Marksman Refurbishment Service Center – Service Disclosure and Agreement
For the purpose of this Service Disclosure and Agreement, the following capitalized terms shall have their defined meaning:
“Customer” means a Merchant (as defined herein) that has entered into a transactional relationship with Marksman through the Marksman Inventory Management System and has acknowledged and agreed to comply with this Service Disclosure and Agreement as well as the service Privacy Agreement and User Service Agreement.
“Goods” means any products or items sent to Marksman by the Customer or by a consumer directly, for the purpose of Services rendered under this Agreement.
“Inventory Management System” means the web enabled status tracking software proprietary to Marksman. Any photos or content created on this Inventory Management System shall be copyrighted to Marksman. The Customer is granted a limited license to use any content for the purpose of furthering the Services rendered herein. Any misuse by the Customer shall be subject to enforcement including any breach remedies accorded under the laws of contract.
“Marksman RCS” or “Marksman” shall include its officers, directors, agents, and employees.
“Merchant” means a person who deals in goods of the kind or otherwise by occupation/reputation holds out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by a reasonable prudent person.
Marksman RCS (“Marksman” or “Marksman RCS”) offers the following Service Option(s) to its Customers:
⃝ Level 1: Receive and Forward Returns
Inventory Management System (status tracking)
receive your sales returns
send automatic notifications
consolidate returned items
ship completed inventory as needed - discounted FedEx and USPS rates
⃝ Level 2: Inspect Returned Items
Receive and Forward Returns
inspect each return (for damages and correct items)
missing parts / components
wrong item returned
⃝ Level 3: Test & Recondition
Receive and Forward Returns
Inspect Returned Items
test features for functionality
replace missing/damaged components
product grading (in accordance with Amazon guidelines)
commenting on issues and product grade
Marksman shall furnish necessary space, sufficient labor, supervisory personnel and equipment as may be required to properly perform the following Services as applicable to each Customer’s chosen Service Option(s):
loading and unloading of Goods
inspect incoming loads for damage to Goods
notify Customer of damages or other issues
initiate proper documentation, which shall include photographs of such damage to Goods for use in support of any such damage claim against carrier
load outgoing loads and inspect loads for damaged Goods as required
maintain a current inventory of incoming and outgoing Goods
complete a physical inventory count upon the written request by Customer
maintain current web-based inventory count
Customer shall be charged a fee for the performance of such Services as documented by invoice sent to the Customer.
Customer is responsible to insure all Goods delivered to marksman under the provisions of this Agreement and shall provide evidence of such insurance to Marksman within thirty (30) days of execution of this Agreement or upon demand by Marksman.
Goods are not insured by Marksman against loss or damage, except for loss or damage directly resulting from the failure by Marksman to exercise such care in regards to said Goods as a reasonably careful person would exercise under like circumstances.
Transfer, Termination of Storage, Removal of Goods
Marksman reserves the right, upon forty-five (45) days notice, to move at its expense, Goods to any other warehouse operated by Marksman.
Marksman may, without notice, move Goods within any of its facilities in which they are stored.
Marksman may, upon written notice as required by law, require the removal of the Goods, or any portion thereof, from the warehouse upon payment of all charges attributable to said Goods, within a stated period, not less than thirty (30) days after such notification. If said Goods are not so removed, Marksman may sell them as provided by law and shall be entitled to exercise any other rights it has under the law with respect to said Goods.
If Marksman, in good faith, believes that the Goods are about to deteriorate or decline in value to less than the amount of the Marksman’s lien before the end of the thirty (30) day period referred herein, Marksman may specify in the notice any reasonable shorter time for removal of the Goods not less than twenty (20) days.
If, as a result of quality or condition of the Goods of which Marksman had no notice at the time of deposit, the Goods are a hazard to other property or to any Marksman facilities or to persons, upon ten (10) days written notice to Customer, the Goods may be removed and/or disposed of by Marksman as permitted by law. All charges related to said removal shall be paid by Customer.
Handling charges cover the ordinary labor involved in receiving Goods at warehouse door, placing Goods in storage, and returning Goods to warehouse door.
Additional expenses incurred by Marksman in receiving and handling damaged or hazardous Goods or in unloading from or loading into cars or other vehicles not at warehouse door will be charged to Customer.
Materials used in loading rail cars or other vehicles are chargeable to Customer.
Marksman shall not be liable for demurrage, delays in unloading inbound cars, or delays in obtaining and loading cars for outbound shipments unless such demurrage and/or delays are the result of Marksman’s failure to exercise reasonable care.
Access to Goods and Release of Goods
During normal business hours, Customer shall have full access to inspect (and make copies of, if applicable) its Goods, the warehouse, such records and papers as they pertain to Goods and the handling thereof.
Customer shall also have the right to complete its own physical inventory count of its Goods in the warehouse at any time.
No Goods shall be delivered by Marksman to Customer, or its designee, except upon receipt by Marksman of complete written instructions properly signed by Customer, provided however that Goods may be delivered, upon Customer’s instruction, by telephone in accordance with prior written authorization, provided that Marksman shall have no liability for loss or error resulting from oral instructions; or Customer’s instructions, by internet / email through Marksman’s web-based Inventory Management System.
When Goods are ordered out of storage, a reasonable time shall be given to Marksman to carry out such instructions. If Marksman is unable to carry out such instructions because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots, and civil commotion, or any other reason beyond Marksman’s reasonable control, or loss or destruction of Goods for which Marksman is not liable, or any other excuse provided by law, Marksman shall not be liable for failure to carry out such instructions, and Goods remaining in storage shall continue to be subject to regular storage charges.
If Marksman cannot carry out such instructions within forty-eight (48) hours of Customer’s request, Marksman shall grant Customer access and Customer shall the right to enter the warehouse and remove its Goods as previously requested in its sole discretion.
Extra and Special Services
Marksman warehouse handling and storage will be charged to Customer at the rates in the attached Schedule of Rates.
Dunnage, bracing, packing materials, or other special supplies may be provided by Marksman for a charge.
Communication expenses, including, but not limited to: postage, facsimile and telephone expenses may be charged to Customer, except expenses incurred for normal inventory reporting.
A month-end computer generated inventory report will be mailed along with each monthly storage/handling invoice.
Marksman shall not be liable to Customer for any loss and/or destruction of and/or damage to Goods stored, unless such loss and/or destruction and/or damage directly resulted from the failure by Marksman to exercise such care in regard to said Goods as a reasonably careful person would exercise under like circumstances. In no event will Marksman be liable for loss, destruction, and/or damage which could not have been avoided by the exercise of such care.
Pursuant to the terms above, Customer declares and agrees that the amount of Marksman’s liability to Customer is limited to the wholesale value as supported by industry publications. Customer shall notify Marksman prior to sending the Goods if such Goods’ value exceeds $5,000.
The Marksman’s liability referred to herein shall be Customer’s exclusive remedy against Marksman for any claim or cause of action whatsoever relating to loss, damage and/or destruction of Goods and shall apply to all claims including inventory shortage and mysterious disappearance claims unless Customer proves by affirmative evidence that Marksman converted the Goods to its own use. Customer waives any rights to rely upon any presumption of conversion imposed by law. In no event shall Customer be entitled to incidental, special, punitive, or consequential damages.
Product liability. Customer shall indemnify and hold Marksman harmless from any and all claims, injury, loss or damage to personal property, liabilities and costs (including attorney’s fees), or any events incidental to any services provided by Marksman. If Marksman incurs any of these types of expenses, Customer agree to reimburse Marksman. In any event, Marksman, and its consultants, partners, agents and employees, shall not be liable to the Customer or end consumer(s), whether jointly, severally or individually, in excess of the compensation paid to Marksman under this Agreement, or in excess of the sum of $1,000, whichever is greater, as a result of any act or omission not amounting to a willful or intentional wrong.
Notice of Claim and Filing of Suit
Marksman shall not be liable for any claim of any type whatsoever for loss and/or destruction of and/or damage to Goods unless such claim is presented, in writing, within a reasonable time, not exceeding sixty (60) days after Customer learns or, in the exercise of reasonable care, should have learned of such loss, destruction and/or damage.
As a condition precedent to making any claim and /or filing any suit, Customer shall provide Marksman with a reasonable opportunity to complete a supervised inspection of the goods which are the basis of Customer’s claim.
Marksman shall provide Customer and/or Customer’s insurance company, and its agents, with a reasonable opportunity to complete a supervised inspection of the goods which are the basis of Customer’s claim and the warehouse in which such goods were stored.
No lawsuit or other action may be maintained by Customer or others against Marksman with respect to the Goods unless a timely written claim has been made as provided in Paragraph (A) of this section and unless Customer has provided Marksman with a reasonable opportunity to complete a supervised inspection of the Goods as provided in Paragraph (B) of this section and unless such lawsuit or other action is commenced within nine (9) months after Customer learns or, in the exercise of reasonable care, should have learned of the loss and/or destruction of and/or damage to the Goods.
Marksman shall have a lien against the goods and on the proceeds thereof for all charges for storage, handling, transportation (including demurrage and terminal charges), labor and other charges present or future with respect to the Goods, advances or loans by Marksman in relation to the Goods and for expenses necessary for preservation of the Goods or reasonably incurred in their sale pursuant to law. Marksman further claims a lien on the Goods for all such charges, advances and expenses in respect to any other property stored by Customer in any warehouse owned or operated by Marksman or its subsidiaries wherever located and whenever deposited and without regard to whether or not said other property is still in storage.
Upon the removal of Goods from Marksman’s warehouse and Customer’s payment of charges relating to such specific Goods, Marksman hereby agrees to execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the removal of any and all liens Marksman may have on such Goods.
Customer represents and warrants that it either
is the lawful owner of the Goods which are not subject to any lien or security interest of others; or
is the authorized agent of the lawful owner and /or any holder of a lien or security interest and has full power and authority to enter into the agreement incorporated into this Agreement.
Customer agrees to notify all parties acquiring any interest in the Goods and to obtain, as a condition of granting such an interest, the agreement of such parties to be bound by the terms and conditions of this Agreement.
All written notices provided herein may be transmitted by any commercially reasonable means of communication and directed to Marksman at the mailing address on the signature page hereof and to Customer at the mailing address on the signature page hereof or at its last known address. Customer is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section within five days of transmittal.
This Agreement, which incorporates the Privacy Agreement and User Service Agreement, shall constitute the entire agreement between Marksman and Customer relating to the Goods and supersedes all existing agreements between them whether written or oral and shall not be changed, amended or modified except by written agreement signed by representatives of Marksman and Customer.
Waiver of Subrogation
Marksman and Customer each waive, release and discharge the other party and its respective officers, directors, shareholders, employees and agents from all claims and /or demands whatsoever which the releasing party may have or acquire arising out of and/or relating to personal injury and/or property damage, including, without limitation, loss, damage and/or destruction to the Goods, to the extent that the releasing party has valid and collectible insurance coverage for such personal injury and/or property damage, whether such claim or demand may arise because of the negligence or fault of the party being released.
Fees and Expenses. Customer agrees to pay all reasonable fees and expenses of Marksman (including, but not limited to reasonable attorneys’ fees and court costs) incurred by Marksman in any action by Marksman to collect any of its reasonable charges, to enforce its lien or any of its rights under this Agreement, or to which it is made a party due to its status as bailee of the Goods.
Binding Effect. Customer and Marksman agree that this Agreement shall be binding on their heirs, assigns, and successors.
Severability. In any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those to which it is held invalid, shall not be affected hereby.
Execution. This Agreement may be executed in any number of counterparts, or digitally, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement.
Marksman is not required to comply with Federal Information Security Management Act generally. Customer shall have the responsibility to notify Marksman that such compliance is required.
Marksman’s employees and/or agents may be Cisco certified, or holds other professional or industry licenses or certifications; and Marksman makes no representations or warranties regarding these certifications or licenses.
Any personally identifiable information provided to Marksman incidentally or otherwise is the responsibility and obligation of the Customer. Marksman shall take every effort to comply with state and federal laws to protect consumer and/or individual privacy. Customer shall indemnify and hold harmless for any compliance failure due to Customer’s negligence.
Warranty of License & Permit Compliance & Indemnification of Marksman.
Customer hereby represents and warrants that it has obtained such authority, licenses or permits from such individual, business entity, local, state and federal agencies as shall be necessary for Customer to authorize Marksman to perform the storage, shipment and other services requested in accordance with this Agreement and that all such licenses and permits are, and will remain, in full force and effect, are current, and are not subject to revocation or suspension.
In the event that Customer has failed to obtain, or has suspended or revoked, any license or permit necessary for Customer to authorize Marksman to perform the Services requested in accordance with this Agreement, Marksman shall be expressly indemnified from all costs, expenses and attorneys’ fees incurred by Marksman as a result of such event. Such costs, expenses, and/or attorneys’ fees shall be a lien on the Goods as provided for in this Agreement.