A Better Shipper, LLC. ("ABS", "we" or "our") provides its Service (as defined below) to you ("you", "your" or "Client") subject to this Terms of Service agreement ("TOS"). ABS and Client are herein are collectively referred to as ("Parties"). By you accepting this TOS or by accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
ABS may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the its website at www.ABS.com or on the ABS Platform (as defined below). You can review the most current version of this TOS at any time at https://abettershipper.com/terms-of-service/ or by logging into your account on the ABS Platform. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Service and send a cancellation email to firstname.lastname@example.org.
As part of the registration process, you will identify an administrative user name and password for your account ("Account"). You may use the administrative user name and password to create standard users (each with a user password).
Description of Service.
The "Service" include, without limitation, (a) the receipt, storage, packaging, and shipment of physical goods sold by Client (the "Goods") pursuant to orders provided by Client (the "Orders"), (b) ABS's proprietary platform and associated technology, in object code format only, which is made available by ABS to you and, when technically feasible and when implemented by you and ABS, is intended to permit you to, among other things, to receive Orders for Goods and fulfill such Orders via ABS's fulfillment centers, and ABS's ecommerce portion of website and other automated order entry methods (the "ABS Platform"), and (c) all data, reports, text, images, sounds, video, and content, including any offline reports, pricing matrices, or other content, made available through any of the foregoing (collectively referred to as the "Content"). Any new features added to or augmenting the Service are also subject to this TOS. ABS shall make commercially reasonable efforts to furnish all personnel, materials, equipment, supplies, and other ancillary accessories necessary to perform the Service.
General Conditions/ Access and Use of the Service.
Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to ABS. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices ABS provides you or publishes in connection with the Service, and you shall promptly notify ABS if you learn of a security breach related to the Service.
Any software that may be made available by ABS in connection with the Service ("Software"), including but not limited to the ABS Platform, contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, ABS hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by ABS for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of ABS or any third party is granted to you in connection with the Service.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter "Post(ing)") in connection with or relating to the Service ("Your Content"). For every email sent outside of your organization via the Service, you acknowledge and agree that ABS shall have the right to automatically add an identifying footer in accordance with our standard policies then in effect. You agree to cooperate with and provide reasonable assistance to ABS in promoting and advertising the Service.
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. ABS reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Service, you hereby do and shall grant ABS a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. ABS has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that ABS may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to ABS's third party Clients and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. ABS will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance, local, and cellular telephone service (collectively, "Equipment"). You shall be responsible for ensuring that such Equipment is compatible with the Service (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in ABS's published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
Under no circumstances, and at no time, during the Term or after, are you permitted to enter ABS's facilities, fulfilment centers, or premises without prior express notice. As your Goods may be commingled with the Goods of other Clients in ABS's facilities, under no circumstances, during the Term or after, may you access the Goods while the Goods are stored in ABS's facilities, without prior express consent of ABS.
The failure of ABS to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and ABS, even though it is electronic and is not physically signed by you and ABS, and it governs your use of the Service.
ABS reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on ABS's website and in other communication with existing or potential ABS customers. To decline ABS this right you need to email email@example.com stating that you do not wish to be used as a reference.
Subject to the terms hereof, ABS may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
"Service Fees" are the fees for any Service and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums, or other charges given during Client's use of the Service).
Client shall pay the Service Fees in accordance with the Statement of Work ("SOW") as indicated in the Logistics Agreement.
Based upon Client instructions, ABS will utilize the preferred carrier for shipments of Orders.
Quotations for the Service and Service Fees are for informational purposes only, are subject to change without notice, and shall not under any circumstances be binding upon ABS. Quotations accepted through the Service's 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 service requested during the normal course of delivery. ABS reserves the right to bill the Service Fees based on actual charges at any time after the Service is rendered. ABS specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information, such as dimensions and weights.
ABS reserves the right to adjust its pricing in response to currency fluctuations or Government actions, including but not limited to, currency conversation rate changes, conversion fee changes, discount rate changes, Taxes, and or tariffs.
For the avoidance of doubt, ABS may distribute Goods between fulfillment centers in its fulfillment network (and partner warehouses) for efficiency in fulfilling and shipping Orders; while such distribution will not affect availability to fulfill and ship Orders, it may affect the amount of sales tax on any such Goods. ABS shall provide Client with notice of any such distribution so the correct sales tax can be applied.
No Tax advice is provided Disclaimer. As it relates to Client's business, Client is solely responsible for maintaining compliance of any and all taxation of any kind in relation to this TOS, including but not limited to, Nexus, Sales Tax, Income, Inventory, Tangible or Intangible Property, Duties, or any known or unknown tax whatsoever. It is Clients sole responsibility to advise ABS of any potential or known taxes that may apply to Parties resulting from transacting business. Client agrees to hold ABS harmless for any and all claims arising from Client's responsibilities under this clause.
Client acknowledges that it is responsible for, and agrees to reimburse ABS for, all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by ABS (including costs and related expenses) that are caused by or arising out of payments that Client authorizes or accepts.
Client acknowledges and agrees that all fees, charges, and any other rates or amounts charged by ABS 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 ABS of the Service to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Service Fees or other amounts charged to ABS by you.
All dollar amounts stated in this TOS and the website will be in US dollars unless otherwise specified.
All charges are net, due and payable without offset or deduction, as set forth in the applicable Rates. Services Rates and purchases items needed to perform Work for Client, such as boxes, packing materials, tape, etc. (the "Supplies"), shall be due and payable in advance of the month prior to the month such Services are performed, or Supplies are purchased. At no time may Client remove the entire lot of Goods from storage without payment in full of all balances owed. Payment method shall be via ACH, wire transfer, or check. International Clients doing business in the USA must pay via ACH or wire transfer in US dollars. Payments not received within thirty (30) days from receipt of invoice shall constitute default and be assessed at the rate of 1.5% per month until paid together with any and all collection costs incurred by ABS, including reasonable attorney fees, typically 33% of total outstanding balance.
Payment processing Service for Users on the Service are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Service Agreement"). By agreeing to this TOS of Use or continuing to operate as a User on the Service, you agree to be bound by the Stripe Service Agreement, as the same may be modified by Stripe from time to time. As a condition of the ABS enabling payment processing Service through Stripe, you agree to provide ABS accurate and complete information about you and your business, and you authorize ABS to share it and transaction information related to your use of the payment processing Service provided by Stripe.
Client agrees and acknowledges that ABS shall maintain a warehouseman's lien under the UCC for all Goods in ABS's possession, regardless of whether a specific receipt is issued by ABS, to cover all charges set forth in this Agreement. In the event ABS is required to exercise its lien, Client shall be responsible for all necessary and reasonable costs incurred by ABS including, but not limited to, reasonable attorney fees.
Client acknowledges that the Goods stored or warehoused by ABS are not insured against loss or damage by ABS, and Client shall be solely responsible for obtaining insurance coverage for the Goods. Client acknowledges that ABS has highly recommended that Client purchase business property insurance from a reputable insurance provider notwithstanding the value of the Goods, and Client represents and warrants that it has secured such insurance.
Client agrees that ABS's liability for any damage caused to the Goods shall be limited to the actual product value of the Goods, which shall be measured by the original purchase invoice from the manufacturer/supplier. ABS shall not be liable for any loss or damage to the Goods unless the loss or damage was directly caused by ABS's gross negligence or willful misconduct.
In the event of a lost or damaged order, ABS will file a claim with USPS or UPS, if Client is shipping on ABS's account, for Goods valued at less than or equal to $100.00. ABS MAY NOT file claims for Mail Innovation, DHL Global Mail, SurePost, SmartPost, USPS Media Mail, or USPS First Class Shipments, unless additional shipping insurance is purchased. A credit will be applied on the next invoice for the amount the Carrier paid to ABS. If the Carrier denies the claim, Client agrees that under no circumstances will ABS be liable for more than $100.00 per shipment.
Client represents and warrants to ABS that (a) it is the legal owner and/or has lawful possession of the Goods and has the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (b) there are no potential health, safety or environmental hazards associated with the warehousing or fulfillment of the Goods tendered to ABS under this Agreement, and (c) the Goods do not contain any material that violates any federal, state and local law (collectively, "Laws"). If the Goods do not meet these standards, Client may incur additional fees from ABS, or ABS may reject the Goods. This may result in a delay and Client agrees that ABS shall not be liable for any loss or damage as a result of such delay.
Client shall provide ABS, in a digital format, with bills of lading for the inventory of all inbound shipments of Goods prior to the shipment arriving to ABS's facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. Client represents and warrants that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description and condition of the Goods, is accurate and complete and may be relied upon by ABS. If any inbound shipment is not labeled in accordance with this Agreement, a $35.00 per hour fee will be charged to Client for the actual time spent by ABS counting the Goods. If the items in such shipment cannot be identified by ABS, they may be discarded and ABS assumes no responsibility for any associated losses. The warehouse receiving order shall be attached to the side of the box and the product name shall be clearly and conspicuously written on the outside of box.
All inbound shipments must be received and inventoried before the Goods shall be shipped.
Upon receipt, ABS may, at its sole discretion, verify the quantity of the Goods and inspect for any visible structural damage. Client acknowledges and agrees that ABS has no obligation to verify the quantity, content, condition or quality of the Goods delivered to ABS for storage and/or delivery. ABS may, at its sole discretion, reject to store and/or deliver any Goods that it deems, in its sole discretion, to be improperly labeled or packaged or any Goods that contain any hazardous or illegal material as determined by ABS, in their sole discretion.
If there are any outstanding or pending Orders that need to be fulfilled first, Client shall notify ABS of the number of Orders to be sent initially and the expected timeline of processing such Orders.
Upon actual initial receipt of the Goods, Client can expect a minimum of five business days for products to be inventoried at ABS's warehouse. After receipt of goods is completed, Client's Orders will begin to be processed and labeled, beginning with outstanding and pending Orders. ABS will plan to fulfill the number of orders which was communicated during onboarding every day. Additional time may be required for special kitting, picking or any alterations in regular process.
ABS shall thereafter process, package, and ship all Orders within one business day of actual receipt of the Order from Client provided that proper inventory amounts exist and there are no issues with the Order reported to Client. This provision shall not apply to Orders that are altered, Orders with low inventory items (less than 10 items in stock), held Orders and bulk Orders.
Client shall provide ABS with an expectation of the date to begin shipping products, which shall conform to the terms of this Agreement.
Client shall be solely responsible for the accuracy of any information provided to ABS and/or inputted onto ABS's Platform. Client agrees that ABS shall not be liable for any delay, loss, damage or costs as a result of any inaccurate information provided by Client to ABS or any information inputted incorrectly by Client onto ABS's Platform.
Client is solely responsible for the accuracy and deliverability of Order shipping addresses. ABS may, at its sole discretion, verify Order shipping addresses, but this is not a replacement for merchant address diligence and verification. Client agrees and acknowledges that ABS has no obligation to verify any shipping addresses by Client.
If ABS provides an Order shipping estimate on the basis of an address later discovered to be inaccurate or incomplete, Client is solely responsible for any applicable address correction fees, any difference in shipping cost or for any other costs or fees due to the incomplete or inaccurate address. Examples of discrepancies for which Client may be responsible include, but are not limited to, incomplete addresses, commercial/residential address status, and rural address status.
Client agrees that ABS shall not be liable for any delay, loss or damage as a result of any Goods shipped internationally. ABS shall not provide any refunds for or guarantee any international shipments. ABS recommends that Client track and insure all international shipments. IT IS CLIENT'S SOLE RESPONSIBILITY TO PROTECT ITSELF FROM INTERNATIONAL FRAUD. IT IS CLIENT'S SOLE RESPONSIBILITY TO PAY ALL FEES RELATED TO ORDERS WHETHER THE ORDER IS FRAUDULENT OR THE PRODUCT IS DELIVERED OR NOT.
Shipments that are not delivered are often returned by the Carrier and assessed return shipping, brokerage, and returns processing carrier fees. These fees assessed by the Carriers are billed through to merchants, often without notice. ABS strives to work with Clients to circumvent International returns or abandoned inventory at the Client's request; however, this is done on a best efforts basis and ABS reserves the right to access fees to the value of the original shipping cost.
Customs, Duties and Taxes ("CDT") on any international shipment charged by the Carrier are the responsibility of the Client and will be charged back to the Client regardless of whether they were or were not in the initial shipping estimate, or whether the order was or was not delivered.
All returned shipments will be assessed a return shipment fee equivalent to the shipping fee to the original destination. Returned shipments will be returned to a ABS distribution center, unless otherwise specified. If the returned shipment is requested to be shipped to a new location, the shipment will be treated as a new shipment and will incur standard shipping charges. Client shall be solely responsible for any fees assessed by any Carrier as a result of any shipments of Goods that are returned to ABS by the Carrier for any reason whatsoever
ABS may, at its sole discretion, require that Client remove unsuitable or unsellable Goods from its distribution centers. ABS will notify Client if it has any inventory that requires removal. If Client does not remove the inventory within 30 days of receiving a required removal notice, ABS may dispose of the inventory listed in the required removal notice. Client is responsible for any related fees. Unsellable inventory is not in sellable condition.
If Client's Service Fees remain unpaid for a period greater than 30 days, then ABS reserves the right, at its sole discretion, to reclassify Client's 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 Client. Inventory will become immediately and irrevocably unavailable to Client, and liquidation proceedings would begin. Client agrees the inventory would be free and clear of liability, and that Client would assume any liability therefore. Client would have no rights to the liquidation proceeds. Client would also remain liable for any pending Service Fees above and beyond the liquidation proceeds.
Client retains all right, title and interest in and to the Client Data, other than the limited rights expressly granted in this Section 13. For purposes of this Agreement, "Client Data" means any and all information collected and/or stored by or on behalf of ABS in connection with Client's use of the Services, excluding data and information relating to the operation and/or performance of the ABS Platform.
Nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the Client Data, or any of Client's rights or interests therein. Client hereby grants ABS the non-exclusive right and license to (a) copy, use, modify, distribute, display and disclose Client Data solely to the extent necessary to provide the Service to Client pursuant to the TOS, (b) copy, modify and use Client Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (c) copy, use, modify, distribute, display and disclose Client Data on an aggregate and anonymized basis for marketing purposes.
ABS shall not be liable for any delays or inability to perform the ABS Service caused by forces beyond ABS's control including, without limitation, acts of God or act 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 ABS's control, or because of loss or destruction of Inventory for which ABS is not liable, or because of any other excuse provided by law, ABS 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 ABS 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.
Representations and Warranties.
You represent and warrant to ABS that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow ABS to perform its obligations) in connection with the Service without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and ABS's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
You have the right to terminate your account at any time, provided you do not have a balance on your account (other than any amounts subject to a good faith dispute) by sending a cancellation request to firstname.lastname@example.org. Subject to earlier termination as provided below, ABS may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, ABS may also terminate this TOS upon thirty (30) days' notice (or ten (10) days in the case of nonpayment), if you breach any of the terms or conditions of this TOS. ABS reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by ABS upon any termination of your account in its sole discretion. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS.
DISCLAIMER OF WARRANTIES.
The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ABS or by third-party providers, or because of other causes beyond our reasonable control, but ABS shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, THE SERVICE, INCLUDING THE ABS PLATFORM AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICE OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
ABS is not the importer of record for Inventory stored at ABS. ABS shall not be held liable for complying with your instructions through the ABS Service. You understand that ABS does not inspect your Inventory nor does ABS take responsibility for the business decisions that you make and implement through the ABS Service. For example, ABS 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, ABS is not the Merchant of Record for any of your Inventory. ABS 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 ABS.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, COMPANY'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. [Form, § 8.2]
Damage or Loss of Inventory. INVENTORY INSURANCE IS AVAILABLE. IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION OF INVENTORY ("INVENTORY LOSS") FOR WHICH ABS IS LEGALLY LIABLE, YOU DECLARE THAT ABS'S LIABILITY SHALL BE LIMITED $.50 PER POUND FOR SAID LOST, DAMAGED, AND/OR DESTROYED INVENTORY. PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER INVENTORY IS RECEIVED, YOU MUST ADD INVENTORY INSURANCE ON PART OR ALL OF THE INVENTORY IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE; FURTHER PROVIDED THAT NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE INVENTORY HAS OCCURRED. IN NO EVENT SHALL ABS BE LIABLE FOR ANY LOST SALES REVENUE FROM INVENTORY LOSS. ABS'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 ("INVENTORY DAMAGES CAP"). FOR GREATER COVERAGE, YOU MUST ADD INVENTORY INSURANCE IN YOUR ACCOUNT SETTINGS ON THE INVENTORY THAT YOU WISH COVERED BY INSURANCE, IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE; FURTHER PROVIDED THAT NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE INVENTORY HAS OCCURRED.
Inventory Count Inaccuracies. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT ABS IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE ARE DETERMINED TO BE INAPPLICABLE AND ABS IS HELD LEGALLY LIABLE, YOU AGREE THAT IT WILL BE CONSIDERED AN "INVENTORY LOSS" AND ABS'S LIABILITY SHALL BE LIMITED AS STATED IN 18.3. ABOVE. IN NO EVENT SHALL ABS BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
Exclusive Remedy. ABS'S LIABILITY REFERRED TO IN THIS SECTION SHALL BE YOUR EXCLUSIVE REMEDY AGAINST ABS 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.
You shall defend, indemnify, and hold harmless ABS from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. ABS shall provide notice to you of any such claim, suit or demand. ABS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting ABS's defense of such matter.
U.S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by ABS on your Equipment (if applicable) are "commercial items" and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
You may not assign this TOS without the prior written consent of ABS, but ABS may assign or transfer this TOS, in whole or in part, without restriction.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable.
Both parties agree that this TOS, the Logistics Agreement, together with any attachments, SOW, addendums or service orders, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In cases where Logistics Agreement terms and conditions conflict with the TOS the Logistics Agreement prevails. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind ABS in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This TOS shall be governed by the laws of the State of Florida without regard to the principles of conflicts of law. Unless otherwise elected by ABS in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the courts of the State of Florida and of the United States of America located in Lee County, Florida for the purpose of resolving any dispute relating to your access to or use of the Service.