Terms of Service
This page falls under our Terms of Service update. The update is effective as of November 26, 2019.
On this page
- Accounts, Shipwire services, and Policies
- Account Balances and Fees
- Developers and API License
- Intellectual Property
- Confidential Information
- Limitation of Liability
- Termination and Closing Your Account
- Governing Law and Venue
- General Provisions
- Data Processing Agreement for Shipwire Services
- Data Protection
Shipwire Terms of Service
These terms of service (“Terms of Service” or “TOS”) form a contract between you (referred to herein as “Customer”, “you”, “your” or “Merchant”) and Shipwire, Inc. (“Shipwire”) that governs your access and use of the Shipwire Services (as defined below in Section 1B). By using any of the Shipwire Services, you agree to be bound by these Terms of Service. If you are using the Shipwire Services on behalf of an organization, you are agreeing to these Terms of Service for that organization and representing to Shipwire that you have the authority to bind that organization to these Terms of Service (in which event, “you” or “Merchant” will refer to the organization). You may use the Shipwire Services only in compliance with these Terms of Service and only if you have the power and right to form a contract with Shipwire.`
1. ACCOUNTS, SHIPWIRE SERVICES, AND POLICIES.
A. Accounts. In order to create an account with Shipwire, you will provide Shipwire with identifying information, a password, company information and information about your Inventory (“Registration Information”). You agree that you will 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 Shipwire acceptance of your request to register for an account (“Account”), you will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. You agree not to share your password(s), Account information, or Account access information. You are responsible for maintaining the confidentiality of password(s) and Account information, and you are responsible for all activities that occur under your password(s) or Account(s) or as a result of your access to the Account(s). You agree to notify Shipwire immediately of any unauthorized use of your Account. Shipwire shall not be liable for any unauthorized use of your Account. Through your Account you can select Shipwire Services. For purposes of these Terms, “Good Standing” means that the Account has a positive balance and that you are not be in breach of these Terms or Policies.
B. Shipwire Services. Subject to your compliance with these Terms and the Policies (as defined below in Section 1(c)), Shipwire shall perform the Shipwire Services as selected and authorized by you in your Account. For purposes of these Terms, “Shipwire Services” means the Shipwire products and services and any other features, software, technologies and/or functionalities offered by Shipwire and ordered by you through your Account. You may order Shipwire Services through your Account (“Shipwire Services Orders”). All Shipwire Services Orders are deemed incorporated into, and governed by, these Terms. By using the Shipwire Services, you acknowledge and agree that Shipwire is a broker of third-party warehouse and shipping services. Shipwire helps you accept shipments from, and make shipments to, third parties. Shipwire is an independent contractor for all purposes. Shipwire acts as your agent only with respect to the custody of your merchandise (hereinafter referred to as “Inventory”).
C. Customer Policies and Use of Shipwire Services. Shipwire has defined policies that govern your use of the Shipwire Services (“Policies”). The Policies are linked below and are hereby incorporated by reference. In the event of any conflict or inconsistency between these Terms and any of the Policies, these Terms shall control. Your breach of any of these Terms or the Policies shall excuse Shipwire’s performance of the applicable Shipwire Service.
- Acceptable Use Policy
- Privacy Statement
- Data Processing Agreement (if applicable)
- Inbound Goods Policy
- Storing and Shipment of Goods Policy
- Accounts Policy
- Service Levels Policy
- Fees, Minimum Balance, and Ancillary Charges Policy
- Disputes Policy
You acknowledge that your breach of the Policies or the Terms may result in you incurring additional fees from Shipwire or third parties for the applicable Shipwire Services.
2. ACCOUNT BALANCES AND FEES.
A. Account Balances. Shipwire may set a minimum balance that you must maintain on your Account (“Minimum”). Shipwire reserves the right to increase or to decrease the Minimum on your Account immediately upon notice to you. Your Shipwire Account must be funded at or above the Minimum in order to receive Shipwire Services. The funds that you maintain in your Shipwire Account constitute your “Account Balance”. As Shipwire Services charges are incurred, Shipwire will deduct these from your Account Balance. Shipwire reserves the right to request deposits to receive Inventory to cover costs such as receiving costs and enforce minimum Account Balances. If your Account is closed for any reason, Shipwire reserves the right to hold the Minimum Balance for up to 180 Days.
B. Usage Fees. “Usage Fees” are the fees for any Shipwire Services and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, or other charges given during your use of Shipwire Services) ordered through your Account and any special or additional fees assessed against your Account as permitted in these Terms or the Policies. Note that the Usage Fees for Shipwire Services are billed to the month in which the Shipwire Services are performed. Usage Fees are subject to change. If you are on a billing plan, should you change plans during or at the end of any month, your previous pricing plan may no longer be available.
C. Estimates. Quotations for Shipwire Services and Usage Fees are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon Shipwire. Quotations accepted through Shipwire Services’ 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 your product, the delivery address, and services requested during the normal course of delivery. Shipwire reserves the right to bill the Usage Fees based on actual charges at any time after the Shipwire Services are rendered. Shipwire specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information, such as dimensions and weights.
D. Additional Item Fees/Credits. For some legacy Shipwire plans, there may be a need to pay for additional item fees when the total items shipped during a month exceed plan allowance. Additional item fees are listed in the merchant Account, under Account plan preferences. Merchants on legacy Shipwire pricing plans that use item allowances understand that plan items must be used during the specified billing period or will be automatically forfeited. This applies to items purchased as part of plan upgrades, as well as to any unused additional item credits.
E. Currency Fluctuations. Shipwire reserves the right to adjust its pricing in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes.
F. Usage Fee Disputes. Should you disagree with any Usage Fees (other than carrier or third-party fees) charged against your Account, you must submit the dispute to Shipwire within 90 days of the fee being charged (“Dispute Period”). Shipwire will not review Customer requests for Usage Fee adjustments that are received after the Dispute Period. The dispute timing allowed for third-party fees and carrier fees shall be set by the applicable third-party or carrier and such time period may be substantially shorter than the Shipwire Dispute Period. If you have a dispute with a third-party fee or carrier fee, please contact Shipwire immediately.
G. Account Balance Disputes. If Shipwire becomes aware of, or is notified of, a dispute relating to your Account Balance, then Shipwire will promptly review the dispute. Within 5 business days after the resolution of the dispute, Shipwire will credit or debit your Account Balance accordingly, if appropriate. Shipwire will not review Customer requests for Account Balance adjustments that are received more than 90 days after the amount in dispute is posted to your Account Balance.
H. Abandoned Account and Liquidation. If your Usage Fees remain unpaid for a period greater than 30 days, then Shipwire reserves the right, at its sole discretion to reclassify your 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, all rights to ownership of the Account Balance and Inventory would then immediately be forfeited by you. Inventory will become immediately and irrevocably unavailable to you, and liquidation proceedings would begin. You agree the Inventory would be free and clear of liability, and that you would assume any liability therefore. You would have no rights to the liquidation proceeds. You would also remain liable for any pending Usage Fees above and beyond the liquidation proceeds.
I. Taxes. You acknowledge and agree that all fees, charges and any other rates or amounts charged by Shipwire to you hereunder are exclusive of applicable value added, sales/use or Inventory and service taxes (“Transaction Taxes”) which may be levied in connection with the supply by Shipwire of the Shipwire Services to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Usage Fees or other amounts charged by Shipwire to you.
J. Currency. All dollar amounts stated in these Terms and the Policy’s will be in US dollars unless otherwise specified.
3. DEVELOPERS AND API LICENSE.
A. License Grant. If you are using Shipwire software such as an application programing interface (API), developer’s toolkit or other software application (such as, but not limited to, an e-commerce module developed by Shipwire) (“Developer Tools”), then Shipwire grants you a revocable, non-exclusive, non-transferable license to use Developer Tools in accordance with the documentation for your internal business purposes only. You may not rent, lease or otherwise transfer your rights in the Developer Tools to any third party. Shipwire provides the Developer Tools solely on an “AS IS” basis and disclaims all warranties and liability for your use of the Developer Tools. Shipwire may change or discontinue any Developer Tools in its reasonable discretion.
B. Third Party Software. Any third party software application you use on the Shipwire website, to connect to Shipwire Services, or related to the Shipwire Services (“Third Party Software”) is solely subject to any third party software provider software licenses. Shipwire does not own, control or have any responsibility or liability for any Third Party Software.
4. INTELLECTUAL PROPERTY.
A. Shipwire Property. For purposes of this Agreement, “Shipwire Property” shall mean (a) Shipwire’s methodology for the provision of Shipwire Services; (b) the Developer Tools; and (c) Shipwire’s ideas, web site, processes, code, technology, software, copyrights, logos, domain names, patents, trade secrets, trademarks, products and materials. Shipwire hereby retains all worldwide right, title and interest in and to the Shipwire Property. Any rights not expressly granted herein to the Shipwire Property shall be retained by Shipwire. You acknowledge that all right, title and interest to the Shipwire Property is owned by Shipwire.
B. Additional Restrictions. Other than as permitted herein, you shall not (and you shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Shipwire Property, or otherwise to attempt to discern the functioning or operation of the website or Shipwire Services; or to copy, to rent, to lease, to distribute, or to 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 Shipwire 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 Shipwire website or Shipwire Services 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 Shipwire website or the Shipwire Services.
C. Client Property. No Confidential Information obtained by Shipwire from you shall become Shipwire Property. All materials provided by you under any Shipwire Services Orders shall be deemed “Client Property” for purposes of the Agreement. You grant to Shipwire a non-exclusive license to the Client Property solely as needed to provide the Shipwire Services. No other licenses express or implied, under any intellectual property rights are granted by you to Shipwire under these Terms.
D. Data Security and Privacy. The Service is currently provided from the United States. Registration Information, Account Data, information, Personal Data, and other data (“Data”) is currently stored and processed in the United States. Shipwire has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Data. These measures include encryption of Data during transmission to the Shipwire Service and encryption of backups of Data and authentication credentials at rest. Shipwire will use reasonable efforts to promptly notify Account owner of any unauthorized access to, or use of, Data that comes to Shipwire’s attention. You must immediately notify Shipwire of any suspected security breach at firstname.lastname@example.org followed by contacting Shipwire customer support. For purposes of Processing Personal Data originating from the European Economic Area, Shipwire agrees to incorporate a Data Processing Agreement, whereby Customer is the deemed the Data Controller and Shipwire is the Data Processor.
5. CONFIDENTIAL INFORMATION.
A. Definition. Each party (“Recipient”) acknowledges that it may receive Confidential Information as defined herein. For purposes of these Terms and subject to the Exclusions set forth below, Confidential Information means any information provided to it by the other party (“Discloser”) that is marked, labeled or otherwise designated as confidential or proprietary, or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure.
B. Exclusion. Information that is subject to one of the exclusions below shall not be Confidential Information. The exclusions include the following: (a) Non-transactional Confidential Information (as defined below), (b) information publicly known at the time of disclosure, (c) information received by Recipient without restriction from a third party, (d) information published or otherwise made known to the public by Discloser, (e) information that was generated independently without reference to the Discloser’s Confidential Information, or (f) 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.
C. Non-transactional Confidential Information. Other than transaction information absolutely required for Shipwire to provide, or for you to use the Shipwire Services, Shipwire does not require nor desire any of your proprietary information (“Non-transactional Confidential Information”). You agree not to provide Shipwire with any Non-transactional Confidential Information, including, but not limited to, prototypes of new products, without Shipwire’s express prior written consent. In the event that you send such Non-transactional Confidential Information to Shipwire without Shipwire’s prior written consent, then Shipwire shall not be obligated to treat such information as Confidential Information.
D. Standard of Care. Recipient shall not use the Confidential Information for any purpose other than as required by these Terms. Recipient shall not disclose the Confidential Information to any third party, other than as required to perform the Shipwire Services. Recipient shall use at least the same standard of care with the Discloser’s Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. 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.
E. Return or Destruction. Other than transactional information that is retained in the ordinary course of a party’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.
F. Aggregate Use. Subject to the Terms herein, you hereby acknowledge and agree that Shipwire may compile aggregate results from all of, or a selection of your use of the Shipwire Services, provided that Shipwire shall not disclose any information that would individually identify you (“Aggregate Information”). Such Aggregate Information shall be deemed to be Shipwire’s Confidential Information. You also hereby agree that Shipwire may review and use your individual use of the Shipwire Services in order to provide Shipwire Services to you, to evaluate Shipwire’s provision of the Shipwire Services, and to improve Shipwire’s service offerings.
You agree to indemnify and to hold harmless Shipwire, its parent corporation, and their officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of your use of the Shipwire Services and/or your violation of the Terms or the Policies. Whether Shipwire accepts or refuses Inventory you agree to indemnify and hold harmless Shipwire from any and all claims for transportation, storage, handling and other charges relating to such Inventory, including undercharges, rail demurrage, truck/intermodal detention and other charges of any nature.
A. AS IS. WHILE, SHIPWIRE WILL ENDEAVOR TO PROVIDE THE SHIPWIRE SERVICES IN ACCORDANCE WITH THESE TERMS, THE SHIPWIRE SERVICES AND THE SHIPWIRE WEB SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHIPWIRE AND SHIPWIRE’S SUPPLIERS EXPRESSLY DISCLAIM 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 SHIPWIRE SERVICES, THE SHIPWIRE WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF THE SHIPWIRE SERVICES, SHIPWIRE WEB SITE, OR THIRD PARTY SERVICES IS AT YOUR OWN RISK.
B. Inventory Disclaimer. Shipwire is not the importer of record for Inventory stored at Shipwire. Shipwire shall not be held liable for complying with your instructions through the Shipwire Services. You understand that Shipwire does not inspect your Inventory nor does Shipwire take responsibility for the business decisions that you make and implement through the Shipwire Services. For example, Shipwire cannot control or ensure that a buyer or seller with whom you do business will remit payment for Inventory in accordance with your agreement with them. For purposes of clarity, Shipwire is not the Merchant of Record for any of your Inventory. Shipwire is not responsible for items damaged during the pick and pack process or for breakage of items during transit that have been picked and packed by Shipwire.
C. No Continuous Access. Shipwire does not guarantee continuous, uninterrupted or secure access to the Shipwire Service. Operation of the Shipwire Services may be interfered with by numerous factors outside of our control. Shipwire will make reasonable efforts to process requests for receiving or shipping merchandise 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 caused by third parties.
8. LIMITATION OF LIABILITY.
A. Third Party Liability. By using the Shipwire Services, you acknowledge and agree that Shipwire disclaims all liability for the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Shipwire.
B. Annual Inventory Shrink-Allowance. Handling physical products could result in loss or damage of Inventory. We maintain high standards, however occasionally facilities experience concealed shortages, product damages, mislabeled, miss-picked Inventory and/or cross-shipments. Shipwire maintains merchant friendly receiving and product labeling requirements. You agree that Shipwire will have a 1.5% shrink allowance based on the value of your account’s Inventory known to be in the facility based on the stated cost value measured on an annual basis and subject to Limitations of Liability in Section 8 below. Explainable, offsetting Inventory adjustments based on miss-marked Inventory or receiving Inventory errors will not be deemed an Inventory shrinkage event or lost Inventory.
C. Waiver of Consequential Damages and Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM EITHER PARTY’S ACCESS TO, OR USE OF, THE SITE, ANY CONTENT, OR ANY THIRD PARTY SITES AND CONTENT. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL SHIPWIRE’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY YOU TO SHIPWIRE FOR THE APPLICABLE SHIPWIRE SERVICES EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). IN THE EVENT OF AN UNAUTHORIZED TRANSACTION BY A SHIPWIRE EMPLOYEE OR AGENT, SHIPWIRE IS ONLY LIABLE FOR THE DAMAGES CAP. SHIPWIRE MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR YOU WAIVE ALL DAMAGES FROM SHIPWIRE.
D. Exclusive Remedy. SHIPWIRE’S LIABILITY REFERRED TO BELOW 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 INVENTORY TO ITS OWN USE. YOU WAIVE ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
E. Damage or Loss of Inventory. YOU DECLARE THAT SHIPWIRE’S LIABILITY SHALL BE LIMITED $.50 PER POUND FOR SAID LOST, DAMAGED, AND/OR DESTROYED INVENTORY. IN NO EVENT SHALL SHIPWIRE BE LIABLE FOR ANY LOST SALES REVENUE FROM INVENTORY LOSS. SHIPWIRE’S MAXIMUM LIABILITY FOR INVENTORY LOSS WILL BE CAPPED AT 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER (“DAMAGES CAP”).
F. Inventory Count Inaccuracies. IN THE EVENT OF INVENTORY LOSS IN EXCESS OF THE ANNUAL INVENTORY SHRINKAGE ALLOWANCE DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT SHIPWIRE IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND SHIPWIRE IS HELD LEGALLY LIABLE, YOU AGREE THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND SHIPWIRE’S LIABILITY SHALL BE LIMITED AS STATED IN 8.E. ABOVE. IN NO EVENT SHALL SHIPWIRE BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
G. Projects. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“PROJECT”), YOU DECLARE THAT SHIPWIRE’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE YOU PAID TO SHIPWIRE FOR THE PROJECT.
9. TERMINATION AND CLOSING YOUR ACCOUNT.
A. Held Accounts. A held Account will be inaccessible to you, and all activity will be suspended. Shipwire reserves the right to place an Account on hold for a number reasons, including but not limited to the following:
- Insufficient funds or negative Balance;
- Suspicious activity on or through the Account;
- If anyone using your Account uses abusive language or otherwise threatens Shipwire or its staff;
- To allow time to resolve or investigate a third party complaint of a violation of these Terms;
- To allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation;
- To allow time for Shipwire to comply with your extraordinary support requests.
B. Immediate termination. Immediate termination is where we immediately close your Account and ship remaining Inventory to the billing address listed in your Account, at your expense. If no address is available, we will liquidate your Inventory (See Abandoned Account and Liquidation for more information). Shipwire reserves the right to immediately terminate an Account for a number reasons including but not limited to the following:
- Ignoring a warning of misuse of the Shipwire Services.
- Violation of Shipwire’s Policies (including, without limitation, the Acceptable Use Policy), these Terms or any other conditions of use.
C. Termination with 30 days notice. Shipwire reserves the right to terminate an Account for any reason upon 30 days notice (“Termination Notice Period”) which Shipwire shall send to you via email. 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 the Termination Notice Period in our discretion, with the intention of allowing you to expire existing inventory without it being shipped back to you. Any Inventory that remains in Inventory at the expiration of the Termination Notice Period will be shipped to the address on file and, if address is not on file, the billing address on your credit card, at your expense. If no address is available or no balance is available to pay for shipment back to you, we will liquidate your remaining Inventory. (See Abandoned Account and Liquidation Policy for more information.)
D. Payment for Services prior to Inventory Removal. Prior to Merchant removing all Inventory following termination and as stated herein, Merchant shall pay Shipwire i) all current amounts outstanding for Service fees, transportation, storage and other fees and ii) a good faith estimate of amounts that will become due for transportation, storage and Service and other fees that will be incurred prior to the termination date.
E. Additional Actions. If you violate the Policies or these Terms, we may close, put on hold, or limit access to your Account or the Shipwire Services as set forth above. Without limiting any of remedies under law or equity, we may also take any actions we deem necessary or advisable, including, without limitation, any of the following actions:
- Contact buyers who have received Inventory 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;
- Update inaccurate information;
- We may refuse to provide the Shipwire Services to you in the future;
- We may hold your funds and Inventory for up to 180 days if reasonably needed to protect against the risk of liability; and
We may take legal action against you.
Please note, while disagreements sometimes arise, Shipwire wants to address any complaint with the Shipwire Service in a proactive manner. Please log a support case for resolution, you can send an e-mail to email@example.com. If you feel an escalation is merited please e-mail Legal@shipwire.com regarding your unresolved case and your concern. For purposes of clarity, this does not waive the notice requirement set forth below.
A. 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 may not be applied retroactively, and are thus best used at the time of Account setup.
- Customer Care is Available. Shipwire offers support services to active Accounts in Good Standing. Support services are provided for informational purposes and is not a guarantee. Shipwire specifically disclaims any liability for opinions followed or not followed by merchants.
- Promptly Review Your Shipwire Charges. Shipwire urges you to review your Shipwire service and Usage fees regularly so that we can work with you in a timely manner should there be a discrepancy or disagreement as to a charge. Please see section 5.5 that limits the billing review period to 90 days for Shipwire fees and less time for some carrier charges due to carrier or insurance terms of service.
B. Mandatory Mediation and Arbitration of Disputes. Except for disputes relating to payment for Shipwire Services or as otherwise expressly provided in these Terms, all disputes arising under these Terms, any dispute, claim or controversy arising out of or relating to these Terms 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 your use of or access to the website or Services, shall be determined by arbitration in the County of Santa Clara, California (using the English language), before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures then in effect or such other rules as may be stipulated to by the parties. Judgment on the Award may be entered in any court having jurisdiction. 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.
Prior to the appointment of the arbitrator, and within 10 days from the date of commencement of the arbitration, the parties shall submit the dispute to JAMS for mediation. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in promptly scheduling the mediation proceedings. 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 or any JAMS employees, 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.
11. GOVERNING LAW AND VENUE.
These Terms and performance by the parties hereunder shall be construed in accordance with the applicable laws of the State of California without regard to conflicts of law provisions thereof, or, as appropriate the federal laws. Any action or proceeding arising from or relating to these Terms must be brought in a federal or state court in Santa Clara, California. You and Shipwire consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Santa Clara, California. Notwithstanding the foregoing, Shipwire may seek injunctive or other equitable relief to protect Shipwire’s intellectual property rights in any court of competent jurisdiction.
12. GENERAL PROVISIONS.
A. Severability. If any provision of these Terms 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 these Terms shall remain in effect and enforceable in accordance with their terms.
B. No Waiver. Failure or delay of Shipwire to exercise a right or power under these Terms 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.
C. 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 emailed to the email address listed in your Account. If the notice is sent by mail, we will consider it to have been received by you three Business Days after it is sent. Shipwire reserves the right to terminate your Account if you withdraw your consent to receive electronic communications.
D. Notices to Shipwire. Except as otherwise stated, legal notices to Shipwire must be sent by postal mail to: Shipwire.com, Attention: Legal Department, 3351 Michelson Drive, Suite 100, Irvine, CA 92612, and shall not be deemed to be received until actually received.
E. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Shipwire’s prior written consent and any attempted assignment without that consent will be void. Shipwire 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, these Terms shall be binding on and inure to the benefit of the parties’ successors and assigns.
F. Conflict of Terms. 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.
G. Entire Agreement and Modifications to Terms and Policies. These Terms and the Policies are the entire statement of the terms that govern your use of the Shipwire Services and the Shipwire Website. SHIPWIRE MAY MAKE CHANGES TO THESE TERMS AND/OR THE POLICIES FROM TIME TO TIME IN SHIPWIRE’S SOLE DISCRETION. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SHIPWIRE SERVICES OR THE SHIPWIRE WEB SITE AFTER SHIPWIRE POSTS OR OTHERWISE MAKES AVAILABLE MODIFIED TERMS AND/OR POLICIES WILL CONSTITUTE YOUR ACCEPTANCE OF THOSE MODIFIED TERMS AND POLICIES. Shipwire will endeavor to provide you with notice of any changes to these Terms or the Policies, but Shipwire’s failure to do so shall not excuse your obligation to comply with such modified Terms and Policies.
H. Attorneys’ Fees and Costs. Shipwire shall have the right to collect from you its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing these Terms.
I. Force Majeure. Shipwire shall not be liable for any delays or inability to perform the Shipwire Services caused by forces beyond Shipwire’s control including, without limitation, acts of God or acts of third party service providers including but not limited to carriers and postage systems. When Inventory is ordered out, in the case of acts of God, war, terrorism, 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 Inventory 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 Inventory remaining in storage will continue to be subject to regular storage charges. If Shipwire has exercised reasonable care and is unable, due to causes beyond its control, to affect delivery before expiration of the current storage period, the Inventory will be subject to storage charges for each succeeding storage period.
13. DATA PROCESSING AGREEMENT FOR SHIPWIRE SERVICES.
Terms for Data Processing are set forth at https://www.shipwire.com/w/support/data-processing-agreement/ and are hereby incorporated by reference.
14. DATA PROTECTION.
A. The Parties acknowledge and agree to comply with the data protection and privacy legislation applicable to their performance of this Agreement (“Data Protection Laws and Regulations”), including without limitation, as applicable, the California Consumer Privacy Act (“CCPA”) and the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), including when using, handling, disclosing, transferring, sharing or processing in any way and for any purpose, any information that relates to an identified or identifiable individual (“Personal Data”) received from or on behalf of the other Party, for the duration of the term of this Agreement. The Parties acknowledge and agree that all Personal Data disclosed by one Party and processed by the other Party as part of this Agreement is Confidential Information of the disclosing Party and is subject to the confidentiality obligations set out in this Agreement. Notwithstanding anything to the contrary in Section 6, Shipwire may copy, modify, distribute, and otherwise use Personal Data received from or on behalf of Client for purposes of providing the Services. Client already has in place or will obtain, as applicable, and maintain in effect all permissions, consents, and authorizations that are required by applicable law for Client to provide, or to arrange for the provision of, Personal Data to Shipwire. Client represents and warrants that it has the full ability and legal right to provide and make available Personal Data to Shipwire as contemplated by this Agreement.
B. To the extent the CCPA applies to the Parties’ performance of this Agreement, “Personal Data” as used in this Agreement includes all “personal information” as that term is defined in the CCPA. The Parties acknowledge and agree that, with respect to the sharing of such Personal Data with Shipwire under this Agreement, Shipwire is a “service provider” as that term is defined in the CCPA. With respect to Personal Data consisting of “personal information” as that term is defined in the CCPA, Shipwire hereby certifies that it understands that it is prohibited from (a) selling that Personal Data (as “sell” is defined in the CCPA), (b) retaining, using, or disclosing that Personal Data for any purpose other than for the specific purpose of performing the Services or as otherwise permitted by the CCPA (including retaining, using, or disclosing the Personal Data for a commercial purpose other than providing the Services), and (c) retaining, using, or disclosing the Personal Data outside of its direct business relationship with Client. Shipwire agrees that it will comply with the foregoing prohibitions.
C. Each Party acknowledges and agrees that, to the extent that Personal Data is subject to the GDPR, Client is the “data controller” in respect of that Personal Data and Shipwire is the “data processor.” To the extent that Shipwire “processes” (as that term is defined in the GDPR) Personal Data subject to the GDPR on behalf of Client, Shipwire shall:
- Only process the Personal Data provided by Client in accordance with its instructions, for no other purposes than those determined by Customer and in compliance with the provisions of the Data Protection Laws and Regulations;
- Take reasonable steps to ensure the reliability of employees having access to the personal data processed as part of providing the Services under this Agreement and that such employees are subject to confidentiality obligations;
- Take appropriate technical and organisational measures against unauthorised or unlawful processing of that Personal Data and against accidental loss or destruction of, or damage to the Personal Data;
- Promptly inform Client of any data subject request, third party notices, breach of security or loss of Client’s Personal Data and cooperate with Client in order to impede any consequences thereof and ensure compliance with the applicable Data Protection Laws and Regulations;
- Provide reasonable assistance to Client in order to allow it to comply with its obligations under the Data Protection Laws and Regulations, including, but not limited to, data subject requests; and
- Upon termination of the Agreement, cease all processing of Client’s Personal Data and shall delete or, upon Client’s request, return, all files containing the Personal Data.
D. Shipwire agrees, upon reasonable notice by Client and once every 12 months, to submit to audits or have an independent third-party auditor, inspector, regulator, and other representative, designated in writing by Client and subject to confidentiality obligations, to perform an audit on its behalf in order to validate Shipwire’s compliance with its obligations under this Agreement and the applicable Data Protection Laws and Regulations. All such audits shall be at Client’s sole cost and expense.
E. In the event either of the Parties breaches and fails to comply with the terms and conditions on data protection provided in this Agreement, the breaching Party shall be held liable for all damages and costs incurred by the other Party.
F. Customer shall indemnify and hold Shipwire harmless from any liability, losses, claims, penalties, damages, costs and expenses of whatever nature, imposed by the any regulatory body on Shipwire and arising out of any claims, actions, proceedings or settlements, resulting from the breach or non-compliance of Client with the terms and conditions on data protection set forth in this Agreement and/or with the applicable Data Protection Laws and Regulations.