ACCEPTABLE USE POLICY
The Acceptable Use Policy covers all shipments made from ShipMonk (“ShipMonk”) facilities or on ShipMonk shipping accounts whether through a user’s own web site, the ShipMonk application, any online marketplace, or any other forum.
ShipMonk reserves the right to take preventative or corrective actions to protect itself and its users at any time. Any user violating this policy voids any implied or express warranties and violates the ShipMonk Terms. Violating this policy may also result in temporary or permanent limitation of a user’s Account, a held Account, termination of an account with 30 days’ notice, or immediate termination. This includes the inability to ship merchandise, to remove financial information from an account, and for users to close their Accounts as a way of evading the policy. Additionally, users whose Accounts are permanently limited for violating this policy are barred from future use of ShipMonk and its services, and such users are not permitted to directly or indirectly open new or additional ShipMonk Accounts on behalf of themselves or others. Please note, additional information on held Accounts and termination is provided in the Support section of this site. If you encounter violations of this policy, please report them to ShipMonk immediately
FULFILLMENT SERVICES AGREEMENT (U.S.)
THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”) is entered into by and between BEDABOX, LLC, a Florida Limited Liability Company doing business as ShipMonk (“ShipMonk” or “ShipMonk”) (“Company,” together with ShipMonk, the “Parties,” and each a “Party”)
WHEREAS, the Company is in the business of selling and/or manufacturing certain Products; and
WHEREAS, ShipMonk provides to various retailers and manufacturers direct-to-customer order fulfillment services, pursuant to which ShipMonk provides storage, packing and shipping products to the retailer’s customers; and
WHEREAS, Company desires to retain ShipMonk’s services, and ShipMonk desires to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The Company hereby engages ShipMonk to provide, and ShipMonk hereby agrees, upon the terms and subject to the conditions set forth in this Agreement, to provide the Services (as defined below) to the Company for the duration of the Term and the Renewal Term described in Section 2. During the Term, and any Renewal Terms, the conduct of the Parties shall be subject to the terms and conditions of this Agreement, including conformance with the various ShipMonk policies www.shipmonk.com/pricing (“Pricing”).
2.1 Term. The term of this Agreement commences on the Effective Date and continues for a period of 2 years, unless and until earlier terminated as provided under this Agreement or applicable law (“Term”). On expiration of the Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a “Renewal Term”). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.
3. SHIPMONK SERVICES
3.1 Services. ShipMonk shall provide the following services to the Company (collectively, the “Services”):
(a) Receive shipments from the Company of the Product
(b) Provide storage facilities for the Inventory in ShipMonk’s warehousing facilities (“Warehouse”).
(c) Upon notification by the Company of a purchase of Products by a customer, ShipMonk will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”).
(d) ShipMonk will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
(e) Upon request by the Company, ShipMonk will include a Company packing slip, and/or other Company marketing materials concerning the Product, to be provided by Company.
(f) ShipMonk will process, package and ship all Product orders in accordance with ShipMonk Policies, and as may be further specified on Exhibit A.
(g) ShipMonk will maintain monthly ledger summaries of all orders shipped and received, available upon request by the Company.
(h) ShipMonk will facilitate any Product returns from the End-User to the Company.
(i) In addition to the above described Services, ShipMonk shall perform any additional services, including special projects, that the Company desires ShipMonk to perform, as more fully described on the attached Exhibit A, to be amended from time to time as agreed upon by the Parties.
4. COMPANY PERFORMANCE
4.1 General Compliance With Laws Covenant. The Company shall at all times comply with all laws applicable to this Agreement and its obligations under this Agreement, including the Company’s sale of the Products to End-Users. Without limiting the generality of the foregoing, the Company shall, at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the sale of the Products; and not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law.
5. COMPENSATION AND REIMBURSEMENT FOR SERVICES
5.1 ShipMonk Fees. The Company agrees to pay ShipMonk for the Services, in the amounts described on the website at shipmonk.com/pricing, to be amended from time to time.
Additional services ShipMonk offers:
- Pick up at ShipMonk: $5
- 3rd Party Label: $5
- Shipping materials: pricing available upon request
- Paying duties and taxes on behalf of a customer: $20 – $50 processing fee
- Import Shipment Clearance Processing & Consulting: $200/shipment
5.2 Invoicing. ShipMonk shall send invoices to the Company on a bi-weekly basis, on the 1st and 15th of each month, for the previous period following the conclusion of the period for which such Services were provided. All invoices are by default NET 15, unless otherwise defined in exhibit A.
5.3 Product Invoicing. Any and all fees due for the cost of the Product shall be paid directly by the End-User to the Company. Under no circumstances shall ShipMonk accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.
5.4 Failure of Company to Make Timely Payments. If ShipMonk fails to receive payment from Company within 15 days after the date of an invoice, all Services shall stop until ShipMonk receives payment. Furthermore, after 30 days of non-payment, ShipMonk has the right to automatically charge the saved payment method on file or any payment method used in the past for the amount due.
5.5 Late Payment Fee – If ShipMonk fails to receive payment from Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.
5.6 Options & Ways to Pay – ShipMonk provides the Company with a convenience to pay for their invoices online through the Company’s account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee), check (Free), or a wire transfer (Free within the U.S.). ShipMonk is using a 3rd party payment processing company Stripe. ShipMonk does not store any payment information on its own servers; all of Company’s payment information is stored with Stripe. If Company’s invoice remains unpaid for more than 45 days from the issue date, ShipMonk reserves the right to auto-charge any payment method that has been used in the past.
5.7 Auto-Pay – Company has the right to opt-in for “auto-pay” service, which will automatically charge the saved payment method on file 5 days before the due date, for the amount due on the invoice.
6. REPRESENTATIONS AND WARRANTIES
6.1 ShipMonk’s Representations and Warranties. ShipMonk hereby represents and warrants to Company that:
(a) It is duly organized, validly existing and in good standing in the jurisdiction of its formation;
(b) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;
(c) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(d) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of ShipMonk;
(e) When executed and delivered by each of ShipMonk and Company, this Agreement will constitute the legal, valid and binding obligation of ShipMonk, enforceable against ShipMonk in accordance with its terms; and
(f) To the best of ShipMonk’s knowledge, the execution, delivery and performance of this Agreement by ShipMonk will not violate, conflict with, require consent under or result in any breach or default under: (i) any of ShipMonk’s organizational documents; or (ii) any applicable law.
6.2 Company’s Representations and Warranties. Company hereby represents and warrants to ShipMonk that:
(a) It is duly organized, validly existing and in good standing in the jurisdiction of its formation;
(b) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;
(c) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(d) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Company;
(e) When executed and delivered by each of ShipMonk and Company, this Agreement will constitute the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms; and
(f) To the best of Company’s knowledge, it is in material compliance with all laws applicable to this Agreement, the Products and the operation of its business.
7. TITLE, RISK OF LOSS, AND INSURANCE
7.1 Title. Company hereby agrees that at no time during the period that Products are held by ShipMonk as Inventory in the Warehouse will ShipMonk hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
7.2 Risk of Loss. Company hereby agrees that at no time during the period that Products are held by ShipMonk as Inventory in the Warehouse will ShipMonk carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
7.3 Insurance. Company hereby agrees that it is Company’s responsibility, at all times, to maintain an insurance policy that covers the cost of the Products held in Inventory. Company has the option of adding the Warehouse as a designated storage location to Company’s general inventory policy.
7.4 No Insurance. Company can choose not to insure its inventory. In this event, ShipMonk will, under no circumstances, be liable for any loss or damage to the inventory stored at ShipMonk facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event, not directly caused by ShipMonk.
8. COMPANY’S ACCOUNT
8.1 Company’s Account. In order to create an account with ShipMonk, Company will provide ShipMonk with identifying information, a password, company information and information about the Products (“Registration Information”). Company agrees to provide accurate Registration Information and will promptly update such Registration Information as necessary, but in no event later than 30 days after any applicable change. Upon ShipMonk’s acceptance of Company’s request to register for an account (“Account”), Company will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. Company agrees not to share the following: password(s), Account information, or Account access information. Company is responsible for maintaining the confidentiality of password(s) and Account information, and is responsible for all activities that occur under Company’s password(s) or Account(s) or as a result of access to the Account(s). Company shall notify ShipMonk immediately of any unauthorized use of the Account. ShipMonk shall not be liable for any unauthorized use of the Account. Through the Account, Company will select various Services, in addition to or in conformance with Exhibit A. ShipMonk will not be liable for any shipping rate errors due to inaccurate or incomplete Company information in the Account.
8.2 Services Available Through the Account. Subject to Company’s compliance with this Agreement, ShipMonk shall perform the Services described in this Agreement as selected and authorized by Company in the Account, and described on Exhibit A attached hereto. Company may order Services through the Account (“ShipMonk Services Orders”). All ShipMonk Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that ShipMonk is a broker of third-party warehouse and shipping services; accepting shipments from, and making shipments to, third parties. ShipMonk is an independent contractor for all purposes, and only acts as the agent of Company with respect to ShipMonk’s custody of the Products in its Inventory.
8.3 Account Balances. Any invoices ShipMonk sends to Company in accordance with Section 5 of this Agreement shall be based on any balance accrued in the Company’s Account. “3rd Party Fees” are the fees for postage, shipping and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums or other charges given during Company’s use of Services) ordered through the Account and any special or additional fees assessed against the Account as permitted in this Agreement. The 3rd party fees for Services are billed during the month in which the Services are performed, but such 3rd Party Fees are subject to change due to circumstances beyond ShipMonk’s control. Company agrees and acknowledges that should Company change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services listed on Exhibit A to this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed on the 1st and 15th day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.
8.4 ShipMonk Services Estimates. Quotes for 3rd party fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon ShipMonk. Quotations accepted through ShipMonk’s online interface are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.
8.5 Currency Fluctuations. ShipMonk reserves the right to adjust its pricing for the Services in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.
8.6 Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to ShipMonk within 60 days of the fee being charged (“Dispute Period”). ShipMonk will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
8.7 Liens. ShipMonk shall have a priority security interest in all Products in Inventory and on the proceeds thereof to secure the payment of all Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by ShipMonk for the preservation of the Inventory or its sale. In connection therewith, Company hereby (a) grants to ShipMonk a first priority security interest in all Inventory and the proceeds thereof to secure the payment of the User Fees and fees for Services, (b) consents to and grants to ShipMonk the right to deliver and file any documentation required under applicable laws and regulations to perfect such security interest, and (c) irrevocably waives any requirements for its signature on any document filed by ShipMonk under this Section 8.7.
8.8 Account Balance Disputes. If ShipMonk becomes aware of, or is notified of, a dispute relating to the Account Balance, then ShipMonk will promptly review the dispute. Within 5 days after the resolution of the dispute, ShipMonk will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
8.9 Abandoned Account and Liquidation. If Company’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then ShipMonk reserves the right, at its sole discretion to reclassify Company’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits all rights of ownership of such Company’s Inventory. Inventory will become immediately and irrevocably unavailable to Company, and liquidation proceedings would begin. Company agrees the Inventory would be free and clear of liability, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account and would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.
8.10 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activity will be suspended. ShipMonk reserves the right to place an Account on hold for a number reasons, including but not limited to the following:
(a) Account Balance remaining unpaid within 30 days of receipt of invoice;
(b) suspicious activity on or through the Account;
(c) if anyone using the Account uses abusive language or otherwise threatens ShipMonk or its staff;
(d) to allow time to resolve or investigate a third party complaint of a violation of this Agreement;
(e) To allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and
(f) To allow time for ShipMonk to comply with any extraordinary support requests.
8.11 Termination with 30 days’ Notice. ShipMonk reserves the right to terminate an Account for any reason upon 30 days’ Notice (“Termination Notice Period”). Company may have full or limited use of the Account during the Termination Notice Period, subject to ShipMonk’s discretion. Any Product inventory that remains in ShipMonk’s inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company’s credit card, at Company’s expense. If no address is available or no balance is available to pay for shipment back to the Company, ShipMonk will liquidate the Product inventory in accordance with an Abandoned Account.
8.12 Additional Actions. If Company is in breach of any of the terms of this Agreement, ShipMonk may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, ShipMonk may also take any actions available, including, without limitation, any of the following :
(a) contact End-Users who have received Products, contact Company’s bank or credit card issuer, and warn other users, law enforcement, or impacted third parties of Company’s actions;
(b) refuse to provide the Services in the future;
(c) hold Account funds and Inventory for up to 180 days if reasonably needed to protect against the risk of liability; and
(d) take any available legal action.
8.13 Closing Accounts. Company may close the Account for any reason, upon giving ShipMonk 30 day’s prior written Notice. Merchandise will be returned at a rate of $0.5 / item.
9. SHIPMONK INTELLECTUAL PROPERTY RIGHTS
9.1 ShipMonk Property. For purposes of this Agreement, “ShipMonk Property” shall mean (a) ShipMonk’s methodology for the provision of the Services; and (b) ShipMonk’s Confidential Information. ShipMonk hereby retains all worldwide right, title and interest in and to the ShipMonk Property. Any rights not expressly granted herein to the ShipMonk Property shall be retained by ShipMonk. Company acknowledges that all right, title and interest to the ShipMonk Property is owned by ShipMonk.
9.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the ShipMonk Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of ShipMonk and Company shall not copy, imitate, or use them without ShipMonk’s express prior written consent. Company may use HTML logos provided by ShipMonk through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to ShipMonk.com. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to ShipMonk or the Services, or display them in any manner that implies ShipMonk’s sponsorship or endorsement. Company shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access ShipMonk’s website or Services for any purpose without ShipMonk’s express written permission, (ii) interfere or attempt to interfere with the proper working of ShipMonk’s website or any activities conducted on the website, or (iii) bypass any measures ShipMonk may use to prevent or restrict access to ShipMonk’s website or the Services.
9.3 Client Property. No Confidential Information obtained by ShipMonk from Company shall become ShipMonk Property. All materials provided by Company shall be deemed “Client Property” for purposes of this Agreement. Company grants ShipMonk a non-exclusive license to the Client Property solely as needed to provide the Services.
9.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in the United States. ShipMonk has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. These measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. ShipMonk will use reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to ShipMonk’s attention. Company agrees to immediately notify ShipMonk of any suspected security breach at info@ShipMonk.com, followed by contacting ShipMonk customer support.
9.5 Third Party Software. Any third party software application Company uses on the ShipMonk website, to connect to the Services, or related to the Services (“Third Party Software”) is solely subject to any third party software provider software licenses. ShipMonk does not own, control or have any responsibility or liability for any Third Party Software.
10. CONFIDENTIAL INFORMATION
10.1 Scope. From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of this Agreement, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:
(a) All patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models);
(b) All rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
(c) All rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;
(d) All rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and
(e) All inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.
10.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:
(a) information that is or becomes generally available to and known by the public;
(b) information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;
(c) information published or otherwise made known to the public by Discloser;
(d) information that was generated independently without reference to the Discloser’s Confidential Information; or
(e) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
10.3 Protection of Confidential Information. Recipient shall protect and safeguard the confidentiality of Discloser’s Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and not disclose any such Confidential Information to any Person, except: (i) to Recipient’s representatives who need to know the Confidential Information to assist Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or (ii) pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Recipient shall first provide Discloser with: (A) prompt Notice of such requirement so that Discloser may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
The Recipient shall be responsible for any breach of this Section 10.3 caused by any of its representatives. The provisions of this Section 10.3 shall survive termination or expiration of this Agreement for any reason for a period of 5 year after such termination or expiration. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 10.3.
10.4 Return or Destruction. Other than transactional information that is retained in the ordinary course of ShipMonk’s business, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed promptly after receipt of written request from the other party.
10.5 Aggregate Use. Subject to the terms and conditions of this Agreement, Company hereby acknowledges and agrees that ShipMonk may compile aggregate results from all of, or a selection of Company’s use of the Services, provided that ShipMonk shall not disclose any information that would individually identify Company (“Aggregate Information”). Such Aggregate Information shall be deemed to be ShipMonk’s Confidential Information. Company also hereby agrees that ShipMonk may review and use Company’s individual use of the Services in order to provide Services to Company, to evaluate ShipMonk’s provision of the Services, and to improve ShipMonk’s service offerings.
11.1 Company Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless ShipMonk and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, “Losses”), arising out or resulting from any claim of a third party alleging:
(a) Breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company;
(b) Any negligent or more culpable act or omission of Company (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(c) Any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Company;
(d) The acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by ShipMonk;
(e) Any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or
(f) Any failure by Company to comply with any applicable state, federal or international laws.
12.1 AS IS. SHIPMONK’S OBLIGATIONS UNDER THIS AGREEMENT AND THE ATTACHED EXHIBITS (INCLUDING THE USE OF SHIPMONK’S WEB SITE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHIPMONK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES, SHIPMONK’S WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF SERVICES, SHIPMONK WEB SITE, OR THIRD PARTY SERVICES IS AT COMPANY’S RISK.
12.2 No Continuous Access. ShipMonk does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of ShipMonk’s control. However, ShipMonk will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but ShipMonk makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
13. LIMITATION ON SHIPMONK LIABILITY
13.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER SHIPMONK NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY SHIPMONK/ OR COULD HAVE BEEN REASONABLY FORESEEN BY SHIPMONK, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL SHIPMONK’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO SHIPMONK EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). SHIPMONK MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM SHIPMONK.
13.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY’S EXCLUSIVE REMEDY AGAINST SHIPMONK FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT SHIPMONK CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
13.3 INVENTORY COUNT INACCURACIES. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT SHIPMONK IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND SHIPMONK IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND SHIPMONK’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL SHIPMONK BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
13.4 PROJECTS. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“SPECIAL PROJECT”), COMPANY AGREES AND ACKNOWLEDGE’S THAT SHIPMONK’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE COMPANY PAID TO SHIPMONK FOR THE PROJECT.
14. GENERAL PROVISIONS
14.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and ShipMonk Services Orders constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
14.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.
14.3 No Waiver. Failure or delay of ShipMonk to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
14.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal notices to ShipMonk must be sent by postal mail to: ShipMonk, LLC, Attention: Legal Department, 901 NW 35th Street, Boca Raton, FL, 33431.
14.5 Assignment. Company may not transfer or assign any rights or obligations under this Agreement without ShipMonk’s prior written consent. Any attempted assignment without that consent will be void. ShipMonk reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing provisions of this Section, this Agreement shall be binding on and inure to the benefit of the parties’ successors and assigns.
14.6 Conflict of Terms. If there is a conflict between this Agreement and the terms on any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, this Agreement shall control.
14.7 Attorneys’ Fees and Costs. ShipMonk shall have the right to collect from Company any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.
14.8 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of Florida without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in Palm Beach County, Florida. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Palm Beach County, Florida. Notwithstanding the foregoing, ShipMonk may seek injunctive or other equitable relief to protect ShipMonk’s intellectual property rights in any court of competent jurisdiction.
14.9 Mandatory Mediation and Arbitration of Disputes. Except for disputes relating to payment for the Services or as otherwise expressly provided in this Agreement, all disputes arising under this Agreement, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, or otherwise from use of or access to ShipMonk’s website or the Services, shall be determined by arbitration in the State of Florida, Palm Beach County (using the English language), before one arbitrator. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. The Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. The mediation may continue, if the Parties so agree, after the appointment of the arbitrators. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. The pendency of a mediation shall not preclude a Party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the Parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.
14.10 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). Company’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give ShipMonk prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Company shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.
If requested by ShipMonk, Company shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the Florida Uniform Commercial Code or any similar statute or regulation.
The information we learn from customers helps us personalize and continually improve your shipping experience at ShipMonk.com. Here are the types of information we gather.
Information you give us: We receive and store any information you enter on our Web site or give us in any other way. You provide most such information when you price, ship, participate in a contest or questionnaire, or communicate with customer service. As a result of those actions, you might supply us with such information as your name, address, and phone numbers; credit card information; people to whom packages have been shipped, including addresses and phone number; people (with addresses and phone numbers) listed in your address book; content of reviews and e-mails to us; personal description; and financial information, including Social Security and driver’s license numbers. You can choose not to provide certain information, but then you might not be able to take advantage of many of our features. We use the information that you provide for such purposes as responding to your requests, customizing future shipping for you, improving our site, and communicating with you.
Behavioral “retargeting” Advertising: We use third-party advertising companies to serve ads when you visit our Website. These companies may use information (not including your name, company, address, email address, or telephone number) cookies or web beacons to collect non-personally identifiable information such as IP address, pages viewed, and if a conversion and other information about your visits to this and other Web sites in order to provide advertisements about Products and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here for more information about behavioral advertising and how it uses your anonymous info, you can visit http://www.networkadvertising.org.
E-mail communications: To help us make e-mails more useful and interesting, we often receive a confirmation when you open e-mail from ShipMonk.com if your computer supports such capabilities. We also compare our customer list to lists received from other companies, in an effort to avoid sending unnecessary messages to our customers. If you do not want to receive e-mail or other mail from us, please go to the My Account link in the header of any ShipMonk page and adjust your Newsletter preferences.
Information from other sources: We might receive information about you from other sources and add it to our account information. Examples of information we receive from other sources include updated delivery and address information from our carriers or other third parties, which we use to correct our records and deliver your next shipment or communication more easily; account information, purchase or redemption information, and page-view information; pricing criteria and pricing result information; and credit history information from credit bureaus, which we use to help prevent and detect fraud and to offer certain credit services to some customers.
Information about our customers is an important part of our business, and we are not in the business of selling it to others. We share customer information only as described below.
Affiliated businesses we do not control: We work closely with our affiliated businesses. Examples of co-branded and joint offerings include carriers which handle the delivery of your packages, and brokers which provide your packages with cargo insurance. You can tell when a third party is involved in your transactions, and we share customer information related to those transactions with that third party.
Agents: We employ other companies and individuals to perform functions on our behalf. Examples include fulfilling orders, delivering packages, sending postal mail and e-mail, removing repetitive information from customer lists, analyzing data, providing marketing assistance, providing search results and links (including paid listings and links), processing credit card payments, and providing customer service. They have access to personal information needed to perform their functions, but may not use it for other purposes.
Promotional offers : Sometimes we send offers to selected groups of our customers on behalf of other businesses. When we do this, we do not give that business your name and address. If you do not want to receive such offers, please go to the My Account link in the header of any ShipMonk page and adjust your Newsletter preferences.
Business transfers: As we continue to develop our business, we might sell or buy business units. In such transactions, customer information generally is one of the transferred business assets but remains subject to the promises made in any pre-existing Privacy Notice (unless, of course, the customer consents otherwise). Also, in the unlikely event that we, or substantially all of our assets are acquired, customer information will of course be one of the transferred assets.
Law Enforcement: ShipMonk’s policy is to notify members of requests for their data unless it is prohibited from doing so by statute or court order. Law enforcement officials who believe that notification would jeopardize an investigation should obtain an appropriate court order or other process that specifically precludes member notification.
With your consent: Other than as set out above, you will receive notice when information about you might go to third parties, and you will have an opportunity to choose not to share the information.
We reveal only the last five digits of your credit card numbers when confirming a shipment. Of course, we transmit the entire credit card number to the appropriate credit card company during order processing. It is important for you to protect against unauthorized access to your password and to your computer. Be sure to sign off when finished using a shared computer.
ShipMonk.com gives you access to a broad range of information about your account and your interactions with ShipMonk.com for the limited purpose of viewing and, in certain cases, updating that information. If you are under 18, you may use ShipMonk.com only with the involvement of a parent or guardian.
- Electronic Frontier Foundation – a civil liberties organization working to protect your rights online.
- Electronic Privacy Information Center – established to focus public attention on emerging civil liberties issues relating to the National Information Infrastructure.
- Privacy Issues Page – from the Center for Democracy and Technology (CDT).
- The EPIC Cookies Page – definitions, links, and news.
- How to Protect Your Privacy – information from the Federal Trade Commission.
Exhibit A is located at www.shipmonk.com/pricing