Shipica Fulfillment Program Agreement
Shipica, LLC (“Shipica”) provides fulfillment and associated services for Your Products.
THIS SHIPICA FULFILLMENT PROGRAM AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND SHIPICA. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
As used in this Agreement, “we,” “us,” and “Shipica” means Shipica and any of its applicable Affiliates, and “you” means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement.
BY REGISTERING FOR OR USING FULFILLMENT PROGRAM, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE AGREEMENT. You expressly agree that Shipica may engage its Affiliate(s) or a third party in order to complete one or more of the fulfillment and associated services outlined below.
1. Enrollment.
To begin the enrollment process, you must complete the registration process. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law. As part of the application, you must provide us with your (or your business’s) legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.
2. Service Fee Payments.
You are responsible for all of your expenses in connection with this Agreement. To use a Service, you must provide us with valid credit card information from a credit card or credit cards acceptable to Shipica (“Your Credit Card”) as well as valid bank account information for a bank account or bank accounts acceptable to Shipica (conditions for acceptance may be modified or discontinued by us at any time without notice) (“Your Bank Account”). You will use only a name you are authorized to use in connection with a Service and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. You authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information), to obtain credit reports about you from time to time, to obtain credit authorizations from the issuer of Your Credit Card, and to charge Your Credit Card or debit Your Bank Account for any sums payable by you to us (in reimbursement or otherwise).
If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Shipica or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Shipica or third parties persist. For any amounts that we determine you owe us, we may (a) charge Your Credit Card or any other payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to Your Bank Account; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Shipica or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
3. Term and Termination.
The term of this Agreement will start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the “Term”). We may terminate or suspend this Agreement or any Service for any reason at any time by notice to you. You may terminate this Agreement or any Service for any reason at any time by the means then specified by us. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14 will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.
4. Representations.
You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Shipica or its Affiliates is at all times accurate and complete; (d) you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) you and all of your subcontractors, agents, and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.
5. Indemnification.
You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of Your Sales Channels, Your Products (including their offer, sale, performance, and fulfillment), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto; (c) Your Personnel (including any act or omission of Your Personnel or any Claim brought or directed by Your Personnel); or (d) Your Taxes. You will use counsel satisfactory to us to defend each indemnified Claim. If at any time we determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
6. Disclaimer & General Release.
THE SERVICES ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, YOU USE THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE.
7. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE SUM OF (1) ACTUAL COST OF ANY GOODS LOST OR DAMAGED, LESS (2) ANY INSURANCE COVERAGE YOU MAY CLAIM WITH RESPECT TO A LOSS, WHETHER OR NOT YOU MAKE A CLAIM WITH RESPECT TO SUCH LOSS.
8. Insurance.
You will maintain at your expense, loss coverage for all goods located on Shipica property, commercial general, umbrella or excess liability insurance with a limit of no less than $1,000,000 per occurrence and in aggregate covering liabilities caused by or occurring in conjunction with the operation of your business, including products, products/completed operations and bodily injury, with policy(ies) naming Shipica and its assignees as additional insureds. Failure to maintain required insurance coverage will eliminate any Shipica liability for any loss due to a casualty at Shipica’s location. At our request, you will provide to us certificates of insurance for the coverage to an address specified by us. Shipica will maintain insurance on goods located on Shipica property at least equal to its obligations under Section 7.
9. Tax Matters.
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes. All fees and payments payable by you to us under this Agreement are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and you will be responsible for paying Shipica any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.
10. Confidentiality.
During the course of your use of the Services, you may receive information relating to us or to the Services that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain our exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other Person; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
Similarly, we may receive information relating to you and your business that is not known to the general public (“Your Confidential Information”). We agree that: (a) all Your Confidential Information will remain your exclusive property; (b) we will use Your confidential Information only as is reasonably necessary for your participation in the Services; (c) we will not otherwise disclose Your Confidential Information to any other Person; and (d) we will take all reasonable measures to protect Your Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. We may not issue any press release or make any public statement related to the Services, or use your name, trademarks, or logo, in any way (including in promotional material) without your advance written permission, or misrepresent or embellish the relationship between us in any way.
11. Force Majeure.
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our control.
12. Relationship of Parties.
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of Shipica, you, and customers. As between you and us, you will be solely responsible for all obligations associated with the use of any third party service or feature that you permit us to use on your behalf, including compliance with any applicable terms of use. You will not make any statement, whether on your site or otherwise, that would contradict anything in this section.
13. Modification.
We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes will be posted for at least 30 days. Changes to Program Policies may be made without notice to you. YOUR CONTINUED USE OF A SERVICE AFTER OUR POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
14. Miscellaneous.
The laws of the state of Utah will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. Shipica and you both consent that any dispute with Shipica or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be resolved by binding arbitration as described in this paragraph, rather than in court, except that (i) you may assert claims in a small claims court that is a Governing Court if your claims qualify and (ii) you or we may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving our respective rights to any other jurisdiction, to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Shipica at our posted address. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, and will be held in Salt Lake County, Utah. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location. Shipica and you each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration Shipica and you each waive any right to a jury trial. The substantially prevailing party will be awarded costs, expenses and attorneys’ fees arising out of any action to enforce this Agreement.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates in your program application or by any other means then specified by us. We may also communicate with you electronically and in other media, and you consent to such communications. You will ensure that all of your information is up to date and accurate at all times.
This Agreement incorporates and you accept the applicable Service Terms and Program Policies, which we may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions.
15. Fulfillment Services.
15.1 Your Products
Once you are accepted into our Fulfillment Program, you must register each product you offer that you wish to include in the Fulfillment Program. We may refuse registration in our Fulfillment Program of any product, at our sole discretion. You may at any time withdraw registration of any of Your Products from our Fulfillment Program.
15.2 Product Information
You will, in accordance with applicable Program Policies, provide in the format we require accurate and complete information about Your Products registered in our Fulfillment Program, and will provide Fulfillment Requests for any Units fulfilled using our Fulfillment Program in the manner which will be described to you by your account manager. You will promptly update any information about Your Products in accordance with our requirements and as necessary so that the information is at all times accurate and complete
15.3 Shipping to Shipica
15.3.1 You will ship Units to us in accordance with applicable Program Policies. You will be responsible for all costs incurred to ship the Units to the shipping destination (including costs of freight and transit insurance) and Shipica will not pay any shipping costs unless otherwise pre-arranged. You are responsible for payment of all customs, duties, taxes, and other charges. In the case of any improperly packaged or labeled Unit, we may return the Unit to you at your expense (pursuant to Section 15.7) or re-package or re-label the Unit and charge you an administrative fee. All of Your Products tendered for storage shall be delivered at the warehouse in a segregated manner, properly marked and packaged for handling. You will furnish or cause to be furnished at or prior to such delivery, a manifest showing Your Products to be kept and accounted for separately. In the event you’re your Products tendered to Shipica do not conform to the description provided to Shipica by you, Shipica may refuse to accept such products. Shipica is not a guarantor of the condition of Your Products under any circumstances including but not limited to hidden, concealed, or latent defects in the goods. Concealed shortages, damage or tampering will not be our responsibility. In no event will Shipica be liable for loss or damage caused by the inherent nature, condition or type of the products.
15.3.2 You will not deliver to us, and we may refuse to accept, any shipment or Unsuitable Unit. You represent and warrant to Shipica that Shipica is lawfully in possession of Your Products delivered to Shipica and has the right and authority to contract with Shipica for the services contemplated by this Agreement relating to Your Products. You agree to indemnify and hold Shipica harmless from all loss, cost and expense (including attorneys' fees) which Shipica pays or incurs as a result of any dispute or litigation, whether instituted by you or others, respecting your right, title or interest in Your Products covered by this Agreement.
15.3.3 We may, at our option, allow you to ship Units at your expense to fulfillment centers using discounted shipping rates that we may make available to you for certain carriers. In such event, you will use the processes and supply the information that we require for you to obtain such discounted rates. You also must comply with standard operating procedures, weight and size restrictions, and other shipping requirements of the applicable carriers. If we provide you with the estimated shipping costs prior to shipment, you acknowledge and agree that actual shipping costs may vary from such estimates. In addition, if the weight of the Unit, as determined by the applicable carrier, differs from that submitted by you to us for purposes of determining the estimated shipping costs, then: (a) you may be charged more than the estimated shipping costs if the carrier determines that such Unit weighs more than as submitted by you; or (b) you may be charged the full amount of the estimated shipping costs even if the carrier determines the weight to be less than that submitted by you. You will not use carrier account information (e.g., carrier account number, amount of shipping rates, etc.) for any purpose, nor disclose such information to any third party, and you will protect such information as Shipica’s confidential information in accordance with the confidentiality portion of this Agreement. As between you, us, and the applicable carrier, you will be the shipper of record, and we will make payment to the carrier with respect to the shipment of all Units using such discounted rates. Title and risk of loss for any Unit shipped using discounted rates provided by us under this Section will remain with you, and our provision of such shipping rates will not create any liability or responsibility for us with respect to any delay, damage, or loss incurred during shipment. You authorize the applicable carrier to provide us with all shipment tracking information.
15.3.4 If you ship Units from outside the United States of America to our fulfillment centers, you will list yourself as the importer/consignee and nominate a customs broker. If Shipica is listed on any import documentation, Shipica reserves the right to refuse to accept the Units covered by the import documents and any costs assessed against or incurred by Shipica will be collected from Your Bank Account, deducted from amounts payable to you, or by other method at our election.
15.4 Storage
We will provide storage services as described in the Service Terms once we confirm receipt of delivery. We will keep electronic records that track inventory of Units by identifying the number of Units stored in any fulfillment center. We will not be required to physically mark or segregate Units from other inventory units (e.g., products with the same standard identification number, UPC or ASIN) owned by us, our Affiliates or third parties in the applicable fulfillment center(s). If we elect to commingle Units with such other inventory units, both parties agree that our records will be sufficient to identify which products are Units. We may move Units among facilities. If there is a loss of or damage to any Units while they are being stored, we will, as your sole remedy, reimburse you in accordance with the Service Terms, and you will, at our request, provide us a valid tax invoice for the compensation paid to you. If we reimburse you for a Unit, we will be entitled to dispose of the Unit pursuant to Section 15.7. This reimbursement is our total liability for any duties or obligations that we or our agents or representatives may have and is your only right or remedy. At all other times, you will be solely responsible for any loss of, or damage to, any Units. Our confirmed receipt of delivery does not: (a) indicate or imply that any Unit has been delivered free of loss or damage, or that any loss or damage to any Unit later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that we actually received the number of Units of Your Product(s) specified by you for such shipment; or (c) waive, limit, or reduce any of our rights under this Agreement. We reserve the right to impose, and change from time to time, scheduling restrictions and volume limitations on the delivery and storage of your inventory in fulfillment centers, and you will comply with any of these restrictions or limitations. If as a result of a quality or condition of Your Products, of which Shipica had no notice at the time of deposit, Your Products are or become a hazard to other property or to the warehouse or to persons, Shipica shall immediately notify you and you shall thereupon claim its interest in Your Products and remove them from the warehouse to a mutually agreed upon location. Pending such disposition Shipica may remove Your Products, with prior notice to you, from the warehouse and shall incur no liability by reason of such removal.
15.5 Fulfillment
As part of our fulfillment services, we will ship Units from our inventory of Your Products to the shipping addresses in the United States included in valid customer orders, or submitted by you as part of a Fulfillment Request. We may ship Units separately that are included in a single Fulfillment Request. If you participate in our export fulfillment services, we will also ship Your Products that we determine to be eligible (each, a “Foreign-Eligible Product”) to Foreign Addresses within countries we determine to be eligible for foreign shipments, subject to the additional terms on foreign shipments in the applicable Service Terms.
15.6 Customer Returns
15.6.1 You will be responsible for and will accept and process returns of, and provide refunds and adjustments for, any Fulfillment Units in accordance with the Agreement unless you agree to the terms surrounding Shipica’s returns services.
15.6.2 We will receive and process returns of any Fulfillment Units that you elect for us to receive. Any Sellable Units that are also Shipica Fulfillment Units and that are properly returned will be placed back into the inventory of Your Products in our Fulfillment Program. We may fulfill customer orders for Your Products with any returned Fulfillment Units. Except as provided in Section 15.7, you will retake title of all Units that are returned by customers.
15.6.3 Subject to Section 15.7, we will, at your direction, either return or dispose of any Unit that is returned to us by a customer and that we determine is an Unsuitable Unit.
15.6.4 If Shipica receives a customer return that was not intended for Shipica as a return facilitator, you will direct us to return or dispose of the Unit at your own cost failing which we may dispose of the Unit as provided in Section 15.7.
15.7 Returns to You and Disposal
15.7.1 You may, at any time, request that Units be returned to you or that we dispose of Units.
15.7.2 We may return Units to you for any reason, including upon termination of this Agreement. Returned Units will be sent to your designated shipping address. However, if (a) the designated shipping address we have for you is outdated or incorrect, (b) you have not provided or, upon our request, confirmed a designated shipping address, or (c) we cannot make arrangements for you to pay for the return shipment, then the Unit(s) will be deemed abandoned and we may elect to dispose of them in our sole discretion.
We may dispose of any Unsuitable Unit (and you will be deemed to have consented to our action): (i) immediately if we determine in our sole discretion that the Unit creates a safety, health, or liability risk to Shipica, our personnel, or any third party; (ii) if you fail to direct us to return or dispose of any Unsuitable Unit within thirty (30) days after we notify you that the Unit has been recalled; or (iii) if you fail to direct us to return or dispose of any Unsuitable Unit within thirty (30) days (or as otherwise specified in the applicable Program Policies) after we notify you. In addition, you will reimburse us for expenses we incur in connection with any Unsuitable Units.
15.7.3 We may dispose of any Unit we are entitled to dispose of (including any Unsuitable Units) in the manner we prefer. Title to each disposed Unit will transfer to us at no cost to us as necessary for us to dispose of the Unit, and we will retain all proceeds, if any, received from the disposal.
15.7.4 You will promptly notify us of any recalls or potential recalls, or safety alerts of any of Your Products and cooperate and assist us in connection with any recalls or safety alerts, including by initiating the procedures for returning items to you under our standard processes. You will be responsible for all costs and expenses you, we or any of our or your Affiliates incur in connection with any recall or potential recall or safety alerts of any of Your Products (including the costs to return, store, repair, liquidate, or deliver to you or any vendor any of these products).
15.8 Customer Service
15.8.1 We will have no customer service obligations other than to pass any inquiries to your attention at the contact you provide, and to make available a reasonable amount of information regarding the status of the fulfillment of Your Products if you request it and if and to the extent we possess the requested information. You will ensure that all of your policies and messaging to your customers regarding shipping of Your Products and other fulfillment-related matters, reflect our policies and requirements, including with regard to shipping methods, returns, and customer service; and, you will conspicuously display on your website(s), in emails or in other media or communications any specific disclosures, messaging, notices, and policies we require.
15.8.3 In situations relating to fulfillment Units where the wrong item was delivered or there are missing units in the shipment because those units were not included in the original shipment, unless we determine that the basis for such request is caused by you or any of your employees, agents, or contractors, we will, as your sole and exclusive remedy and at our option: (a) ask you to provide us with a replacement order for the missing or correct items to be shipped to the customer, (b) provide a fulfillment fee credit to your account for the original shipment, (c) provide you with a pre-paid shipping label to return the incorrect item or item quantity to us, after which we will put those items back into your available inventory.
15.8.4 In situations relating to fulfillment Units where the item was damaged or lost, or is missing due to an event arising from the carrier and outside of Shipica’s control, we will assist you in filing the relevant claims with the carriers in an attempt to recover funds for the outbound shipment and the missing item. Shipica does not accept liability for errors committed by the shipping carrier.
15.9 Compensation for Fulfillment Services
15.9.1 Handling and Storage Fees. You will pay us the applicable fees described in the applicable Fee Schedule provided to you by Shipica. The Fee Schedule may change at any time on ten (10) days’ notice to you. You will be charged the Storage Fees beginning on the day (up to midnight) that the Unit arrives at a fulfillment center and is available for fulfillment (or in the case of any Unsuitable Unit, the arrival day (up to midnight)), until the earlier of: (a) the day (up to midnight) we receive a valid customer order for such product or a request from you to return or dispose of the Unit; or (b) the day (up to midnight) we actually ship the Unit to your designated return location or dispose of the Unit.
15.9.2 Shipping, Packaging, and Fulfillment Fees. You will be charged fulfillment fees according to the Fee Schedule. For packaging you will be charged the direct cost that we pay for the packaging as a packaging reimbursement. We do not mark up the cost of the packaging we use for you. For shipping expenses you will be charged the direct cost that we pay for the shipping as a shipping reimbursement. We do not mark up the cost of the shipping charged to us by the carrier.
15.9.3 Proceeds. We may keep all proceeds of any Units that we dispose of or to which title transfers, including returned, damaged, or abandoned Units. You will have no security interest, lien, or other claim to the proceeds that we receive in connection with the sale, fulfillment, and/or shipment of these Units.
15.9.3 Lien. On Your Products in our possession, Shipica shall have a general warehouseman's lien for any unpaid charges and expenses. If any charges are not paid within 30 days of the date they are due, Shipica may retain any of Your Products held by Shipica.
15.10 Additional Indemnity
You also agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any Claim that arises from or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section 15.4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death, or property damage; (b) the shipment, export, or delivery of Your Products to Foreign Addresses (including with respect to any classification data and other information provided by you to us in connection therewith, and notwithstanding any rights we have under Section 15.5 or any certifications we may make in connection with the shipment, export, or delivery of Your Products); (c) any of Your Taxes or the collection, payment, or failure to collect or pay Your Taxes; and, if applicable (d) any sales, use, value added, personal property, gross receipts, excise, franchise, business, or other taxes or fees, or any customs, duties, or similar assessments (including penalties, fines, or interest on any of the foregoing) imposed by any government or other taxing authority in connection with the shipment of Foreign-Eligible Products to Foreign Addresses (collectively, “Foreign Shipment Taxes”).
15.11 Release
You, on behalf of yourself and any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the “Releasing Parties”), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge Shipica and each of our Affiliates, and any and all of our and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all Persons acting by, through, under, or in concert with any of them (collectively, the “Released Parties”), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, ”Losses”) which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or any of them, arising out of, resulting from, or in any way related to the shipment, export, or delivery of Your Products to Foreign Addresses, including any tax registration or collection obligations. You, on behalf of yourself and all other Releasing Parties, recognize that you, and each of them, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after the date you register for or use our fulfillment services, which the Releasing Parties are giving up by agreeing to this Agreement. It is your intention in agreeing to this Agreement that this Agreement will deprive the Releasing Parties of each and all such Losses and prevent the Releasing Party from asserting any such Losses against the Released Parties, or any of them.
15.12 Disclaimer
IN ADDITION TO THE DISCLAIMER IN SECTION 6 OF THIS AGREEMENT, WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.
15.13 Effect of Termination
Following any termination of the Agreement we will, as directed by you, return to you or dispose of the Units held as provided in Section 15.7. If you fail to direct us to return or dispose of the Units within thirty (30) days (or as otherwise specified in the applicable Program Policies) after termination, then we may elect to return and/or dispose of the Units in whole or in part, as provided in Section 15.7, and you will be deemed to have consented to our actions. Upon any termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that the rights and obligations of the parties under Sections 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, 15.7, 15.8, 15.9, 15.11, 15.12, 15.13 and 15.15 with respect to Units received or stored by Shipica as of the date of termination will survive the termination.
15.14 Tax Matters
You understand and acknowledge that storing Units at fulfillment centers may create tax nexus for you in any country, state, province, or other localities in which your Units are stored, and you will be solely responsible for any taxes owed as a result of such storage. If any Foreign Shipment Taxes or Your Taxes are assessed against us as a result of performing services for you in connection with the Program or otherwise pursuant to this Agreement or the Service Terms, you will be responsible for such Foreign Shipment Taxes and Your Taxes and you will indemnify and hold Shipica harmless from such Foreign Shipment Taxes and Your Taxes as provided in Section 15.10 of this Agreement.
15.15 Additional Representation
You represent and warrant to us that: (a) you have valid legal title to all Units and all necessary rights to distribute the Units and to perform under this Agreement; (b) you will deliver all Units to us in new condition (or in such condition otherwise described by you) and in a merchantable condition; (c) all Units and their packaging will comply with all applicable marking, labeling, and other requirements required by Law; (d) no Unit is or will be produced or manufactured, in whole or in part, by child labor or by convict or forced labor; (e) you and all of your subcontractors, agents, and suppliers involved in producing or delivering Units will strictly adhere to all applicable Laws of the United States, its territories, and all other countries where Units are produced or delivered, regarding the operation of their facilities and their business and labor practices, including working conditions, wages, hours, and minimum ages of workers; and (f) that all Foreign-Eligible Products (i) can be lawfully exported from the United States without any license or other authorization; and (ii) can be lawfully imported into, and comply with all applicable Laws of, any eligible country.
15.16 Standard of Care
In the event of loss, damage or destruction to stored products for which Shipica is legally liable, you agree that Shipica’s liability for damages shall be limited as set forth in Section 7.
The limitation of liability above shall be your exclusive remedy against Shipica for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of the stored products and shall apply to all claims including inventory shortage and mysterious disappearance claims unless you prove by affirmative evidence that Shipica converted the products to its own use. You waive any rights to rely upon any presumption of conversion imposed by law. In addition, Shipica shall not be liable for any inventory discrepancy of 1% or less of any products sent to Shipica, whether due to loss, damage, shrinkage or any other reason.
You acknowledge and agree that Shipica is not an insurer or guarantor of any Products placed in its possession pursuant to this Agreement.
Any claims you have against Shipica must be presented in writing to Shipica not longer than either (i) ninety (90) days alter delivery of Your Products by Shipica or (ii) ninety (90) days after you are notified by Shipica that loss or injury to part or all of Your Products has occurred, whichever time is shorter. Each claim must contain information necessary to identify Your Products affected, the basis for liability and the amount of the alleged loss or damage, as well as all appropriate supporting documentation which must include: a summary of claims for both damaged and shortages of items, including claim value, and individual claim forms for each claim that is supported by the report is also provided.
No action may be maintained by you or any Affiliates or others against Shipica for loss or injury to Your Products stored unless timely written claim has been given as provided in this section and unless such action is commenced either within nine (9) months after date of delivery by Shipica or within nine (9) months after you are notified that loss or injury to part or all of Your Products has occurred, whichever time is shorter.
15.17 Privacy Policy
We know that your data and the personal data of your customers is important and we understand the trust extended to us to safeguard this information. The section is to help you understand what information we collect, why we collect it, whether and how we share it, information about its security, etc.
What information we collect
In providing fulfillment services for you, we need access to end customer recipient information. We only require information that will ensure a proper delivery to an end recipient customer which typically includes a name, delivery address (including street address, city, state, and zip code). In certain instances you allow us access to customer email information for order troubleshooting or order tracking updates. This is the ONLY information we require in order to fulfill an order for a customer and we do not ever collect, store, process, or otherwise any sensitive information such as financial information, passwords, etc.
Why we collect this information
As mentioned above, when you engage our services and request that we ship items directly to customers on your behalf, we need access to this information in order to create a shipping label with a shipping carrier. In some instances where you have asked us to perform limited customer service interactions, you may also ask us to reach out to customers via email to provide tracking information for orders, or to communicate with them directly about order shipments. In these instances, we require the needed information to contact those customers including their email addresses. As a standard rule, we do not collect email addresses unless you explicitly ask us to provide this service for you.
Whether and how we share this information
As a general rule, we do not share ANY of the information you give to us for ANY purposes of marketing or advertising. The sensitive information you give to us for order fulfillment is never used for any purpose other than fulfillment customer orders directly to the customer. As part of that process, we routinely enter customer information into software platforms provided to us from known carriers such as UPS, Fedex, USPS, etc in order to make a shipping label. This information is passed to these shipment generating software platforms for the express purpose of preparing a shipment and is in no way used for any other purpose or stored for any period of time other than the time needed to ensure a proper delivery of the end recipient’s information (which is typically about 20 days). This information is NEVER shared with any outside party other than those shipping partners specified above.
Storage and Disposal
The personal data referenced above is stored at rest in our internal database that is hosted locally under modern encryption algorithms. As mentioned above, they are stored for the purpose of creating shipping labels, and ensuring proper execution of shipments, after which there is no purpose for the data stored. Accordingly, we purge any personal identifying information within 30 days of receipt of said information. After 30 days, we retain no copies of personal identifying information.
Automatic Information
Sometimes we receive this information automatically from integrations with other websites such as Amazon (through MWS), Shopify, Big Commerce, or others. Our privacy policy and personal identifying information policy has been crafted and reviewed to meet the standards required to be compliant with their requirements for handling personal identifying information.
Definitions
As used in this Agreement, the following terms have the following meanings:
“Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
“Foreign Address” means (a) any mailing address that is not (i) within the fifty states of the United States or Puerto Rico, or (ii) an APO/FPO address.
“Fulfillment Program” means our fulfillment services.
“Fulfillment Request” means a request that you submit to us (in accordance with the standard methods for submission prescribed by us) to fulfill one or more Fulfillment Units.
“Fulfillment Units” means Units fulfilled using our fulfillment services.
“Governing Courts” means the state or federal courts located in Salt Lake County, Utah.
“Intellectual Property Right” means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
“Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction.
“Person” means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
“Program Policies” means all terms, conditions, policies, guidelines, rules, and other information provided to you by Shipica.
“Sellable Unit” means a Unit that is not an Unsuitable Unit.
“Service” means all services provided to you under this Agreement.
“Service Terms” means the service terms applicable to each Service, which are made part of this Agreement upon the date you elect to register for or use the applicable Service, and any subsequent modifications we make to those terms.
“Technology” means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.
“Trademark” means any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
“Unit” means a unit of Your Product that you deliver to Shipica in connection with the Fulfillment Program.
“Unsuitable Unit” means a Unit: (a) that is defective, damaged, unfit for a particular purpose, or lacking required label(s); (b) that Shipica determines is unsellable or unfulfillable; or (c) that Shipica determines is otherwise unsuitable.
“Your Materials” means all Technology, your Trademarks, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Shipica or its Affiliates.
“Your Personnel” means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
“Your Product” means any product or service that you have fulfilled or otherwise processed through us.
“Your Sales Channels” means all sales channels and other means through which you or any of your Affiliates offers products or services.
“Your Taxes” means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. This defined term also means any of the types of taxes, duties, levies, or fees mentioned above that are imposed on or collectible by Shipica or any of its Affiliates in connection with or as a result of fulfillment services including the storage of inventory or packaging of Your Products and other materials owned by you and stored by Shipica, shipping, gift wrapping, or other actions by Shipica in relation to Your Products pursuant to this Agreement.