WINDMILL OPERATIONS — TERMS OF SERVICE
windmilloperations.com
TABLE OF CONTENTS
1. Definitions
2. Applicable Terms, Acceptance, Registration, and Description of Services
3. Access to the Services; Your Content; Account Security
4. Merchant Obligations and Warranties
5. Fees and Payment
6. Fulfillment Services
7. Service Level Agreement
8. Transportation
9. Confidentiality and Publicity
10. Indemnification
11. Insurance
12. Disclaimers
13. Limitation of Liability
14. Termination
15. Assignment
16. General Provisions
Appendix A. Definitions
1. DEFINITIONS
Unless defined elsewhere in this Agreement, capitalized terms set out in the Agreement are defined as set forth in Appendix A.
2. APPLICABLE TERMS, ACCEPTANCE, REGISTRATION, AND DESCRIPTION OF SERVICES
2.1 Terms. Windmill Operations, the trade name of Qommerce Inc, provides Services to you through our Site and the Windmill Operations Platform. In addition to these Terms of Service, the provision of Services is subject to the Policies and the Pricing and Billing Policies (collectively, the "Policies"), all of which are incorporated herein by reference (collectively, the "Agreement"). If there is any conflict between the Terms of Service and the Policies, the Terms of Service shall take precedence. In this Agreement, the terms "including" and "include", or any similar expression, shall not limit the meaning of what follows.
2.2 ACCEPTANCE. BY REGISTERING FOR AN ACCOUNT OR BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO, AND HAVE THE LEGAL CAPACITY AND AUTHORITY TO AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES OR THE WINDMILL OPERATIONS PLATFORM. THE TERMS OF YOUR ORDER SHALL NOT MODIFY THIS AGREEMENT.
2.3 Changes to the Terms of Service and/or the Policies. Windmill Operations may modify this Agreement at any time. Windmill Operations will endeavor to give you notice of any material modifications; however, it is your responsibility to regularly review this Agreement. Any Order that you submit after the effective date of the modifications will be subject to the modified Agreement. If any change to the Terms of Service or Policies is unacceptable to you, you have a right to terminate the Agreement in accordance with Clause 14 of these Terms of Service.
2.4 Registration. You must register for an Account in order for Windmill Operations to provide the Services. As part of the registration process, you will create an administrative username and password for your Account on the Windmill Operations Platform, and you may create additional standard users. By registering for an Account, you confirm that you are the minimum age legally required to register for and use accounts of this nature in your jurisdiction. To complete the registration for your Account, you must provide us with:
Your full legal name;
The company's legal name;
The company's trade or fictitious name (doing business as), if any;
The company's tax number or identifier (if applicable);
Business address of the company's headquarters or principal place of business;
A valid phone number;
A valid business email address;
Countries where the business is incorporated or registered to do business;
Identifying information for any parent company or ultimate beneficial owner of more than ten percent (10%) of the company; and
Any other information indicated as required by Windmill Operations.
Windmill Operations reserves the right to periodically require further information from you and to require you to verify or update your information. If you fail to provide such further information in a timely manner or do not comply with the requirements of this Clause 2.4 within thirty (30) days, Windmill Operations may reject your application for an Account or suspend or terminate the Services and this Agreement until Windmill Operations has received and verified the requested information.
2.5 Description of Services. Windmill Operations's services (the "Services") include performing those activities necessary for and associated with the receipt, counting, storage, picking and packing ("fulfillment"), and arranging the shipment of Goods by Carriers as requested by Merchant. These Services may include providing technology solutions to support one or more of the following: (a) the fulfillment of Goods pursuant to your Orders by Windmill Operations or third-party fulfillment or warehouse providers ("SFN Providers") using Windmill Operations's WMS at Windmill Operations and SFN Provider facilities (collectively, "Windmill Operations Facilities"); (b) the shipment of the Goods by Carriers; (c) access to the Windmill Operations Platform; or (d) data, reports, text, images, sounds, video, and content made available to you through any of the foregoing, including all modifications or updates to such material. Without limiting the foregoing, any other actions that Windmill Operations undertakes related to Merchant's request or direction shall also constitute "Services" for purposes of this Agreement.
2.6 Controlling Language. These Terms of Service were originally written in English. To the extent any translated version of these Terms of Service conflicts or is inconsistent with the English version, the English language version shall govern and control in all respects. Any translation is provided for convenience purposes only and has no legal effect.
3. ACCESS TO THE SERVICES; YOUR CONTENT; ACCOUNT SECURITY
3.1 Access to the Services and Software License. Any Software made available to you by Windmill Operations in connection with the Services, including the Windmill Operations Platform, contains Windmill Operations's Intellectual Property and confidential information that is protected by applicable intellectual property laws and this Agreement. Windmill Operations grants you a non-transferable, non-sublicensable and non-exclusive right and license ("License") to use the Software solely in connection with the Services during the term of this Agreement, provided that you shall not (and shall not allow any third party to) copy, modify, publish, distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, license, sublicense, or otherwise attempt to transfer any right in any Software. You agree not to access the Services by any means other than through the interface provided by Windmill Operations. Any rights not expressly granted herein are reserved. Windmill Operations does not license or grant the right to use any trademark of Windmill Operations or any third party. The License shall terminate immediately if you fail to comply with this Clause 3.1 or any other term of this Agreement, and shall in any event terminate upon the termination or expiration of this Agreement.
3.2 Your Content. You are solely responsible for all data, information, feedback, suggestions, text, content, and other materials, including Personal Information, that you upload, post, deliver, provide, transmit, or otherwise make available to Windmill Operations in connection with your use of the Services, including the weight, dimensions, origin, destination, hazardous materials status and any special handling requirements regarding your Goods ("Your Content"). You agree that Windmill Operations shall not be liable for any delay, loss, damage or costs resulting from any inaccuracy in Your Content. You retain all rights, title and interest in and to Your Content, other than the limited rights expressly granted to Windmill Operations in this Agreement as reasonably needed to carry out the Services. Windmill Operations has the right, but not the obligation, to monitor Your Content. You confirm, warrant and represent that you own all of Your Content and/or have obtained all permissions, releases, rights, or licenses required to enable you to engage in activities associated with the Services, for Windmill Operations to Process Your Content, and to perform its obligations and exercise its rights under this Agreement. You further confirm, warrant and represent that Your Content does not, and will not, violate, infringe or misappropriate any third party's Intellectual Property or privacy rights, and that Your Content does not contain any material that is defamatory, obscene, violent, threatening, abusive, tortious, offensive, harassing or otherwise unlawful.
3.3 Use and Modification of Your Content. You grant Windmill Operations a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable right and license to access, collect, copy, use, store, host, transmit, modify, distribute, display, disclose, and otherwise process ("Process") Your Content: (a) to the extent necessary to provide the Services pursuant to the Agreement; (b) in connection with internal operations including operational analytics, financial reporting, product or Service improvement, audit functions, and archival purposes; (c) to communicate with you about the Services or Windmill
Operations's other products and services; and (d) on an aggregate and anonymous basis for marketing and other lawful purposes.
3.4 Personal Information. To the extent Your Content constitutes Personal Information that is Processed by Windmill Operations in the provision of the Services to you, Windmill Operations and you will comply with the obligations set forth in Windmill Operations's Data Processing Agreement ("DPA"), available at windmilloperations.com/legal/dpa, which is incorporated into this Agreement by reference. Windmill Operations will process such Personal Information in accordance with the DPA.
3.5 Account Confidentiality. 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, except to the extent a failure to maintain confidentiality or any activity conducted under your Account is caused by Windmill Operations or its employees. For support purposes, designated Windmill Operations employees may access your Account, including production data within the dashboard and data storage locations. This access is audited on a regular basis as part of Windmill Operations's internal audit processes.
3.6 Security Acknowledgment. You understand that the operation of the Services, including Your Content, may involve transmission over various networks and to Windmill Operations'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. Unless directly caused by Windmill Operations's negligence, Windmill Operations shall not be liable for unauthorized access to or use of Your Content, or any corruption, deletion, destruction, or loss of any of Your Content.
3.7 Maintenance and Security of Equipment. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including hardware, software, network and telephone services. You shall also be responsible for maintaining the security of your equipment, your Account, passwords, files and for all uses of your Account or your equipment.
4. MERCHANT OBLIGATIONS AND WARRANTIES
4.1 Use of Services. 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 relating to the Services and in the Windmill Operations Platform) will remain with and belong exclusively to Windmill Operations. You shall not: (a) sublicense, resell, rent, lease, transfer, assign, or otherwise commercially exploit or make the Services available to any third party; (b) use the Services in any unlawful manner or in any manner that interferes with or disrupts the integrity, security or performance of the Services; (c) allow any unauthorized person to access your Windmill Operations Account; or (d) modify, adapt, or hack the Windmill Operations Platform, or otherwise attempt to gain unauthorized access to the Windmill Operations Platform or related systems and networks.
4.2 International Trade Compliance. You represent and warrant that neither you nor any of your agents or customers are: (a) located, organized, or resident in any country or territory subject to comprehensive U.S. trade sanctions; (b) a person or entity named on the U.S. Treasury Department's OFAC List of Specially Designated Nationals and Blocked Persons ("SDN List") or any comparable list issued by the United States, United Kingdom, or European Union; (c) otherwise subject to or in violation of applicable OFAC sanctions programs; (d) acting on behalf of any sanctioned person or entity; or (e) owned or controlled by any sanctioned person or entity. You agree to comply with all applicable international trade laws and regulations, including the U.S. Export Administration Regulations, UK Export Control Order (2008), and the EU Dual Use Regulation ("Trade Laws"). You will promptly notify Windmill Operations if you become aware that you are in breach of any of the representations in this Clause.
4.3 Shipping and Legal Requirements. It is your expressly assumed obligation to ensure that your documentation and the instructions you provide specifically, separately, and correctly address any Legal Requirements related to your Goods and the applicable shipping requirements. "Legal Requirements" means all present and future laws, statutes, ordinances, requirements, orders, rules, and regulations of any kind or nature, including all environmental and safety laws, customs, GST and VAT laws and regulations issued or enforced by any federal, state, provincial, or local authority, which govern or apply in any way to your Goods or the shipping requirements applicable to such Goods. To the extent there are Legal Requirements about which Windmill Operations must be aware in order to properly perform the Services, you shall make Windmill Operations aware of all such Legal Requirements in writing prior to requiring the relevant Services, and in respect of new Legal Requirements introduced after registration, no less than sixty (60) days prior to their enactment. If compliance with any Legal Requirement prevents Windmill Operations from performing the Services, or materially increases Windmill Operations's costs, Windmill Operations may suspend performance without liability to you or be reimbursed for any additional costs. Additionally, if at any time Windmill Operations becomes aware of your failure to comply with any Legal Requirements, Windmill Operations may either immediately suspend Services until such non-compliance is rectified or terminate this Agreement by notice with immediate effect.
4.4 Your Goods. You represent, warrant, and covenant that: (a) you have the legal power to enter into and perform your obligations under this Agreement; (b) you are the legal owner of the Goods or have lawful possession and the sole legal right to store and direct the release and/or delivery of the Goods; (c) there are no potential health, safety, or environmental hazards associated with the Goods; (d) the Goods are not mislabeled, misbranded, or adulterated; (e) all information on any shipment or delivery document, including count, weight, description, and condition, is accurate and complete; (f) the Goods do not comprise any prohibited or restricted items under Windmill Operations's applicable policies for the relevant region; (g) the Goods comply with Windmill Operations's Dangerous Goods / HAZMAT Policy; (h) your activities related to the promotion, sale, and distribution of the Goods comply with all applicable laws; and (i) your Goods do not violate the Policies or any applicable laws.
4.5 Rejected Goods. If you do not strictly meet the compliance obligations of Clause 4.4, Windmill Operations may, at its sole discretion, reject your Goods, immediately suspend Services, quarantine your Goods, or immediately terminate this Agreement by notice to you. Any Goods rejected, quarantined, or for which Services have been suspended shall be "Rejected Goods." You may be required to reimburse Windmill Operations for labor costs incurred to process, remove, or package the Rejected Goods. IF YOU DO NOT REMOVE THE REJECTED GOODS WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, WINDMILL OPERATIONS MAY DISPOSE OF THE INVENTORY AND MAY CHARGE YOU A REASONABLE DISPOSAL FEE. YOU SHALL NOT BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS SO DISPOSED IF YOU DO NOT PROMPTLY REMOVE THE REJECTED GOODS UPON WINDMILL OPERATIONS'S WRITTEN REQUEST.
4.6 Import Compliance. You shall comply with all applicable laws and regulations relating to, and bear all costs and responsibilities associated with, importing your Goods into any country or territory, including all customs, duty, VAT/GST laws and regulations, tariff classification, and country of origin determinations. You shall deliver the Goods Delivered Duty Paid (DDP) to Windmill Operations Facilities, with all duties and taxes paid, released for free circulation and free of any encumbrances. You shall not identify Windmill Operations as the importer of record or the merchant of record. Beneficial title and interest in all Goods shall always remain with you. Windmill Operations shall be under no obligation to transport or deliver your Goods if it reasonably believes such actions would contravene any applicable import or export laws or sanctions.
4.7 Fraudulent Orders. It is your sole responsibility to protect yourself from fraud and to pay all Fees related to fraudulent Orders, regardless of whether the Goods are delivered.
4.8 Tracking Goods and Recalls. If your Goods have lot numbers and/or expiration dates ("Tracking Data"), it is your responsibility to provide the Tracking Data to Windmill Operations in a format specified by Windmill Operations. Windmill Operations is under no obligation to inspect your Goods to collect Tracking Data unless agreed in separate writing. If you provide Tracking Data, then Windmill Operations will, upon your written instructions and for an additional fee, manage your Goods on a first expired, first out ("FEFO") basis. In the event of a recall or a notice from a regulatory authority that requires stopping shipment of your Goods, and if Tracking Data has not been provided, Windmill Operations will quarantine all of your Goods at your sole expense and risk, and Windmill Operations will not be liable for any losses, damages, costs, expenses, fines, or penalties arising from such quarantine.
5. FEES AND PAYMENT
5.1 Fees. Unless otherwise specified in your pricing dashboard or applicable rate card, you shall pay the Fees set out in the Pricing and Billing Policies agreed between the Parties.
5.2 Changes to Fees. You acknowledge and agree that due to the nature of the Services, the Fees may be subject to change. Windmill Operations may pass through to you any General Rate Increase (GRI) or other Carrier surcharges related to fuel, dangerous goods, Peak Season, and other carrier surcharges, and Windmill Operations agrees to use commercially reasonable efforts to provide fifteen (15) days prior written notice of any such increases. In the event any of Windmill Operations's Carriers are impacted by a Force Majeure Event, Windmill Operations will pass through applicable surcharges and provide the same notice, if any, that Windmill Operations receives. Windmill Operations may, in its discretion, change other Fees upon thirty (30) days' prior written notice to you. Any Fee changes will only apply to Orders completed after the effective date of such change. Your continued use of the Services following the effective date of any Fee increase constitutes your acceptance of the increased Fees.
5.3 Pricing Quotations. Pricing quotations are estimates based on the best information available to Windmill Operations at the time. All monetary amounts stated in this Agreement and on the Site will be in US dollars unless otherwise specified. The Fees you will be required to pay will depend on the quantity and nature of the Goods, delivery locations, and Carrier Charges. Fees quoted do not include packaging materials unless explicitly stated. Windmill Operations does not accept liability for any Carrier shipping rate discrepancies due to inaccurate or incomplete information provided by you, including incorrect dimensions or weight.
5.4 Reimbursement of Taxes, Chargebacks, and Related Fees. You acknowledge that you are responsible for, and agree to reimburse Windmill Operations for, all sales taxes, transportation taxes, reversals, chargebacks, claims, fees, fines, penalties and other liabilities which may be incurred by Windmill Operations and its subcontractors (including Carriers) in connection with the Services. The aforementioned charges shall be posted to your Account within fifteen (15) days of Windmill Operations's knowledge of such charges. Windmill Operations agrees to be responsible for any B2B chargebacks proven to be caused by a Windmill Operations error up to a maximum of three hundred dollars ($300.00) per purchase order. You must submit a request for any such chargebacks within sixty (60) days of the incurred chargeback.
5.5 Exclusive of International CDT and Transaction Taxes. Customs, duties and taxes on any international shipment are your sole responsibility and will be charged back to you regardless of whether they were included in any initial estimate or whether the Order was delivered. All Fees, charges, and other amounts charged by Windmill Operations to you are exclusive of all applicable value added, sales, CDT, and service taxes ("Transaction Taxes"). You are liable for all Transaction Taxes regardless of the jurisdiction in which they arise.
5.6 Payment Methods. Windmill Operations accepts the following payment methods depending on the nature of the Services: (a) Warehousing, storage, receiving, fulfillment, and related operational services: payment by bank transfer or ACH only; and (b) Shipping and carrier-related charges: processed through Zwift, Windmill Operations's shipping payment platform. By using the Services, you agree to be bound by Zwift's applicable terms and conditions as modified from time to time. Windmill Operations disclaims all liability for any fees charged to you by your bank or by Zwift in connection with the processing of payments.
5.7 Payment Terms, Interest, and Revocation of Discounts. Unless otherwise specified by Windmill Operations, Fees for warehousing and operational services are invoiced monthly and payable within fifteen (15) calendar days of the invoice date. Shipping charges are processed by Zwift on a frequency determined during your Account set-up. If you dispute any invoice charges, you must provide written notice to Windmill Operations within fifteen (15) calendar days after the invoice date, providing reasonable detail of the basis of the dispute. Any undisputed amount shall remain payable in accordance with the applicable payment terms. Unpaid invoice balances shall accrue interest at the rate of one and a half percent (1.5%) per month (18% APR), or the maximum rate permitted by applicable law, whichever is lower, commencing on the sixth (6th) day after the due date. Additionally, if payment is not made by the due date on your invoice, Windmill Operations may, in its sole discretion, revoke all discounted Fees and extended payment terms and revert your Fees to the then-current standard rates.
6. FULFILLMENT SERVICES
6.1 Inbound Shipment Instructions. Prior to any inbound shipment of Goods arriving at a Windmill Operations Facility, you must follow Windmill Operations's Warehouse Receiving Order ("WRO") instructions, provide Windmill Operations with digital bills of lading through the Windmill Operations Platform, and schedule an appointment for inbound freight shipments (non-parcel) prior to their arrival. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. Any inbound inventory received that does not follow the WRO instructions will be classified as an Unidentified Receiving Order ("URO") and shall be subject to delays and additional Fees as set out in Windmill Operations's URO Policy.
6.2 Verification and Inspection. Windmill Operations may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that Windmill Operations has no obligation to verify the quantity, content, condition, or quality of the Goods delivered for storage and/or delivery unless a full inventory count is expressly requested and agreed in writing. Windmill Operations may reject storing and/or delivering any Goods that it reasonably deems to be in violation of Windmill Operations Policies, to be improperly labeled or packaged, or to appear to contain any hazardous, illegal, or adulterated material.
6.3 Outstanding and Pending Orders. If there are any outstanding or pending Orders that need to be fulfilled as a matter of priority ("Priority Order"), you shall notify Windmill Operations of the Priority Order(s) and the requested timeline for processing. Windmill Operations will use its reasonable efforts to fulfill your request but cannot guarantee that Priority Order requests will be fulfilled.
6.4 Returns. All non-Carrier related returns (international and domestic) must follow Windmill Operations's Return Policy. You shall be solely responsible for any Fees and any additional Carrier fees, including shipping, brokerage, or returns processing fees, for Goods that are returned to a Windmill Operations Facility for any reason whatsoever.
6.5 International Returns. International shipments that are not delivered are often returned by the Carrier and assessed for return shipping, brokerage, and returns processing fees. Such fees will be payable by you. Windmill Operations will make reasonable efforts to circumvent international returns or abandoned inventory at your request; however, Windmill Operations reserves the right to charge you fees up to the value of the original Carrier shipping cost plus a fifteen percent (15%) administrative fee.
6.6 Transfers between Windmill Operations Facilities. Windmill Operations may, in its reasonable discretion, transfer your Goods at any time to another Windmill Operations Facility in order to optimize its fulfillment network. You will be notified in writing via your Account where such transfer occurs, so that you have clear oversight of the location of your Goods.
6.7 Restricted Access to Windmill Operations Facilities. Since your Goods may be stored along with the Goods of other merchants, you are not permitted to enter Windmill Operations Facilities or access your Goods without reasonable advance notice and prior express written consent from Windmill Operations and the applicable SFN Provider. Any access granted may be terminated if Windmill Operations or the SFN Provider determines that your access presents a safety risk or unreasonably interferes with operations.
6.8 Warehouseman's Lien. You acknowledge that Windmill Operations maintains a general and continuing lien and security interest under applicable law and pursuant to the terms of this Agreement, against all Goods in its care, custody and control, to secure payment and/or performance of all charges, expenses, costs, obligations, and Fees arising from or related to this Agreement. Windmill Operations has the right to withhold delivery or release of any Goods if you are in breach of any indebtedness or obligation to Windmill Operations. If any such indebtedness or obligation is unsatisfied, Windmill Operations may, at its sole discretion, dispose of your Goods through a public sale, private sale, donation to a non-profit charity, or by having them delivered to a commercial landfill, subject to applicable notice requirements under applicable law.
6.9 Temperature and Humidity Levels. Unless otherwise agreed to in writing by Windmill Operations, Windmill Operations does not represent, warrant or guarantee that any Windmill Operations Facility will maintain a specific temperature range or humidity level, nor shall Windmill Operations be liable for any fluctuations.
7. SERVICE LEVEL AGREEMENT
7.1 Windmill Operations SLAs. Windmill Operations's service level agreements ("SLAs") are as set out in the applicable exhibit, statement of work, or Pricing and Billing Policies agreed between the Parties, or as otherwise published by Windmill Operations at windmilloperations.com/legal/sla. Where the Parties have entered into a Customer Fulfillment Services Agreement incorporating Exhibit A (KPI Framework), the KPI and bonus/malus provisions of that exhibit shall supplement and take precedence over this Clause 7 to the extent of any inconsistency.
7.2 Peak Season SLA Variations. Windmill Operations's SLAs are subject to variation during Peak Season by written notification. Windmill Operations may also vary SLAs based on volume. Please notify Windmill Operations in advance of expected spikes in Order volume using the relevant form or notification channel designated by Windmill Operations.
7.3 SLA Exclusions. SLAs shall not apply: (a) to Orders received on Windmill Operations Holidays; (b) for Goods not currently in stock; (c) for improperly labelled Goods inventory; (d) to Orders where volume forecasts have not been timely provided; (e) to Orders where the volume per Windmill Operations Facility exceeds 20% of the prior thirty (30) day average; (f) to Orders received during a Force Majeure Event; (g) to cross-border shipments; (h) to Orders received while invoices payable by you are past due; (i) to Orders received during an inventory cycle count conducted at your request; (j) where you have made errors when inputting data in relation to the Goods; (k) when Orders are materially affected by the negligent act or omission of a third party under your control; or (l) to Orders received within the first thirty (30) days of Windmill Operations commencing fulfillment operations for you.
8. TRANSPORTATION
8.1 Windmill Operations as Property Broker. You understand and agree that for ground transportation, Windmill Operations acts as a property broker who arranges for licensed independent Carriers to transport your Goods. Windmill Operations is not a Carrier and will only arrange for Carriers to perform the carriage of your Goods. Windmill Operations represents that all Carriers engaged shall (i) have active federal and state operating authority; (ii) not have an "unsatisfactory" safety rating from the U.S. Federal Motor Carrier Safety Administration; and (iii) maintain at least $100,000 of cargo insurance. With the exception of claims for loss or damage to Goods or delayed delivery of Goods, Windmill Operations's liability for its actions as a property broker shall be limited to fifty dollars ($50.00) per incident. Windmill Operations does not act as your agent in respect of any aspect of this Agreement, including the engagement of any Carrier.
8.2 Carrier Selection. In the Windmill Operations Platform, you will choose your preferred shipment option which may identify either a specific Carrier or the expected speed of delivery. Windmill Operations will use commercially reasonable efforts to select the lowest cost method to ship your Goods that complies with the shipment option you have chosen. If the Carrier you select cannot transport the Goods for any reason, Windmill Operations will use commercially reasonable efforts to choose an appropriate alternative Carrier.
8.3 Loss and Damage Claims. Windmill Operations shall only be liable for loss of or damage to your Goods that occurs when the Goods are in Windmill Operations's care, custody and control, and not for any loss or damage that occurs after Goods have been deposited at the specified delivery address. Any claim for loss of or damage to Goods while in transit must be submitted to Windmill Operations within the following timeframes: (a) if a parcel was lost in transit, within forty-five (45) calendar days of the estimated delivery date; or (b) if a parcel was damaged in transit, within thirty (30) calendar days of the actual delivery date. Failure to submit a claim within these deadlines will bar your right to recovery from Windmill Operations. All claims are subject to the limitations of liability set forth in Clause 13. Windmill Operations will only pay a claim to you if and after Windmill Operations has received payment for that claim from the Carrier responsible for the loss or damage.
8.4 Carrier Performance. Windmill Operations will use commercially reasonable efforts to ensure that each Carrier has the necessary approvals, authorities, and licenses to provide the shipping services. You acknowledge that Windmill Operations makes reasonable efforts to determine the suitability of each Carrier but cannot guarantee the standard of performance in relation to the carriage and delivery of your Goods. Windmill Operations shall have no liability for delayed deliveries attributable to the Carrier.
8.5 Shippable Addresses. You are solely responsible for the accuracy and deliverability of the shipping address provided in respect of your Order ("Nominated Address"). If the Goods cannot be delivered to the Nominated Address, you must pay any costs or expenses incurred relating to the return of Goods to Windmill Operations's warehouse, redelivery, reconsignment, and additional storage as a result of the failed delivery.
8.6 Freight and Accessorial Charges. In addition to freight charges, Freight Carriers may invoice Windmill Operations for accessorial charges which may include charges for dropped trailers, trucks ordered but not used, stop-offs, detention, liftgate and other special equipment, and drive unloading/lumper fees ("Accessorial Charges"). You agree to pay Windmill Operations all Accessorial Charges that Windmill Operations pays to Carriers in connection with your Goods.
8.7 Merchant Haulage. Windmill Operations is not liable for any loss or damage to Goods that occurs during Merchant Haulage. "Merchant Haulage" means any instance in which you directly or indirectly through an intermediary other than Windmill Operations engage a carrier to perform transportation services, or purchase a parcel shipping label using your own carrier account or through a third party. Windmill Operations's liability for Goods transported through Merchant Haulage begins when Windmill Operations unloads Goods from the trailer (inbound) and ends when Goods are loaded on a trailer (outbound).
9. CONFIDENTIALITY AND PUBLICITY
9.1 Confidential Information. You and Windmill Operations have each developed certain confidential and proprietary information ("Confidential Information"). Confidential Information shall only include information which is either explicitly designated as "confidential" at the time of disclosure or is by its nature reasonably identifiable as confidential. Confidential Information shall not include information that: (a) was publicly known prior to disclosure; (b) becomes publicly known through no action of the Recipient; (c) is in the rightful possession of the Recipient without confidentiality obligations at the time of disclosure; or (d) is independently developed by the Recipient without reference to the Discloser's Confidential Information.
9.2 Disclosure of Confidential Information. Confidential Information shall at all times remain the property of the Discloser. The Recipient may disclose Confidential Information to its officers, directors, employees, contractors, subcontractors, affiliates, or representatives who require the Confidential Information to perform obligations under this Agreement, provided such persons are subject to confidentiality obligations at least as protective as this Agreement. The Recipient shall promptly notify the Discloser of any unauthorized use or disclosure of Confidential Information. Windmill Operations reserves the right to disclose Confidential Information to the extent required by law or for purposes of judicial or regulatory proceedings.
9.3 Injunctive Relief. The Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Discloser, entitling the Discloser to seek injunctive relief in addition to all legal remedies without showing or proving any actual damage.
9.4 Publicity. Windmill Operations reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on the Site and in other communications with existing or potential merchants. To decline this right, you may notify us at supportwo@windmilloperations.com. You shall not, without the prior express written consent of Windmill Operations, (a) issue any statement or communication acknowledging your relationship with Windmill Operations or its affiliates, or (b) use Windmill Operations's or its affiliates' name or logo in any manner.
10. INDEMNIFICATION
You shall defend, indemnify, and hold Windmill Operations harmless from and against any claims, actions, demands, liabilities (including court costs and attorneys' fees), tax obligations, fines, and penalties arising out of or in connection with: (a) your breach of this Agreement; (b) any actual or alleged infringement of a third party's Intellectual Property rights associated with Your Content; (c) your negligence, fault, omissions, or willful misconduct; (d) your fraud or misrepresentation in connection with the Services; (e) any product liability, infringement, or mislabeling claim arising from your Goods; or (f) your misuse of the Services (collectively, "Claims"). Windmill Operations shall provide notice to you of any Claim and reserves the right to assume the exclusive defense and control of any response to Claims subject to indemnification under this Clause, in which case you agree to cooperate with any reasonable requests assisting Windmill Operations's defense. The indemnity provided by you in this Clause will be reduced only to the extent the loss is caused by Windmill Operations's willful misconduct or gross negligence.
11. INSURANCE
Windmill Operations and its subcontractors are not liable for your Goods beyond the limitations of liability set forth in Clause 13. The warehouse facility at which your Goods are stored maintains Warehouse Legal Liability (WLL) insurance covering the legal liability of the warehouse operator for loss of or damage to goods in its care, custody, and control, subject in all cases to the terms, conditions, exclusions, deductibles, and limits of the applicable policy. Upon your reasonable written request, Windmill Operations may provide a copy of the relevant certificate of insurance. Windmill Operations does not provide cargo, transit, stock throughput, or business interruption insurance for your Goods. You are responsible for determining whether you require additional insurance coverage and for maintaining any such insurance at your own cost and expense.
12. DISCLAIMERS
12.1 Non-Excludable Rights. To the extent that Services are provided in Australia, this Agreement may be subject to consumer protection laws, including the Australian Consumer Law. Nothing in this Agreement is intended to exclude any Consumer Guarantee under applicable law, or either party's liability for fraudulent acts, death or personal injury resulting from negligence, or any other liability that cannot be excluded or limited under applicable law (collectively, "Non-Excludable Rights").
12.2 General Disclaimer. The Services, including use of the Windmill Operations Platform and WMS, 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. Windmill Operations expressly disclaims any and all warranties, whether express or implied, including the warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Windmill Operations does not warrant that the Services will be uninterrupted, timely, secure, error-free, or virus-free, nor does Windmill Operations make any warranty as to the results that may be obtained from use of the Services.
12.3 Services Disruption. The Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance, or due to other causes beyond Windmill Operations's reasonable control ("Service Disruption"). Windmill Operations shall use reasonable efforts to ensure a Service Disruption does not occur during Peak Season, will aim to provide advance notice of any Service Disruption, and shall endeavor to resolve any Service Disruption as efficiently as possible. Windmill Operations shall not be liable for any such unavailability or disruption.
13. LIMITATION OF LIABILITY
13.1 Final Mile Carrier Possession of Goods. You acknowledge and agree that when Final Mile Carriers are in possession of your Goods, the Final Mile Carriers, and not Windmill Operations, are solely responsible for any actual or alleged harms sustained by you or your Goods as determined under applicable law. Goods that are the subject of a delayed delivery or are lost or damaged by a Final Mile Carrier will be managed in accordance with Windmill Operations's Lost in Transit and Damage Claims Policy. Windmill Operations's liability for Goods lost in transit shall not exceed one hundred dollars ($100.00) per parcel. Windmill Operations will only pay a claim to you if and after Windmill Operations has received payment for that claim from the Carrier responsible for the loss or damage.
13.2 Indirect, Special, Exemplary, Consequential, or Punitive Damages. Subject to any Non-Excludable Rights, under no circumstances shall Windmill Operations be liable to you or any third party for any indirect, incidental, special, or exemplary damages, loss of goodwill or reputation, lost profits, lost sales or business, lost data, consequential, or punitive damages. Some jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages. In those jurisdictions, Windmill Operations's liability will be limited to the greatest extent permitted by applicable law.
13.3 Shrink Allowance. Handling Goods within Windmill Operations Facilities may occasionally result in concealed shortages, product damage, mislabeled Goods, or mis-picked Goods. You agree that Windmill Operations will have a 0.5% shrink allowance calculated as total net units divided by total inbounded units, measured on a rolling twelve (12) month basis. Any amount of shrink below this 0.5% threshold constitutes acceptable operational variance and is not reimbursable. Only claims for operational losses exceeding this allowance will be eligible for review.
13.4 Maximum Liability. When your Goods are transported by freight Carrier arranged by Windmill Operations or when your Goods are in a Windmill Operations Facility, Windmill Operations's maximum liability for loss or damage to Goods (including loss from any Goods count inaccuracies) will be limited to the actual product value of the lost or damaged Goods as measured by the original purchase invoice from the manufacturer or supplier, subject to a cap of $1.00 per pound ("Goods Damages Cap"). Furthermore, Windmill Operations's maximum aggregate liability to you for any claims arising from or related to this Agreement shall not exceed the lesser of: (i) $10,000 or (ii) 100% of the aggregate fees actually paid by Merchant for Services during the three (3) month period immediately preceding the event giving rise to the claim. Where the Parties have entered into a Customer Fulfillment Services Agreement, the aggregate liability cap in that agreement shall apply to the extent it is more favorable to Windmill Operations.
13.5 Exclusive Remedy. To the extent permitted by law and subject to any Non-Excludable Rights, the Goods Damages Cap set forth in this Clause shall be your sole and exclusive remedy against Windmill Operations for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of Goods, and shall apply to all such claims, including Goods shortage or any other claims relating to the Services.
14. TERMINATION
14.1 Termination Rights. You have the right to terminate this Agreement for convenience at any time by providing not less than ninety (90) calendar days' prior written notice to Windmill Operations at supportwo@windmilloperations.com, provided you do not have a balance due and owing. If you terminate this Agreement without providing the full ninety (90) calendar days' notice, you shall pay Windmill Operations an early termination amount equal to the fees that would have been payable for the number of days remaining in the notice period, calculated at the average daily rate based on the aggregate fees invoiced during the three (3) full calendar months immediately preceding the date of the termination notice, up to a maximum of three (3) months' average fees. Windmill Operations may terminate this Agreement with or without cause by providing thirty (30) days' prior written notice to the Registered Email Address associated with your Account. Upon any termination, you shall cause all your Goods to be removed from Windmill Operations Facilities prior to the effective date of termination. If you fail to remove your Goods within thirty (30) days of the effective date of termination, you authorize Windmill Operations to dispose of your Goods at your cost. Windmill Operations may, in its sole discretion: (a) immediately terminate this Agreement without liability if you are in breach of Clauses 3.2, 4.2, 4.3, 4.4, 4.6, or 9.2; (b) immediately suspend Services if you fail to pay any amounts due within the specified payment terms; or (c) suspend Services or terminate this Agreement in the event of any other material breach that has not been cured within thirty (30) days of written notification.
14.2 Default. Your failure to pay Fees or other indebtedness on or before the due date is a material breach of this Agreement and constitutes a default. Windmill Operations will notify you of the default. If you are in default, all amounts owed to Windmill Operations are immediately due and payable and your total account balance will begin to accrue interest in accordance with Clause 5.7. If you fail to cure your default within sixty (60) days of Windmill Operations's notice, Windmill Operations may exercise its right to sell or otherwise dispose of your Goods at your cost as specified in Clause 6.8.
14.3 Consequences of Termination. Your Content may be permanently deleted by Windmill Operations upon any termination of your Account. All rights to payment shall survive termination or expiration of this Agreement. Any provision that by its nature is intended to continue after termination shall remain in full force and effect. Windmill Operations shall reasonably cooperate to transition services to you or your designee. Prior to removing all remaining Goods following termination, you shall pay Windmill Operations all current fees outstanding for Services. Windmill Operations will remit to you any surplus paid in respect of removal fees to the extent actual fees are less than amounts paid.
15. ASSIGNMENT
You may not assign or transfer this Agreement without the prior written consent of Windmill Operations, which will not be unreasonably withheld or delayed. Windmill Operations may assign or transfer this Agreement, in whole or in part, without restriction, including in connection with a merger, acquisition, restructuring, or sale of all or substantially all of its business or assets. This Agreement is binding upon, and will inure to the benefit of, the successors and permitted assigns of the parties.
16. GENERAL PROVISIONS
16.1 Entire Agreement. To the extent permitted by law and subject to any Non-Excludable Rights, 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, and understandings relating to the subject matter of this Agreement, except that where the Parties have also executed a written Customer Fulfillment Services Agreement, the terms of that agreement shall take precedence over this Agreement to the extent of any inconsistency.
16.2 Severability. 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.
16.3 No Waiver. The failure of either party to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.
16.4 No Agency or Partnership. 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 Windmill Operations in any respect whatsoever.
16.5 Conflict of Terms. Except as specifically set forth in a signed agreement, the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement relating to the Services.
16.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; or upon the date of delivery as confirmed by the third-party postal service provider. Notices to Windmill Operations should be sent to: Qommerce Inc d/b/a Windmill Operations, 1050 Water St Unit 1629, Tampa, FL 33602, or by email to supportwo@windmilloperations.com.
16.7 Force Majeure. Neither party will be liable for any failure to perform or delay in performing any of its obligations under the Agreement (other than any obligation to pay) where such failure is caused by a Force Majeure Event. "Force Majeure Event" means any event beyond the reasonable control of the affected party, including acts of God, hurricane, flood, tornado, earthquake, pandemic, epidemic, civil commotion, strikes, labor disputes, failure of utility providers, intentional acts of third parties, embargo, governmental interference or regulations, closure of public highways, railways, airways, or shipping lanes, or other contingencies similar to the foregoing. The affected party shall use reasonable efforts to mitigate the effects of any Force Majeure Event and resume performance as soon as reasonably practicable.
16.8 Governing Law, Venue, and Dispute Resolution. This Agreement and all claims or disputes between the parties shall be governed by the laws of the State of Florida, without regard to its conflict of laws provisions. Any dispute, controversy, or claim arising out of or in connection with this Agreement shall be resolved by final and binding arbitration in the State of Florida in accordance with the rules of the American Arbitration Association. Notwithstanding the foregoing, either party may seek temporary or injunctive relief before any court of competent jurisdiction where necessary to protect its rights pending the outcome of arbitration. Judgment upon any arbitration award may be entered in any court of competent jurisdiction.
APPENDIX A — DEFINITIONS
"Accessorial Charges" has the meaning set forth in Clause 8.6.
"Account" means your Windmill Operations account registered in order for Windmill Operations to provide the Services.
"Agreement" has the meaning set forth in Clause 2.1.
"APR" means annual percentage rate.
"Carrier(s)" means the independent third-party carriers or motor carriers responsible for the actual performance of the carriage of your Goods.
"Carrier Charges" means all costs and fees associated with the carriage of Goods undertaken by or on behalf of Windmill Operations.
"CDT" means customs, duties, and taxes as referenced in Clause 5.5.
"Claims" has the meaning set forth in Clause 10.
"Confidential Information" has the meaning set forth in Clause 9.1.
"Data Processing Agreement or DPA" has the meaning set forth in Clause 3.4.
"DDP" means Delivery Duty Paid as defined in the Incoterms developed by the International Chamber of Commerce.
"Discloser" has the meaning set forth in Clause 9.1.
"Fee or Fees" means the fees for any Services together with any third-party fees including Carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, or any other third-party charges incurred by Windmill Operations in relation to your use of the Services.
"FEFO" means first expired, first out, as referenced in Clause 4.8.
"Final Mile Carrier" means a Carrier responsible for the actual transportation of your Goods from a Windmill Operations Facility to the end customer's address.
"Force Majeure Event" has the meaning set forth in Clause 16.7.
"Freight Carrier" means a Carrier responsible for freight transportation of your Goods as arranged by Windmill Operations.
"fulfillment" means the receipt, counting, storage, picking, and packing of Goods.
"General Rate Increase or GRI" means such increase or increases as are applied by individual Carriers in relation to their operations for Windmill Operations.
"Goods" means the physical goods sold by you.
"Goods Damages Cap" has the meaning set forth in Clause 13.4.
"Intellectual Property" means all intellectual property of any nature whatsoever, whether registered or unregistered, including software programs, confidential information, trade secrets, patents, copyright, designs, trade and service marks, and domain names.
"Legal Requirements" has the meaning set forth in Clause 4.3.
"License" has the meaning set forth in Clause 3.1.
"Lien" has the meaning set forth in Clause 6.8.
"Merchant, you, your" means you as the merchant to whom Windmill Operations provides Services.
"Merchant Haulage" has the meaning set forth in Clause 8.7.
"Nominated Address" has the meaning set forth in Clause 8.5.
"Non-Excludable Rights" has the meaning set forth in Clause 12.1.
"OFAC" means the U.S. Treasury Department's Office of Foreign Assets Control.
"Order" means an order by your customer for Goods sold by you.
"Peak Season" means the dates between the fourth Thursday of November and December 24 (inclusive).
"Personal Information" means any data or information that constitutes personal information, personal data, or any analogous term under applicable law, including information relating to an identified or reasonably identifiable natural person.
"Policies" has the meaning set forth in Clause 2.1.
"Priority Order" has the meaning set forth in Clause 6.3.
"Process" has the meaning set forth in Clause 3.3.
"Recipient" has the meaning set forth in Clause 9.1.
"Registered Email Address" means the email address you have provided to Windmill Operations for your Account.
"Rejected Goods" has the meaning set forth in Clause 4.5.
"Representatives" has the meaning set forth in Clause 9.2.
"SDN List" has the meaning set forth in Clause 4.2.
"Service Disruption" has the meaning set forth in Clause 12.3.
"Services" has the meaning set forth in Clause 2.5.
"SFN Providers" has the meaning set forth in Clause 2.5.
"Site" means Windmill Operations's website at windmilloperations.com.
"SLAs" has the meaning set forth in Clause 7.1.
"Software" means any software made available to you by Windmill Operations in connection with the Services.
"Terms of Service" means these terms of service found at windmilloperations.com/terms-of-service.
"Trade Laws" has the meaning set forth in Clause 4.2.
"Tracking Data" has the meaning set forth in Clause 4.8.
"Transaction Taxes" has the meaning set forth in Clause 5.5.
"URO" means Unidentified Receiving Order, as referenced in Clause 6.1.
"Windmill Operations, we, our" means Qommerce Inc, trading as Windmill Operations, and its affiliates.
"Windmill Operations Facility or Windmill Operations Facilities" has the meaning set forth in Clause 2.5.
"Windmill Operations Holiday or Windmill Operations Holidays" means the public or federal holidays observed by Windmill Operations Facilities in each applicable country.
"Windmill Operations Platform" means Windmill Operations's proprietary platform and associated technology for purposes of managing Goods, submitting Orders for Services, and fulfilling Orders.
"WMS" means Windmill Operations's proprietary warehouse management system.
"WRO" means Warehouse Receiving Order, as referenced in Clause 6.1.
"Your Content" has the meaning set forth in Clause 3.2.
"Zwift" means Windmill Operations's designated third-party shipping payment platform used for the processing of carrier-related charges.
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