Terms & Conditions
RUBY HAS FULFILLMENT SERVICES AGREEMENT
This Fulfillment Services Agreement (“Agreement”) is hereby entered into by and between Ruby Has LLC, a New York limited liability company (“Ruby Has”) and Client (“Client”) (each a “Party” and collectively the “Parties), and shall take effect on the date on which Client completes its registration for an account (“Account”) with Ruby Has (the “Effective Date”).
The Parties hereby agree as follows:
1. Scope. Client hereby engages Ruby Has to provide, and Ruby Has hereby agrees, upon the terms and conditions set forth in this Agreement, to provide the Services (as defined in Section 2) to the Client during the Term of this Agreement.
2. Ruby Has Services. Ruby Has provides its Clients with the following services (collectively the “Services”):
a. Receiving- Receipt of Client merchandise (“Merchandise”).
b. Storage- provision of storage facilities (each a “Facility”) for Client Merchandise.
c. Pick and Pack/Order Fulfillment- Upon notice from Client, Ruby Has will pick and package the Merchandise from available inventory and ship such Merchandise in accordance with Client’s instructions.
d. Packing Material- Ruby Has will provide appropriate packaging material for the shipment of the Merchandise.
e. Returns Processing- Ruby Has will accept Merchandise returns in accordance with the terms and conditions herein contained.
f. Record Keeping- Ruby Has will maintain monthly ledger summaries of all orders shipped and received, which shall be made available to the Client through Client’s Account.
g. Additional Services- As requested by Client during the Term, at agreed-upon rates.
3. Term and Termination. The term of this Agreement shall commence on the Effective Date and continue for the initial period of one (1) year (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew for additional successive one (1) year periods (each a “Renewal Term” and collectively with the Initial Term the “Term”) unless and until either Party provides written notice of termination at least thirty (30) days prior to the end of the then-current term. Notwithstanding the foregoing, either Party may terminate this Agreement immediately upon notice if the other Party materially breaches this Agreement and (i) such breach is incapable of being cured; or (ii) if such breach is capable of being cured, after providing sixty (60) days’ written notice to the breaching party, the breaching party fails to cure such breach. Ruby Has may also suspend or terminate the Services for cause immediately upon notice if: (a) Ruby Has determines, in its sole discretion, that its provision of any of the Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; (b) subject to applicable law, if Client files, or consents to the filing against it of, a petition for relief under any bankruptcy or insolvency laws, makes an assignment for the benefit of creditors or consents to the appointment of a receiver, liquidator, assignee, custodian, trustee or other official with similar powers over a substantial part of its property; or a court having jurisdiction over Client or any of the property of Client will enter a decree or order for relief in respect thereof in any involuntary case under any bankruptcy or insolvency law, or will appoint a receiver, liquidator, assignee, custodian, trustee or official with similar powers over a substantial part of the property of Client, or will order the winding-up, liquidation or rehabilitation of the affairs of Client; or (c) subject to applicable law, upon Client’s liquidation, commencement of dissolution proceedings, cessation of business, sale, merger, change of control (whether direct or indirect, including, without limitation, by transfer, sale, or assignment by operation of law), consolidation, reorganization, or disposal of substantially all of Client’s assets, stock or interests.
4. Pricing. Pricing for all Services will be as reflected in the Rate Schedule attached hereto as Schedule A (“Service Fees”). Ruby Has may adjust Service Fees at any time during the Term of this Agreement upon thirty (30) days’ prior written notice to Client. Unless otherwise stated in the Rate Schedule, all Services Fees are exclusive of applicable federal, state and local taxes and all use, sales, commercial, gross receipts, privilege, or other similar taxes, surcharges, including carrier surcharges, and international duties and taxes (“Additional Fees” and together with the Service Fees the “Fees”), whether charged to or against Ruby Has, and all Additional Fees will be the sole responsibility of, and payable by, Client. Client will not withhold any taxes from any amounts due to Ruby Has.
5. Payments and Reimbursements.
a. Ruby Has utilizes a Pay As You Go model for payment of the Fees. Client must load funds into their account, and Fees will be deducted as incurred by Client. Invoices for Services will be generated weekly and shall, except as otherwise specified, serve as a receipt for the Client.
b. Ruby Has provides Client with the convenience to load funds to Client’s account using the following payment methods: ACH transfer (no convenience fee), or Credit Card (3% convenience fee). Ruby Has does not store any payment information on its own servers. Rather, all of Client’s payment information is stored with Ruby Has’ credit card processor. If any undisputed Client invoice remains unpaid for more than 30 days from the issue date, Client agrees that Ruby Has shall have the right to auto-charge any payment method that has been used in the past.
c. A 5% fee (or the maximum amount permitted by applicable law, if lower) will be applied to all undisputed past-due invoice amounts, provided that such fee shall not be less than $50.00.
d. Client may, in its discretion, opt-in for auto-pay service which will automatically charge the payment method on Client’s file to replenish Client’s balance.
e. Ruby Has will send Client invoices for any Account balance that may accrue in Client’s Account. Additional Fees are billed during the month in which the Services are performed, but Client acknowledges that Additional Fees are subject to change due to circumstances beyond Ruby Has’ control.
f. Should Client disagree with any Service Fees invoiced or charged against the Account, Client must submit written notice to Ruby Has within thirty (30) days of the Service Fee being charged. Failure to raise such claim during this time period shall be deemed a waiver on Client’s behalf. Client may opt to pay any disputed amounts until resolution of the dispute, or withhold such disputed amounts until resolved. However, Ruby Has reserves the right to cease provision of the Services until all disputed amounts are either paid or resolved. Upon resolution of a dispute, Ruby has will either send an invoice for outstanding amounts due, or credit Client’s Account as applicable.
6. Client’s Account.
a. Subject to Client’s compliance with this Agreement, Ruby Has shall perform the Services described in this Agreement as selected and authorized by Client via Client’s Account. All requests for Services shall be governed by this Agreement. By using the Services, Client acknowledges and agrees that Ruby Has operates as a third-party warehouseman, accepting shipments from, and making shipments to, third parties. Ruby Has is an independent contractor for all purposes, and only acts as the agent of Client with respect to Ruby Has’ custody of the Merchandise in its Facilities.
b. If Client’s undisputed Account balance remains unpaid for a period greater than 30 days, then Ruby Has reserves the right, at its sole discretion to reclassify Client’s Account as an “Abandoned Account.” Additionally, any Account with an undisputed account balance for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Client hereby immediately, and irrevocably forfeits its rights of ownership of its merchandise up to the cumulative amount necessary for payment of all Fees, as well as any reasonable expenses incurred by Ruby Has for the preservation and storage of the Merchandise or its sale. Merchandise will become immediately unavailable to Client, and liquidation proceedings will begin. Client agrees that all Inventory liquidated shall be sold at the absolute discretion of Ruby Has and will be free and clear of liability, and that Client assumes any liability therefore. Client has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above. Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, Client shall remain liable for any amounts above and beyond the liquidation proceeds.
c. Ruby Has reserves the right, in its sole discretion, to cease provision of the Services for any Client with an undisputed account balance, or until any disputed amounts have been settled.
d. Upon termination of this Agreement, Client’s account will be inaccessible to Client and Ruby Has shall have no further obligation toward Client to provide any Services, except that, provided Client has no account balance, Ruby Has will return all Merchandise to Client subject to Ruby Has’ standard pick and pack rates outlined in Exhibit A
e. Closing Accounts. Client may close its Account for any or no reason, upon thirty (30) days’ prior written notice to Ruby Has. Merchandise will be returned subject to Client paying Ruby Has’ standard pick and pack rates outlined in Exhibit A.
7. Warehouse Management System. In addition to registering for an Account, all Clients must register with the Ruby Has User Interface (the “System”) to the terms and conditions of the System, to conduct its business with Ruby Has.
8. Hours of Operation. Ruby Has is typically open five days a week, Monday through Thursday from 10 AM to 6 PM and Friday from 9 AM to 4, but is occasionally closed for legal holidays. Each day that Ruby Has is open for business is herein referred to as a “Business Day.”
9. Lien. Client agrees and acknowledges that Ruby Has shall maintain a general warehouseman’s lien under the UCC for all Merchandise in Ruby Has’ possession, regardless of whether a specific receipt is issued by Ruby Has, to cover all charges set forth in Client’s Account. In the event Ruby Has is required to exercise its lien, Client shall be responsible for all necessary and reasonable costs incurred by Ruby Has including, but not limited to, reasonable attorney fees.
10. Inbound Shipments. Merchandise shall be shipped to Ruby Has FOB Destination, and Client shall incur all costs for inbound shipments including freight, taxes, and duties. In no event shall Ruby Has be deemed the importer of record. Client represents and warrants that it is the legal owner and/or has lawful possession of the Merchandise and the legal right to store and thereafter direct the release and delivery of the Merchandise. Further, Client represents and warrants that there are no health, safety or environmental risks associated with the storage of the Merchandise, and that the Merchandise does not contain any material in violation of applicable law. Ruby Has may reject Merchandise not conforming to the foregoing, and Ruby Has shall have no liability, direct or otherwise, resulting from such rejection, including delays in the order fulfillment process.
11. Receiving. All shipments are considered received upon being processed by Ruby Has in its Facility, and not when physically received. All shipments must conform with the following “Receiving Requirements” in order to be processed: (i) Client’s account must have a positive balance; (ii) Ruby Has must receive Advance Shipping Notice (“ASN”) via the System of each expected shipment at least 72 hours prior to actual receipt (all shipments greater than 8 pallets or 512 cubic feet must be scheduled with the Ruby Has Support team in addition to the ASN requirement); (iii) all Merchandise must be entered into the System prior to actual receipt; (iv) all shipments must be accompanied by a packing list and bill of lading (“BOL”); (v) pallets, cases, and individual units must be properly labeled and barcoded; (vi) each carton must contain no more than 1 SKU; and (vii) each product description and quantity must match those listed on the ASN and packing slip. Provided Client has complied with the Receiving Requirements, the processing time for such shipment will be 3 Business Days (“Standard Receiving”) following the date of receipt. Approved expedited receiving(s) will be processed within 24 hours and billed by the man-hour rate. All shipments not conforming to the Receiving Requirements may incur additional processing fees and the standard processing time for such shipments is 2-10 Business Days after fulfillment of the Receiving Requirements (“Non-Standard Receiving”). For additional Receiving guidelines and Fees, please see https://support.rubyhas.com/article/34-ruby-has-receiving-guidelines.
12. Inspection. Absent a special request from Client, Ruby Has will not inspect each individual shipment upon receipt. Rather, Ruby Has will deem all of the pertinent information on the packing lists and BOL (such as quantity and description), as accurate. Absent an upon-receipt inspection request from Client, Ruby Has shall not be responsible for any discrepancies later found when fulfilling an order or when otherwise rightfully inspecting the Merchandise. An individual upon-receipt inspection is available upon request by Client for an additional fee.
13. Order Fulfillment. All Order Fulfillment requests (each an “Order”) must be entered through the System via API, EDI, FTP, CSV, or manual entry. Ruby Has shall not be responsible for loss of Merchandise or Sale resulting solely from Client entry errors (including incorrect ship-to information), incorrect ship-via-codes, file upload errors, or other events that are outside of Ruby Has’ control. Client represents and warrants that the Orders submitted to Ruby Has will comply with applicable laws based on the Merchandise to be shipped to the destination listed on each specific Order. By way of example, products containing certain chemicals must contain certain warning labels when being shipped into the State of California, and in such event, Client represents and warrants that the Merchandise contains the applicable warning labels. Client shall indemnify, defend, and hold Ruby Has harmless from and against any and all claims arising from a breach of the foregoing.
14. The Ruby Has Guarantee. Once Merchandise has been processed in accordance with Section 11, above, Ruby Has guarantees that it will ship all Orders the same day submitted by Client via the System, provided that such Order is properly entered into the System and contains no Client entry errors, and is received by Ruby Has prior to 2PM (local time at the Fulfillment Center where Client’s Merchandise is located) (the “Ruby Has Guarantee”). Notwithstanding the foregoing, the Ruby Has Guarantee does not apply to Orders: (i) containing Merchandise that was only processed within 24 hours of an Order’s submission; (ii) of Clients with a zero credit balance and/or not in good credit standing; (iii) that include Merchandise that is currently out of stock; (iv) that are freight or 3rd party carrier account shipments; (v) to which Client requests a change or modification after such Order has been submitted to Ruby Has; (vi) with 8 or more items; (vii) where carrier label printing is unavailable due to factors outside of Ruby Has’ control; (viii) if Merchandise is not properly marked, labeled, or described in the System (including individual units not being properly barcoded); and (ix) with volume spikes in excess of 10% of Client’s thirty (30) day running average. Orders received after 2PM, are guaranteed to ship the next Business Day subject to subsections (i)-(ix) of this Section 14. Further, the Ruby Has Guarantee shall not apply to any Orders not successfully transmitted to the System, for whatever reason, whether due to client error, Ruby Has error, or otherwise.
15. Fulfillment Accuracy.
a. In the unlikely event that Ruby Has commits errors in the fulfillment of an Order, Ruby Has will re-process the Order, provided that it was primarily the fault of Ruby Has and subject to the limits on liability in Section 18, below. Notwithstanding the foregoing, Ruby Has agrees that, in any consecutive three (3) month period, the errors in the fulfillment process will not exceed any of the thresholds listed in Section 15(b) below, on a per category basis.
In the event that Client can provide proof that Ruby Has has failed to meet any of the thresholds below, on a per-category basis, this shall be deemed a material breach incapable of being cured. Notwithstanding the foregoing, Client agrees that it will promptly notify Ruby Has of any error Ruby Has commits in the fulfillment of an Order. Should Client fail to notify Ruby Has within 14 days of the occurrence of an error, such error shall not be included in the below thresholds.
b. Ruby Has agrees that it will not, in any consecutive three (3) month period, error in more than:
i. Two percent (2%) of Order lead-time processing. Without limiting the Ruby Has Guarantee, Ruby Has will ship all Orders no later than the day after such Order is received through the System, provided that the Merchandise is in the Ruby Has Facility when the Order is received;
ii. Two percent (2%) inventory shrinkage, excluding concealed shortages and collateral materials;
iii. 5 Standard Receivings; and
iv. One percent (1%) shipment accuracy on pick, pack, and ship-to accuracy. Such errors include incorrect: (i) SKU/UPC; (ii) ship-to-address; and (iii) quantity.
16. Return Processing. Merchandise returned to Ruby Has will be inspected and Ruby Has will notify Client of its findings via the System. Client shall advise Ruby Has as to further steps regarding such returned Merchandise. Except to the extent due to the acts or omissions of Ruby Has, Ruby Has shall not be responsible for any loss resulting from Client or Client’s customers' fraud, return short counts, damage, merchant account fees, or disputes between Client and any third party, nor shall Ruby Has be responsible for any third- party shipper damage or errors.
17. Insurance. Client acknowledges that the Merchandise is not insured against loss or damage by Ruby Has, and that Client shall be responsible for obtaining insurance coverage for the Merchandise. Client acknowledges that Ruby Has has highly recommended that Client purchase appropriate insurance from a reputable insurance provider and Client represents and warrants that it has secured such insurance.
18. Limitations of Liability.
a. Order Fulfillment Errors. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, AND WITHOUT LIMITING ANY OTHER RIGHTS OF THE PARTIES, RUBY HAS’ LIABILITY FOR COSTS AND EXPENSES ARISING FROM ORDER FULFILLMENT ERRORS, INCLUDING THIRD PARTY ACTS AND OMISSIONS, AND WHETHER OR NOT SUCH THIRD PARTIES ARE SELECTED BY RUBY HAS OR NOT, SHALL BE LIMITED TO $50.00 PER ORDER.
b. Damage or Loss of Inventory. RUBY HAS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO THE MERCHANDISE (COLLECTIVELY “INVENTORY LOSS”), HOWEVER CAUSED, UNLESS SUCH INVENTORY LOSS RESULTED DIRECTLY AND EXCLUSIVELY FROM THE FAILURE BY RUBY HAS TO EXERCISE SUCH CARE IN REGARD TO THE MERCHANDISE AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES.
CLIENT AGREES THAT RUBY HAS’ LIABILITY UNDER THIS SUBSECTION SHALL BE LIMITED TO THE LESSER OF: (I) THE ACTUAL COST OF THE DAMAGED OR MISSING MERCHANDISE; AND (II) $0.50 PER POUND OF THE LOST OR DAMAGED MERCHANDISE. NOTWITHSTANDING THE FOREGOING, CLIENT AGREES THAT IN ANY EVENT, RUBY HAS’ LIABILITY FOR INVENTORY LOSS WILL NOT EXCEED THE AVERAGE AMOUNT OF CLIENT’S MONTHLY BILLABLE STORAGE FEES IN THE PRECEDING SIX (6) MONTH PERIOD. HOWEVER, IF CLIENT DECLARES AN EXCESS VALUATION AT THE TIME THE MERCHANDISE IS RECEIVED IN THE FULFILLMENT CENTER, AND AN ADDITIONAL MONTHLY PAYMENT IS MADE AT THE TIME SUCH DECLARATION IS MADE, RUBY HAS’ LIABILITY FOR INVENTORY LOSS SHALL BE LIMITED TO SUCH EXCESS VALUE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, RUBY HAS WILL HAVE NO LIABILITY OF ANY KIND WHATSOEVER FOR CLAIMS MADE NINETY (90) DAYS OR MORE AFTER CLIENT BECOMES AWARE (OR SHOULD HAVE BECOME AWARE) OF THE OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH CLAIM.
c. Shrinkage and Inventory Count Inaccuracies. Client hereby acknowledges that Ruby Has will have an 1.5% inventory shrinkage allowance based on the value of Client’s Merchandise known to be in each Fulfillment Center, and its stated cost value, measured on an annual basis (“Allowance”). Errors stemming from Client’s failure to comply with the Receiving Requirements listed in Section 11 shall not be considered an inventory shrinkage event, nor shall they be considered Inventory Loss (under Section 18(b)). IN THE EVENT OF INVENTORY SHRINKAGE IN EXCESS OF THE ALLOWANCE THAT ARE DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING, OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT RUBY HAS IS IN POSSESSION OF MERCHANDISE, AND RUBY HAS IS HELD LEGALLY LIABLE, CLIENT HEREBY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” UNDER SUBSECTION b, ABOVE, AND RUBY HAS LIABILITY SHALL BE LIMITED AS STATED THEREIN.
d. Waiver of Consequential Damages and Limitation of Liability. UNLESS OTHERWISE PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL RUBY HAS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOST SALES REVENUE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, EXCEPT AS EXPRESSLY SET FORTH HEREIN, OR AS PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL RUBY HAS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF STORAGE FEES PAID BY CLIENT IN THE 6 MONTH PERIOD PRECEDING THE OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH LIABILITY.
19. Indemnification. Each party shall indemnify, defend, and hold the other party harmless from and against any and all third-party damages, expenses, fees (including reasonable attorneys’ fees), claims, losses, penalties, fines, and liabilities to the extent arising out of (a) a party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a breach by a party of any of its representations or warranties under this Agreement.
20. Terms subject to change. Unless otherwise clearly stated herein, Client acknowledges that Ruby Has may change the terms of this Agreement from time to time by providing thirty (30) days prior notice to Client either by emailing the email address associated with Client’s account, or by posting a notice on the System. Client can review the most current version of this Agreement at any time at [LINK] or by logging into its account on the System. The revised terms and conditions will become effective and binding upon Client thirty (30) days after Ruby Has notifies Client of such changes. If any change to this Agreement is not acceptable to Client, Client’s only remedy is to terminate this Agreement in accordance with Section 3, of this Agreement.
21. Confidentiality. The parties acknowledge that, subject to the limitations set forth below, all tangible and intangible information and data (of whatever type or description, and whether or not capable of being reduced to a written form) provided by one party (the “Provider”) to the other party (the “Recipient”), or to which the Recipient gains access by any means, at any time and for any purpose, is confidential, proprietary and a trade secret of the Provider (collectively, the “Confidential Information”).The parties may only disclose Confidential Information to employees or third parties subject to confidentiality provisions at least as restrictive as those found herein and who have a need to know such information in performing their duties. Each party will use at least the same precautions to protect the Confidential Information as it would to protect its own confidential information but not less than reasonable precautions. Confidential Information does not include information which was: (i) in the public domain at the time of disclosure; (ii) known to the party free of any confidentiality obligation; (iii) public knowledge by acts other than the recipient’s; or (iv) subject to a legal disclosure obligation, provided that the party obligated to disclose provides the other with prompt notice, cooperates in resisting the disclosure (if applicable), and does not disclose until the other party has a reasonable opportunity to resist disclosure, unless ordered otherwise. Upon termination of this Agreement, each party may request in writing the return or destruction, with written confirmation, of any Confidential Information. The parties understand that monetary damages may be insufficient and agree that a party may also seek equitable remedies to enforce this provision, including but not limited to injunctive relief.
22. Force Majeure. Except for Client’s payment obligations under this Agreement, neither party shall be in breach of this Agreement to the extent and for the duration that the performance of its respective obligations is prevented by causes beyond its reasonable control and without its fault or negligence, e.g. acts of God, severe inclement weather, acts of Government, fires, floods, etc…) (a “Force Majeure Event”). The non-performing party must notify the other of the Force Majeure Event within five (5) Business Days of its occurrence.
23. Assignment. Client may not assign or transfer any of its rights under this Agreement, whether by operation of law or otherwise, without Ruby Has prior written consent, which may be withheld by Ruby Has in its sole discretion. Ruby Has may transfer or assign this Agreement, in whole or in part, at any time, and shall not require Client’s consent. Any purported assignment in violation of this Section 23 shall be deemed null and void. Subject to the foregoing provisions of this Section 23, these terms shall be binding on and inure to the benefit of the parties’ successors and assigns.
24. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of law principles. The courts located in Suffolk County, New York, shall be the exclusive venue for any disputes arising from or relating to this Agreement, the parties hereby consent to the jurisdiction of such Courts, and hereby waive any defense of forum non-convenience.
25. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, negotiations, and oral understandings, and may not be amended or supplemented in any way, except in writing signed by authorized representatives of each party.
26.Client acknowledges that the Coronavirus (COVID-19) pandemic may have unforeseeable and indefinite impacts on the Services to be provided by Ruby Has under the Agreement.
27. Ruby Has will use commercially reasonable efforts to meet all timelines contained in the Agreement, including but not limited to, the Ruby Has Guarantee, but shall not be deemed responsible for failure to do so if as a result of the COVID-19 pandemic.