Capitalized terms used but not defined in these Terms of Service shall have the meanings set out in the Statement of Work or the Logistics Services Agreement.
References to ‘we’, ‘us’ and ‘our’ are to ShipAnt and references to ‘you’ and ‘your’ are to the Client.
2. Our Services
ShipAnt shall provide the services to the Client as described in the Statement of Work or the Logistics Services Agreement (the “Services”) in accordance with these Terms of Service. ShipAnt will perform the Services with reasonable skill and care.
We may outsource certain functions and work in relation to the Services to third party carriers, couriers, customs brokers, agents and others to which the Client’s goods and packaging materials (the “Client Goods”) are entrusted for transportation, packaging, handling, delivery, storage or otherwise (“Third Parties”) either locally or abroad. Where this occurs, we will take all reasonable steps to ensure that those Third Parties recognise and comply with their obligations of confidentiality. You consent to such outsourcing arrangements including the transfer of any personal data to such Third Parties. ShipAnt shall not be liable or responsible for any negligence, malpractice, fault, errors or omissions in the performance of the Services by any Third Parties.
3. Client Obligations
The Client shall:
(a) Cooperate with ShipAnt in all matters relating to the Services and provide such materials and/or information as may be required by ShipAnt for the purposes of carrying out the Services in a timely manner and ensure that such materials or information are complete and accurate;
(b) Respond promptly to ShipAnt’s requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for ShipAnt to carry out the Services in accordance with the requirements of these Terms of Service; and
(c) Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to ShipAnt’s services before the date on which the Services are to commence.
4. Service and shipping rates
(a) ShipAnt shall provide the client with service fee typically cover QC, repacking, warehousing, storage, and various service related to order fulfillment.
(b) Shipping rates changed frequently during 2020 COVID19 period. The client may at any time review shipping rates on the ShipAnt bill or ask ShipAnt to provide the latest shipping rates.
(c) Typically, known surcharges such as fuel surcharge and delivery area surcharges will be included in the shipping price at the time of shipment. the amount set out in the final billing invoice may differ from the cost simulation as the final chargeable amount may vary based upon a number of factors including, inter alia, incomplete or inaccurate product information, returns to sender, changes in couriers or shipping prices and additional services requested by the client. therefore, ShipAnt reserves the right to bill for, and the client shall be responsible for, additional fees including, without limitation, customs and brokerage fees, additional delivery attempts and other carrier adjustments that are billed to ShipAnt by third parties.
5. ShipAnt Fulfillment Service
(a) As part of the Services provided by ShipAnt, the Client may integrate or connect its online shopping cart or ecommerce platform with ShipAnt’s ERP system. The ERP may be updated and modified from time to time, often without prior notice to you. Your continued use of the ERP system constitutes your acceptance of such modifications.
(b) The Client may specify one or more administrators (each an “Administrator”) to manage its account on ShipAnt ERP system. Administrators have the ability to access, monitor, use, export and disclose content on the ERP. The Client is responsible for
(i) the selection of its Administrator(s);
(ii) maintaining the confidentiality of passwords and Administrator accounts;
(iii) managing access to Administrator accounts; and
(iv) ensuring that each Administrator’s use of the ShipAnt ERP system complies with these Terms of Service. ShipAnt shall not be held liable for any actions on the part of the Client’s Administrator(s).
(c) The ShipAnt ERP system is made available to you by ShipAnt for the purposes of carrying out the Services, which use must be in compliance with all applicable laws, rules and regulations and must not infringe or violate third party rights.
6. Couriers and Shipping Policy
(a) ShipAnt shall not be responsible or liable for delays or failed deliveries and any resulting loss or damage caused by Third Parties selected to render the Services. Delays may be caused by various factors beyond ShipAnt’s control, such as natural disasters, strikes or peak fulfillment periods during holiday seasons. Further, ShipAnt cannot guarantee delivery for international shipments as customs and customs agents can delay, refuse to process, assess brokerage, lose or impose unanticipated customs, tax or duties to international shipments at their discretion.
(b) ShipAnt shall use its best judgement in selecting the appropriate packaging and gift packaging for all orders. If the Client has provided ship-ready Client Goods or custom packaging and ShipAnt determines the packaging to be unfit for shipping, ShipAnt may offer additional packaging for an additional fee or return the Client Goods to you at your cost.
(c) ShipAnt shall provide tracking numbers to the Client, if applicable, and shall not be held responsible for any delayed or missing tracking updates, as this information is and can only be updated by Third Parties.
(d) The Client may request a proof of delivery (“POD”) if there is no status update from any Third Parties for 14 Business Days or if the delivery status does not indicate whether the Client Goods have been delivered after normal postal transit time of 3 to 4 weeks from the fulfillment date. Upon the Client’s request, ShipAnt shall use all reasonable efforts to acquire a POD on behalf of the Client from Third Parties. ShipAnt cannot guarantee that Third Parties will provide a POD and shall not be responsible for any delays caused by Third Parties in providing a POD.
(e) All claims in connection with damaged or lost Client Goods during delivery shall be brought solely against relevant Third Parties and/or its agents. In connection with any such claim, ShipAnt shall reasonably assist and cooperate with the Client, which may be liable for any charges or costs incurred by ShipAnt. As Third Parties require claims to be submitted within a specific time period, it is the Client’s responsibility to notify ShipAnt in advance of any claims it intends to bring.
(d) Charges related to shipping shall be based on the weight of parcels, dimensions of parcels, or a combination of both from either ShipAnt’s own measurement equipment or it’s vendors or partners. The precision of such equipment is subject variation due to environmental factors and therefore it is not unusual to have up to one (1) centimeter of variance on either dimension. ShipAnt does not, under any circumstance guarantee, promise, nor permanently fix such charges to a supposed weight or dimension of preference.
7. Duties, taxes or clearance related charges
(a) The Client shall be responsible for all duties, taxes, or clearance related charges for all applicable inbound and outbound shipments of the Client Goods. If the Client chooses to send packages Delivery Duties Paid (DDP) or Delivered At Place (DAP) for outbound shipments, the Client shall also be responsible for all administration fees charged by Third Parties for processing such duties, taxes or clearance related charges. Where the Client decides to ship Delivery Duties Unpaid (DDU), no administrative fees for processing duties, taxes or clearances related charges will be charged to the Client.
(b) The Client shall be responsible for understanding the duties, taxes, or clearance related charges for their shipments. ShipAnt may at times provide estimates for the duties and taxes. Such estimates shall never be considered as binding offers from ShipAnt. ShipAnt shall pass all related charges to the Client. Any discrepancies in the charges and estimates shall be deemed non-disputable.
(b) ShipAnt will not provide credit terms to the Client in respect of, inter alia, duties, taxes, and tariffs such as gross or general sales taxes (GST) and value added taxes (VAT) or any related charges. The Client must either prepay such amounts to ShipAnt prior to shipping, or place a security deposit on these amounts.
8. Storage and Inventory Policy
(a) The Client Goods are not insured by ShipAnt against any loss or damage, however caused. ShipAnt strongly recommends that the Client procure insurance for the Client Goods at its own cost.
(b) ShipAnt does not anticipate inventory shrinkage for Client Goods held by ShipAnt. However, ShipAnt will have an annual 5% shrinkage allowance based on the stated cost value of the Client Goods held at ShipAnt’s warehouse as set out in the Fulfillment Portal. In the event of inventory loss in excess of the annual inventory shrinkage allowance due to inventory count inaccuracies for which ShipAnt is held legally liable, ShipAnt’s liability shall be limited to the actual value of the Client Goods. In no event shall ShipAnt be liable for any lost sales revenue from the inventory loss due to inventory count inaccuracies.
(c) Title to the Client Goods will remain with the Client. Notwithstanding anything herein to the contrary, nothing in this Agreement may be deemed to waive or otherwise limit any lien rights that ShipAnt may have under applicable law with respect to the Client Goods.
(d) ShipAnt may move the Client Goods within a warehouse and between warehouses by giving 30 days’ notice. Any request by the Client to move the Client Goods to another warehouse will be at the Client’s own costs.
(e) ShipAnt reserves the right to dispose or sell the Client Goods by giving 7 Business Days’ notice if the Client fails to collect any Client Goods stored in ShipAnt’s warehouse within a reasonable period after the due date of the final invoice.
9. Fees and Payment Terms
(a) The Client agrees to pay our fees as set out in our invoices in consideration of the Services provided by ShipAnt. Our invoices are to be paid in the currency stated therein.
(b) ShipAnt shall bill the Client on a weekly or daily basis as determined by ShipAnt from time to time.
(c) ShipAnt reserves the right to pause the order fulfillment once the Client negative balance exceeds USD 500.
(d) The Client shall pay all invoiced amounts due to ShipAnt within 7 Business Days from the date of ShipAnt’s invoice. ShipAnt will notify the Client of the accepted payment methods and regularly communicate any changes to such payment methods. The Client shall be responsible for any bank remittance service charges levied and ShipAnt will only credit the final amount received to the Client’s account.
(e) In the event payments are not received by ShipAnt within 7 Business Days after becoming due, ShipAnt reserves the right to charge interest on any such unpaid amounts at a rate of 1% per month from the date such payment was due until the date paid and suspend performance for all services until payment has been made in full.
(f) ShipAnt may at its sole discretion, request full payment as a condition for release of the Client Goods. ShipAnt reserves the right to charge the Client for any reasonable charges and services incurred on behalf of the Client, including, without limitation, customs, duties, taxes, remote area delivery type charges, unexpected storage charges, revised billings from Third Parties, and ad-hoc labor requests.
ShipAnt shall have a lien on the Client Goods in ShipAnt’s actual or constructive possession, custody or control in respect of all sums of whatever nature that are due and payable by the Client to ShipAnt, including, but not limited to, interest and legal costs and expenses. ShipAnt may refuse to surrender possession of the Client Goods until all sums due and payable to ShipAnt are paid in full. If such amounts remain unpaid for 30 days after ShipAnt’s demand for payment, ShipAnt may, at its absolute discretion, sell the Client Goods by way of public or private sale or any other method ShipAnt deems appropriate without further notice and apply the net proceeds to the sums owed to ShipAnt. Any surplus from such sale shall be transferred to the Client and the rights of ShipAnt are reserved for any shortfall subsequent to the disposal of the Client Goods. If ShipAnt after a reasonable effort is unable to sell the Client Goods ShipAnt may dispose of them in any lawful manner and shall incur no liability by reason of such disposition.
(a) Without affecting any other right or remedy provided under these Terms of Service, ShipAnt may at any time terminate the Agreement with immediate effect by giving written notice to the Client if the Client:
(i) fails to pay any amount when due under this Agreement and such failure continues for 7 Business Days after receipt of written notice of nonpayment;
(ii) has not otherwise performed or complied with any of the Terms of Service, in whole or in part;
(iii) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(iv) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
(b) Either ShipAnt or the Client may, without prejudice to its other rights or remedies, terminate this Agreement for any reason upon giving 30 days’ written notice to the other party (the “Termination Notice Period”). The Client may have full or limited access to the ShipAnt Fulfillment Portal during the Termination Notice Period. ShipAnt shall continue to process and fulfill all orders which have been submitted by the Client via the ShipAnt Fulfillment Portal or otherwise during the Termination Notice Period.
(c) Upon termination of this Agreement for any reason, the Client shall immediately pay ShipAnt any outstanding unpaid invoices and interest due to ShipAnt. ShipAnt shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Client shall pay these invoices immediately on receipt. ShipAnt shall promptly refund such portion of the sums prepaid by the Client as it relates to the period after expiry or termination on a pro rata basis.
12. Confidential Information
(a) Neither ShipAnt nor the Client shall disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except to:
(i) its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 15; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(b) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
13. Limitation of liability
(a) The Client acknowledges and agrees that ShipAnt shall not be responsible or liable for any damage to or loss suffered by the Client whether due to non-delivery or mis-delivery or mis-direction of the Client Goods or for any delay or deviation in respect of the transportation or delivery or other handling of the Client Goods as a result of any act or omission (including, without limitation, any negligence or willful neglect or default) of any Third Parties whether or not selected by or retained by ShipAnt.
(b) Without prejudice to the Agreement, ShipAnt shall not be responsible or liable for any damage to or loss suffered by the Client unless it is proved that such damage or loss was due to the wilful neglect or wilful default of ShipAnt or its agents, subcontractors and personnel.
(c) Subject to Clause 16(b), ShipAnt’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to the actual value of the Client Goods or the amount paid or payable by the Client to ShipAnt for the Services (excluding fees to Third Parties), whichever is less.
(d) The Client agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) ShipAnt shall not in any circumstances have any liability otherwise than in accordance with the express terms of this Agreement; and
(e) Without prejudice to the generality of this Clause 16, ShipAnt shall not in any event, whether under Clause 16(b) or otherwise, be liable to the Client for any incidental, indirect, consequential loss or damage of any kind (including, without limitation, loss of market, profits, sales, agreements, contracts, anticipated savings, business or goodwill) whether in contract, tort (including negligence), for breach of statutory duty, or otherwise.
The Client agrees to indemnify and to hold harmless ShipAnt and its 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 ShipAnt’s Services and/or your violation of any term or condition of the Agreement.
15. Force Majeure
(a) Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for one month, the party not affected may terminate this Agreement by giving 14 days’ notice to the affected party.
(b) If termination occurs under Clause 18(a), all sums paid to ShipAnt by the Client under this Agreement shall be refunded to the Client, except that ShipAnt shall be entitled to payment on aquantum meruitbasis for all work done before termination, provided that ShipAnt takes all reasonable steps to mitigate the amount due.
Our failure to exercise or enforce any right or provision of this Agreement, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or our right to act with respect to subsequent or similar breaches.
17. Amendments and Modifications
(a) Any variation to the Services set out in the Statement of Work shall not be effective unless it is in writing and signed by the parties (or their authorised representatives).
(b) ShipAnt may amend or replace these Terms of Service from time to time. In such circumstances we shall notify you of the changes and the new or amended Terms of Service will become part of the Agreement 14 days after.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service and notices related to the Client’s account, will be in writing and given via email using the email address associated with your account. The date of receipt will be deemed the date on which such notice is transmitted.
Should any dispute or claim arise out of or in connection with the Services or this Agreement, we and you will attempt to resolve the dispute or claim in good faith in the first instance by negotiation. If such negotiation is unsuccessful, we and you may agree to seek to resolve the dispute or claim by mediation. If it is not possible to resolve the dispute or claim by negotiation or mediation, then it may be dealt with by legal proceedings or arbitration as provided below. Subject to Clause 25 below, in relation to any legal action or proceedings (“Proceedings”) arising out of or in connection with the Services (whether contractual or non-contractual obligations), each of the parties irrevocably submits to the exclusive jurisdiction of the courts of China and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum.
Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the China International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be China law. The seat of arbitration shall be China and the number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.