International eCommerce Delivery Services Terms and Conditions
Recitals
A. WHEREAS BorderGuru is the operator of a service supporting clients worldwide by offering IT interfaces, logistics, and additional services related to the clients’ online shops;
B. WHEREAS Client is the operator of an online shop having its operations in the United States;
C. WHEREAS Client sells goods to end customers (“Customers”) via its online shop and wishes to use BorderGuru’s services to better serve those Customers;
D. WHEREAS Client wishes to retain BorderGuru to transport and to deliver the goods ordered by the Customers from the Client’s online shop to specified countries
E. WHEREAS this International eCommerce Fulfilment Agreement (together with the Annexes, the “Agreement”) sets forth the terms and conditions pursuant to which Client may order and BorderGuru will provide order fulfillment services.
1 Responsibilities of BorderGuru
1.1 BorderGuru, directly or through its contractors, will transport, manage customs clearance for, and deliver packages of goods sold through Client’s online to Clients as described in more detail in Annex 1 (the “Services”). The detailed logistics process, handover specifications, package labeling procedures, and, if applicable, return procedures agreed to by the Parties are set forth in Annex 1.
1.2 BorderGuru will determine all means of transportation in its sole discretion.
1.3 BorderGuru will provide Services only if the place of delivery (“Shipping Destination”) is in one of the countries set out in Annex 2. Deliveries to Post boxes and equivalent are excluded and not serviced. Deliveries to exterritorial regions, colonies and equivalent are also generally excluded.
1.4 In support of the Services, BorderGuru may, in its sole discretion, provide Client with an API interface to integrate with Client’s checkout process. Insofar as this service is provided by BorderGuru, the use of such software service may be subject to a separate software license agreement.
1.5 BorderGuru will designate a contact person for questions regarding the technical integration of the Services, including integration into Client’s checkout procedure. BorderGuru will inform Client in writing if the designated contact person changes.
1.6 Notwithstanding anything to the contrary herein, BorderGuru is not responsible for any delay or failure to deliver the goods or otherwise provide Services resulting from (a) any failure of Client to perform its obligations under this Agreement, or (b) any failure by Client or Customers to provide accurate and complete required information and documentation regarding the goods, the Customer, or pertaining to customs clearance, or (c) any failure by Client to otherwise reasonably cooperate with BorderGuru.
2 Responsabilities of the Client
2.1 Client will provide BorderGuru with accurate information about the goods to be shipped by BorderGuru in a timely manner, including the correct delivery address, all information required to be provided as set out in Annex 1, and all other information required to allow BorderGuru to perform automated declaration of tolls, tariffs, and taxes applicable to shipping goods to the Shipping Destinations. In the event that information provided by Client to BorderGuru pursuant to this section contains an error or omission, or is amended or changed after the initial submission, Client will compensate and indemnify and hold harmless BorderGuru for all costs, expenses, losses, and liabilities incurred by BorderGuru as a result of the incorrect or omitted information, or incurred as a result of any subsequent amendment or change, including all costs and expenses arising from additional efforts of BorderGuru with respect to declaration of tolls, tariffs, and taxes.
2.2 When a Customer designates a delivery address in a country designated in Annex 2 and Clients chooses BorderGuru to perform the delivery to such country, Client will notify the Customer of the transportation costs Client charges the Customer (including customs clearance in cases of DDP deliveries). Client will ensure that the Customer gives the consent that BorderGuru as a service provider of Client is entitled to perform import services on behalf of the Customer. This can be done by Client in the form set forth in clause 2.3 of Annex 1, by placing such language in Client’s general terms and conditions or elsewhere on the website during checkout and presenting such terms and conditions to Customers in a manner that ensures that they are legally binding on the Customer, or as otherwise agreed to by the Parties.
2.3 Client will ensure that Customers provide all information and complete documentation necessary to ensure seamless customs clearance by BorderGuru in a timely manner, including any such information and documentation as may be set out in Annex 1. In particular, Client is responsible for obtaining an effective power of attorney for customs clearance from the Customers.
2.4 If Client delivers the goods to BorderGuru in packaging, Client will ensure that the packaging is in good condition, and is suitable for the goods which are to be transported therein.
2.5 Client will ensure that the volumetric weight does not exceed the real weight. If Client cannot ensure this, Client needs to pass the exact dimensions of each package shipped in advance to BorderGuru so that volumetric weight can be determined.
2.6 Client warrants that it will not tender or cause to be tendered to BorderGuru under this Agreement any goods which may pose a hazard to health or property, which are inherently dangerous, the transport of which is prohibited or requires a permit or license, or which otherwise require special treatment under any applicable law, government order, or regulation, or which may require special handling or precautions (collectively “Hazardous Material”). Client will indemnify and hold harmless BorderGuru from any and all costs, expenses, losses, and liabilities (including fines, penalties, damages, claims or suits, costs and attorney fees) arising out the handling by BorderGuru of such Hazardous Materials or out of Client’s failure to fulfill its obligations under this section.
2.7 In the event of non-timely or delayed acceptance of the goods, or an inability to deliver the goods, for reasons that are not the fault of BorderGuru, BorderGuru reserves the right to store or return the goods at the expense of Client or if they are exported already dispose the goods at the expense of the Client.
2.8 Client will comply with any and all applicable laws, government orders, and regulations, as well as Client’s published terms and conditions and policies, including those pertaining to the collection, processing, and transfer of data and personally identifiable information (“PII”), and the marketing, sale, shipment, trade and export of goods.
2.9
Client will designate a contact person for questions regarding technical integration, support, and logistic issues. Client will promptly inform BorderGuru in writing if the designated contact person changes.
3 Fees and Payments
3.1 Fees effective as of the date of this Agreement are set forth in Annex 2. BorderGuru may adjust the fees set forth in Annex 2 from time to time (except as may be provided otherwise in Annex 2). BorderGuru will provide Client with thirty (30) days’ prior written notice of the fee adjustment. All orders placed before the date the adjusted fees take effect will be processed and invoiced as per the price at the time of the order.
3.2 The Parties may agree to a minimum order volume per month or other time intervals. Such minimum order commitments shall be stated in Annex 2.
3.3 BorderGuru will invoice Client for, and Client will pay, all amounts due pursuant to this Agreement. The invoice may include both the shipping fees and the costs of import duties and/or taxes, such as agreed to in Annex 1. BorderGuru will invoice Client on a monthly basis in U.S. Dollars for the Services provided by BorderGuru in the previous (or, if not previously invoiced, any prior) calendar month. Client will pay all amounts invoiced within fourteen (14) days of receipt of the respective invoice. This also applies for payment of invoices for import related duties and taxes, whereas BorderGuru shall have the right to demand a deposit of the average monthly payments of duties & taxes if such payments exceed 1,000 US$ monthly.
3.4 Any unpaid balance outstanding will accrue interest at the rate of one percent (1%) per month or the maximum rate allowed by law, whichever is lower, calculated from the due date of such unpaid invoice.
3.5 In the event of default by Client in its payment obligations hereunder, and where such default continues for at least:
ten (10) days, BorderGuru may, in addition to any other options and remedies available to it under this Agreement, at law, or in equity, upon written notice to Client, require the removal of any goods under its control as well as payment of all outstanding obligations hereunder. Client will remain liable for all storage charges accrued up until such time as the goods are removed.
Client grants BorderGuru a general lien on all goods deposited with BorderGuru and the proceeds from the sale thereof for all charges due from Client to BorderGuru, whether due pursuant to this contract or another contract between Client and BorderGuru. This lien will also secure payment to BorderGuru for all expenses incurred for collecting and enforcing this lien or any other collection efforts.
If (a) Client’s financial condition changes, (b) Client defaults on any payment obligation hereunder, (c) Client fails to provide requested financial information to BorderGuru, BorderGuru may, in its discretion, refuse or modify the credit terms, require payment in advance, suspend the Services or any portion thereof, and/or pursue any other remedies available under this Agreement, at law, or in equity.
3.6 All fees pursuant to this Agreement are stated exclusive of sales, use, value added and similar taxes, levies, duties, and tariffs payable in respect of such payments or the Services and Client is responsible for payment of, and will reimburse BorderGuru for, any such taxes, levies, duties, and tariffs in addition to the fees due hereunder.
4 Confidentiality
4.1 The Parties agree that all information (in whatever format) designated as confidential or proprietary by the disclosing Party, together with all such other information relating to the business, affairs, networks, customers, products, developments, trade secrets and know-how of such party or any affiliates thereof, which the other Party should reasonably regard as being of a confidential nature (“Confidential Information“):
4.1.1 will be used solely for the purpose for which it was furnished and otherwise only as reasonably required for a Party’s performance of obligations or exercise of rights under this Agreement;
4.1.2 will be maintained in strict confidence and protected against disclosure to third parties, provided, however, that BorderGuru may disclose Confidential Information to (a) its affiliates and (b) its sub-contractors who need to have access to such Confidential Information for the purposes of providing the Services; and upon termination of this Agreement, will be returned to the disclosing party, together with all copies, or (at the disclosing party’s option) destroyed
4.2 The obligations of confidentiality and restricted use set out in Clause 4.1 do not apply to Confidential Information that:
4.2.1 was previously known or becomes known to the receiving party, free from any obligation to keep the same confidential;
4.2.2 is or falls into the public domain, other than as a direct or indirect result of unauthorized disclosure by the receiving party;
4.2.3 the Parties agree in writing need not be kept confidential; or
4.2.4 is required to be disclosed pursuant to subpoena or similar order or issuance of any governmental authority or as required by law or regulation.
4.3 Without prejudice to any other rights and remedies that the disclosing party may have, the receiving party agrees that if Confidential Information is used or disclosed or threatened to be used or disclosed other than in accordance with the terms of this Agreement, the disclosing party will, without proof of special damage, be entitled seek an injunction, specific performance or other equitable relief for any actual or threatened breach of this Section 4.
4.4 Notwithstanding Section 4.1, BorderGuru may reference Client as a user of the Services, in BorderGuru’s advertising and/or promotional literature and other materials. BorderGuru will ask Client for permission before using Client as reference for a specific campaign.
5 Data Protection
5.1 Client may provide to BorderGuru personally identifiable information pertaining to Customers or other individuals to the extent required for BorderGuru to perform the Services (and only to such extent). BorderGuru will store, use, process, and disclose such PII in accordance with applicable data protection laws and only to perform the Services and its other obligations under this Agreement, to process and collect payments, to enforce BorderGuru’s rights and defend claims, and to comply with legal requirements. Without limiting the foregoing, BorderGuru may disclose such PII to affiliates and third party suppliers and contractors of BorderGuru who may store, use, and process such PII on BorderGuru’s behalf for the purpose of providing the Services, to process and collect payments, to enforce BorderGuru’s rights and defend claims, and to comply with legal requirements.
5.2 It will be the responsibility of Client to ensure that all PII and other information provided by Client is accurate, complete, and up to date at all times. Client represents and warrants that it has the right to disclose any PII and other information provided by it to BorderGuru, and that such disclosure, and BorderGuru’s storage, use, processing, and disclosure for the purposes permitted hereunder, is consistent with applicable laws and regulations, Client’s contractual obligations to third parties, and Client’s privacy policies.
6 Insurance, Force Majeure, Liability and Indemnification
6.1 Client will be responsible for insuring goods against risk of loss, theft or damage. Client acknowledges that, unless BorderGuru expressly agrees otherwise in writing, BorderGuru will not be required to obtain insurance to cover the goods under the control of BorderGuru.
6.2 BorderGuru will not be responsible for delays in performing or for its failure to perform to the extent that such delays or failures result from causes beyond BorderGuru’s reasonable control, including fire, flood, war, weather of exceptional severity, power failure, strikes, labor disputes, riots or Acts of God (“Force Majeure Conditions”). In the event of any such Force Majeure Conditions, BorderGuru will notify Client of the delay or failure. In the event of a Force Majeure Condition necessitating the storage of goods by BorderGuru, such stored goods will be subject to, and Client will be responsible for, storage charges against such goods at prevailing rates.
6.3 BorderGuru will not be responsible for loss or damage to goods resulting from improper packing, insufficient cooperage, breakage, boxing, crating or concealed damage which occurs prior to the goods being placed in BorderGuru’s custody, or wear and tear or inherent qualities of the goods, unless such loss or damage is a result of the negligence of BorderGuru. Except as otherwise provided herein, all goods are stored and transported at Client’s risk of loss or damage.
6.4 BorderGuru will not be liable for any loss or damage to goods, however caused, unless such loss or damage is a direct result of negligence of BorderGuru or its employees. In the event that BorderGuru is responsible for loss or damage as a result of its negligence, BorderGuru’s liability for such loss or damage will be limited to the fees for Services according to Annex 2 and related solely to those goods. Fees for import of the goods are explicitly excluded.
6.5 Under no circumstances, regardless of cause, will BorderGuru be liable for any indirect, special or consequential damages (including but not limited to lost profits, lost business, lost revenue, charge-backs or purchase order compliance penalties from Customers) whatsoever. In no event will BorderGuru’s aggregate liability under or arising out of or relating to this Agreement exceed the fees paid to BorderGuru by Client in the six (6) months preceding the event giving rise to the liability.
6.6 Client will indemnify and hold BorderGuru, and its officers, directors, agents and employees, harmless from and against any and all costs, expenses, losses, and liabilities (including fines, penalties, damages, claims or suits, costs and attorney fees) resulting from or arising out of (a) any breach by Client of, or failure to perform of Client under, any provision of this Agreement, (b) the marketing, sale, nature, or condition of the goods sold to Customer, or (c) any claims by Customers.
6.7 The Services are to be provided as expressly set forth in this Agreement, subject to the terms and conditions expressly set forth herein. BorderGuru shall have no implied obligations and BorderGuru hereby disclaims any all warranties, express, implied or statutory, including any warranty of merchantability, fitness for any particular purpose, non-infringement, or any warranty arising out of any course of dealing, course of performance, or usage of trade, proposal, specification or sample.
7 Term and Termination
7.1 The Agreement will be effective as of the date that both parties have signed this Agreement (the “Effective Date”). The Agreement will be initially entered into for an initial test period of six (6) months from the Effective Date. Thereafter, this Agreement will automatically renew for additional periods of six (6) months, unless otherwise terminated by either Party by written notice provided to the other Party at least three (3) months’ prior to the end of the then-current term.
7.2 In the event of a breach of any material provision of this Agreement, the non-breaching Party will have the right to terminate the Agreement immediately upon notice if the breaching Party has not cured such breach within thirty (30) days from receipt of written notice from the non-breaching Party describing the breach.
7.3 On the date of termination, all payments of Client to which it is contractually obligated will be immediately due and payable. Upon termination of the Agreement, all individual orders will also be considered terminated.
8 Miscellaneous
8.1 This Agreement constitutes the entire agreement and understanding between the Parties, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, between the Parties.
8.2 Any waiver, amendment or modification of this Agreement or any of its provisions, rights, powers, or remedies will not be effective unless made in writing and signed by both Parties.
8.3 All payments due to BorderGuru under this Agreement will be made without deduction, hold-back or set-off and Client will have no right to deduct or set-off amounts from payments due to BorderGuru under this Agreement.
8.4 This Agreement may not be assigned or delegated in whole or in part by Client without the prior written consent of the BorderGuru. Subject to the forgoing, all of the terms and conditions of this Agreement will be binding on and will inure to the benefit of the Parties hereto and their respective transferees, successors and assigns.
8.5 If any individual provision of this Agreement is or becomes invalid or ineffective, the remaining provisions of this Agreement will not be affected. Parties agree to replace the invalid or unenforceable provision with a valid and enforceable provision reflecting as close as possible the spirit and objective of the unenforceable or invalid provision.
8.6 The Annexes will be a component part of the Agreement. In the event of a conflict between the terms of an Annex and the terms of the main body of this Agreement, the provisions of the Annex will take precedence, provided that nothing in an Annex shall modify, amend, or supersede anything in Sections 4, 6, 7, or 8 of this Agreement.
8.7 The construction, validity and performance of this Agreement will be governed by federal law and, to the extent not preempted thereby, the laws of the State of New York (as permitted by Section 5-1401 of the New York General Obligations Law or any similar successor provision) without reference to conflict of laws principles that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. In the event an action is brought by Client to enforce a claim arising out of or related to this Agreement, Client agrees that such an action will be commenced in the United States District Court for the Southern District of New York or, if jurisdiction is lacking in such court, the State Courts in and for the County of New York (Manhattan). The Parties hereby irrevocably consent to the jurisdiction and venue of such courts. This Agreement will not be governed by the provisions of the International Sale of Goods Act or the United Nation’s Convention on Contracts for the International Sale of Goods regardless of that Convention’s legal or statutory adoption by any jurisdiction.
8.8 This Agreement may be executed in identical counterparts, each of which will be deemed an original and all of which together will constitute one instrument.
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Annex 1
1 Responsibilities of the Parties
1.1
BorderGuru will operate an intermediary storage facility in the United States and will ship to the Customers all goods delivered by the Client to this intermediary storage facility for further shipment
after having rendered the Services necessary for customs clearance. In so doing, the following specific Services will be rendered:
1.1.1 interim storage of the goods;
1.1.2 transport services from the warehouse in the United States (delivery by the Client) by air freight. The individual conditions will follow from each individual order.
1.1.3 customs clearance; and
1.1.4 delivery to end Customers.
1.2
BorderGuru will provide
software specifications or a plugin
to be integrated by Client in its ecommerce
platform checkout process.
1.3
BorderGuru will provide the Client with access to a
merchant area which contains complete information about the orders processed by
BorderGuru, the status of the orders, and the tracking history of the shipping
process of the orders.
1.4 Whenever a Customer provides a delivery address in the
countries specified in Annex 2 of the Agreement, the Customer will be informed by Client prior to placement of a binding order that transportation will be performed by BorderGuru on behalf of Client. In accordance with applicable data protection laws, Client will obtain
the consent of the Customer for the storage, use, processing, and disclosure of the Customer’s personally identifiable information by and to BorderGuru and its affiliates and contractors for purposes of providing the Services, to process and collect payments, to enforce BorderGuru’s rights and defend claims, and to comply with legal requirements. Client will inform BorderGuru when purchases are completed.
1.5 After entering into the purchase agreement, Client will ship the goods at its own expense to an intermediary storage facility of BorderGuru (as named by BorderGuru and which may be changed in the sole discretion of BorderGuru from time to time) in the United States.
1.6 Transportation to the Customers will be conducted by
air and ground freight, such will commence upon the acceptance of the goods by the agents of BorderGuru for transportation in accordance with the stipulations in the individual order and will end upon delivery to the recipient specified in the order. The custody will also end if BorderGuru or its agents lose custody of the goods due to measures beyond its control, including but not limited to measures taken by customs officials.
1.7 BorderGuru reserves the right to carry out all transportation as aggregated shipments and carries out all stowage planning.
1.8 The following will be excluded: (I) the transportation of Hazardous Materials and (ii) the transportation of goods for the transportation of which special official or legal requirements are to be observed. In the event of violations of the obligations incumbent upon it in this Agreement, Client will indemnify BorderGuru from any and all third- party claims regardless of what the legal reasons therefor may be.
1.9 Insofar as time periods are defined, they are estimates, but not guaranteed transit times.
1.10 If customs duties are charged, any and all customs duties will be rendered upon the basis of the general terms and conditions of the service providers engaged by BorderGuru. They can be provided upon request.
Further duties of Client
2.1 Client will be obligated to collect the costs of import duties and/or taxes from the Customer, as they were provided by BorderGuru through the interface.
2.2 Client will be obligated to include in its general terms and conditions provisions legally binding on its Customers: (a) providing for the shipping transaction via BorderGuru, and (b) the provision set forth in clause 2.3 of this Annex 1. Client must ensure that its general terms and conditions and/or data protection provisions do not conflict with the term contained in clause 2.3 of this Annex 1.
2.3 Restatement Clause:
“Your delivery address is outside the United States. Therefore shipping to your country will be handled by our service provider BorderGuru. Your personal data (name, address, phone number, e-mail address, payment information) as well as information about your order (including types of goods and value) will be transmitted to BorderGuru and its service providers and affiliates in order to provide shipping and related services, process and collect payments, enforce their rights and defend claims, and comply with legal requirements. You hereby consent to our disclosure of such information to BorderGuru and its service providers and affiliates and to BorderGuru’s and its service providers’ and affiliates’ storage, use, processing, and disclosure of such data and information solely for these purposes.”
Annex 2 – Fees
1 General Terms
1.1 The services defined in this contract are effective for the countries defined in below price list.
1.2 All fees are stated in US Dollar (USD).
1.3 All fees include customs clearance surcharges and fuel and security surcharges. The costs of the individual import duties and taxes are not included in those fees but will be invoiced to the Client by BorderGuru.
1.4 BorderGuru will be entitled to adjust prices in accordance with the terms of this Agreement.
1.5 The delivery times for all the countries defined in below price list are in between 3 to 9 business days and are not guaranteed.
2 Pricing Table
2.1 For the initial period, the fees to be paid for the services offered by the Client are as follows:
Minimum order volume: none
Drop off or ship to LAX facility: 5634 Bandini Blvd, Bell, CA, 90201
Drop off in New Jersey: 140 E. Union Ave. East Rutherford, NJ, 07073
Note for all: Exterritorial areas excluded as well as all countries
with US export restrictions
2.2 All packages subject to dimensional weight. Dim weight = (L x W x H)/139. If dimensional weight exceeds actual weight, dimensional weight will apply for weight calculation and charges.
2.3 As Option, BorderGuru can generate the HS Codes which are mandatory for customs clearance services (Export and Import). The generation of HS Codes will be charged as following (per assignment):
Minimum: 25 SKU per assignment
For generation of HS codes the Customer has to provide
detailed product descriptions (incl. materials) and product
categories for each SKU.
2.4 Maximum Weight: 66 lbs (China: 40 lbs, Australia 44 lbs)
2.5 Maximum Parcel Dimensions: Length < 108 inches (Australia < 39 inches, Canada < 90 inches) or L + W + H < 139 inches. With exception for Brazil, where the following restrictions apply: L + W + H < 130 inches and both length, width and height < 43 inches.
2.6 The following restrictions apply to all deliveries:
2.6.1 $2500 or more in value
2.6.2 Infectious Substances
2.6.3 Agricultural supplies
2.6.4 Intoxicating beverages
2.6.5 Animals
2.6.6 Liquified gas
2.6.7 Batteries, car (or any wet cell battery) Class 8 – Corrosives Liquids, liquefiable substances and powders
2.6.8 Batteries, dry cell Prohibited Lithium (Non‐Rechargeable) Cells and Batteries
2.6.9 Batteries, lithium Lithium‐ion (Rechargeable) Cells and Batteries
2.6.10 Chemicals Magnetized material
2.6.11 Chemistry kits
2.6.12 Magnets
2.6.13 Cigarettes and Smokeless Tobacco Medical/Biological Samples
2.6.14 Cleaning fluids Military ordnance, ammunition, and shells.
2.6.15 Compressed Gases Nonflammable with an absolute pressure exceeding 40 psi at 70°F or 104 psi at 130°F.
2.6.16 Corrosive Oxidizers and Organic Peroxides
2.6.17 Corrosives, liquid or solid. Paint, paint removers, or varnish removers
2.6.18 Counterfeit and Pirated Items Perishable items
2.6.19 Cryogenic Pharmaceuticals
2.6.20 Currency
2.6.21 Plants
2.6.22 Cylinders Poisonous and Infectious
2.6.23 Diagnostic specimens Poisons, irritants, controlled substances, and drug paraphernalia.
2.6.24 Drugs and other controlled substances Pyrophoric, flammable, or combustible liquids with a closed cup flash point below 200°F.
2.6.25 Dry ice (carbon dioxide solid). Radioactive Materials
2.6.26 Explosives or explosive devices. Solvents
2.6.27 Firearms (including imitation and replica firearms)
2.6.28 Tobacco
2.6.29 Fireworks Toxic substances
2.6.30 Flammable Materials (Liquid and solids, including matches)
2.6.31 Vaccines
2.6.32 Food
2.6.33 Politic Propaganda
2.6.34 Explicit Sexual Conten