Please read these terms and conditions carefully before using Our Service.
1.Obligations of ShipTop
ShipTop shall provide the services (the “Services”) described below.
Services:Services shall include, without limitation, receiving, storage, fulfillment, freight, and other related services as determined by ShipTop in their sole discretion, and subject to change without prior notice to Client.
2. Payment, Taxes and Duties
For the purposes of these Terms and Conditions:
- 2.1 Exhibit A sets forth the compensation in Canadian dollars due to ShipTop for completion of the Services described herein. Exhibit A also designates ShipTop and Client’s authorized representative for purposes of this Agreement. Client shall provide payment via ShipTop preferred choice of payment, which may change at ShipTop’s sole discretion without any notice to Client.
- 2.2 ShipTop shall be responsible for invoicing Client for any applicable federal and provincial taxes that are imposed by law on ShipTop in connection with: (1) the provision of the Services; and (2) the sale of any goods related to the provision of any service. Client shall be responsible for such taxes, customs or duties whether existing as of the Effective Date of the Agreement or increasing or becoming applicable during the term of the Agreement.
- 2.3 Arrangements, costs and regulatory obligations associated with the cross-border movement of Client’s goods or property, if any, whether or not title has transferred to ShipTop, or its subsidiaries, will be the sole responsibility of Client, including without limitation, export packing, licensing, forwarding, import brokerage, duty, broker and/or forwarder fees, indirect taxes, filing of export and/or import declarations or entries in Client’s name, and ShipTop costs and related expenses, as well as other responsibilities identified in the Agreement.
- 3.1 ShipTop shall invoice Client for all Services provided and for any expenses incurred for the purposes of providing the Services. Invoices will be presented to Client in accordance with the schedule set forth in Exhibit A and shall be due and payable seven (7) days after Client’s receipt of the invoice.
- 3.2 Client must ensure that all outstanding invoices are paid prior to requesting further Services from ShipTop. ShipTop may choose, in ShipTop sole discretion, to refrain from providing further Services to Client until all outstanding invoices and amounts due are paid in full, without any liability to Client.
- 3.3 ShipTop may submit invoices to Client for payment at any point in time, at ShipTop sole discretion.
4. Reimbursement of Expenses
Client shall reimburse ShipTop for any and all expenses stated in each invoice.
5. Representations, Warranties and Covenants
- 5.1Client represents, warrants and covenants that no part of the materials or products provided as part of the Services will violate or infringe upon the intellectual property rights or other statutory rights of any third party, including, without limitation, any rights relating to copyright, patent, trademark, trade secret, defamation, privacy or publicity (collectively “Intellectual Property Rights”).
- 5.2 Client further represents and warrants that Client has reviewed the Service Level Agreements, this Agreement, and all associated Terms and Conditions available on ShipTop website (“https://shiptop.com/”).
- 5.3 Client further represents, warrants and covenants that Client owns all materials or products provided as part of the Services, and that Client has obtained all permissions, releases, rights or licenses required to engage in this Agreement and for ShipTop to provide the Services without obtaining any further releases or consents.
- 5.3.1 It has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by thisAgreement;
- 5.3.2 The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on its part; and
- 5.4 Client further represents and warrants that Client is the sole legal owner and has lawful possession or control of Client’s Property (defined below), and that Client has the sole legal right to store and direct the release and delivery of Client’s Property. Client further represents and warrants that Client’s Property does not contain any potential health, safety, or environmental hazards associated with the shipment, storage, or fulfilment of the Client’s Property and Services, and that Client’s Property complies with all applicable laws, does notcontain any hazardous and dangerous materials, and does not violate ShipTop policies, which are subject to change without notice. Client shall strictly meet or exceed any compliance obligations contained herein and ShipTop may, in its sole discretion, reject Client’s Property which ShipTop reasonably determines may violate this section. Client acknowledges and agrees that Client may incur additional fees from ShipTop as a result of ShipTop refusing Client’s Property, which may result in a significant delay or non-shipment of Client’s Property, and Client agrees that ShipTop shall not be held liable for any associated loss or damage which may result.
- 5.5 Client further represents, warrants, and acknowledges that ShipTop is not the merchant of record for Client’s Property (defined below).
- 5.5 Client further represents, warrants, and acknowledges that ShipTop is not the merchant of record for Client’s Property (defined below).
- 5.6 Each party represents, warrants and covenants that:
6. Term and Termination
- 6.1 This Agreement will commence on the Effective Date and continue in full forceand effect for 30 calendar days, unless extended in accordance with Section 6.2 or earlier terminated as set forth herein.
- 6.2 This Agreement shall automatically renew for an additional term of thirty (30)days, each following the expiration of the original Agreement term. Client shall notify ShipTop of its election to terminate the Agreement term not less than one (1) day prior to the expiration of the original Agreement term or renewal term, as applicable.
- 6.3 Client and ShipTop shall each have the right to terminate this Agreement in whole or in part, without cause, upon one (1) day prior written notice to the opposite party.
- 6.4 The occurrence of any of the following shall constitute an “Event of Default” under this Agreement:
- 6.4.1 Client defaults in any of its obligations under Section 7 concerning Confidential Information; or
- 6.4.2 Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or
- 6.4.3 Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or
- 6.4.4 Any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Client and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
- 6.4.5 Any representation or warranty made by Client in this Agreement, or any other document executed in connection herewith proves to have been incorrect in any material respect when made.
- 6.5 Notwithstanding anything stated above, an occurrence of an Event of Default described in Section 6.4.3, Section 184.108.40.206.2 or Section 6.4.3 shall effect an immediate termination of this Agreement without any notice requirement.
- 6.6 Upon the occurrence of any other Event of Default, ShipTop may terminate this Agreement by written notice to Client stating the effective date of termination (which may be immediate) and, if the Agreement is not terminated in whole, the extent of termination.
- 6.7 Upon the occurrence of an Event of Default, ShipTop may exercise any and all rights and pursue any and all remedies ShipTop may have by contract, at law or in equity in any jurisdiction where enforcement of this Agreement is sought.
- 6.8 Upon termination of this Agreement, ShipTop shall discontinue Services on the effective date of termination. Upon termination, ShipTop shall be paid any and all amounts due for Services completed prior to the date of termination, including the costs and work associated with terminating the Agreement, including without limitation, the return of Client’s products or merchandise. Payment of such amount shall be made in accordance with the standard invoicing and payment procedures set forth in this Agreement. In addition, Client shall reimburse those expenses of ShipTop Logistics Inc. which were incurred prior to the effective date of termination or as a result of such termination.
- 6.9 Upon termination of this Agreement, if Client has any outstanding invoices with ShipTop, Client shall ensure that such invoices are paid in full within 7 calendar days of termination. Failing which, ShipTop may, in ShipTop sole discretion, sell or dispose of any products, equipment, merchandise, etc. (“Client’s Property”), which are still in ShipTop possession, in order to recover ShipTop loss of revenue, which may be done without any prior notice to Client. ShipTop may pursue Client for any remainder which is owed and does not waive any rights by doing so.
- 6.10 Upon termination of this Agreement, Client shall arrange to recover all of Client’s Property within 7 calendar days of termination, at Client’s sole expense. Failing which, ShipTop may, in ShipTop sole discretion, sell or dispose of Client’s Property, which may be done without any prior notice to Client. Client agrees to hold ShipTop harmless for any disposal of Client’s Property and acknowledges and agrees that it is Client’s duty to ensure that all invoices are paid, and Client’s Property is recovered in a timely manner.
- 6.11 Notwithstanding any of the foregoing and for the sake of simplicity, ShipTop has the full discretion and right in ShipTop sole discretion to refuse to release Client’s Property, and to dispose of such Client’s Property in the manner that ShipTop sees fit in ShipTop sole discretion, if Client has any outstanding invoices or if ShipTop reasonably anticipates a breach of this Agreement.
- 6.12 Further, upon termination of this Agreement, if full payment of all outstanding invoices has been made, Client shall ensure that Client’s Property is recovered within 7 calendar days of termination of this Agreement, failing which, ShipTop may dispose of Client’s Property in the manner that ShipTop sees fit in ShipTop sole discretion.
- 6.13 If Client fails to make payments for a period greater than 30 days, ShipTop may, in ShipTop sole discretion, terminate the Agreement, suspend all Services, and reclassify Client’s account as abandoned (“Abandoned Account”). Further, any Client account which remains unpaid for more than 60 days shall automatically be deemed to be an Abandoned Account. If Client’s account becomes an Abandoned Account, Client shall forfeit all rights to ownership of Client’s Property and any balances, deposits, etc., held by ShipTop for Client, and Client shall solely assume all liability thereafter for Client’s Property. Client shall have no rights to the liquidation process or proceeds received by ShipTop in accordance with this section, and Client shall remain liable for any amounts due above those recovered by the sale of Client’s Property by ShipTop.
- 6.14 Notwithstanding any of the foregoing, Client agrees to hold ShipTop harmless for any disposal of Client’s Property in accordance with any of the above sections.
- 7.1 Client agrees and undertakes to keep this Agreement, and all other Exhibits and information associated with this Agreement, including without limitation, information pertaining to pricing and special pricing (“Confidential Information”), strictly confidential and shall not disclose any part of this Agreement to any party, except for the purposes of seeking legal advice.
- 7.2 Client acknowledges that the Confidential Information is important, material and confidential to ShipTop. Therefore, Client agrees that the remedy at law for any breach of this Agreement would be inadequate and that, in addition to any other remedies available, ShipTop shall be entitled to temporary and permanent injunctive relief, without the necessity of proving actual damages or the need to post a bond. Such injunctive relief will not affect ShipTop right to seek monetary damages or any other remedies which may be available. The provisions of this Section 7 will survive the expiration or earlier termination of this Agreement.
- 7.3 Client hereby grants ShipTop the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Client’s information collected or stored by or on behalf of ShipTop in connection with the Services (“Client’s Data”), as is deemed necessary in ShipTop sole discretion, for the purposes of providing the Services, (ii) to copy, modify, and use Client’s Data in connection with internal operations and functions, including without limitation, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Client’s Data on an aggregate and anonymous basis for marketing purposes.
8. Records, Right to Inspect, Electronic Discovery
During the term of this Agreement and for two (2) years thereafter, Client shall retain all data, books and records (in whatever form they may be kept, whether written, electronic or other) relating or pertaining to this Agreement (collectively “Records”). The Records shall be maintained in accordance with recognized accounting practices and in such a manner that they may be readily audited. The Records shall be available for direct inspection and copying by ShipTop, or its designated representatives, during normal business hours upon ShipTop request while this Agreement remains in force and for two (2) years after its expiration or termination. ShipTop or its designated representatives may use general audit software and other reporting tools against data files or databases. Client shall cooperate with ShipTop, or its designated representatives, in the conduct of such inspection. In the event ShipTop requires information in electronic format from Client in connection with a discovery process, lawful search warrant, court order, subpoena, or other valid legal, regulatory, or administrative process, Client agrees to take reasonable and immediate steps to meet ShipTop requirements at Client’s expense.
9. Work Product and Ownership Rights
Client hereby grants to ShipTop a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to the Client hereto (collectively referred to as the “Licensed Marks”), solely for the purpose of displaying such Licensed Marks on packaging, invoices, customer service correspondence, ShipTop social media accounts, websites, and for any marketing or promotional purposes of ShipTop services, at ShipTop sole discretion. Other than as contemplated by this Agreement, ShipTop shall not make any other use of the Licensed Marks or any related marks or intellectual property of Client.
Client shall indemnify, defend and hold ShipTop, its officers, directors, employees, parent, subsidiaries and affiliates, harmless from and against any and all claims, demands, causes of action, suits, proceedings, damages, judgments, fines, penalties, losses, liabilities, costs and expenses, including legal fees and in-house counsel fees, related to, in connection with, arising from or alleged to arise from, directly or indirectly, any act or omission of Client, its employees, independent contractors, subcontractors, agents or representatives, in providing Services hereunder, including, but not limited to, claims for personal injury, death or property damage, business or employee claims, or claims alleging that any Materials, Created Works or Services supplied by Client hereunder infringe the Intellectual Property Rights of any third party. The provisions of this paragraph will survive the expiration or earlier termination of this Agreement.
You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.
- 11.1 Client maintains the sole discretion to obtain and carry full insurance coverage for all activities reasonably connected with this Agreement. ShipTop shall not be liable for any damage whatsoever or howsoever caused to Client’s Property, including without limitation, due to Client’s failure to obtain or carry insurance, or due to ShipTop actions, omissions, or negligence.
- 11.2 Nothing herein will limit or prohibit ShipTop from obtaining insurance for its own account and solely for ShipTop benefit, and any proceeds payable thereunder will be payable as provided in the underlying policy.
14. Compliance with Laws
- 14.1 Client shall comply and shall ensure that all independent contractors, subcontractors, or agents comply with all applicable laws of countries and regions in which they operate including, but not limited to, environmental, labour, child labour abuse, forced labour, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations. Client shall further ensure that all of Client’s Property complies with all applicable laws of countries and regions in which they operate.
- 14.2 Client shall indemnify, defend, and hold ShipTop harmless against any claim, damage or loss arising from, or in connection with, Client’s breach of this Section 14.
- 14.3 Without incurring any liability to Client, ShipTop may terminate this Agreement immediately upon written notice to Client, if ShipTop determines that Client’s breach of any of this Section 14 significantly undermines the brand image or goodwill of ShipTop.
- 14.4 Remedies available to Client as mentioned in this Section 14 shall be cumulative and in addition to any other or further remedies implied or available at law, in equity or under this Agreement.
15. Location of Warehouse and Client’s Property
- 15.1 Client’s Property will be stored at a warehouse chosen at ShipTop sole
- 15.2 Under no circumstances shall Client be permitted to attend at the Warehouse. The location of the Warehouse is subject to change at ShipTop sole discretion, without any notice to Client. As Client’s Property may be commingled with the products of other clients, Client may not access Client’s Property while it is in the Warehouse or during transport.
- 15.3 It is the Client’s sole responsibility to ensure that Client’s Property is received by ShipTop.
- 15.4 Client hereby acknowledges that ShipTop is not involved with the transport, shipping, or handling or any of Client’s Property and is not responsible for any damages which Client’s Property may incur during such transport.
- 15.5 ShipTop may refuse to accept shipments in ShipTop sole discretion, with the reason to be provided to the Client.
- 15.6 Client acknowledges and agrees that Client is solely responsible for the accuracy of any information provided to ShipTop, and that ShipTop shall not be held liable for, without limitation, any delay, mistake, omission, loss, damage, costs, etc., associated with the provision of any inaccurate information, and that it is not ShipTop responsibility to ensure or determine the accuracy of any information provided by Client to ShipTop. Further, ShipTop shall not be liable to Client for any damages of any kind, including without limitation, loss of income incurred by Client for any reason whatsoever, including without limitation, for any delays, errors, or mistakes caused either directly or indirectly by ShipTop.
- 15.7 Client shall ensure that sufficient amount, quality, etc., of Client’s Property, are provided to ShipTop, and that timely requests are made to ShipTop, to ensure that ShipTop is able to meet its obligations under this Agreement, and that ShipTop is not liable to Client for any of Client’s failures to do so.
- 15.8 The transport and return of any of Client’s Property shall be at Client’s sole expense and shall be paid in advance of such transport.
- 15.9 ShipTop is not responsible for the damage, storage conditions, or preservation of any of Client’s Property, including without limitation, any perishable goods, or damage caused or alleged to be caused during the provision of any of the Services by ShipTop, or during transit to or from ShipTop. In the event that any of the Client’s Property is damaged or stolen in any way whatsoever, including without limitation, as a result of fire, flood, wildlife, an Act of God, natural disaster etc., Client is responsible for pursuing recovery via insurance, and holds ShipTop harmless, while releasing ShipTop of any liability which may or may not exist.
- 15.10 ShipTop is not the importer of record for Client’s Property stored at the Warehouse, ShipTop shall not be held liable for complying with Client’s instructions to ShipTop. Client acknowledges and agrees that ShipTop does not inspect Client’s Property and does not assume any responsibility whatsoever for the business decisions Client makes or implements through ShipTop provision of the Services.
- 15.11 ShipTop may, in its sole discretion, require Client to remove unsuitable or unsellable Client’s Property from its Warehouse or distribution centers. ShipTop will notify Client if any of Client’s Property requires removal. Applicable fees and expenses for the removal of Client’s Property may be assessed at ShipTop sole discretion. If Client fails to remove Client’s Property within 30 days of receiving such notice, ShipTop may dispose of such Client’s Property listed in the notice, and Client agrees that Client shall not be entitled to any damages or reimbursement of the value or loss of profit associated with the disposal of Client’s Property in accordance with this section.
- 16.1 Client understands that the operation of the Services may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to ShipTop third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, Client acknowledges and agrees that Client will bear the sole responsibility for ensuring adequate security, protection and backup of Client’s content, data, information, or protected works (“Content”). ShipTop shall have no liability to Client for any unauthorized access or use of any of Client’s Content, including without limitation, for any corruption, deletion, destruction, or loss of any of Client’s Content, and Client shall indemnify and hold ShipTop harmless for any claims, damages or liability associated or related in any way whatsoever to Client’s Content.
- 16.2 Client acknowledges and agrees that it is Client’s sole responsibility to protect themselves from fraud, and that Client shall be liable for all fees and expenses due to ShipTop for the Services provided as per this Agreement, regardless of whether the request for Services is determined to be fraudulent, or if the Client’s Property is not delivered correctly or at all.
- 16.3 Client acknowledges and agrees that international shipments which are not delivered are often returned by the shipping carrier and, without limitation, assessed return shipping, brokerage, and returns processing carrier fees, inter alia. These fees assessed by the shipping carrier are billed through to merchants, often without notice. ShipTop endeavors to work with Client to circumvent or reduce international returns or abandoned inventory at Client’s request, however, this is done on a reasonable efforts’ basis and ShipTop reserves the right to charge Client to recuperate ShipTop original shipping costs, including without limitation, all costs, and expenses due for the return of Client’s Property. If a tariff is not available, ShipTop will, in its sole discretion, either put orders on hold until tariff information is available or override the order with no liability to ShipTop.
- 17.1 Notices. All notices and correspondence pertaining to this Agreement will be delivered by e-mail, and be addressed as follows:
- If to ShipTop:E-mail: [email protected]
- 17.2 Entire Agreement/Amendment. This Agreement, together with its attached
Exhibits constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior expressions, whether written or oral. In the event of an inconsistency between the terms of the main body of this Agreement and any Exhibit, the terms of the main body of this Agreement control. Client acknowledges that it is not entering into this Agreement on the basis of any representations which are not expressly stated herein. ShipTop may, in its sole discretion, amend this Agreement unilaterally at any point. Notice of such amendments shall be provided to Client 3 days prior to coming into effect.
- 17.3 Waiver. Upon a party’s breach or default hereunder, the other party’s failure, whether single or repeated, to exercise a right hereunder will not be deemed to be a waiver of that right as to any future breach or default.
- 17.4 Severability. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court’s ruling. All remaining portions of the Agreement will remain in full force and effect.
- 17.5 Governing Law/Forum. The validity, interpretation and construction of this Agreement, and all other matters related to this Agreement, will be governed and interpreted by the laws of the Province of Ontario and the laws of Canada applicable therein. Any litigation pertaining to the interpretation or enforcement of this Agreement will be filed in and heard by the court with jurisdiction to hear such disputes in the Regional Municipality of Peel, Province of Ontario, and Client hereby submits to the jurisdiction of such courts.
- 17.6 Force Majeure. Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to acts of God, public enemy, war, strikes or labour disputes, or any other cause beyond the party’s reasonable control (each a “Force Majeure”), it being understood that lack of financial resources shall not to be deemed a cause beyond a party’s control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.
- 17.7 Interpretation. Each party acknowledges it has participated in the negotiation and preparation of this Agreement and has reviewed this Agreement and had the opportunity to consult with its counsel and accountants with respect to its terms. Therefore, each Party agrees that the rule of construction to the effect that any ambiguities in a document shall be interpreted against the drafting party, will not be utilized in the interpretation, construction, or enforcement of this Agreement, and no consideration shall be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement or other instrument subject hereto.
- 17.8 Legal Fees. Should either party institute or participate in a legal or equitable proceeding against the other to enforce or interpret this Agreement, the non-prevailing party shall pay the prevailing party’s costs, expert and professional fees, legal fees, including in-house counsel expenses, and all other costs incurred by the prevailing party in preparation for the proceeding.
- 17.9 Time. Time is of the essence in the performance of this Agreement.
- 17.10 Paragraph Headings and Interpretation. The paragraph headings contained herein are for reference only and will not be considered substantive parts of this Agreement. The use of the singular or plural will include the other form.
- 17.11 Third Party Beneficiaries. No provision of this Agreement will inure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement.
- 17.12 Counterparts. This Agreement may be executed in two or more counterparts, and manually executed counterparts may be delivered by e-mail or other functionally equivalent electronic means of transmission, each of which (whether originally executed or such a faxed or scanned electronic document) shall be deemed an original, and all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the Parties.
- 17.13 Survival. Any terms of this Agreement which by their nature extend beyond its termination, cancellation or expiration remain in effect until fulfilled and apply to respective successors and permitted assignees.