, returned, or otherwise unsuccessful, the Client authorizes Blackbox to reattempt the charge at their discretion until the payment is successfully received.  The Client shall be responsible for any fees associated with any unsuccessful transaction. The Client is responsible for providing complete and accurate billing and contact information to Blackbox and for notifying us of any changes to such information. Failure to promptly pay the Invoice is a material breach of these Terms of Service and Blackbox may immediately suspend your services if prompt payment is not made.

    1. Invoice Disputes. Amounts disputed in good faith by the Client and the reasons therefore shall be reported to Blackbox in writing within SEVEN (7) Days of receipt of the applicable invoice. Blackbox and the Client agree to work diligently to resolve the dispute.

    2. Late Payments and Monetary Default.  If the Client is more than FIVE (5) days late or defaults on the payment of any fees, charges, invoices, or other amounts due to Blackbox, except for portions of invoices disputed in good faith, Blackbox will impose a late charge of TEN (10) PERCENT per month for any past due fees, charges, invoices, or other amounts.  On TWO (2) days prior to written notice, Blackbox also may stop providing your services and/or terminate this Agreement.

    3. Unpaid Invoices, Abandoned Account, and Liquidation.  Failure to comply with the payment terms of this Agreement shall constitute a material breach. If the fees remain unpaid for more than THIRTY (30) days, Blackbox may immediately suspend all services and/or terminate the Agreement at our sole discretion.  If the account remains unpaid after SIXTY (60) days, the Client acknowledges that the account shall be deemed abandoned. The owner acknowledges that after SIXTY (60) days, ownership of the products shall be forfeited to Blackbox.  Blackbox will have the right to 1) retain and sell any product(s) remaining in Blackbox ’s possession and apply it towards the Client’s outstanding balance; or 2) discard or dispose of the products at our sole election.  The Client shall remain responsible for any deficiency remaining.  Alternatively, if the products are sold, the Client shall be entitled to any surplus from the proceeds of such a sale, minus a processing charge for the sale to Blackbox of FIFTEEN (15) PERCENT of the invoice balance.

  5. Facility and Access.  The services shall be performed at Blackbox’s place of business in Budd Lake, New Jersey, or at such other business locations as we may maintain from time to time in our sole discretion. The Client may not access Blackbox facilities or property under any circumstances without prior written notice and Blackbox’s representative’s express consent. Upon being granted access, the Client always will be accompanied by a Blackbox representative during the access period and will comply with all safety rules and requirements.  Access can be revoked or terminated at any time in Blackbox’s absolute discretion.

  6. Onboarding.

    1. Title.  All product(s) in the possession of Blackbox shall be the exclusive property of the Client unless otherwise specified herein.

    2. Product Set Up.  The Client must complete all fields of the Product Set Up template that are requested. The Client acknowledges that Blackbox cannot begin services unless this information is complete. The Client is responsible for accurately completing the Product Set Up template. The Client is solely responsible for all fees and costs related to inaccurate set up, of whatever nature.

    3. Technical Support Services. Blackbox may, at our sole discretion, provide technical support services.

    4. Disposition of damaged products.  The Client shall affirmatively advise as to how damaged products shall be handled as part of the onboarding.

  7. Receiving. The Client will, at its own expense, supply Blackbox at its place of business in Budd Lake, NJ or such other places of business designated by us, the following:

    1. Carton Label Template. The Client is responsible for utilizing the Carton Label Template we provide or otherwise ensuring SKU, UPC, item name and number of units are clearly marked on each carton, unit and/or case. Cartons may not be heavier than 50 pounds.

    2. Notice of Inbound Shipments. For inbound shipments, the Client shall advise its vendors that motor carriers must contact Blackbox at least TWO (2) business days prior to delivery and make a delivery appointment prior to arrival. Inbound shipments arriving at a Blackbox warehouse without TWO (2) business days prior notice may be refused or delayed depending on the space and personnel available at the time of arrival.

    3. Packing Slips. Each inbound shipment must contain a packing slip.

    4. Shipping Documents. The Client represents that all the information contained in the shipping documents are a true and accurate description of the products in terms of condition, dimensions, weight, and count. The Client acknowledges that Blackbox shall be entitled to rely upon this information and shall be under no obligation to independently verify the information provided.

    5. Problem Products. Blackbox shall have sole discretion on how to deal with receiving problem product(s).  “Problem Product(s)” means products shipped to Blackbox which in its sole reasonable discretion cannot be processed by Blackbox without imposing an unreasonable hardship on Blackbox. For illustrative purposes and without limiting the definition thereof, Problem Product(s) shall include all Product(s) that:

          a) arrive with insufficient paperwork;

          b) are delivered to Blackbox in the absence of a delivery appointment;

          c) are faulty, missing or damaged;

          d) or are non-conforming or improperly labelled cartons.

      Blackbox shall use its best efforts to comply with the Client’s written instructions regarding handling and disposing of Problem Product(s) and shall notify the Client of any such Problem Product(s) as soon as is practicable upon receiving it. Blackbox shall not include Problem Product(s) in the inventory of items available for shipment to the Clients. The Client acknowledges that they will be charged storage for all Problem Product(s) for which they do not provide instructions.

    6. Refusal or Rejection of Products.  Blackbox reserves the right to refuse acceptance of and/or to subsequently reject, without liability of any kind, product(s), packaging, or shipping materials which, might cause, in Blackbox’s reasonable sole judgment, infestation, contamination, or damage to the warehouse facility or to other goods in Blackbox’s custody. Blackbox shall notify the Client of its refusal to accept any such product(s). If Blackbox believes that any product(s) has caused or may cause damage to the warehouse facility or to any other goods in Blackbox’s custody or has characteristics which make its storage illegal, Blackbox, may dispose of the product(s) in any lawful manner upon notice to the Client.  Blackbox shall incur no liability by reason of such disposal, and the Client shall pay Blackbox any costs incurred in connection with such disposal.

    7. Receipt of Goods. Goods shall be available to use for fulfilling orders THREE (3) business days after they have been received at the Facility.  After this time period, the Client’s Orders will begin to be processed and labeled, with outstanding and pending orders receiving first priority.  These timelines are subject to change during peak season, which shall be defined as the dates between and including Thanksgiving Day and Christmas.  Peak season dates are subject to change depending upon the definitions for these dates imposed by the Carriers.

  8. Fulfillment.

    1. Inventory. The Client must maintain sufficient inventory on-hand to process the Client’s orders and the orders must be complete. The Client is solely responsible for monitoring your inventory. All orders that do not have sufficient inventory to fulfill shall be placed on hold until the Client provides further directions or additional inventory is received.

    2. Labeling. Items must be labelled with a UPC or other scannable identifying label to allow for the pick and pack process in fulfilling of orders.

    3. Addresses. For all fulfillment orders, the Client is solely responsible for the accuracy and deliverability of shipment addresses. The Client acknowledges that Blackbox has no obligation to verify any shipping addresses that they provide. If Blackbox provides a shipping cost based on an address that is later discovered to be inaccurate or incomplete, the Client is solely responsible for any charges related to the discrepancy.  Blackbox also reserves the right to put any fulfillment order on hold if the address provided is not valid.

    4. Third Party Carriers. Blackbox is not a freight shipper or carrier, nor do we have any relationship with the third-party carriers that we utilize. The Client understands that Blackbox will arrange for the shipment of the Client’s goods in accordance with the parameters developed in your Quotation in which Blackbox will utilize a carrier that is appropriate for the Client’s product type and the destination in our reasonable discretion.  The Client acknowledges that Blackbox shall not be responsible for damages or losses that may be caused by the third-party carriers.

    5. Set Up Information. Client is responsible for the accuracy of the product set up information provided during onboarding.

    6. Taxes, Fees, Penalties, Etc. Client shall be responsible for all taxes, fees, chargebacks, reversals, claims fines and penalties that may be incurred by Blackbox or charged by the carrier in relation to the services provided.

    7. Order Processing.  So long as adequate inventory exists and the Order is not defective in any way, Blackbox will label and prepare Orders for pick up by Carriers within ONE (1) business day of the actual receipt of the Order from Client.  Bulk orders, orders requested when stock is low, revised orders or orders containing special conditions may require additional processing time. 

  9. Returns/Undeliverability. Shipments that are 1) not delivered and are either returned by the carrier or rerouted to a new address or 2) are rejected by the addressee will be assessed returned shipping, rerouting brokerage and/or returned processing carrier fees. These fees, as well as all fees charged by the carrier, will be the responsibility of the Client.

  10. Storage. The Client acknowledges that Blackbox does not warrant or guarantee the facility is temperature or humidity controlled. The Client acknowledges that they will be charged for storage for all the Client’s products that are within the Blackbox warehouse. Each SKU shall be stored on a separate pallet and/or shelf with a unique pallet and/or shelf position. In other words, there can be no mixed SKU pallets/shelves for storage. Blackbox retains sole discretion to require the Client to remove products from their facility. Blackbox will notify the Client of any inventory that must be removed and will charge the Client for the cost of the same. Failure to respond to a removal request within sixty days shall result in the products being deemed abandoned as set forth under Paragraph 4(c).

  11. Shrinkage. The Client acknowledges that shrinkage can and does occur. If shrinkage is above THREE (3) PERCENT, Blackbox will investigate the origin of the shrinkage. If it is determined that the shrinkage was due to Blackbox, as the result of a mis-pick or damage that occurred within the Blackbox facility, Blackbox will cover the loss in terms of the manufacturing cost of the products. However, if it is discovered that the shrinkage was not due to Blackbox, but due to unknown shortages as the result of the manufacturer mis-shipping the quantity or mixing SKUs within a carton or mis-labeled cartons or units, Blackbox will not be liable. Any claim for shrinkage will be independently evaluated and addressed by Blackbox at its sole discretion.

  12. Termination. Upon any termination, including termination for Default as provided in this Agreement, the Client will pay termination charges relating to all close-down activities related to the termination, including such activities as removal of products from racks, packing for shipment (if necessary), preparing freight documents for shipment to the Client’s designated destination and loading on the trucks of the Client’s designated carrier, together with the cost of any necessary supplies. The Client will be provided with a final invoice of these costs which must be paid before the products are shipped.

  13. Intellectual Property.  The Client will grant Blackbox a worldwide, royalty-free, fully paid, right and license to utilize the content and intellectual property to the extent necessary to provide the services to you pursuant to the Agreement and to copy, use, modify, distribute, display, and disclose your content for marketing and promotional purposes.

  14. Miscellaneous

    1. Force Majeure. Neither Blackbox nor the Client shall be liable for any delay or failure in performance under this Agreement or interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of public enemies, war, accidents, fire, explosions, earthquakes, floods, the elements, strikes, or any similar cause beyond the reasonable control of such party (a “Force Majeure”), so long as, following the cessation of such cause, such party uses its reasonable efforts to resume its performance hereunder.

    2. Termination

      1. Default. If there occurs a nonmonetary Default by a party under this Agreement that is not cured within the applicable time periods set forth under this Agreement, then the non-defaulting party may terminate this Agreement upon not less than THIRTY (30) days prior written notice.

      2. Bankruptcy. Either party may terminate this Agreement, effective immediately upon giving written notice if the other party files a petition in bankruptcy or files for a reorganization or for the appointment of a receiver or trustee of all or substantially all such party’s property or makes an assignment or petitions for or enters an arrangement for the benefit of creditors.

      3. Force Majeure. If following a Force Majeure, Blackbox is unable to perform at the Service Levels for a period more than THIRTY (30) days, the Client shall have the right to terminate this Agreement.

      4. General. Either party may terminate this Agreement with THIRTY (30) days’ notice to the other party.

    3. Representations and Warranties.  Blackbox and the Client each hereby individually represent and warrant the following:

      1. It has the full authority and legal right to carry out the terms of this Agreement.

      2. The terms of this Agreement will not violate the terms of any agreement, contract, or other instrument to which it is a party and no consent or authorization of any other person, firm, or corporation is a condition precedent to this Agreement.

      3. It has taken all action necessary to authorize the execution and delivery of this Agreement.

      4. This Agreement is a legal, valid, and binding obligation and is enforceable in accordance with its terms, except as limited by bankruptcy and other laws of general application relating to or affecting the enforcement of creditors’ rights.

        The Client further warrants and represents that it has, to the best of its knowledge, and will use its best efforts to continue to have for the Term of this Agreement, all necessary authority to use all trademarks, service marks, and other intellectual property of the products for the purposes of conducting the Client’s business. The Client’s business does not and will not, to the best of the Client’s knowledge, cause the Client to infringe or violate any patents, trademarks, service marks, trade names, copyrights, licenses, trade secrets, or other intellectual property rights of any other person or entity.

        The Client further represents and warrants that it owns the Products free and clear of all liens, restrictions, claims, charges, security interests, or other encumbrances of any nature whatsoever and that their product is not defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing.

      5. The Client further represents and warrants that it is neither located in, nor a national or resident of, any country that is subject to U.S. trade sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) that prohibit the export of U.S. services;

      6. nor a person or entity named on OFAC’s List of Specially Designated Nationals or acting on behalf of any person or entity on the List.

    4. Grant of Lien. The Client hereby grants to Blackbox a first-priority security interest in the products held by Blackbox to secure the obligations of the Client hereunder; provided, however, that Blackbox agrees to release such security interest upon the reasonable request of the Client in the event the Client provides Blackbox collateral in substitution therefore, which is acceptable to Blackbox in Blackbox’s sole discretion. The Client shall execute all documents reasonably requested by Blackbox’s legal counsel for the perfection of such security interest. The Client shall not grant any Lien to any third party on any Products inventory without the prior written consent of Blackbox which will not be unreasonably withheld.

    5. Indemnity and Liability. The Client agrees to indemnify and hold Blackbox harmless against all claims (including claims by third party providers engaged by the Client), suits, actions, debts, damages, costs, charges, and expenses, including without limitation court costs and reasonable attorney’s fees, which Blackbox may at any time incur by reason of

      1. any claims and liability growing out of either product liability, advertising liability or trademark or service mark, patent, or copyright infringement;

      2. a defect or claimed defect in any Products; or

      3. a material breach of this Agreement by the Client.

    6. Insurance. Blackbox shall maintain property damage and casualty insurance against loss or damage to the Client’s inventory on the premises of Blackbox. Blackbox liability shall be limited to the actual value of the products, which shall be defined as the actual manufacturer’s cost of the goods.  The Client may, at its own election, self-insure the Products for the actual replacement or market value of the goods; but the Client specifically acknowledges and affirms that Blackbox shall be under no obligation to provide insurance more than the actual value of the goods as herein defined.

    7. Compliance with Laws. The Client and Blackbox shall comply with all laws, rules, and regulations, whether local, state, or federal, applicable to the sale of products and to the providing of services, but only to the extent such laws, rules and regulations are applicable to it.

    8. Confidentiality. During the provision of services, it is anticipated that Blackbox and the Client will come into possession of certain proprietary information belonging to the other, including but not limited to marketing records, merchandising records, Client records, and mailing lists. Blackbox and the Client agree that each will not, during the term hereof or thereafter, willfully or through gross negligence divulge, furnish, disclose, or make accessible to any third party any of the other’s confidential information unless otherwise instructed by the proprietary party in writing; provided, however, that confidential information shall not include any information that:

      1. at the time of disclosure by the other party or thereafter is generally available to and known by the public other than because of its disclosure by such party; or

      2. was available to the other party on a nonconfidential basis from a source other than the proprietary party, provided that such source is not bound by a confidentiality agreement, or contractual or fiduciary obligation with the proprietary party; or

      3. has been independently acquired or developed by the other party without violating any obligations under this Agreement, or of any other agreement between the Client and Blackbox or by which either party is bound for the benefit of the other party.

    9. Assignment. This Agreement shall inure to the benefit of and be binding upon the parties and their successors and permitted assigns. This Agreement may not be assigned by either party without the prior written consent of the other party.

    10. Amendments.  This Agreement shall not be modified or amended except by a written agreement signed by authorized representatives of Blackbox and the Client.

    11. Governing Law and Choice of Forum.  This Agreement has been entered into and shall be governed, construed, and interpreted in accordance with the laws of the State of New Jersey without reference to any conflicts of law principles. The Parties agree to submit to the jurisdiction of the federal and state courts situated in the County of Morris, State of New Jersey, regarding any proceeding related to this Agreement.

    12. Arbitration.

      1. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, whether common law or statutory, shall be settled exclusively by arbitration in New Jersey using in either case the American Arbitration Association.

      2. The arbitrators shall apply the internal law of New Jersey in determining the rights, obligations, and liabilities of the parties. The arbitrators shall not have the power to alter, modify, amend, add to, or subtract from any term or provision to this Agreement, or to grant injunctive relief, including interim relief, of any nature. Such injunctive relief may be pursued by Blackbox or the Client from the federal and state courts of the state of New Jersey. The availability of such relief shall depend upon proofs and showings required under the applicable law. In all other respects, the commercial rules of the American Arbitration Association shall govern the arbitration.

        Judgment on the award of the arbitrators may be entered by any court having jurisdiction to do so, and the parties to the Agreement hereby irrevocably consent and submit to the personal jurisdiction of the federal and state courts of the State of New Jersey for this purpose as well as for all other purposes in connection with this Agreement.

      3. The failure or refusal of either party to submit to arbitration as provided in this Agreement shall constitute a breach of this Agreement. If judicial action is commenced to compel arbitration, and if arbitration is in fact compelled, the party that shall have resisted arbitration shall be required to pay to the other party all costs and expenses, including reasonable attorneys’ fees, that it incurs in compelling arbitration. All other fees and charges of the American Arbitration Association shall be borne as the arbitrators shall determine in their award.

    13. Relationship. Nothing contained in this Agreement shall be construed to imply a joint venture, partnership, or principal/agent relationship between the parties.

    14. Headings. The headings and section numbers appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or otherwise describe the scope or intent of the sections of this Agreement.

    15. Severability. If any one or more provisions of this Agreement shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.

    16. No Waiver.  No failure or delay on the part of any party in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right. All rights and remedies under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

    17. Full Agreement.  This Agreement, and any appendices and addenda attached hereto, contain and embody the entire agreement of the parties hereto, and no representations, inducements, or agreements, oral or otherwise, made at any time between the parties or with any third party relating to the subject matter hereof which are not contained in this Agreement or in the appendices or addenda, if any, shall be of any force or effect.

    18. Notices. All notices and communications provided for in this Agreement shall be given in writing. Such notices and other communications shall be deemed given when received and acknowledged by the receiver, when delivered by hand, or when deposited in the United States Mail, Registered or Certified, and addressed to the Client to the Address provided in the Quotation and, as to us:

        1. Blackbox Systems, LLC, 200 International Drive, Budd Lake, NJ 07828 
          Attn: Virginia D. Liotta, Esq. Email:  virginia.d.liotta@admagic.com

Blackbox FSA. Terms and Conditions. 4-1-2024