Lennox Company Client Portal
General Terms and Conditions
Lennox Company, a Colorado corporation (the “Company”) has developed an internet-based hosted platform which is accessible via <> (the “Portal”) to provide real time access and data related to receiving, warehousing, inventory management and fulfillment services (collectively, the “Services”) to be performed by the Company in connection with the various corporate gift programs (each, a “Program”) operated by the client whose authorized representative has accessed the Portal (the “Client”). These General Terms and Conditions (the “Terms”) describe the terms and conditions for use of the Portal. The Company shall use commercially reasonable efforts to provide continuous 24 hours a day, 7 days a week access to the Portal. Notwithstanding the foregoing, Client acknowledges and agrees that access to the Services may be unavailable due to: (i) maintenance and downtime in accordance with the Company’s then-current policies and procedures; (ii) the occurrence of Force Majeure Events (as defined below); (iii) interruptions and delays in internet service that are beyond the reasonable control of the Company, including without limitation, the malicious, negligent and/or other actions or failures to act on the part of any third party; and/or (iv) any changes in applicable law or other government regulations. By clicking to accept this Agreement, Client acknowledges and agrees that: (1) electronic acceptance of these Terms is intended to have the same force and effect as if these Terms have been physically signed by the parties; and (2) it has been authorized to use and access the Services hosted by the Portal.
Now, Therefore, the parties hereto agree as follows:
1. Access to the Portal; Authorized Users. (a) Subject to the terms and conditions set forth herein, the Company grants to Client a limited, non-exclusive, non-transferable and revocable right to use and access the Portal solely and exclusively in connection with the Programs. (b)Client acknowledges and agrees that only the persons that are employees of Client and invited as authorized users of Client (collectively, the “Authorized Users”) shall be permitted to access and use the Portal. (c) The Company shall activate login credentials for each of the Authorized Users, each of whom shall create a secure password associated with their respective login credentials (each a “Login”). (d) In the event Client desires to add, remove and/or replace any of its Authorized Users, Client shall authorize the same in accordance with the requirements set forth in the Portal. Thereafter, the Company shall: (i) activate the Login assigned to any new or replacement Authorized User; and (ii) deactivate the Login assigned to any Authorized User to be removed or replaced.
(e) Client acknowledges and agrees that: (i) its Authorized Users shall not share their Logins with any third parties, regardless of whether such third parties are employees or independent contractors of Client or otherwise affiliated with Client; (ii) its Authorized Users shall maintain the confidentiality of their respective Logins; (iii) its Authorized Users shall update and change their Login credentials in accordance with Transaction Party’s then-current security policies and procedures. (f) The Company shall have the right, exercised at any time in its sole discretion, to audit Client’s access and use of the Portal in order to verify the authenticity of each of its Authorized Users and to otherwise ensure Client’s compliance with these Terms. In the event the Company reasonably determines that an Authorized User has disclosed its Login to a third party or that a third party has accessed and used the Portal via an Authorized User’s Login, the Company in its sole discretion shall have the right to immediately disable and temporarily or indefinitely suspend such Login and/or forever terminate such Authorized User’s rights of access and use of the Portal.
2. Programs. Client has set forth the specifications for the items comprising the gift products (collectively, the “Inventory”) be curated, procured, assembled, packaged and shipped to recipients during the tenure of the Program in a separate Program Agreement, which includes, if applicable: (a) the details regarding the items of Inventory that comprise each Gift Product (as defined in the applicable Program Agreement); (b) the fulfillment fees for each assembly of the Gift Products to be packaged and fulfilled in the Program; and (c) the warehouse fees for storing and warehousing the Inventory.
3. Inventory Management. (a) Client shall be responsible for the ongoing procurement of Inventory consisting of such items and in such quantities as determined by Client at Client’s expense. Client shall timely pay for all costs associated with the procurement of the Inventory in accordance with the terms of the applicable suppliers therefor and, upon request, deliver to the Company copies of supplier orders and/or invoices for the Inventory. (b) The Company shall receive, inspect for quality assurance and warehouse the items of Inventory in its warehouse facilities until its receipt of Fulfillment Orders (as defined in the applicable Program Agreement) in accordance with the Company’s then-current procedures and quality control and assurance protocols. Without limiting the generality of the foregoing, the Company, in its sole discretion, shall have the right to move or relocate Inventory between its various warehouse facilities without any obligation to deliver to Client prior written notice of any such relocation. (c) Client acknowledges and agrees, upon the delivery of written notice to Client (a “Stale Inventory Notice”), the Company shall have the right to deem certain items of Inventory that either: (i) no longer comprise a current Gift Product; (ii) are food products with expiration dates that have passed; or (iii) are related to Gift Products for which no Fulfillment Orders have been received for at least six (6) consecutive calendar months, as “stale” Inventory (collectively, the “Stale Inventory”). Upon the delivery of written notice to the Company within the thirty (30) day period following Client’s receipt of a Stale Inventory Notice, Client may, at Client’s expense, direct the Company to re-package and deliver the Stale Inventory to such location as specified by Client in such written notice. If the Company does not receive any such direction from Client within such 30-day period, the Stale Inventory shall be deemed abandoned by Client and the Company shall have the authority to dispose of the Stale Inventory in any manner as reasonably determined by the Company, including without limitation, the donation of any items of the Stale Inventory to charitable organizations as selected by the Company. (d) Except for any items of Inventory that are identified as “promotional” items (the “Promotional Inventory”), the Portal shall maintain a “real time” count of each SKU of Inventory. Promotional Inventory counts reflected in the Portal will be estimated. (e) Promotional Inventory shall be warehoused and fulfilled in applicable “case” quantities.
4. Fulfillment Orders. (a) Periodically during the duration of each Program, Client shall enter fulfillment orders via the Portal (each a “Fulfillment Order” and collectively, the “Fulfillment Orders”) which shall specify quantities of the Gift Products and names, addresses and desired delivery dates for the third parties to receive the same (each a “Recipient” and collectively, the “Recipients”). (b) For each Fulfillment Order, Client is solely responsible for correctly entering where applicable via the Portal: (i) the desired quantities and SKUs of each Gift Product; and (ii) Recipient shipping information, including all address details. The Company shall not be responsible for Gift Products that are not properly delivered to the Recipients due to errors on the part of Client. Client shall be responsible for any additional shipping or delivery costs incurred as a result of any such errors.
5. Shipping and Delivery. (a) The Company shall use commercially reasonable efforts to facilitate the delivery of the Fulfillment Orders via Client’s account for such ground transportation carrier as entered where applicable in the Portal. Client shall be responsible for the payment of all costs of shipping each Fulfillment Order (the “Fulfillment Order Shipping Costs”) in accordance with the payment terms required by its ground transportation carrier. (b) For all Fulfillment Orders with an aggregate value of $500 or more, shipping insurance will be automatically added to cover the same and shall be a line item of the Fulfillment Order Shipping Costs for such Fulfillment Orders. (c) Title and risk of loss shall pass to Client upon the ground transportation carrier’s retrieval of Fulfillment Orders from the Company’s location. After title and risk of loss have passed to Client, Client acknowledges and agrees that the Company shall not be liable or otherwise responsible for freight loss, shortage or casualty damage caused by or attributable to the carrier. Notwithstanding the foregoing, the Company shall use commercially reasonable efforts on Client’s behalf to pursue any claims of freight loss, shortage or casualty damage directly with the applicable carrier. The Company shall initiate the delivery of a replacement Gift Product for any Gift Product damaged or lost in transit at Client’s expense. (d) Client acknowledges that the Company shall not be responsible for any delays with respect to international delivery destinations due to customs and Client shall be solely responsible for the payment of any tariffs, duties or similar charges incurred in connection with international shipping.
6. Returns; Restocking. (a) Client acknowledges that: (i) it is solely responsible for the selection of all items of Inventory, including without limitation, quality, styles, quantities, colors and sizes; and (ii) all Fulfillment Orders are final and Client and Recipients are not permitted to return or exchange any Gift Products from the remaining Inventory so long as the quantities and SKUs actually delivered for a Fulfillment Order match the corresponding Portal records. The Company shall not accept any returns or exchanges of Fulfillment Orders unless the items delivered do not match the corresponding Portal records for such Fulfillment Order. (b)Notwithstanding anything to the contrary set forth in Section 6(a) above, return and restocking requests made by Client shall be considered on a case-by-case basis, and if accepted any such returns or restocking will be subject to such restocking fees as reasonably required by the Company.
7. Payment. (a) Client shall pay the Receiving Fees, Warehouse Fees, Fulfillment Fees and restocking fees (if applicable) accrued during the preceding calendar quarter on a “net 15” day basis. (b) All amounts past due shall accrue interest thereon at the rate of 1.5 % per month (the “Late Charges”), compounded monthly, from the applicable due date until paid in full. (c) To secure Client’s payment obligations as set forth herein, the Company hereby reserves a security interest in and to the Inventory warehoused and stored in the Company’s warehouse facility and Client acknowledges and agrees that the Company may file such UCC-1 financing statements against Client as deemed reasonably necessary by the Company in order to perfect such security interest.
8. Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH ELSEWHERE HEREIN, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PORTAL, THE SERVICES, THE INVENTORY, THE GIFT PRODUCTS OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND THE COMPANY HEREBY SPECIFICALLY DISCLAIMS THE SAME. NO TRADE USAGE OR PRIOR COURSE OF DEALING SHALL BE USED IN THE INTERPRETATION OR CONSTRUCTION OF THE TERMS AND CONDITIONS SET FORTH HEREIN. CLIENT ACKNOWLEDGES AND AGREES THAT: (a) THERE ARE NO EXPRESS OR IMPLIED WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE RELATED TO THE SAME; AND (b) THE ACKNOWLEDGMENTS AND DISCLAIMERS OF WARRANTIES SET FORTH HEREIN ARE AN ESSENTIAL PART OF THE AGREEMENT BETWEEN THE PARTIES.
9. Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THE PORTAL, THE SERVICES, THE INVENTORY, THE GIFT PRODUCTS OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Force majeure. Except for the obligation to pay money as set forth elsewhere herein, each party shall be excused from delays applicable to the performance of their respective obligations as set forth herein without incurring any liability for any loss or damage whatsoever resulting from it to the extent such performance is impeded, hindered or otherwise made impracticable as a result of the occurrence of acts of God or other natural disasters, pandemic, war, terrorism, revolution, fire, labor unrest or unfavorable legal regulation of any kind.
11. Assignment. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign these Terms or assign or delegate any of its rights, interests or obligations set forth herein without the prior written consent of the other party, except that each party may, without the prior written consent of the other, assign its rights, interests or obligations hereunder in connection with any sale of substantially all of its assets or any merger with another entity.
12. Notices. All notices, and other communications provided for in these Terms shall be in writing and mailed, sent or delivered to the receiving party at the address set forth above, or to such other address or email address as may be designated from time to time by a party in writing to the other party.
13. Governing Law; Venue; Jurisdiction; Jury Trial Waiver. These Terms shall be governed by and construed in accordance with the laws of Colorado, including all matters of construction, validity and performance. The parties agree that any action or proceeding commenced under or with respect to these Terms shall be brought only in the district or county courts of Denver County, Colorado, and the parties irrevocably consent to the jurisdiction of such courts and waive any right to alter or change venue, including by removal. EACH PARTY HERETO WAIVES ITS OR THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY SUIT, CLAIM, CAUSE OF ACTION OR OTHER ACTION TO ENFORCE ANY TERM OR CONDITION OF THE ORDER OR OTHERWISE ARISING OUT OF OR RELATED TO THESE TERMS.
14. Legal Expenses. In the event either party institutes any legal action to enforce or construe any provision of these Terms (including in any arbitration), the non-prevailing party shall pay to the prevailing party the reasonable costs and expenses (including legal fees) incurred by such prevailing party in connection therewith.
15. Entire Agreement; Severability; Waiver. These Terms constitute the entire agreement between the parties hereto concerning the matters covered herein and supersedes all prior agreements and/or understandings, between the parties, whether written or oral, concerning the matters addressed herein, and there are no understandings, agreements, representations or warranties, express or implied, which are not specified in writing and signed by the parties hereto. In the event that any of the terms of the order are or become illegal or unenforceable, such terms shall be null and void and shall be deemed deleted from the order and all the remaining terms of the order shall remain in full force and effect.