The following agreement is effective Wednesday June 6, 2018 for Customers who began doing business with us prior to Thursday, May 24 2018.
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 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.
- "Damaged or Defective" means Goods which suffer from a condition which Marksman believes significantly decreases the fair market value of the Goods.
Marksman RCS (“Marksman” or “Marksman RCS”) offers the following Service Option(s) to its Customers:
Marksman will receive returned Goods to determine the condition and market resale value, if any, of the Goods and report any findings to the Customer. When sending the Goods to Marksman the Customer may select from the following Service Levels, which describe the nature of work Marksman will perform on the Goods.
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
Level 2: Inspect Returned Items
Receive and Forward Returns
visually inspect each return (for damages and correct items)
- this does not include testing functionality
- missing parts / components
- damaged items
- wrong item returned
Level 3: Test & Recondition
Receive and Forward Returns
Inspect Returned Items
test features for functionality
- cleaning packaging
- replace missing/damaged components
- product grading (in accordance with Amazon guidelines)
- commenting on issues and product grade
Prep is the receiving of new Goods for the purpose of preparing the Goods for resale in accordance with Customer requirements by performing such actions as:
- Modifications to labels, stickers, or other packing material
- Kitting or Bundling which is combining multiple items or components into one stock unit for resale
- processing Inserts, which means placing Customer-provided materials such as user manuals, warranty paperwork, or similar inside the retail packaging of the Goods
Customer is responsible for providing clear instructions detailing all Prep requirements for Goods. The instructions should be kept on file with Marksman prior to sending any Goods for the Prep Service, otherwise Marksman cannot guarantee successful or timely completion of Prep Services.
If Customer fails to provide adequate instructions within five (5) days of the deposit of Goods at Marksman's facility Marksman may refuse service for the Goods as described in our "Right to Refuse" policy described in this agreement. Such Goods may be removed or disposed of in accordance with that policy.
- receiving, packaging and shipping orders for Goods according to instructions from Customer
Marksman offers an optional Repair service for Goods. Repairs are an optional, value-added service Customer may request on a case-by-case basis to improve the resale value of Goods.
Repairs may represent:
- Physical repairs to damaged Goods, including replacement of damaged, missing or defective components
- Adjustments to product settings, installed software, firmware, or other non-physical aspects of the product.
- Any additional work outside the normal scope of Return Handling Services requested by Customer.
Repair Estimates and Pre-Authorized Repairs
Customers are able to request a Repair Estimate for Goods.
- Repair Estimates will include an estimated total parts and labor cost, as well as a description of the parts and labor, and the expected condition of the Goods upon repair completion.
- Customer is able to either approve or deny Repair Estimates. Approval grants Marksman the right to proceed with the Repair as described in the Repair Estimate.
- Repair Estimates are valid for ten (10) business days. If Customer does not approve or decline a Repair Estimate within this time the Repair Estimate will be canceled and the Customer may be charged an additional fee of twenty-five (25) US Dollars.
- Repair Estimates are estimated prices. The final charge may differ. If the final charge will differ more than 10% Marksman will make a best-effort attempt to notify Customer in writing before completing the repair. Customer has ten (10) business days to respond to such notice. If the customer does not respond the repair will not proceed.
- Marksman may not always be able to notify the Customer about a difference in estimated price and final price, as in some situations the final price cannot reasonably be determined until the Repair has been completed or is already in process. Customer understands this and agrees to pay for any such difference between estimated price and final price.
- Any expected result or change in condition of Goods provided in a Repair Estimate is not guaranteed. Repair is a best-effort attempt to achieve the expected result included in the Repair Estimate.
- In the event a Repair does not result in the expected condition of the Goods, Customer must still pay for any parts or labor quoted in the Repair Estimate.
- Marksman reserves the right to refuse to Repair or provide a Repair Estimate for Goods for any reason.
- Upon written notice, Customer may pre-authorize a budget per-item for Repairs to be performed on Goods. In doing so Customer authorizes Marksman to initiate Repair services without providing a Repair Estimate or other notice to Customer before the Repair commences if the estimated total parts and labor cost is within the maximum budget Customer has provided.
Marksman will contact the supplier of Goods on behalf of Customer to resolve warranty-related issues with Goods.
- Depot is provided as a value-added service Customer may request on a case-by-case basis for Goods Marksman has determined to be defective.
- Depot service voids any warranty or expected outcome for the Goods Marksman may otherwise offer. Marksman cannot guarantee any kind of processing time or outcome for Goods in the Depot service, as Marksman has no control over the Customer's supplier.
- Marksman offers a base price for Depot which covers ten (10) minutes of labor. If Depot service exceeds ten (10) minutes of work Marksman may charge Customer for any additional labor required to complete Depot.
- Any additional shipping, packaging, or handling costs incurred by Marksman during Depot will be paid by Customer.
- Customer authorizes Marksman to act as Customer's agent in any communication with the supplier of Goods.
- Customer is responsible for providing any information required to complete Depot, including receipts or bills of sale, supplier account information including login credentials and passwords, contact information for supplier, or other information as requested by Marksman. Such information will be held in the strictest confidence by Marksman with the same level of care which Marksman would use to protect it's own trade secrets.
- Depot service is provided on an attempt basis. Regardless of the result of Depot service Customer agree to pay for any associated costs or expenses.
- During the Depot process Goods will not accrue any storage fees.
- Marksman reserves the right to refuse Depot service for any reason.
- Marksman reserves the right to cancel Depot service while in-process, without notice, if Marksman has reason to believe the Depot process cannot be cost-effectively completed, will not have the intended result, or may further devalue the Goods.
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
- take inventory
- 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.
Right to Refuse Service
Marksman reserves the right to refuse, without prior notice, any of the Services prior to commencement of the Service or after the Service has already commenced in the following situations:
- Customer alters the requirements of the Service after work has already commenced or after the Goods have already been received at a Marksman operated warehouse but before Services have commenced.
- Marksman believes the Services required by Customer present a safety issue.
- Marksman, in good faith, believes the Customer will be unable or unwilling to pay the associated fees for the Services and/or the fair market value of the Goods, if liquidated, would not cover Marksman's costs in the event Customer defaults on payment for the Services.
- Performance of the Services as requested conflicts with other business interests or agreements Marksman may be engaged in.
- Services cannot be completed as requested due to a lack of information or instructions. Examples include but are not limited to: shipments with invalid destination addresses, repair services wherein Marksman is not able to determine the source of the problem, Prep services where a customer has not provided instructions or required labels. In these events Marksman is not required to contact Customer to ask for the required information or instructions. The burden to provide accurate and complete instructions in on the Customer.
In the event of refusal of service as described above, Marksman shall provide five (5) days written notice to Customer to remove the Goods from Marksman's warehouse at Customer's expense. If the Customer does not respond to such notice or fails to remove the Goods in the time frame stated and pay for any and all associated removal costs, as well as any Services already performed by Marksman, Marksman reserves the right to dispose of the Goods as allowed by law.
Lost and Damaged Inventory Reimbursement Policy
When Goods are lost or damaged within a Marksman operated warehouse Marksman may either:
- replace the lost or damaged goods with another stock unit of the same type, condition, and quality
- reimburse Customer based on the fair market value of the Goods
Marksman will consider several factors when determining the reimbursement amount, including:
- listings for the product or similar products in publications, catalogs, and online market places
- the condition of the product, prior to loss or damage
- any known sales history of the product
If Marksman does not have enough information to calculate the reimbursement amount for an item Marksman will assign a value based on similar items or products.
The reimbursement amount for any single item will not exceed $5000 US Dollars.
Marksman reserves the right to dispose of any Goods Customer is reimbursed for under this policy, including by selling the Goods. Consequently, such items (including lost items that are found after reimbursement) may be listed for sale on Marksman's website or other channels.
If Marksman previously reimbursed Customer for lost inventory that is subsequently found or determine any reimbursement was given in error, Marksman may reverse the credit to Customer's account.
Claims for lost or damaged Goods are also subject to the terms outlined in Notice of Claim and Filing Suit in this agreement.
Customer is prohibited from any activity which may interfere with Marksman's ability to serve other Customers. Examples of such activities include but are not limited to submitting insufficiently researched or prematurely submitted requests or submitting high volumes of requests in a short period of time.
Lost and Damaged Inventory Coverage
The following circumstances are covered by this Lost and Damaged Inventory policy:
- items damaged while in a Marksman operated warehouse
- items missing within a Marksman operated warehouse for 30 consecutive days
- items lost or damaged in transit between two warehouses operated by Marksman or a partnered company
The following types of products are not covered by this policy, and Customer will receive no reimbursement for any lost or damaged inventory for these items:
- Prohibited Goods, as defined in this agreement.
- Products which were deposited at Marksman's warehouse without prior notice of delivery.
- Defective products or items lost or damaged by end-buyers, distributors, or Customers
- Expired items.
- Defective items that arrived at Marksman's warehouse damaged.
- Small parcel items shipped using services such as USPS, UPS, FedEx, or other parcel carriers which are damaged or lost after Marksman has deposited the item with the carrier's regularly scheduled pickup or drop-off point.
- 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.
Storage Allocations and Limits:
Marksman, at it's discretion, may place limits on the amount of physical space Customer's Goods may occupy at any given time within a warehouse operated by Marksman.
Any such limits imposed will be clearly communicated to the Customer through the Inventory Management System and Customer usage of storage allocation will be included in the monthly report and other notices sent to Customer.
In the event the total storage space occupied by any portion of Customer's Goods exceeds such a limit, Marksman may, upon ten (10) days written notice, require Customer to remove the Goods at Customer's expense. If said Goods are not so removed, Marksman may dispose of them or 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.
Upon material breach of this agreement the Goods may be removed and/or disposed of by Marksman as permitted by law upon ten (10) days written notice to Customer. All charges related to said removal shall be paid by Customer.
Marksman reserves the right to remove and/or dispose, without notice and as permitted by law, any Goods deposited or received without prior notice from Customer. The Customer is responsible for notifying Marksman about any delivery or deposit of Goods to a warehouse operated by Marksman. Such notice must include the characteristics of the Goods as well as the Services Customer wishes Marksman to provide for the Goods.
In the event Customer requests a Service which differs from the initial Service requested for Goods, Marksman reserves the right to refuse. In such cases Marksman may require the customer, upon five (5) business days notice, to remove the Goods from Marksman's warehouse. Failure to remove the Goods grants Marksman the right to remove and/or dispose of the Goods as permitted by law. Customer will pay for any associated costs.
- 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.
Email, Notices, and Contact Information
For the purposes of this agreement email sent to the email address Customer provides to Marksman through Inventory Management System shall be considered written notice.
It is the Customer's responsibility to provide an email address at which they can be reliably contacted. Customer understands emails received from Marksman may be of a time-sensitive nature and will exercise the same care as a reasonable person receiving time-sensitive mail. Marksman is not responsible for any loss or damages resulting from Customer failing to read or respond to written notices in a timely manner.
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.
- Marksman reserves the right to update this agreement at any time without notice.
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.
- The official language of Marksman RSC is English. In any case where this document or any other document, instructions, or notice are provided in multiple languages the English version shall be considered the official binding version.
Instructions, Warnings, and Error Messages
Inventory Management System provided by Marksman may, from time to time, display instructions, warnings, or other information and instruction messages to the Customer. This information is provided to Customer in an effort to assist them in properly using our Services and software.
- Customer agrees to hold Marksman free from any liability for losses or damages resulting from failure to read and follow instructions, warnings, or notices displayed on the Inventory Management System.