STANDARD TERMS AND CONDITIONS
OF FULMER LOGISTICS, LLC RELATING TO ITS WAREHOUSE

STORAGE AND SERVICES AGREEMENT 

The Standard Terms and Conditions (“Terms and Conditions”) set forth below are incorporated into and made a part of the Warehouse Storage and Services Agreement (the “WSA”) between Fulmer and Customer as if fully set forth therein verbatim, and any reference to “this Agreement” herein shall include both the WSA, these Standard Terms and Conditions, and any exhibits or attachments thereto.

Section 1. Title and Risk of Loss of Goods. Fulmer shall not, in the course of providing the services in accordance with this Agreement, acquire title to or assume risk of loss for, or be deemed to have acquired title to or assumed risk of loss for, the Goods.

Section 2. Standard of Care and Limitations of Liability and Damages.

(A) FULMER SHALL EXERCISE THE STANDARD OF CARE WITH REGARD TO THE GOODS FOR WHICH IT HAS ACCEPTED DELIVERY WHICH A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER SIMILAR CIRCUMSTANCES, AND SHALL COMPLY WITH ALL APPLICABLE LAWS, ORDINANCES, RULES AND REGULATIONS OF FEDERAL, STATE, MUNICIPAL AND OTHER GOVERNMENTAL AUTHORITIES WITH REGARD TO THE FACILITY AND THE SERVICES PROVIDED HEREUNDER.

(B) FULMER SHALL NOT BE LIABLE FOR ANY DAMAGES FOR LOSS OR INJURY TO THE GOODS, HOWEVER CAUSED, EXCEPT TO THE EXTENT SUCH LOSS OR INJURY IS CAUSED BY FULMER'S FAILURE TO EXERCISE THE STANDARD OF CARE SET FORTH HEREIN.

(C) FULMER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO GOODS TO THE EXTENT CAUSED BY CUSTOMER'S NEGLIGENT OR WILLFUL ACTS OR OMISSIONS, CUSTOMER'S FAILURE TO NOTIFY FULMER OF THE FRAGILE NATURE OF ANY GOODS OR THE PARTICULAR HANDLING INSTRUCTIONS NECESSARY TO PROTECT ANY GOODS IN ADVANCE OF SHIPMENT TO FULMER, OR CUSTOMER'S FAILURE TO PROPERLY MARK ITS GOODS WITH ANY NECESSARY OR REQUIRED WARNINGS.

(D) IN NO EVENT SHALL FULMER BE LIABLE FOR ANY LOSS OR DAMAGE TO SECURITIES, DOCUMENTS, CASH, ARTWORK, HEIRLOOMS, JEWELRY, COLLECTIBLES, OR OTHER ARTICLES OF HIGH OR UNUSUAL VALUE STORED WITH FULMER UNLESS CUSTOMER FULLY DISCLOSES THE DESCRIPTION AND VALUE OF SUCH ARTICLES IN ADVANCE OF SHIPMENT TO FULMER, CUSTOMER PROVIDES PROOF OF INSURANCE REQUIRED TO BE MAINTAINED BY IT UNDER THIS AGREEMENT, AND THE PARTIES ENTER INTO A SPECIAL WRITTEN AGREEMENT FOR THE STORAGE, HANDLING, CARE AND PROTECTION OF SUCH ARTICLES IN ADVANCE OF SHIPMENT.

(E) NOTWITHSTANDINGANYTHINGTOTHECONTRARYINTHISAGREEMENT,INNOEVENTSHALL FULMER BE LIABLE TO CUSTOMER FOR ANY LOST PROFIT, LOST BUSINESS, OR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY LOSS OR DAMAGE TO CUSTOMER'S GOODS, OR ARISING OUT OF THE PERFORMANCE OF FULMER'S SERVICES HEREUNDER.

(F) WITH REGARD TO ALL TRANSPORTATION OF GOODS FROM THE FACILITY AT CUSTOMER'S INSTRUCTIONS, THE PARTIES ACKNOWLEDGE THAT FULMER IS ACTING AS A SHIPPER'S AGENT AND NOT AS A MOTOR CARRIER OR FREIGHT FORWARDER, AND FULMER'S LIABILITY SHALL BE LIMITED TO A NEGLIGENCE STANDARD IN SELECTING THE PROPER CARRIER, ARRANGING FOR PROPER EQUIPMENT, OR OTHERWISE FAILING TO COMPLY WITH CUSTOMER'S SHIPPING INSTRUCTIONS, AND CUSTOMER'S DAMAGES SHALL BE LIMITED AS PROVIDED IN THIS SECTION 2, PARAGRAPH (J) BELOW.

(G) FULMER SHALL NOT BE LIABLE FOR DEMURRAGE, DETENTION OR DELAYS IN UNLOADING INBOUND RAIL CARS OR VEHICLES, OR FOR DETENTION OR DELAYS IN OBTAINING AND UNLOADING RAIL CARS OR VEHICLES FOR OUTBOUND SHIPMENTS UNLESS FULMER HAS FAILED TO EXERCISE COMMERCIALLY REASONABLE CARE AND JUDGMENT.

(H) FULMER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO GOODS OCCURRING PRIOR TO ITS ACCEPTANCE OF DELIVERY OF THE GOODS. FULMER SHALL NOT BE LIABLE FOR ANY SHIPMENT OF GOODS DROPPED AT THE FACILITY UNTIL FULMER HAS ACCEPTED DELIVERY OF SUCH GOODS, WHETHER OR NOT FULMER HAS SIGNED A BILL OF LADING FOR THE GOODS.

(I) FULMER SHALL HAVE NO OBLIGATION TO INSPECT OR DETERMINE THE CONTENTS OF ANY PACKAGES UNLESS SPECIFICALLY REQUESTED BY CUSTOMER IN SCHEDULE A OR SUBSEQUENTLY REQUESTED AS ADD ON SERVICES AS PROVIDED HEREIN. FULMER IS NOT RESPONSIBLE FOR THE CONDITION OF THE GOODS AT DELIVERY UNDER ANY CIRCUMSTANCES AND IS NOT RESPONSIBLE FOR HIDDEN, CONCEALED, OR LATENT SHORTAGES, DEFICIENCIES, DISCREPANCIES OR DEFECTS IN THE QUALITY OR QUANTITY OF THE GOODS. NOTWITHSTANDING THE FOREGOING, FULMER SHALL PROMPTLY NOTIFY CUSTOMER OF ANY SHORTAGES, DEFICIENCIES, DISCREPANCIES OR DEFECTS EXISTING AT DELIVERY IN THE QUALITY OR QUANTITY OF THE GOODS, THE PACKAGING, OR THE MANNER OR DELIVERY, OF WHICH IT BECOMES AWARE AT THE TIME OF ACCEPTANCE OF DELIVERY.

(J) UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, IN THE EVENT OF LOSS OR DAMAGE TO GOODS FOR WHICH FULMER IS LEGALLY LIABLE, FULMER'S LIABILITY FOR SUCH LOSS OR DAMAGE SHALL BE LIMITED IN ALL CASES TO THE LESSER OF THE FOLLOWING AMOUNTS (1) THE ACTUAL COST TO CUSTOMER OF REPLACING OR REPRODUCING THE DAMAGED GOODS TOGETHER WITH TRANSPORTATION COSTS TO THE FACILITY, (2) THE FAIR MARKET VALUE OF THE GOODS ON THE DATE FULMER IS NOTIFIED OF OR BECOMES AWARE OF SUCH LOSS OR DAMAGE, (3) 50 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST OR DAMAGED GOODS, OR (4) THE GREATER OF (I) $0.25 PER POUND NET WEIGHT OF THE GOODS, OR (II) $12.00 PER CUBIC FOOT. THE LIMITATION OF LIABILITY REFERRED TO IN THIS PARAGRAPH SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AGAINST FULMER FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE, AND/OR DESTRUCTION OF THE GOODS AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS CUSTOMER PROVES BY AFFIRMATIVE EVIDENCE THAT FULMER CONVERTED THE GOODS TO ITS OWN USE. CUSTOMER WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.

(K) NOTWITHSTANDING THE FOREGOING PROVISIONS OF SECTION 2, PARAGRAPH (J), CUSTOMER MAY, UPON WRITTEN REQUEST AT THE TIME OF EXECUTING THIS AGREEMENT, OR WITHIN A REASONABLE TIME AFTER RECEIPT OF A WAREHOUSE RECEIPT FOR GOODS STORED UNDER THIS AGREEMENT, INCREASE FULMER'S LIABILITY ON ALL OR PART OF THE GOODS STORED UNDER THE AGREEMENT BY INCREASING THE VALUATION ON ALL OR PART OF SUCH GOODS, IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION, PROVIDED THAT NO SUCH REQUEST SHALL BE VALID UNLESS MADE BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE GOODS STORED UNDER THIS AGREEMENT HAS OCCURRED.

(L) WHERE LOSS OR DAMAGE OCCURS TO CUSTOMER'S GOODS, FOR WHICH FULMER IS NOT LIABLE, CUSTOMER SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS, AS WELL AS THE COST OF ANY ENVIRONMENTAL CLEANUP AND/OR SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO SUCH GOODS.

(M) CUSTOMER SHALL BE LIABLE FOR ALL DAMAGES INCURRED BY CUSTOMER, FULMER, OR ANY THIRD PARTY TO THE EXTENT CAUSED BY CUSTOMER'S OR ITS AGENT'S NEGLIGENT OR WILLFUL ACT OR OMISSION.

Section 3. Notice of Loss and Damage, Claim and Filing Legal Action

(A) In the event Fulmer becomes aware of any loss or damage to the Goods during storage or in the course of handling the Goods, however caused, Fulmer shall promptly notify Customer of such discovery.

(B) Any claims by Customer must be presented in writing to Fulmer no later than the earlier of (i) thirty (30) days after the date Customer is notified by Fulmer that loss or damage to all or part of the Goods has occurred or, if earlier, the date Customer knew or should have known, by the exercise of reasonable care, of the loss or damage to the Goods, or (ii) thirty (30) days after transfer of the Goods by Fulmer from the Facility at Customer's direction. Any claim by Customer shall identify the Goods for which the claim applies, the nature of the loss or damage to the Goods, and the basis for the claim.

(C) NO MEDIATION, ARBITRATION OR OTHER PERMITTED LEGAL PROCEEDING MAY BE MAINTAINED BY THE CUSTOMER AGAINST FULMER FOR LOSS OR DAMAGE TO THE GOODS UNLESS FULMER RECEIVES TIMELY WRITTEN NOTICE IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT, AND UNLESS SUCH MEDIATION, ARBITRATION OR OTHER PERMITTED LEGAL PROCEEDING IS COMMENCED WITHIN NINE MONTHS AFTER (I) THE DATE CUSTOMER IS NOTIFIED THAT LOSS OR DAMAGE TO PART OR ALL OF THE GOODS HAS OCCURRED, OR (II) THE DATE, IF EARLIER, CUSTOMER OTHERWISE KNEW OR SHOULD HAVE KNOWN, BY THE EXERCISE OF REASONABLE CARE, OF THE LOSS OR DAMAGE TO THE GOODS. IF THESE CONDITIONS ARE NOT MET, CUSTOMER'S CLAIM AND CAUSE OF ACTION SHALL BE BARRED FOREVER.

(D) To the extent Fulmer admits liability or is determined to be liable for any loss or damage to the Goods, the reasonable salvage value for the damaged Goods shall be deducted from the amount to which Customer is entitled to receive for the damaged Goods.

Section 4. Representations and Warranties of Fulmer

(A) Fulmer represents and warrants to Customer that it is in possession of and has the legal right to operate the Facility, and that it is duly authorized under all Applicable Laws, and has all permits and licenses necessary to provide the warehouse storage and services required by this Agreement; provided, however, the parties acknowledge that Fulmer is not licensed to warehouse grain, cotton, tobacco, alcohol, medical devices, or other Goods for which a specific license is required for warehousing such goods.

(B) Fulmer represents and warrants to Customer that it has the legal capacity to enter into this Agreement; that the execution and delivery of this Agreement has been duly authorized by any necessary corporate action; that the person executing this Agreement on behalf of Fulmer is duly authorized to do so; that upon execution by all the parties, this Agreement shall constitute a legal, valid, and binding Agreement of Fulmer in accordance with its terms; and that the execution and performance of this Agreement will not conflict with or violate any law, agreement or obligation by which Fulmer is bound.

(C) Fulmer represents and warrants to Customer that it will maintain the Facility in good condition and repair, normal wear and tear excepted, free from leaks, and it will provide and maintain fire safety and protection measures for the Facility in accordance with Applicable Laws.

(D) Fulmer represents and warrants to Customer that it will keep the Goods sufficiently separate so as to permit at all times identification and delivery of the Goods, unless the warehouse receipt provides otherwise.

(E) Fulmer agrees to indemnify, defend and hold Customer and its officers, directors, shareholders, employees, agents, and independent contractors harmless from all liabilities, claims, damages, fees, penalties, losses, costs and expenses (including reasonable attorneys’ fees) which any of such indemnified parties may incur as a result of a breach of the foregoing representations.

Section 5. Survival of Indemnity Provisions

All agreements to indemnify and hold a party harmless set forth in the Agreement or these Terms and Conditions shall survive the expiration or termination of the Agreement for the applicable statute of limitations period relating to any claim or cause of action for which indemnity is given. Any action not brought to enforce the terms of such indemnity and hold harmless provisions within such period shall be barred forever.

Section 6. Warehouse Lien and Security Interest

(A) Fulmer shall have a lien against Customer for Goods covered by any warehouse receipt or this Agreement in accordance with Tennessee Code Annotated §47-7-209, as the same may be amended from time to time, and shall have the rights to enforce such lien as provided by statute. If the storage or other charges owing by Customer are not stated in the warehouse receipt covering the Goods, the charges for such storage services and other services shall be as stated in this Agreement, and to the extent of any conflict between the warehouse receipt and this Agreement with regard to such charges, this Agreement shall control. Customer agrees that Fulmer may, at its election, refuse to surrender possession of the Goods until all charges and debts of Customer are paid in full. In the event Fulmer enforces its lien or security interest, Customer shall continue to be liable for any deficiency existing after application of the net proceeds of sale to Customer's debt.

(B) Customer hereby grants to Fulmer a security interest in the Goods for the maximum amount of charges owing by Customer which are not covered by Fulmer's warehouse lien, including for money advanced and interest. At Fulmer's election, Fulmer is authorized to file a financing statement to perfect its security interest in accordance with the provisions of the Uniform Commercial Code.

(C) Fulmer's warehouse lien shall not be effective against any person that before issuance of a document of title had a legal interest or a perfected security interest in the Goods, except as otherwise provided in Tennessee Code Annotated §47-7-209(c). Customer shall notify Fulmer in writing or electronically of any party claiming such a protected legal interest or security interest in the Goods at or prior to tender of delivery of the Goods to Fulmer, and Customer agrees to indemnify and hold Fulmer harmless for any loss, damages or expenses incurred by Fulmer as a result of Customer's failure to so advise Fulmer, and Fulmer's subsequent inability to claim or enforce its warehouse lien.

Section 7. Hazardous Materials

Customer shall provide Fulmer with advance written or electronic notice of any proposed shipment of any hazardous material, as that term is used and defined in the Hazardous Materials Transportation Safety and Security Reauthorization Act, 49 U.S.C. § 5101, et seq., and its amendments, or any other applicable statute, regulation or other law (“Hazardous Material”). If Hazardous Material is tendered for storage and accepted for delivery by Fulmer, a notation shall be so made on the face of that warehouse receipt. Customer warrants that the Goods shall be limited to the permissible materials and quantities in the then current regulations, and agrees to properly classify the Goods, to accurately describe the Goods, and to provide Fulmer with all necessary or useful information for the safe storage and handling of the Goods, including but not limited to a current Material Safety Data Sheet, Product Safety Data Sheets, or any other Hazardous Material document required to be prepared and provided by Customer or its agent for the Hazardous Material shipment. Customer shall indemnify, defend and hold harmless Fulmer, and its officers, directors, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorneys' fees and other expenses arising out of or related to, exposure to or release of any Hazardous Material, including without limitation, fines or expenses relating to the removal or treatment of Hazardous Material or any other remedial action pertaining to the Hazardous Material, if (i) Customer fails to provide the notice required by this provision prior to tendering the Hazardous Material to Fulmer, (ii) Customer breaches any warranties of this Section, (iii) the contact, exposure or release resulted from the improper packaging or loading or other acts or omissions of the Customer, its employees or agents, or (iv) the contact, exposure or release occurred after the transfer of the Hazardous Material from the Facility.

Section 8. Insurance

(A) At all times during the Initial Term and any renewal terms, Fulmer shall maintain (1) Commercial General Liability Insurance with coverage limits of at least $1,000,000 per occurrence, and $2,000,000 aggregate, (2) commercial property insurance on the Facility (but not the contents) with coverage limits of at least $1,000,000 per occurrence, and $2,000,000 aggregate, (3) worker's compensation insurance on its employees as required by law, and (4) Warehouseman's Legal Liability Insurance with coverage limits of at least $2,000,000.

(B) Fulmer does not insure the Goods while in storage or during any transfer of the Goods for the benefit of Customer, and the charges for storage or other services billed to Customer do not include any insurance on the Goods. At all time during the Initial Term and any renewal terms, Customer shall be solely responsible for, and shall be required to maintain, insurance that Customer determines to be sufficient to fully indemnify Customer with respect to any and all of Customer's Goods stored at the Facility, and shall provide a certificate of insurance to Fulmer at Fulmer's request. Customer's insurance on the Goods shall be primary. Customer, on behalf of itself and its insurer, waives any right of contribution from, or subrogation against, Fulmer and/or any insurer of Fulmer as a result of any loss or damage to the Goods, except to the extent of damages for which Fulmer is liable under this Agreement. Customer agrees to cause its insurer to waive such right of contribution or subrogation as well.

Section 9. Handling

(A) Handling rates and charges as shown in Schedule A attached to the WSA shall, unless otherwise agreed, cover the ordinary labor involved in receiving Goods on the floor or on pallets at the Facility door or dock, placing Goods in storage, and returning Goods to the Facility door or dock for transfer. Any additional or unusual labor required for loading or unloading rail cars or vehicles or otherwise handling the Goods as a result of Customer's failure to deliver the Goods in the manner required hereunder shall be charged to Customer in accordance with the rates and charges set forth in paragraph 6 of the WSA unless Schedule A provides for a different charge, or the parties otherwise mutually agree in writing.

(B) Customer shall provide Fulmer with all information necessary or useful for the safe and proper storage, handling, and transportation of the Goods.

(C) Fulmer shall not be responsible for storage of the Goods in a temperature or humidity controlled environment. The parties acknowledge that Fulmer does not offer temperature or humidity controlled or refrigerated storage. Fulmer will not be responsible for any loss or damage to the Goods that result from fluctuations in temperature range or in humidity levels at the Facility. Company will furthermore not be responsible for losses or damages incurred to perishable Goods.

(D) All Goods are subject to inspection by any authorized governmental agency or regulatory authority, including but not limited to the U.S. Transportation Security Administration, U.S. Customs and Border Protection, and the like.

Section 10. Transfer of Goods

(A) Instructions to transfer Goods on the books of Fulmer shall not be effective until said instructions are delivered to and accepted by Fulmer. All charges up to the date of transfer of Customer's Goods from the Facility shall be chargeable to Customer, and are due and payable, at Fulmer's election, before Customer

may remove any Goods from the Facility. Goods so held shall continue to be subject to storage and all other applicable charges. If a transfer involves the re-handling of Goods, it will be subject to rates and charges shown on the attached Schedule A or as otherwise mutually agreed upon.

(B) Fulmer cannot guarantee same day shipping, and will not be responsible for such delays, unless it receives ship orders by 1:00 p.m. Orders requiring routing may take more time.

(C) Fulmer reserves the right to move Goods within the Facility, at its expenses, as Fulmer deems necessary.

(D) If Fulmer in good faith believes that the Goods are about to deteriorate or decline in value to less than the amount of Fulmer's lien before the end of the next succeeding month of storage, Fulmer may, as permitted by statute, immediately notify Customer in writing of a reasonable time for removal of the Goods, and if Customer fails to remove the Goods or otherwise give instructions to Fulmer for removal of the Goods, Fulmer may sell them at public sale held not less than one week after a single advertisement or posting as provided by law.

(E) If, as a result of a quality or condition of the Goods of which Fulmer had no notice at the time of deposit, Fulmer determines in its sole discretion that the Goods are a hazard to other property, the Facility, or to other persons, Fulmer may, as permitted by statute, sell the Goods at public or private sale without advertisement or posting or other notification to persons known by Fulmer to have a claim or interest in the Goods. If Fulmer, after reasonable effort, is unable to sell the Goods, it may dispose of them in any lawful manner and shall not incur any liability by reason of such disposition. Notwithstanding the foregoing, if circumstances permit, Fulmer shall notify Customer of its intent to sell or otherwise dispose of the Goods, and Customer shall have the right to claim its interest in the Goods and remove them from the Facility or give immediate instructions for the delivery of the Goods to any person entitled to them at any time prior to a sale or other disposition of the Goods.

Section 11. Liability for Mis-shipment by Fulmer

If Fulmer negligently mis-ships Goods or negligently fails to comply with Customer's shipping instructions, Fulmer's liability shall be limited to the reasonable transportation charges incurred to return the mis-shipped Goods to the Facility. Customer and Fulmer shall each use their best efforts to have the recipient of the Goods return the mis- shipped Goods to Fulmer. If the recipient refuses to return the mis-shipped Goods to Fulmer, Fulmer's liability for such Goods shall be limited to the amount necessary to reimburse Customer the Customer’s cost of the mis-shipped Goods plus the cost of transportation.

Section 12. Force Majeure

Neither Customer nor Fulmer shall be liable to the other for default in the performance or discharge of any duty or obligation under this Agreement, when caused by acts of God, weather, civil commotion, acts of terror, strikes, labor disputes, power failure, intentional or malicious acts of third persons, seizure under legal process, embargo, prohibition of import or export of Goods, closure of public highways, railways, airways or shipping lanes, governmental interference or regulations, or other causes beyond the reasonable control of the affected party. Upon the occurrence of such an event the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires Fulmer to continue to protect the Goods, Customer agrees to pay the storage or similar charges associated with Fulmer's obligation during the continuance of the force majeure. All Goods are stored, handled, and transported at Customer's sole risk of loss, damage, or delay caused by any of the above.

Section 13. Warehouse Management System and Confidential Information.

(A) Warehouse Management System. Any warehouse management systems, websites, or computer hardware or software used or supplied by Fulmer in connection with the services provided under this Agreement are and shall remain the exclusive property of Fulmer. Neither the use of, nor any access to, such systems or property by the Customer will convey to Customer any use, license or ownership rights in such property.

(B) Confidential Information. “Confidential Information” means any proprietary information, trade secrets or other confidential business information disclosed, either directly or indirectly, by one party to the other in the course of the performance of this Agreement, including, but not limited to technical data, special services, customer lists, marketing information, software, hardware, technology, report formats and forms, pricing and financial information, and warehouse management systems. The parties agree to keep confidential all Confidential Information of one party known or obtained by the other, not to disclose any such Confidential Information to a third party, either directly or indirectly, and not to use any such Confidential Information for its own advantage or to the detriment of the other party. Each party agrees to use such Confidential Information solely as necessary for the performance of its obligations under this Agreement during the Initial Term or any renewal term. The provisions of this paragraph shall survive expiration or termination of this Agreement for a period of ten (10) years.

Section 14. Severability

If any term or provision of this Agreement, or the application thereof to any person or circumstance shall be held to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and shall be valid and enforced to the greatest extent permitted by law.

Section 15. Waiver

The failure of either party hereto to insist upon strict performance of any of the terms or provisions of this Agreement, or to exercise any option, right or remedy herein contained shall not affect the right of such party to enforce such term(s) or to demand strict performance thereof in the future, nor shall such failure be construed as a waiver or modification of such terms, provisions, option, right or remedy, but the same shall continue and remain in full force and effect. Except as expressly provided otherwise, no waiver by any party hereto of any term or provision hereof shall be deemed to have been made, unless expressed in writing and signed by such party.

Section 16. Successors and Assigns

This Agreement shall be binding upon and shall inure to the benefit of Fulmer and Customer and their respective legal representatives, agents, subcontractors, successors and permitted assigns. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to a subsidiary or related entity of which such party has and maintains majority ownership and voting control or which is owned at least fifty (50%) by the same principals of such party, or to its parent company, without consent of the other party.

Section 17. Independent Contractor

It is hereby agreed and understood that Fulmer is entering into this Agreement as an independent contractor, and Fulmer shall supervise the performance of its own employees or subcontractors in providing services for Customer, and shall have full control over the manner and means by which its services are performed, subject to the terms of this Agreement. Nothing in this Agreement will be interpreted as creating any relationship of principal and agent, partnership or joint venture between the parties.

Section 18. Governing Law

This Agreement and any dispute arising out of it shall be governed by the laws of the state Tennessee without regard to the choice of law provisions of such state.

Section 19. Dispute Resolution

(A) The parties agree that they will work together to try to resolve any dispute, claim, crossclaim, or counterclaim that may arise out of or that is related to this Agreement, whether such matter involves a contract, tort or any other issue. If the parties cannot resolve the issue on their own, the parties covenant not to file any claim against the other in court except (i) as may be necessary to enforce the covenants of this Section 19 or to protect Confidential Information set forth in Section 13 through an action for injunctive or other equitable relief, as well as any damages at law under such Sections or (ii) as may be necessary for Fulmer to collect amounts owed by Customer for services under this Agreement, or to enforce its warehouse lien or security interest. Such actions shall be brought only in the state courts sitting in Memphis, Shelby County, Tennessee having jurisdiction over such matters, and each of the parties hereby consents to the exclusive personal jurisdiction and venue of such courts for such purpose. With regard to all other disputes, the parties agree to first engage in good faith mediation in Memphis, Tennessee. The parties shall agree upon a mediator, share equally in the cost of the mediator, and they shall each be responsible for their own costs and attorneys’ fees. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT EXCEPT AS OTHERWISE SPECIFICALLY PERMITTED THEY ARE VOLUNTARILY WAIVING RIGHTS TO LITIGATE IN A COURT OF LAW AND ARE WAIVING ALL RIGHTS TO A JURY TRIAL. If the parties are unable to resolve the dispute through mediation, the parties agree that they shall resolve the dispute through binding arbitration before one arbitrator in accordance with the rules of the American Arbitration Association. Any such arbitration shall take place in Memphis, Tennessee.

(B) If it becomes necessary for Fulmer to utilize a collection agency and/or an attorney to collect any unpaid amount owed or to assist in enforcing its lien or security interest as provided herein, Customer shall be obligated to pay all costs of collection, including the collection agency fees, attorneys' fees, court costs, filing fees, and all other expenses, regardless of whether litigation is actually filed.

Agreed to and Accepted:

Fulmer Logistics, LLC [Customer]: By:_____________________________ By:_____________________________