The following terms and conditions govern all use of and access to our website (Shipwire.com) and the Services available at or through the website. The website and Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published by us from time to time on the website.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SHIPWIRE.COM WEBSITE OR THE SERVICES. BY ACCESSING THE WEBSITE OR USING ANY PART OF THE WEBSITE OR ANY SERVICES, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS THE WEBSITE OR USE ANY SERVICES. SHIPWIRE’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY SHIPWIRE, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
We may amend this Agreement at any time by posting a revised version on our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a Substantial Change, we will provide you with prior notice of Substantial Change by posting notice on the “Policy Updates” page of our website. We last modified this Agreement on November 7, 2008.
This Agreement contains twelve sections. The headings and subheadings below are for reference only and do not limit the scope of each section. Some capitalized terms have specific definitions, and we have provided them in section 12. You will also find underlined words in this Agreement and on our website that hyperlink to relevant information.
1. Our Relationship With You
2. Eligibility
3. Sending Merchandise to Shipwire
4. Having Shipwire Ship on Your Behalf
5. Fees
6. Account Balances
7. Closing your Account
8. Restricted Activities
9. Your Liability - Actions We May Take
10. Errors and Unauthorized Transactions
11. Disputes with Shipwire
12. Definitions
1. Our Relationship With You.
1.1. Shipwire is only a Fulfillment Service Provider.
Shipwire helps you accept shipments from and make shipments to third parties. Shipwire is an independent contractor for all purposes, except that Shipwire acts as your agent only with respect to the custody of your merchandise. Shipwire is a shipping broker and not a shipping carrier. Shipwire does not have control of or liability for the carriage of any products. We do not guarantee the identity of any User or ensure that a recipient will accept the shipment.
1.1.1. If there is a conflict between these Terms 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, the Terms as stated herein shall control. All Terms, including, but not limited to, all the limitations of liability, shall apply to the carrier and their agents and subcontracted carriers. We reserve the right, in our sole discretion, to refuse any incoming or outgoing shipment at any time.
1.2. Your Privacy.
Protecting your privacy is very important to Shipwire. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your Information.
1.3. Privacy of Others. If you receive Information about another Shipwire User through the Service, you must keep the Information confidential and only use it in connection with the Service. You may not disclose or distribute a Shipwire User’s Information to a third party or use the Information for marketing purposes unless you receive the User’s express consent to do so.
1.4. Intellectual Property.. As between the parties, all Intellectual Property belongs to Shipwire or its licensors. You shall not (and you shall not permit others to), directly or indirectly, modify, translate, decompile, disassemble, or reverse engineer any part of the Intellectual Property, or otherwise attempt to discern the functioning or operation of the website or Service that is not for the purpose of using the website or Service to ship (and management the shipment of) your products (except to the limited extent applicable laws specifically prohibit such restriction); or copy, rent, lease, distribute, or otherwise transfer any or the rights that you receive hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Shipwire and you shall not copy, imitate, or use them without our express prior written consent. You may use HTML logos provided by Shipwire through our merchant services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to Shipwire.com. You shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Shipwire or the Service, or display them in any manner that implies Shipwire’s sponsorship or endorsement. You shall not (and you shall not permit others to): (i) use any robot, spider, scraper or other automated means to access the website (or any of the services available through the website) for any purpose without Shipwire’s express written permission, (ii) interfere or attempt to interfere with the proper working of our website or any activities conducted on the website, or (iii) bypass any measures Shipwire may use to prevent or restrict access to the website and/or the services available through the website.
1.5. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Shipwire’s prior written consent. Shipwire reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
1.6. Notices to You. You agree that Shipwire may provide notice to you by posting it on our website, emailing it to the email address listed in your Account, or mailing it to the street address listed in your Account. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or email to you unless we receive notice that the email was not delivered. If the notice is sent by mail, we will consider it to have been received by you three Business Days after it is sent. You may request a paper copy of any legally required disclosures and you may terminate your consent to receive required disclosures through electronic communications by contacting Shipwire as described in section 1.7 below. Shipwire will charge you a Records Request Fee (per section 8 ) to provide a paper copy. Shipwire reserves the right to close your Account if you withdraw your consent to receive electronic communications.
1.7. Notices to Shipwire. Except as otherwise stated below in section 11 (Disputes with Shipwire), notice to Shipwire must be sent by postal mail to: Shipwire.com, Attention: Legal Department, BOX 115408863, Sioux Falls, SD 57186.
1.8. Shipping History. Accounts in good standing can access their full shipping history and Balance at any time by logging into their Account.
1.9 Account Email. To use the Shipwire service, you must maintain a valid email, that does not have any spam protection to block Shipwire’s automated notification emails from being received. Emails sent from Shipwire are deemed as full and complete notice of account status. We urge you to add Shipwire to any white lists needed to ensure emails are delivered. Please note that all account alerts are sent via email, and duplicated on the administration dashboard of your account. To view the dashboard of your account, sign into your account at www.shipwire.com.
2. Eligibility.
2.1. Eligibility. To be eligible for our Services, you must be at least 18 years old and a resident of the United States or one of the countries with which the Shipwire fulfillment service can complete a transaction. Answers to questions about the Shipwire fulfillment service can be found at www.shipwire.com. This Agreement applies to all Users, regardless of the country in which they reside. If any portion of this agreement is unenforceable in the User’s country, then the User is in breach of the entire agreement, and is forbidden from using the Shipwire service. It is the responsibility of the User to determine if any portion of the agreement is unenforceable in their home country.
2.2. Identity Authentication. You authorize Shipwire, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report and verifying your Information against third party databases or through other sources.
3. Sending Merchandise to Shipwire.
3.1. Receiving Requirements – Noncompliance Fees. Shipwire has strict receiving requirements. If these requirements are not met, you may incur additional fees. Qualified inventory is inventory that is received properly, meaning:
3.1.1. Each shipping label has a properly formatted shipping address, including Advanced Shipping Notification Number (ASN#).
3.1.2. There is one ASN # per tracking number.
3.1.3. All ASN numbers are less than 3 weeks (15 business days) old.
3.1.4. For each ASN #, the actual quantities match the reported quantities.
3.1.5. The dimensions and weight are correct.
3.1.6. If you sent 8 or more pallets to Shipwire on one ASN #, you properly scheduled a delivery window.
3.1.7. New inventory has clear SKU labels corresponding with SKUs in your account, and is packaged for handling.
3.1.8. Inventory is received cleanly organized, boxed and/or stacked. SKUs are packaged together, unmixed.
3.1.9. Shipwire is not liable for any duties, customs or fees related to the inventory.
3.1.10. Inventory that does not meet these criteria will be classified as Unqualified inventory. Unqualified inventory is subject to a fee of $35 per ASN number, plus $0.25 per associated item. If dimensions or weight are later discovered to be in error, the penalty will apply retroactively, as will a surcharge comparable to the underbilled shipping fees. Also additional fees may apply for labor needed to cleanup, label or otherwise reconcile your inventory. Finally, you agree that Shipwire may simply refuse or return any shipment it deems severely Unqualified, at your cost, and shall not be liable or responsible for any cost, expense, loss, injury, misconsignment, or damage of any nature to, or related to, such refused goods. Whether Shipwire accepts or refuses goods you agree to indemnify and hold harmless Shipwire from any and all claims for transportation, storage, handling and other charges relating to such goods, including undercharges, rail demurrage, truck/intermodal detention and other charges of any nature.
3.1.11. There is a base cost to receive inventory into the warehouses (”Receiving Cost”), before any additional fees associated with an Unqualified receiving. While not specifically called out, this Receiving Cost is included with our standard plan and per item ship fees. Shipwire at its sole discretion may at any time require a “Receiving Cost” deposit to fund your account. This deposit will be applied to your account as you use our services, in order to cover the base cost to receive the associated inventory. For example, if your “Receiving Cost” deposit is $20.00 for 200 items, and you ship half the items, your required deposit will reduce by half, or $10.00.
3.1.12. Chain of custody and service levels are provided on www.shipwire.com.
3.1.13. Shipwire shall not be responsible for segregating inventory by production code date. If this is required, we recommend you create a unique SKU for each production.
3.1.14. Receiving Accuracy Disclaimer: Upon receiving, Shipwire does not audit for accuracy all product weighs and measurements nor all inventory counts stated in the merchant ASN. Shipwire will often “spot check” receivings for accuracy. If you would like Shipwire to audit your inventory levels or product attributes (weight and dimensions) for products in storage or as packaged for shipment you must initiate a Special Project. Shipwire specifically disclaims responsiblity for the accuracy of product attributes (weight and dimensions) being entered into the Shipwire system by customers. The merchant is specifically responsible for product attribute accuracy.
3.1.14.1. In the case of lots, where a unit represents multiple individual units bundled together, Shipwire does not audit for accuracy that any specific number of individual units are correctly represented, without a special arrangement subject to a charge.
3.1.14.2 You will provide Shipwire with information concerning the stored inventory which is accurate, complete and sufficient to allow Shipwire to comply with all laws and regulations concerning the storage, handling and transporting of the stored inventory. Your will indemnify and hold Warehouse harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which Shipwire pays or incurs as a result of you failing to fully discharge this obligation.
3.2. Monthly fees. Your monthly fee will begin, or will be adjusted accordingly, immediately upon completion of the Receiving wizard in your Account. The Receiving wizard is what provides the shipping address and ASN # needed to send us merchandise. Storage charges become applicable upon the date that inventory is delivered to Shipwire, regardless of unloading date or date of issue of warehouse receipt. A full month’s storage charge will apply on all goods received between the first and last day, inclusive, of a billing month, and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding billing months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the billing month.
3.3. Inventory Must Be Free and Clear
3.3.1. Shipments must be free and clear of all duties and fees BEFORE arriving at Shipwire. You must be the ultimate consignee, and take responsibility for your merchandise clearing any customs, government or carrier inspections. If merchandise arrives at Shipwire, and customs, duties or fees are applicable to the shipment, these fees will be billed to your account, along with a US $500 penalty, and your merchandise held until all applicable fees are paid. If notice of fees is determined at a later date, all penalties and holds will be immediate and retroactive. Shipwire cannot be the Importer of Record for your merchandise.
3.4. Packing and Marking Requirements. You must comply with all applicable local, state and federal laws, including those governing packing, marking and labeling for all shipments.
3.4.1. Shipments must be prepared or packed to ensure safe carriage with ordinary care in handling.
3.4.2. Each piece must be legibly and durably labeled with the shipping address and ASN #.
3.4.3. Pieces with floor-bearing weight greater than 100 pounds per square foot must be provided with a skid or base that will reduce the floor-bearing weight to 100 pounds or less per square foot. The skid or base will be included in the gross weight of the piece and must be furnished by you.
3.5. Defective Product or Packaging; Obsolescence; Disposal.
3.5.1. Prior to sending a large quantity of merchandise to Shipwire, we strongly recommend you (i) check product and packaging for shippability, and (ii) send a small sample to Shipwire, and ship it back to yourself, to confirm shippability.
3.5.2. We reserve the right to refuse, dispose of and/or return at your cost any product we deem unfit, dangerous, requiring special attention, or otherwise interfering with our normal operations. You are also liable for any additional labor and materials needed to handle defective product or packaging.
3.5.3. If you provide pre-packaged product, we may determine your packaging to be insufficient for shipping, and an outside box required. At our discretion, we may offer an outside box and packaging solution for an additional fee, or we may return the product to you at your cost.
3.5.4. Disposing of your merchandise is comparable to shipping, only without the shipping fee. In other words, the merchandise will still be handled as a normal outbound order, with respect to the cost of handling. A sufficient monthly plan is needed to cover the cost of disposing, or shipping, all items, and storage fees will be required until all items are disposed of or shipped out.
3.6. Limited Access to Inventory
3.6.1. Once product is received by Shipwire, it is unavailable for inspection, exchange or pickup. You must submit a standard order for shipping if you wish to move the product to another location. Sending a third party to pickup product, or coming to pickup product yourself, is not an option. Submitting a large order for shipping may require you to upgrade your plan accordingly. All plans have a limited set of shipping options available.
3.6.2. Shipwire will store the goods at, and may without notice move the goods within and between Shipwire warehouses.
3.7. Projects
3.7.1. Project price quotes are estimates based on information that you have provided and may not include all supplies, hours of work or unexpected project costs. Upon approval of a project estimate and completion of work you will be billed for all hours and supplies to complete your project. Shipwire specifically disclaims liability for any project activities conducted at your request that results in modification, damages, changes or errors to your product or product packaging. Receiving and shipping delays may result as project work is being completed. The limit of our liability for project related tasks is the hourly charge for the project work. We highly recommend that you request and pay for a project sample before requesting bulk modifications to your inventory. Pricing is subject to change at any time.
3.7.2. Shipwire reserves the right to assign a project fee for services or use that it deems at its sole discretion to be excessive or abusive.
3.7.3. Shipwire reserves the right to request a project to any receiving to ensure compliance with Shipwire standard receiving requirements (see paragraph 3 above). In the event that merchant is requested to pay for such a project, your exclusive remedy for non-acceptance are cancellation of receiving or account closure of your Shipwire account, pursuant to Section 7, Closing Your Account.
4. Having Shipwire Ship On Your Behalf.
4.1. Application of Rates and Charges
4.1.1. Basis. Rates and service quotations will be based upon the information provided by you, but final rates and service may vary based upon the shipment actually tendered. Charges will be assessed at the rates effective the day the shipment is accepted by us. Due to potential delays beyond the control of Shipwire, in the discovery of errors, Shipwire reserves the right to retroactively assess or adjust fees, and to make certain aspects of an account uneditable at Shipwire’s discretion in order to avoid further errors.
4.1.2. Chargeable Weight. The costs to transport goods are dependent upon carrier space and weight limitations. Thus, bulky shipments requiring considerable space are often charged a dimensional weight. Each shipment tendered to us is charged according to the actual weight or the dimensional weight, whichever is greater. Dimensional weight is computed by using a dim factor of 194 for domestic shipments and 166 for international shipments. Actual Weight is the weight determined by measuring the shipment on a certified floor platform scale. Dimensional Weight is calculated using the formula (length in inches) x (width in inches) x (height in inches), divided by the dim factor. Dimensional Weight is always rounded up to the next whole pound or kilogram, and calculated on the sum of the dimensions for all pieces contained in the shipment.
4.1.2.1. Example: 10” x 12” x 15” box, 50 pounds. Actual Weight = 50 lbs. Dimensional Weight = (10 x 12 x 15)/194 = 9.28 = 10 lbs. Dimensional Factor = 194. The actual weight exceeds the dimensional weight. Thus, the actual weight (50 lbs.) will be used as the chargeable weight for the shipment.
4.1.3. Additional Fees. Fees related to Customs and security, failed pickup or delivery, labor and waiting time, and reconsignment, may be assessed additional charges and may incur additional transit day(s). Shipwire further reserves the right to bill additional fees, along with Shipwire administrative fees, for address corrections and other carrier adjustments that are billed to Shipwire.
4.1.4. Beyond Charges. A shipment that originates from, or is destined to, a rural location or a location distant from a commercial center may be assessed additional charges and may incur additional transit day(s).
4.1.5. Fuel Surcharges. Most carriers apply fuel surcharges, you are responsible for any applicable fuel surcharges.
4.1.6. Product Description. When you input new products into Shipwire you must give weight and product dimensions. Please ensure these weights and dimensions are accurate, Shipwire relies on these for shipping cost estimates. If your weight or dimensions are smaller than actual, Shipwire shipping estimates will be low and when the actual shipping price is incurred by the carrier your account will be back-billed the difference. If your shipping weights and dimensions are too large Shipwire will overpay the postage and the carrier will not notify Shipwire or you of the overpayment; Shipwire will not be responsible for refunds for overpayment of carrier fees due to erroneous product weight or dimensions. If you do not know your exact product weight and dimensions please submit a project request form through your Shipwire interface and we will provide an estimated hourly cost to audit your inventory for weight and dimensions. Please note also that our shipping costs are estimates until approved/billed by carriers. Shipwire reserves the right to edit dimensions and weight at its discretion.
4.1.7. Shippable Addresses. You are responsible for the accuracy and deliverability of order shipping addresses. Shipwire may, at its discretion, occasionally attempt to verify some order shipping addresses, but this is not a replacement for merchant address diligence and verification. If Shipwire provides an order shipping estimate on the basis of an address later discovered to be inaccurate or incomplete, the merchant may be responsible for any applicable address correction fees, or for any difference in shipping cost due to differences in between the merchant-provided address and the actual address. Examples of discrepancies for which the merchant may be responsible include, but are not limited to, incomplete addresses, commercial/residential address status, and rural address status.
4.1.8. International Shipping. Shipwire offers International shipping from most warehouses on a best efforts basis. Shipwire must offer International shipping as “best efforts” because we can not guarantee delivery due to the unknowns involved with trans-border shipping. Customs can delay, refuse to process, lose or impose unanticipated customs or duties to international shipments at their discretion. Even perfectly documented shipments can be returned to the warehouse with no reasons indicated. For this reason Shipwire offers local warehouses in Canada and the UK. Whenever possible you should avoid the unknowns and extra costs of international shipping by moving inventory and shipping locally. Shipwire will not refund or guarantee an international shipment that was lost or returned. We recommend that all international shipments be tracked and insured. Please see our terms of service and our help files on customs and duties.
4.1.9. Quotations are estimates only. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by us to you are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon us unless we in writing specifically undertake the handling or carriage of the shipment at a specific rate. Quotations accepted through Shipwire’s online interface are estimates based on the information you have supplied. Your final shipping charge may differ based on carrier shipping prices, the actual characteristics of your product, the delivery address, and services requested during the normal course of delivery. Shipwire specifically disclaims liability for any shipping rate errors due to information you have supplied, such as dimensions and weights you have entered into our system. Shipwire disclaims liability for any shipping rate errors due to failures in communication with shipping carriers that are outside of Shipwire’s control.
4.2. Computation of Days. Unless otherwise provided, in computing time in days, business days will be used. Chain of custody and service levels are provided on www.shipwire.com.
4.3. Conditions of Transportation. Except as otherwise provided for herein, we assume no obligation to commence or complete transportation of a shipment within any specific period. Shipwire will determine the routing of any shipment not routed by you, including the mode of transportation used, and may use air transportation, ground transportation, ocean transportation or any combination thereof in providing shipping services. Shipwire reserves the right to divert any shipment (including use of other carriers) in order to facilitate its delivery. The carriage charges for a shipment will be based on the corresponding rates scale, calculated using the origin to destination, plus the addition of all applicable additional charges.Shipwire shall not be liable for delays in obtaining and loading cars, trailers or other containers for outbound shipment. Warehouse shall have a reasonable time to make delivery after inventory is ordered out and shall have a minimum of 10 business days after receipt of a delivery order in which to locate any misplaced inventory.
4.3.1. When goods are ordered out, in the case of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond Shipwire’s control, or because of loss or destruction of goods for which Shipwire is not liable, or because of any other excuse provided by law, Shipwire shall not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to regular storage charges.
4.3.2. If Shipwire has exercised reasonable care and is unable, due to causes beyond its control, to effect delivery before expiration of the current storage period, the inventory will be subject to storage charges for each succeeding storage period.
4.3.3. All instructions and requests for delivery of inventory or transfer of title are received subject to satisfaction of all charges, liens and security interests of Shipwire with respect to the inventory whether for accrued charges, unpaid fees, or advances or otherwise.
4.3.4. Shipwire may require, as a condition precedent to delivery, a statement from you holding Shipwire harmless from claims of others asserting a superior right to you to possession of the inventory. Nothing herein shall preclude Shipwire from exercising any other remedy available to it under the law to resolve conflicting claims to possession of the inventory.
4.4. Carrier. We reserve the right to use alternate carriers or services that provide comparable service levels, as determined by Shipwire. In these cases, pricing will remain as initially quoted. Shipwire reserves the right to modify service levels and carrier options at any time.
4.5. Undeliverable Shipments/Returns. Shipwire can only receive merchandise with a proper ASN # or RMA # attached. Merchandise returned directly to Shipwire without a proper ASN # or RMA #, including undeliverable shipments, will either be refused or discarded. It is your responsibility to submit deliverable orders, and to ensure returns are handled properly. To see details on how to handle returns, please visit the Help Center on www.shipwire.com. Further, you agree that the condition of a return is subjective, and that Shipwire is in no way liable for inspection, or for storing, handling, disposing of, or reshipping returns that appear damaged.
5. Fees.
5.1. Monthly Fees. Fees are listed on the Shipwire website, at www.shipwire.com. Note that items are billed to the month they are actually shipped. For example, if you submit an order on Saturday, October 31, the order may not ship until Monday, November 2, and a monthly plan will be needed for the month of November. Shipwire monthly fee pricing is subject to change. Should you change plans during or at the end of any month, your previous pricing plan may no longer be available.
5.2. Shipping Fees. Shipwire pays your shipping fees as they occur, as well as any fees for additional services you request. Each of these fees is debited from your Shipwire account balance on or about the day of activity. Fees are listed on the Shipwire website, at www.shipwire.com.
5.3. Additional Item Fees. There will be additional fees when the “total items shipped during a month” exceeds the “plan allowance.” The additional item fees are listed on the Shipwire website, at www.shipwire.com. These additional item fees are non-refundable, and cannot be applied to any plan upgrades.
5.4. Currency Fluctuations. While Shipwire strives to cushion merchants from currency fluctuations, Shipwire reserves the right at its discretion to adjust warehouse pricing immediately in response to currency fluctuations.
6. Account Balances.
6.1. Balances. You must maintain a minimum balance as described at www.shipwire.com. The minimum balance is recalculated daily, based on your inventory the previous day.
6.2. Waiver of credit card dispute process. The use of a credit card often includes the ability to dispute payments made with that card pursuant to certain dispute resolution rules and procedures provided in the agreement you have with your credit card company. Additionally, Shipwire’s ability to receive payment of its fees and costs via credit card is pursuant to a form of merchant services agreement which contains its own rules and procedures for dispute resolution, including rules and procedures parallel to those associated with your credit card. By using the Shipwire service, you are agreeing to waive any and all rights you may have to utilize the dispute resolution rules and procedures provided with your credit card and those related to Shipwire’s merchant services agreement. Your submission further confirms that you will rely exclusively on the dispute resolution procedures provided in your terms of service with Shipwire.
6.3. Waiver of PayPal dispute process. The use of PayPal includes the ability to dispute payments made with PayPal pursuant to certain dispute resolution rules and procedures provided in the agreement you have with PayPal. Additionally, Shipwire’s ability to receive payment of its fees and costs via PayPal is pursuant to a form of merchant services agreement which contains its own rules and procedures for dispute resolution, including rules and procedures parallel to those associated with your PayPal account. By using the Shipwire service, you are agreeing to waive any and all rights you may have to utilize the dispute resolution rules and procedures provided by PayPal and those related to Shipwire’s merchant services agreement. Your submission further confirms that you will rely exclusively on the dispute resolution procedures provided in your terms of service with Shipwire.
7. Closing Your Account.
7.1. How to Close Your Account. Deplete all your inventory and your monthly fee will automatically turn off. Your account will remain available to you at no charge, unless you request additional services.
7.2. Limitations on Closing Your Account. Your monthly fee will continue as long as Shipwire is carrying inventory for you. If inventory remains in your Account, and you wish to stop your monthly fee, you must ship the inventory to yourself, or elsewhere, in the same manner as shipping inventory to your customers. You must submit a standard order, and use one of our standard shipping services only. You must have a sufficient plan for shipping the number of items. If you do not wish to modify your plan, and your current plan is insufficient for shipping all your inventory in the current month, you will need to spread the shipment over several months, and stay within the limits of your current plan.
7.2.1. You may not close your Account to evade an investigation. If you attempt to close your Account while we are conducting an investigation, we may hold your funds and inventory for up to 180 Days to protect Shipwire or a third party against the risk of Reversals, Chargebacks, Claims, fees, fines, penalties and other liability. You will remain liable for all obligations related to your Account even after the Account is closed.
7.3. Insufficient Funds. It is your responsibility to make sure there are sufficient funds in your account to cover any pending monthly or shipping fees. If you have a credit card on file, we will attempt to charge your card as needed. If at any time additional funds are required, and no valid credit card is available, your account will be placed on hold, and a $5 fee will be assessed. Shipwire will attempt to rebill your account 24 hours later. If funds remain unavailable, and a valid credit card remains unavailable, your account will be assessed another $5 fee. This process will repeat for 30 days, at which time the account will be reclassified as an Abandoned Account.
7.4. Abandoned Account and Liquidation. If your fees remain unpaid for a period of 30 days, your account will be reclassified as an Abandoned Account. All rights to ownership of funds and inventory are immediately forfeited by you. Inventory will become immediately and irrevocably unavailable, and liquidated proceedings will begin. You agree the inventory will be free and clear of liability, and that you will assume any liability therefore. You will have no rights to the liquidation proceeds.
8. Restricted Activities.
8.1. Restricted Activities. In connection with your use of our website, your Account, or the Services, or in the course of your interactions with Shipwire, a User or a third party, you will not:
8.1.1. Breach this Agreement, the Carrier agreement, the Acceptable Use Policy or any other agreement that you have entered into with Shipwire (including a Policy);
8.1.2. Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising);
8.1.3. Infringe Shipwire’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
8.1.4. Act in a manner that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
8.1.5. Provide false, inaccurate or misleading Information;
8.1.6. Send or receive what we reasonably believe to be potentially fraudulent funds;
8.1.7. Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
8.1.8. Attempt to “double dip” during the course of a dispute by receiving or attempting to receive funds from both Shipwire and the seller, carrier, or credit card company for the same shipment;
8.1.9. Use an anonymizing proxy;
8.1.10. Control an Account that is linked to another Account that has engaged in any of these Restricted Activities. We may use evidence other than the Account Information to determine whether you control an Account in someone else’s name, including but not limited to Internet Protocol addresses, common business names, PayPal user IDs, phone numbers, and mailing addresses;
8.1.11. Conduct your business or use the Services in a manner that results in or may result in complaints, Refused Shipments, Returns, Disputes, Claims, Reversals, Chargebacks, fees, fines, penalties and other liability to Shipwire, a User, a third party or you;
8.1.12. Have a credit score from a credit reporting agency that indicates a high level of risk associated with your use of the Services;
8.1.13. Use your Account or the Services in a manner that Shipwire, PayPal, Visa, MasterCard, American Express or Discover reasonably believe to be an abuse of the credit card system or a violation of credit card association or PayPal rules;
8.1.14. Allow your Account to have an Account Balance below the Minimum Balance;
8.1.15. Access the Services from a country that is not included on PayPal’s permitted countries list. Please visit www.paypal.com for more information.
8.1.16. Disclose or distribute another User’s Information to a third party, or use the Information for marketing purposes unless you receive the User’s express consent to do so;
8.1.17. Send unsolicited mail or email to a User or use the Services to send, or assisting in sending, unsolicited mail or email to third parties;
8.1.18. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
8.1.19. Facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;
8.1.20. Use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission;
8.1.21. Use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our website or the Services;
8.1.22. Take any action that may cause us to lose any of the services from our internet service providers, shippers, or other suppliers;
8.1.23. Use the Service to test shipping behaviors.
9. Your Liability - Actions We May Take.
9.1. Your Liability. You are responsible for all fees, fines, penalties, claims, chargebacks and other liability incurred by Shipwire, a Shipwire User, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. You agree to reimburse Shipwire, a User, or a third party for any and all such liability.
9.2. Actions by Shipwire. If you engage in any Restricted Activities, we may take various actions to protect Shipwire, a User, a third party, or you from Reversals, Chargebacks, Claims, fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
9.2.1. We may close, suspend, or limit your access to your Account or the Services (such as limiting your ability to send us merchandise , and your ability to have us ship merchandise, add funds, or remove financial Information);
9.2.2. We may contact buyers who have received goods that we shipped on your half, contact your bank or credit card issuer, and warn other Users, law enforcement, or impacted third parties of your actions;
9.2.3. We may update inaccurate Information you provided us;
9.2.4. We may refuse to provide our Services to you in the future;
9.2.5. We may hold your funds and inventory for up to 180 Days if reasonably needed to protect against the risk of liability; and
9.2.6. We may take legal action against you.
9.2.7. Shipwire, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to the Service for any reason and at any time upon notice to you.
9.3. Account Closure and Limited Access. There are 3 classes of account closure and limited access, which you accept as pre-conditions to using the Shipwire Service:
9.3.1. Held Accounts. Shipwire reserves the right to place an account on hold for a number reasons, including but not limited to the following:
9.3.1.1. Insufficient funds.
9.3.1.2. Suspicious activity.
9.3.1.3. A customer complaint about a merchant.
9.3.1.4. A held account is inaccessible to the merchant, and all activity is held.
9.3.2. Immediate termination. Shipwire reserves the right to immediately terminate an account for a number reasons, including but not limited to the following:
9.3.2.1. Ignoring a warning of misuse of the Shipwire system.
9.3.2.2. Threatening Shipwire staff.
9.3.2.3. Accusing Shipwire staff of crimes.
9.3.2.4. Demanding compensation for services outside of our control.
9.3.2.5. Demanding support inquiries be handled outside of our normal processes.
9.3.2.6. Refusing to follow recommended Shipwire procedures, such as obtaining proper insurance, or filing a claim.
9.3.2.7. Immediate termination is where we immediately close your account, and ship remaining inventory to the billing address on your credit card, at your expense. If no address is available, we immediately liquidate your inventory. See Abandoned Account and Liquidation for more information.
9.3.3. Termination with 30 days notice. Shipwire reserves the right to terminate an account with 30 days notice, with no cause or reason. Termination with 30 days notice is where we send you one email notifying you of termination in 30 days, without cause. You will receive a second notice 15 days prior. It is your responsibility to make sure Shipwire has a working email for you. You may have full or limited use of your account during this time, at our discretion, with the intention of allowing you to expire existing inventory without it being shipped back to you.
9.3.3.1. Any inventory that remains on the 30th day will be shipped to the billing address on your credit card, at your expense. If no address is available, we immediately liquidate your remaining inventory. See Abandoned Account and Liquidation for more information.
9.4. Minimum Balance and Service Levels. When managing risk for Accounts, we take various steps, such as establishing a minimum balance, changing the speed or method of receiving or shipping, and/or requiring you to deposit funds with us as security for your obligations to us or third parties. The following types of events may cause us to increase the minimum balance or decrease the service levels for a specific account, beyond what is standard and customary for other Shipwire Users:
9.4.1. You cease a substantial portion of or your business or adversely alter your business/operations;
9.4.2. There is a material adverse change in your business;
9.4.3. Your business becomes insolvent;
9.4.4. We receive a disproportionate number of customer complaints, Reversals, Chargebacks, Claims, fees, fines, penalties or other liability related to your Account; or
9.4.5. We reasonably believe that you will not be able to perform your obligations under this Agreement, or any other agreement you have entered into with Shipwire.
9.4.6. We may immediately increase the minimum balance, and modify the receiving or shipping service levels, if we reasonably believe that it is warranted under this section. We will provide you with notice specifying these changes. You may close your Account if you object to the changes. We may increase or decrease the amount of the Minimum Balance, provided that in our reasonable judgment the amount of the Minimum Balance is related to the risk for which it was created. If your Account is closed for any reason, we have the right to hold the Minimum Balance for up to 180 Days.
9.5. Acceptable Use Policy Violation - User Fines. If you violate the Acceptable Use Policy as set forth below in clauses (a), (b), or (c) below, then we may fine you $500.00 USD for each such violation and may take legal action against you to recover additional losses we incur. You acknowledge and agree that $500.00 USD is presently a reasonable minimum estimate of Shipwire’s damages, considering all currently existing circumstances, including the relationship of the sum to the range of harm to Shipwire that reasonably could be anticipated and the anticipation that proof of actual damages may be impractical or extremely difficult. Shipwire may deduct such fines directly from any existing Balance in the offending Account, or any other Shipwire Account you control. The specific activities that may subject you to fines by Shipwire are:
9.5.1. Using the Service to receive or ship merchandise for any sexually oriented or obscene materials or services in violation of the Mature Audiences element of the Acceptable Use Policy;
9.5.2. Using the Service to receive or ship merchandise for any narcotics, other controlled substances, steroids or prescription drugs in violation of the Prescription Drugs and Illegal Drugs and Drug Paraphernalia elements of the Acceptable Use Policy; or
9.5.3. Using the Service to receive or ship merchandise for wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity.
10. Errors and Unauthorized Transactions.
10.1. Identifying Errors and/or Unauthorized Transactions. You can inspect your transaction history at any time by logging in to your Account on the Shipwire website and clicking the “History” tab. It is very important that you immediately notify Shipwire if you have reason to believe any of the following activities have occurred: (i) there has been an unauthorized transaction from your Account; (ii) there has been an unauthorized access to your Account; (iii) your password has been compromised (collectively called “Improper Account Access”).
10.2. Notifying Shipwire of Errors and/or Unauthorized Transactions. To notify us if you believe there has been or will be an error or unauthorized transaction on your Account, contact us by going to www.shipwire.com, clicking the Contact Us link on the bottom of the page, and selecting the Other option.
10.3. Review of Reports of Errors and/or Unauthorized Transactions. We will advise you of the results of our investigation within 10 Business Days after we receive your notice (or 20 Business Days for transactions done at a point of sale terminal or outside the United States). If we have made an error, we will correct it promptly. If we need more time, however, we may take up to 45 Days to investigate your complaint or question (and 90 Days for transactions made at a point of sale terminal or outside the United States). If we decide that we need more time, we will provisionally re-credit your Account for the amount you think is in error within 10 Business Days after we receive your notice; so that you will have use of the money during the time it takes us to complete our investigation. If you initially provided information to us via the telephone and we do not receive your complaint or question in writing within 10 Business Days after your oral notice, we are not required to provisionally re-credit your Account.
10.3.1. At the end of our investigation, we will advise you of the results within 3 Business Days. If we determine that there was no error, we will send you a written explanation and we may debit any provisional credit that we previously credited to you in relation to the alleged error.
10.4. Liability for Unauthorized Transactions. If you report and we verify that there has been an Improper Account Access related to your Account, we will reimburse you in full for all unauthorized transactions sent from your Account that occur within 5 Days of the time that you knew or should have known about the Improper Account Access. If you do not report the Improper Account Access to Shipwire within 5 Days of the time that you knew or should have known about it, we will still reimburse you in full for all unauthorized transactions that took place within or before that 5-Day period, but you may be liable for all unauthorized transactions resulting from the Improper Account Access that occur on Day 6 and beyond (if we can demonstrate that we could have avoided any losses if you had notified us in a timely manner).
10.5. Errors. If we discover a processing error, we will rectify the error. If the error resulted in your Account Balance displaying less money than you were entitled to, Shipwire will credit your Account for the difference. If the error results in your Account Balance displaying more money than you were entitled to, Shipwire may debit the extra funds from your Shipwire Account. If the error resulted in our not completing a shipment with the proper quantity, we will reship the additional items at no charge, unless:
10.5.1. through no fault of ours, you did not have enough available funds to complete the transaction,
10.5.2. our system was not working properly and you knew about the breakdown when you submitted the order, or
10.5.3. circumstances beyond our control (such as fire or flood or loss of Internet connection) prevented the transaction, despite our reasonable precautions.
11. Disputes with Shipwire.
11.1. Waiver of Liability/Hold Harmless. WE ARE A BROKER, AND NOT THE CARRIER OF YOUR SHIPMENT, AND AS SUCH WILL NOT BE LIABLE. To use the Shipwire Service, you must agree to waive all liability AND HOLD Shipwire HARMLESS for all loss, damage, theft, INJURY, late shipments, AND ERRONEOUS SHIPMENTS. Shipwire’s service levels are described on www.shipwire.com, and are non-negotiable.
11.2.Merchant Protection is Available. Shipwire strongly urges you to appreciate that errors happen with storage and shipping, and that the best defense is protecting yourself ahead of time. Shipwire offers multiple merchant protection services, that can be taken advantage of anytime. Please note these services cannot be applied retroactively, and are thus best used at the time of account setup.
11.2.1. Insurance is Available. Insurance is available, and strongly recommended. Inbound shipping insurance, off-site inventory insurance, and outbound shipping insurance are available. To see details, please visit the Help Center on www.shipwire.com.
11.2.2. Consulting is Available. Consulting is available, and strongly recommended. Consulting at the time of account startup, and ongoing consulting, are available and the best opportunity for you to review the risks with us ahead of time and benefit from our experience in setting up your merchandise in a form and manner that gives you the most flexibility, lowest prices, and best protection against errors. Shipwire consulting is an opinion, Shipwire specifically disclaims any liability for consulting opinions followed or not followed by merchants.
11.3. Resolving Receiving Problems. Receiving problems must be resolved through inbound shipping insurance. If there is a discrepancy between what is expected, and what is actually received, you agree that filing a claim with your inbound shipping insurance provider is your only recourse, and that Shipwire has no liability therefore. A discrepancy may be in quantity, condition of merchandise, or otherwise. Shipwire does not offer inbound shipping services. Third parties that handle inbound shipping are independent of Shipwire. Shipwire is in no way liable for inbound shipping.
11.4. Resolving Inventory Problems. Inventory problems must be resolved through off-site inventory insurance. If you dispute the inventory as described in your account, you agree that filing a claim with your off-site inventory provider is your only recourse, and that Shipwire has no liability therefore. Shipwire is only a broker of inventory services. Third parties that handle inventory services are independent of Shipwire. Shipwire is in no way liable for inventory services. Shipwire specifically disclaims liability for any project activities conducted at your request that results in modification, damages, changes or errors to your product or product packaging. Receiving and shipping delays may result as project work is being completed. The limit of our liability for project related tasks is the hourly charge for the project work. We highly recommend that you request and pay for a project sample before requesting bulk modifications to your inventory.
11.5. Resolving Shipping Problems. Shipping problems for loss or damage must be resolved through outbound shipping insurance. Once a tracking number is listed in your Account, you agree that your only recourse for loss or damage is to file a claim with Shipwire’s designated outbound insurance provider, and that Shipwire has no liability therefore. In the event a shipment is mislabeled, or misshipped and consignee receives incorrect merchandise, Shipwire will at its discretion issue a call tag at no charge or credit your account for the estimated cost of a return shipping label. It is your responsibility to ensure the product is returned. If the consignee fails to return the product, Shipwire’s maximum liability shall be for the product as specified in Section 11.12 below, and Shipwire shall have no liability for damages due to the consignee’s acceptance or use of the product. Shipwire reserves the right to edit dimensions and weight at its discretion, in order to ensure accurate shipping fees are billed to your account. Shipwire is only a broker of outbound shipping services. Third parties that handle outbound shipping are independent of Shipwire. Shipwire is in no way liable for outbound shipping.
11.6. Resolving Product and Packaging Problems. Product- and packaging-related problems must be resolved through the manufacturer. If there is a problem with your product or packaging, you agree that filing a claim with the product’s manufacturer is your only recourse, and that Shipwire has no liability therefore. Shipwire recommends new merchants send samples to themselves before shipping to their customers, to confirm there are no product or packaging problems. Lick ‘n Stick service is available to provide merchant with complete control over the product and packaging. Again Shipwire is in no way liable for product and packaging problems under any circumstances.
11.7. Resolving Problems Beyond Receiving, Inventory, Product, Packaging and Shipping. If a dispute arises between you and Shipwire, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and Shipwire regarding our Services may be reported to Shipwire online by signing into your account, and visiting the Help Center, or by calling (888) SHIPWIRE during normal business hours.
11.8. Mandatory Arbitration of Disputes. Except for disputes relating to Section 1.4 (or your breach thereof) or our termination of your use of or access to our website or the Services, or as otherwise expressly provided in this Agreement, all disputes arising under this Agreement, or otherwise from your use of or access to the website or Services, shall finally settled by arbitration in Los Angeles, California (using the English language) in accordance with the Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect. The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute (without the posting of a bond) injunctive or other forms of equitable relief at any time in any court of competent jurisdiction.
11.9. Law and Forum for Disputes. Except as otherwise agreed by the parties in writing or as described in the Mandatory Arbitration section above, you agree that any claim or dispute you may have against Shipwire must be resolved by a court located in Los Angeles County, California. You agree to submit to the personal jurisdiction of the courts located within Santa Clara, California for the purpose of litigating all such claims or disputes. This Agreement shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions.
11.9.1. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Shipwire or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
11.10. Attorneys’ Fees and Costs. All attorneys’ fees and costs (including in-house attorneys and paralegals) incurred by Shipwire relating in any way to Shipwire’s activities referred to in this agreement, in addition to any other relief to which it may be entitled, shall be charged to you and shall, for purposes of Section 11.10.1 below, be considered “charges present or future with respect to such inventory” and shall attach as a lien on the inventory. All claims you bring against Shipwire must be resolved in accordance with section 11 of this Agreement. All claims filed or brought contrary to section 11 shall be considered improperly filed and a breach of this Agreement. This Agreement shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions.
11.10.1. Lien. Shipwire shall have a lien against the inventory and on the proceeds thereof for all charges for storage, handling, transportation (including demurrage and terminal charges), insurance, labor and other charges present or future with respect to the inventory, advances or loans by Shipwire in relation to the inventory and for expenses necessary for preservation of the inventory or reasonably incurred in their sale pursuant to law. Shipwire further claims a lien on the goods for all such charges, advances and expenses in respect to any other property stored by you in any other warehouse affiliated with Shipwire or its subsidiaries wherever located and whenever deposited and without regard to whether or not said other property is still in storage.
11.11. No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
11.12. Limitations of Liability.
To use the Shipwire Service, you must agree to waive all of Shipwire’s liability for loss, damage, theft or late shipments. Shipwire’s service levels are described on www.shipwire.com, and are non-negotiable.
11.12.1. WE ARE A BROKER, AND NOT THE CARRIER OF YOUR SHIPMENT, AND AS SUCH WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, THEFT OR LATE SHIPMENTS, WHETHER DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, WHETHER OR NOT WE KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES MIGHT BE INCURRED.
11.12.2. IN NO EVENT SHALL WE, OUR PARENT, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEB SITE, OUR SERVICE, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT, EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES.
11.12.3. IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO INVENTORY FOR WHICH SHIPWIRE IS LEGALLY LIABLE, YOU DECLARE THAT SHIPWIRE’S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO YOU OF REPLACING, OR REPRODUCING THE LOST, DAMAGED, AND/OR DESTROYED INVENTORY (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND/OR DESTROYED INVENTORY ON THE DATE YOU ARE NOTIFIED OF LOSS, DAMAGE AND/OR DESTRUCTION (3) 100 TIMES THE MONTHLY STORAGE PORTION OF THE MONTHLY FEE APPLICABLE TO SUCH LOST, DAMAGED AND/OR DESTROYED INVENTORY, (4) $.50 PER POUND FOR SAID LOST, DAMAGED, AND/OR DESTROYED INVENTORY. PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER RECEIPT OF THIS WAREHOUSE RECEIPT, YOU MAY ADD INVENTORY INSURANCE ON PART OR ALL OF THE INVENTORY IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE; FURTHER PROVIDED THAT NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE OR DESTRUCITON TO ANY PORTION OF THE INVENTORY HAS OCCURRED.
11.12.4 SHIPWIRE’S LIABILITY REFERRED TO IN SECTION 11.12.2 SHALL BE YOUR EXCLUSIVE REMEDY AGAINST SHIPWIRE 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 YOU PROVE BY AFFIRMATIVE EVIDENCE THAT SHIPWIRE CONVERTED THE GOODS TO ITS OWN USE. YOU WAIVE ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
11.13. Liabilities Limited for Errors. We will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any delay, mis-delivery, non-delivery, misinformation or failure to provide information caused by or resulting in whole or in part from:
11.13.1. The act, default or omission of any person or entity, other than us, including those of any local, state or federal government agencies.
11.13.2. The nature of the shipment, including any defect, characteristic or inherent vice of the shipment.
11.13.3. Your violation of any of the Terms contained herein, as amended or supplemented, or on a Shipping Document, including, but not limited to, the improper or insufficient packing, securing, or falsely marking, declaring, describing or addressing of shipments, or use of a Shipwire.com account not in good credit standing, or failure to give notices in the manner and time prescribed.
11.13.4. Perils of the air, public enemies, criminal acts of any person(s) or entities, including, but not limited to, acts of terrorism, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotion, hazards incident to a state of war, local or national weather conditions, national or local disruptions in air or ground transportation networks (as determined solely by us), strikes or anticipated strikes (of any entity, including, but not limited to, other carriers, vendors or suppliers), natural disasters (earthquakes, floods and hurricanes are examples of natural disasters), conditions that present a danger to our personnel or agents, and disruption or failure of communication and information systems (including, but not limited to, our systems).
11.13.5. Our compliance with verbal or written delivery or project instructions from you or persons claiming to represent you. Shipwire specifically disclaims liability for any project activities conducted at your request that may result in modification, changes, damages, errors to your products or shipping delays resulting from project work requested. The limit of our liability for errors conducted during project related tasks is the hourly charge for the project work.
11.13.6. Our inability to provide a copy of the delivery record or a copy of the signature obtained at delivery.
11.13.7. Our failure to honor “shipment orientation” graphics (e.g., “UP” arrows, “THIS END UP” markings), “FRAGILE” labels or other special directions concerning shipments.
11.13.8. Your failure to provide goods in packaging approved by us prior to shipment where such prior approval is recommended or required.
11.13.9. The shipment of fluorescent tubes, neon lighting, neon signs, X-ray tubes, laser tubes and light bulbs.
11.13.10.The shipment of scale models (including, but not limited to, architectural models, dollhouses, etc.).
11.13.11.Your use of an incomplete, inaccurate or invalid Shipwire account or your failure to provide a valid Shipwire account in good credit standing in the billing instructions or shipping documentation.
11.13.12.Our failure to notify you of any delay, loss or damage in connection with your shipment or any inaccuracy in such notice.
11.13.13.The shipment of perishables, unless shipped in accordance with “Shipments Accepted Under Special Conditions” below.
11.13.14.Your failure to provide accurate delivery address information.
11.13.15.The shipment of computers or any components thereof or any type of electronic equipment when shipped in any packaging other than the manufacturer’s original packaging.
11.13.16.Any shipment containing a prohibited item. See our Acceptable Use Policy.
11.13.17.Our provision of advice, assistance or guidance on the appropriate packaging of shipments unless such advice, assistance or guidance has been approved in writing by us and the writing expressly accepts liability in the event of a damaged shipment.
11.13.18.Failing to meet our service level guidelines.
11.13.19.Delays or taxes and fees related to Customs, security and government oversight, failed pickup or delivery, labor and waiting time, reconsignment, and addresses beyond a reasonable distance from a commercial center (beyond charges).
11.13.20.Merchandise that you did not properly declare, including proper documentation, markings, labels and packaging.
11.14. Excessive Investigation. While Shipwire strives to make every effort to investigate and correct its own errors, Shipwire reserves the right to assign a project fee for investigation it deems to be excessive or resulting in no error.
11.14. No Warranty. SHIPWIRE, OUR PARENT, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. SHIPWIRE, OUR PARENT, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Shipwire does not have any control over funds that are collected for products shipped with our Service and Shipwire cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction. Shipwire does not guarantee continuous, uninterrupted or secure access to our Service, and operation of our site may be interfered with by numerous factors outside of our control. Shipwire will make reasonable efforts to ensure that requests for receiving or shipping merchandise are processed in a timely manner but Shipwire makes no representations or warranties regarding the amount of time needed to complete processing because our Service is dependent upon many factors outside of our control, such as delays 3rd party services or carriers. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from state to state.
11.15. Indemnification. You agree to indemnify and hold Shipwire, its parent, officers, directors, employees, agents, licensors and suppliers harmless from any and all claims, demands, losses, expenses, damages and costs (including, without limitation, attorneys’ fees) arising out of your breach of this Agreement and/or your use of the Services.
11.16. Complete Agreement. This Agreement sets forth the entire understanding between you and Shipwire with respect to our website and the Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Shipwire. Shipwire specifically disclaims any email correspondence as modifying this agreement. All individual sections, and all individual terms, which by their nature should survive, will survive the termination of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be limited or struck to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12. Definitions.
12.1. “Advance arrangements” means you are required to use Shipwire.com prior to tender of a shipment to establish the time and place of tender, and to make special arrangements, if any, for the shipment.
12.2. “Agreement” means this agreement including all subsequent amendments.
12.3. “Balance” means any money that you have in your Shipwire Account. The terms “money” and “funds” are used interchangeably in this Agreement.
12.4. “Business Days” means Monday through Friday, excluding Holidays.
12.5. “Carriage” means movement of the shipment, and related services, by the contracted carrier.
12.6. “Carrier” means the organization contracted for carriage.
12.7. “Chargeable weight” means the greater of actual or dimensional weight. For all rating purposes, “length” is the longest side of any piece or object.
12.8. “Consignee” means the business/person whose name appears on the Shipping Document as the party to whom the shipment is to be delivered.
12.9. “Consignor” means the business or person who contracts through Shipwire.com for carriage of the shipment.
12.10. “Chargeback” means a request made by a buyer directly to his or her credit card company to invalidate a payment.
12.11. “Fees” means those amounts stated in section 8 of this Agreement.
12.12. “Holidays” means New Year’s Day (January 1), Birthday of Martin Luther King, Jr. (the third Monday in January), Washington’s Birthday (the third Monday in February), Memorial Day (the last Monday in May), Independence Day (July 4), Labor Day (the first Monday in September), Columbus Day (the second Monday in October), Veterans Day (November 11), Thanksgiving Day (the fourth Thursday in November) and Christmas Day (December 25).If a Holiday falls on a Saturday, PayPal shall observe the Holiday on the prior Friday. If the Holiday falls on a Sunday, Shipwire shall observe the Holiday on the following Monday.
12.13. “Information” means any confidential and/or personally identifiable information or other information related to an Account or User, including but not limited to the following: name, email address, billing/shipping address, phone number and financial information.
12.14. “Intellectual Property” means the Shipwire.com website and all products, services and content available through the website (such as the “Shipwire” trademark and all related logos), including, without limitation, all processes, systems and methods employed by the website to function, and all patent rights, trademark rights, service mark rights, copyrights, trade secrets and other proprietary rights relating to any of the foregoing.
12.15. “Policy,” or “Policies” means any Policy or other agreement between you and Shipwire that you entered into on the Shipwire website, or in connection with your use of the Services.
12.16. “Minimum Balance” means a percentage of the expected funds needed to ship the merchandise stored in your account, which we in order to protect against the risk of abandoned inventory or any other liability related to your Account and/or use of the Services.
12.17. “Restricted Activities” means those activities described in section 9 of this Agreement.
12.18. “seller” and “merchant” are used interchangeably and mean a User who is selling goods and/or services and using the Services to store and/or ship merchandise.
12.19. “quotation” means an amount of money entered into the History of a Shipwire account, in exchange for a service, prior to the service being completed and Shipwire receiving a final tally of the actual rates and service provided.
12.20. “Ship Merchandise” means your ability to ship product though the Service.
12.21. “Shipwire,” “we,” “us” or “our” means Shipwire, Inc. and its parent, subsidiaries and affiliates.
12.22. “Services” means all receiving, storage and shipping services, and related products available through www.shipwire.com.
12.23. “Substantial Change” means a change to the terms of this Agreement that reduces your rights or increases your responsibilities.
12.24. “Transportation charges” are the amounts assessed for the movement of a shipment and include all the fees and charges specifically named on the invoice. Additional fees or charges may be assessed such as (but not limited to) surcharges, Customs fees and handling fees, pursuant to the terms of the Price Protection Policy.
12.25. “Verified” means that you have completed our verification process to establish your identity with Shipwire. Verification does not constitute an endorsement of a User, or guarantee a User’s business practices.
12.26. “User,” “you” or “your” means you and any other person or entity using the Service.