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 Floship and references to ‘you’ and ‘your’ are to the Client.
2. Our Services
Floship 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. Floship 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. Floship 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 Floship in all matters relating to the Services and provide such materials and/or information as may be required by Floship 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 Floship’s requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Floship 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 Floship’s services before the date on which the Services are to commence.
4. Rate Cards and Cost Simulation
(a) Floship shall provide the client with a rate card (“rate card”). Rate cards typically cover warehousing, storage, and various labor activity rates. Rate cards are binding, and the subsequent usage of Floship Services shall be invoiced according to the agreed rate cards.
(b) Shipping rates (“shipping rates”) are not part of the binding rate cards and may change without notice. The client may at any time review shipping rates on the Floship Fulfillment Portal or ask Floship to provide the latest shipping rates.
(c) Floship may at times provide the client with an initial cost simulation based on the information provided by the client during the engagement process (the “cost simulation”). Cost simulations provided by floship to the client are for estimation purposes only and are subject to change without notice. Floship is not responsible to maintain or update the client regarding any changes to the cost simulation, and the cost simulation shall not be binding upon floship.
(d) 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, floship 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 floship by third parties.
5. Floship Fulfillment Portal
(a) As part of the Services provided by Floship, the Client may integrate or connect its online shopping cart or ecommerce platform with Floship’s cloud-based fulfillment portal (the “Floship Fulfillment Portal”). The Floship Fulfillment Portal may be updated and modified from time to time, often without prior notice to you. Your continued use of the Floship Fulfillment Portal constitutes your acceptance of such modifications.
(b) The Client may specify one or more administrators (each an “Administrator”) to manage its account on the Floship Fulfillment Portal. Administrators have the ability to access, monitor, use, export and disclose content on the Floship Fulfillment Portal. 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 Floship Fulfillment Portal complies with these Terms of Service. Floship shall not be held liable for any actions on the part of the Client’s Administrator(s).
(c) The Floship Fulfillment Portal is made available to you by Floship 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. Inbound Goods and Receiving Policy
(a) Floship may require the Client to send product samples to Floship’s office address for inspection before confirmation of the Inbound Date.
(b) The Client shall be responsible for arranging inbound shipment of the Client Goods to Floship’s warehouse and for all related transportation and handling charges with relevant third parties, including duties, customs or charges related to the Client Goods.
(c) The Client shall be responsible for ensuring that all Client Goods are properly packaged and correctly labelled in accordance with Floship’s labeling requirements as set out herein or on Floship’s website before delivery to Floship’s warehouse.
(d) Floship shall not be liable for any discrepancy in the quantity, quality or condition of the Client Goods that are received at Floship’s warehouse. Receiving checks for incoming Client Goods will be based on a carton level, provided that each carton is clearly and properly labelled, unless there is a prior agreement between the Client and Floship for a per piece inventory count. The Client shall be responsible for insuring all inbound shipment of Client Goods
(e) Floship may, in its sole discretion, refuse, return or dispose of any inbound shipment that does not comply with its receiving policy or is determined to be illegal, hazardous or otherwise, at the Client’s cost, and shall not be liable or responsible for any loss or damage of any nature to, or related to, such refused goods.
7. Labelling and Orders Policy
(a) The Client shall be responsible for providing such information as Floship may require in accordance with the timeline set out in the Statement of Work or Logistics Services Agreement. The Client shall ensure that all information provided is accurate and complete. Any inaccurate or incomplete information may result in delays to the Fulfillment Date and Floship shall not be liable for any resulting loss or damage.
(b) The Client shall be responsible for sending all order submissions to Floship in accordance with Floship’s requirements and that all information provided is complete and accurate to ensure that shipments are not delayed. Floship shall not be responsible for any order submission errors or delays by the Client. Any amendments made by the Client after
(i) an order has been approved and is pending fulfillment; or
(ii) the applicable cut-off time may not be processed and Floship shall not be responsible for any shipping delays or incorrect shipments as a result thereof. Any subsequent requests by the Client to amend shipping labels may result in delays and/or the Client incurring additional charges.
(c) The Client shall be responsible for ensuring that all Client Goods (at both carton and unit level) have the proper and correct barcode label to ensure proper inventory management as well as proper pick and pack and fulfillment processes. Floship shall not be held liable for the accurate record keeping or fulfillment of Client Goods that are not properly and correctly labelled. Floship may label any Client Goods at an additional cost to the Client.
(d) Floship’s order edit cut off time is 8 a.m. Hong Kong Time from Monday to Friday (“Cut-Off Time). Floship aims to process all orders that have been submitted and approved via the Fulfillment Portal Order before the Cut-Off Time within 24 to 48 hours. However, order processing may be delayed during
(i) peak season dates including the month of December and the week of Chinese New Year;
(ii) public holidays in Hong Kong; or
(iii) a day throughout or for part of which a black rainstorm warning or Typhoon Signal Number 8 or above is issued by the Hong Kong Observatory.
8. Couriers and Shipping Policy
(a) Floship 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 Floship’s control, such as natural disasters, strikes or peak fulfillment periods during holiday seasons. Further, Floship 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) Floship 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 Floship determines the packaging to be unfit for shipping, Floship may offer additional packaging for an additional fee or return the Client Goods to you at your cost.
(c) Floship 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, Floship shall use all reasonable efforts to acquire a POD on behalf of the Client from Third Parties. Floship 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, Floship shall reasonably assist and cooperate with the Client, which may be liable for any charges or costs incurred by Floship. As Third Parties require claims to be submitted within a specific time period, it is the Client’s responsibility to notify Floship 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 Floship’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. Floship does not, under any circumstance guarantee, promise, nor permanently fix such charges to a supposed weight or dimension of preference.
9. 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. Floship may at times provide estimates for the duties and taxes. Such estimates shall never be considered as binding offers from Floship. Floship shall pass all related charges to the Client. Any discrepancies in the charges and estimates shall be deemed non-disputable.
(b) Floship 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 Floship prior to shipping, or place a security deposit on these amounts.
10. Storage and Inventory Policy
(a) The Client Goods are not insured by Floship against any loss or damage, however caused. Floship strongly recommends that the Client procure insurance for the Client Goods at its own cost.
(b) Floship does not anticipate inventory shrinkage for Client Goods held by Floship. However, Floship will have an annual 5% shrinkage allowance based on the stated cost value of the Client Goods held at Floship’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 Floship is held legally liable, Floship’s liability shall be limited to the actual value of the Client Goods. In no event shall Floship 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 Floship may have under applicable law with respect to the Client Goods.
(d) Floship 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) Floship 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 Floship’s warehouse within a reasonable period after the due date of the final invoice.
11. Fees and Payment Terms
(a) Clients must provide valid credit card details when registering on the Fulfillment Portal.
(b) The Client agrees to pay our fees as set out in our invoices in consideration of the Services provided by Floship. Our invoices are to be paid in the currency stated therein.
(c) Floship shall bill the Client on a monthly, weekly or daily basis as determined by Floship from time to time.
(d) Floship reserves the right to charge the Client’s credit card account once the Client’s balance exceeds USD 500.
(e) Floship’s service pricing is subject to change. A minimum of 30 days’ notice will be provided to the Client in writing before new prices are in effect. Fees charged by Third Parties are subject to change without notice and shall not under any circumstances be binding upon Floship.
(f) The Client shall pay all invoiced amounts due to Floship within 7 Business Days from the date of Floship’s invoice. Floship 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 Floship will only credit the final amount received to the Client’s account.
(g) In the event payments are not received by Floship within 7 Business Days after becoming due, Floship 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.
(h) Floship may at its sole discretion, request full payment as a condition for release of the Client Goods. Floship 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.
(i) Documentation handling fees (“Documentation Fee”) will be charged for orders that are shipped on the Client’s own courier accounts instead of Floship’s accounts. The Documentation Fee is a handling fee only and does not replace the work of advice of a professional customs and clearance brokers. Supporting documentation may be requested and this does not waive the Documentation Fee. Floship may publish or change the Documentation Fee at any time without notice.
Floship shall have a lien on the Client Goods in Floship’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 Floship, including, but not limited to, interest and legal costs and expenses. Floship may refuse to surrender possession of the Client Goods until all sums due and payable to Floship are paid in full. If such amounts remain unpaid for 30 days after Floship’s demand for payment, Floship may, at its absolute discretion, sell the Client Goods by way of public or private sale or any other method Floship deems appropriate without further notice and apply the net proceeds to the sums owed to Floship. Any surplus from such sale shall be transferred to the Client and the rights of Floship are reserved for any shortfall subsequent to the disposal of the Client Goods. If Floship after a reasonable effort is unable to sell the Client Goods Floship 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, Floship 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 Floship 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 Floship Fulfillment Portal during the Termination Notice Period. Floship shall continue to process and fulfill all orders which have been submitted by the Client via the Floship Fulfillment Portal or otherwise during the Termination Notice Period.
(c) Upon termination of this Agreement for any reason, the Client shall immediately pay Floship any outstanding unpaid invoices and interest due to Floship. Floship 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. Floship 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.
14. Intellectual Property
(a) Floship shall retain ownership of all its patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (“Intellectual Property Rights”).
(b) The Client shall retain ownership of all Intellectual Property Rights in the Client Goods and any other materials and data supplied by the Client to Floship.
(c) You agree that Floship may use and refer to your company, trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in Floship’s marketing and advertising materials.
15. Confidential Information
(a) Neither Floship 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.
16. Limitation of liability
(a) The Client acknowledges and agrees that Floship 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 Floship.
(b) Without prejudice to the Agreement, Floship 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 Floship or its agents, subcontractors and personnel.
(c) Subject to Clause 16(b), Floship’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 Floship 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) Floship 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, Floship 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 Floship 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 Floship’s Services and/or your violation of any term or condition of the Agreement.
18. 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 Floship by the Client under this Agreement shall be refunded to the Client, except that Floship shall be entitled to payment on aquantum meruitbasis for all work done before termination, provided that Floship takes all reasonable steps to mitigate the amount due.
Each clause and sub-clause of the Agreement shall be independently interpreted and enforceable. If any clause or sub-clause of the Agreement is declared void, illegal or otherwise unenforceable by a court of competent jurisdiction, the remainder shall survive unaffected.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
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.
22. 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) Floship 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 Hong Kong 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 Hong Kong 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 Hong Kong law. The seat of arbitration shall be Hong Kong and the number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
26. Governing Law
Any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region.
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