Unless defined elsewhere in this Agreement, capitalized terms set out in the Agreement are defined as set forth in Appendix A.
3PHOST provides Services to you through our Site and the 3PHOST Platform. In addition to these Terms of Service, the provision of Services is subject to the Policies and the Pricing and Billing Policies (collectively, the “Policies”), all of which are incorporated herein by reference (collectively, the “Agreement”). If there is any conflict between the Terms of Service and the Policies, the Terms of Service shall take precedence. In this Agreement, the terms “including” and “include”, or any similar expression, shall not limit the meaning of what follows.
BY REGISTERING FOR AN ACCOUNT OR BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO, AND HAVE THE LEGAL CAPACITY AND AUTHORITY TO AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES OR THE 3PHOST PLATFORM. THE TERMS OF YOUR ORDER SHALL NOT MODIFY THIS AGREEMENT.
3PHOST may modify this Agreement. 3PHOST may give notice to you of any modifications; however, it is your responsibility to regularly review this Agreement. Any Order that you submit after the effective date of the modifications will be subject to the modified Agreement. If any change to the Terms of Service or Policies is unacceptable to you, you have a right to terminate the Agreement in accordance with Clause 14 of these Terms of Service.
You must register for an Account in order for 3PHOST to provide the Services. As part of the registration process, you will create an administrative username and password for your Account on the 3PHOST Platform, and you may create additional standard users (each with a user password). By registering for an Account, you confirm that you are the minimum age legally required to register for accounts of the nature of an Account and use our Services in your jurisdiction of residence and each jurisdiction in which you use our Services. To complete the registration for your Account, you must provide us with:
3PHOST reserves the right to periodically require further information from you, and to require you to verify or update your information. If you fail to provide such further information in a timely manner or do not comply with the other requirements set out in this Clause 2 within fifteen (15) days, 3PHOST may reject your application for an Account or suspend or terminate the Services and this Agreement until 3PHOST has received and verified the requested information.
3PHOST’s services (the “Services”) include: (a) providing technology solutions to support the receipt, counting, storage, picking and packing (“fulfillment”) of Goods pursuant to your Orders by 3PHOST or third party fulfillment or warehouse providers (“SFN Providers”) using 3PHOST’s WMS at 3PHOST and SFN Provider facilities (collectively, “3PHOST Facilities”); (b) providing technology solutions to support the shipment of the Goods by Carriers; (c) providing access to the 3PHOST Platform; and (d) providing all data, reports, text, images, sounds, video, and content (including any offline reports, pricing matrices, or other content made available to you through any of the foregoing), including, in each case, all modifications of or updates to such material.
Any Software made available to you by 3PHOST in connection with the Services, including the 3PHOST Platform, contains 3PHOST’s Intellectual Property and confidential information that is protected by applicable intellectual property laws and this Agreement. 3PHOST grants you a non-transferable, non-sublicensable, and non-exclusive right and license (“License”) to use the Software solely in connection with the Services during the term of this Agreement, provided that you shall not (and shall not allow any third party to) copy, modify, publish, distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, license, sublicense, or otherwise attempt to transfer any right in any Software. You agree not to access the Services by any means other than through the interface that is provided by 3PHOST. Any rights not expressly granted herein are reserved. 3PHOST does not license or grant the right to use any trademark of 3PHOST or any third party. The License may be terminated immediately if you fail to comply with this Clause 3.1 or any other term of this Agreement, or if 3PHOST, acting reasonably, forms the view that there is a risk that you have not complied with this Clause 3.1, or any other provision of this Agreement, and shall, in any event, terminate upon the termination or expiration of this Agreement.
You are solely responsible for all data, information, feedback, suggestions, text, content, and other materials, including Personally Identifiable Information, that you upload, post, deliver, provide, transmit, or otherwise make available to 3PHOST in connection with your use of the Services (including material you upload to the 3PHOST Platform) (“Your Content”). You agree that 3PHOST shall not be liable for any delay, loss, damage or costs as a result of any inaccuracy in Your Content, including Personal Information. You retain all rights, title and interest in and to Your Content, other than the limited rights expressly granted to 3PHOST in this Agreement and/or as reasonably needed to carry out the Services. 3PHOST has the right, but not the obligation, to monitor Your Content. You further agree that, if the Content is not compliant with this Agreement (including any Policies), 3PHOST may remove or disable Your Content at any time. You confirm, warrant, and represent that you own all of Your Content and/or have obtained all such permissions, releases, rights, or licenses as are required to enable you to engage in your posting and all other activities associated with the Services, for 3PHOST to Process Your Content and for 3PHOST to perform its obligations and exercise its rights under this Agreement. You further confirm, warrant, and represent that Your Content does not, and will not, violate, infringe or misappropriate any third party’s Intellectual Property or privacy rights, and that Your Content does not contain any material that is defamatory, obscene, violent, threatening, abusive, tortious, offensive, harassing, or otherwise unlawful.
You grant 3PHOST a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable right and license to access, collect, copy, use, store, host, transmit, modify, distribute, display, disclose, and otherwise process (“Process”) Your Content: (a) to the extent necessary to provide the Services pursuant to the Agreement; (b) in connection with internal operations and functions, including operational analytics and reporting, financial reporting and analysis, product or Service improvement or development, audit functions, and archival purposes; (c) to communicate with you about the Services or 3PHOST’s other products and services; and (d) on an aggregate and anonymous basis for marketing and other lawful purposes.
To the extent 3PHOST Processes Your Content that constitutes Personal Information in the provision of the Services to you, 3PHOST and you will comply with the obligations set forth in 3PHOST’s Data Processing Agreement (“DPA”), which is found here and is incorporated into this Agreement by reference. 3PHOST will process such Personal Information in accordance with the DPA.
You are solely responsible for maintaining the confidentiality of your login, password, Your Content, and Account, and for all activities that occur under your login or Account, except to the extent a failure to maintain confidentiality or any activity conducted under your login or Account is caused by 3PHOST or its employees. For support purposes, designated 3PHOST employees have the ability to access your Account. This access includes but is not limited to production data, including Personal Information, within the dashboard and data storage locations. This access is audited on a regular basis as a part of 3PHOST’s internal audit processes.
You understand that the operation of the Services, including Your Content, may be unencrypted and transmitted over various networks, changed to conform and adapt to technical requirements of connecting networks or devices, and transmitted to 3PHOST’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content. Unless and to the extent that it was directly caused by 3PHOST’s negligence, 3PHOST shall not be liable for unauthorized access to or use 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 Services, including hardware, software, network, and telephone services. You shall also be responsible for maintaining the security of your equipment and ancillary services, your Account, passwords (including administrative and user passwords), files, and for all uses of your Account or your equipment and ancillary services.
Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title, and interest in and to the Services (including all Intellectual Property relating to the Services and in the 3PHOST Platform) will remain with and belong exclusively to 3PHOST. You shall not: (a) sublicense, resell, rent, lease, transfer, assign, timeshare, or otherwise commercially exploit or make the Services available to any third party; (b) use the Services 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, security, or performance of the Services; (c) allow any unauthorized person to access your 3PHOST Account; or (d) modify, adapt, or hack the 3PHOST Platform, or otherwise attempt to gain unauthorized access to the 3PHOST Platform or related systems and networks. You shall comply with any codes of conduct, policies, or other reasonable notices 3PHOST provides to you or publishes in connection with the Services, and you shall promptly notify 3PHOST if you learn of a potential security or privacy breach related to the Services. To the extent applicable to the Services, as defined in FAR section 2.101, the software and documentation installed by 3PHOST 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 Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
You represent and warrant that neither you nor any of your agents or customers are (a) located, organized, or resident in any country or territory that is subject to comprehensive U.S. trade sanctions (including as of the date of updating these Terms of Service, Belarus, Cuba, Iran, North Korea, Russia, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine); (b) a person or entity named on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) List of Specially Designated Nationals and Blocked Persons (the “SDN List”) or any comparable list of sanctioned parties issued by the United States, United Kingdom, or European Union; (c) acting on behalf of any sanctioned person or entity; or (d) owned or controlled by any sanctioned person or entity. You further represent that you do not have any business or financial dealings (directly or indirectly) in any sanctioned country or territory or with any sanctioned person or entity. You agree to comply with all applicable international trade laws and regulations, including without limitation the U.S. Export Administration Regulations, UK Export Control Order (2008), the EU Dual Use Regulation (EC Regulation No. 428/2009), and trade and economic sanctions administered by the United Kingdom, the European Union, and the United States (collectively, “Trade Laws”). You understand and acknowledge that you are responsible for your own compliance with all applicable Trade Laws. You agree that you will not use the Services to export, directly or indirectly, any items to any destination, entity, or person unless authorized under applicable Trade Laws, and you will not cause 3PHOST to directly or indirectly violate any Trade Laws. You will promptly notify 3PHOST if you become aware that you are in breach of the representations in this provision. In the event of actual or suspected noncompliance with such regulations you further agree that 3PHOST may immediately suspend any and all Services to you, and that 3PHOST shall have no liability for shipments which are canceled or otherwise suspended due to actual or suspected noncompliance with these regulations.
It is your expressly assumed obligation to ensure that your documentation and the instructions you provide (or are required to provide under this Agreement or pursuant to applicable law) specifically, separately, and correctly address any Legal Requirements (as defined below in this Clause 4.3) related to your Goods and the shipping requirements applicable to such Goods. The term “Legal Requirements” shall mean all present and future laws, statutes, ordinances, requirements, orders, directions, rules, and regulations of any kind or nature, whether statutory or common law, including all environmental and safety laws, customs, GST and VAT laws and regulations issued or enforced by any federal, state, provincial, or local authority or agency, which govern or apply in any way to your Goods or Goods provided by you or the shipping requirements applicable to such Goods that arise under this Agreement. To the extent there are Legal Requirements or requirements for storage or handling related to any Goods that are the subject of an Order and about which 3PHOST must know and with which it must comply in order to properly perform the Services or otherwise meet its obligations under and pursuant to this Agreement, you shall make 3PHOST aware of any and all such Legal Requirements in writing prior to you requiring Services to which such Legal Requirements apply; and in respect of new Legal Requirements introduced after you register for an Account, no less than sixty (60) days prior to the enactment of such Legal Requirements, particularly to the extent such Legal Requirements relate specifically to the safeguarding, receiving, storing, and handling of the Goods. If compliance with any Legal Requirement(s) prevents 3PHOST from performing the Services, or materially increases 3PHOST’s costs in performing such Services, 3PHOST may choose to suspend performance of the Services without liability to you, or be reimbursed for any additional costs associated with compliance or resulting from non-compliance. Additionally, if at any time while performing Services for you, 3PHOST becomes aware of your failure to comply with any Legal Requirements, 3PHOST may either immediately suspend Services until such non-compliance is rectified or terminate this Agreement by notice with immediate effect.
You represent, warrant, and covenant that:
If you do not strictly meet the compliance obligations of Clause 4.4, 3PHOST may, at its sole discretion, either reject your Goods, immediately suspend Services for such Goods, quarantine your Goods, or immediately terminate this Agreement by notice to you. Any Goods rejected, quarantined, or for which Services have been suspended shall be considered "Rejected Goods". You may be required to reimburse 3PHOST for the labor costs incurred to process, remove or package your Rejected Goods. Additionally, in the event the Rejected Goods cause damage to 3PHOST Facilities, other 3PHOST merchant’s Goods or any other third party’s property, you will be liable for the direct and indirect costs and expenses incurred by 3PHOST and/or any third party as a result. This may include:
IF YOU DO NOT REMOVE THE REJECTED GOODS WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, 3PHOST MAY DISPOSE OF THE INVENTORY LISTED IN THE REQUIRED REMOVAL NOTICE AND MAY CHARGE YOU A REASONABLE DISPOSAL FEE. YOU SHALL NOT BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS DISPOSED OF BY 3PHOST IF YOU DO NOT PROMPTLY REMOVE THE GOODS UPON 3PHOST’S WRITTEN REQUEST IN ACCORDANCE WITH THIS CLAUSE.
You shall comply with all applicable laws and regulations relating to, and bear all costs and responsibilities associated with, importing your Goods into another country or territory, including all customs, duty VAT/GST laws and regulations relating to the import of the Goods as well as determining proper tariff classification and country of origin of Goods and whether Goods qualify for administrative exemptions. You shall deliver the Goods Delivered Duty Paid (DDP) to 3PHOST Facilities, with all duties and taxes paid, released for free circulation and free of any encumbrances. You shall not identify 3PHOST as the consignee, importer of record, or the merchant of record. Beneficial title and interest to all Goods shall always remain with you, even when the Goods are stored at a 3PHOST Facility. You are solely responsible for ensuring that:
Notwithstanding anything else in this Agreement, 3PHOST shall be under no obligation to transport or deliver your Goods if it reasonably believes or suspects such actions would be in contravention of any applicable import or export laws or sanctions.
It is your sole responsibility to protect yourself from fraud and to pay all Fees related to fraudulent Orders, regardless of whether the Goods are delivered.
Unless otherwise specified in your pricing dashboard, you shall pay the Fees set out in the Pricing and Billing Policies.
You acknowledge and agree that due to the nature of the Services, the Fees may be subject to change. 3PHOST may pass through to you any GRI or other Carrier surcharges charged by Carriers in relation to fuel, dangerous goods, Peak Season, and other carrier surcharges. 3PHOST agrees to use commercially reasonable efforts to provide fifteen (15) days prior written notice of any such increases. Notwithstanding the foregoing, in the event any of our Carriers are impacted by a Force Majeure Event, if Carriers impose surcharges, 3PHOST will pass through such surcharges and provide the same notice, if any, that 3PHOST receives. 3PHOST may, in its discretion, change other Fees upon thirty (30) days’ prior written notice to you. Any Fee changes will only apply to Orders completed after the effective date of such change. Your continued use of the Services following the effective date of any Fee increase will mean you accept and agree to pay the increased Fees. If any change to the Fees is unacceptable to you, you have the right to terminate the Agreement in accordance with Clause 14 of these Terms of Service.
Pricing quotations accepted through the 3PHOST Platform are estimates based on the best information available to 3PHOST at the time. All monetary amounts stated in this Agreement and the Site will be in US dollars, unless otherwise specified. The Fees you will be required to pay will depend on a number of factors including the quantity and nature of the Goods for fulfillment, delivery locations, and Carrier Charges. 3PHOST does not accept liability for any Carrier shipping rate discrepancies due to inaccurate or incomplete information provided by you, including incorrect dimensions or weight.
You acknowledge that you are responsible for, and agree to reimburse 3PHOST for, all sales taxes, transportation taxes, reversals, chargebacks, claims, fees, fines, penalties, and other liabilities which may be incurred by 3PHOST and its subcontractors (including Carriers), as applicable in connection with the Services. The aforementioned charges shall be posted to your Account within fifteen (15) days of 3PHOST’s knowledge of such charges. Carrier and retail chargebacks may be subject to additional administrative fees as specified in the Policies.
Customs, duties, and taxes (“CDT”) on any international shipment charged by a Carrier, customs officials, or other governmental agencies are your sole responsibility and will be charged back to you regardless of whether they were or were not in the initial estimate, or whether the Order was or was not delivered. You acknowledge and agree that all Fees, charges, and any other amounts charged by 3PHOST to you are exclusive of all applicable value added, sales/use or inventory, CDT, and service taxes such as Goods and Services Tax (as that term is defined in the A New Tax System (Goods and Services Act) 1999 (Cth)) (“Transaction Taxes”) which may be levied in connection with the Services. You are liable for all Transaction Taxes regardless of the jurisdiction in which they arise. If 3PHOST, in its sole discretion, pays any Transaction Taxes to a government authority on your behalf as a result of your failure to do so or your failure to properly submit compliance documentation (including improperly naming 3PHOST as the consignee, importer of record or merchant of record), you will promptly reimburse 3PHOST for all such amounts paid.
3PHOST offers you convenient payment online using the following methods: bank transfer & ACH (free), credit card (subject to additional service fees) or wire transfer (subject to standard bank fees). Payment processing is provided by Stripe. By agreeing to this Agreement or continuing to utilize our Services, you agree (a) to be bound by the Stripe Connected Account Agreement, as modified by Stripe from time to time and (b) to authorize 3PHOST to share business and transaction information (including customer data) with Stripe for the purpose of facilitating and processing payments.
Unless otherwise specified by 3PHOST, Stripe will collect payment from you on a daily, weekly, or monthly basis depending on the frequency determined during your Account set-up. 3PHOST disclaims all liability for any fees charged to you by your bank related to Stripe’s collection or disbursement of such payment. If you dispute any charges, you must provide notice to 3PHOST within thirty (30) days after the invoice date.
Failure to promptly pay Fees is a material breach of this Agreement. 3PHOST will notify you via the 3PHOST Platform and your registered email address that your Fees are overdue. If your Fees (or any other amounts owed to 3PHOST or Carriers) remain unpaid for more than thirty (30) days after notification they are overdue, 3PHOST reserves the right, at our sole discretion, to terminate this Agreement or suspend our performance of Services. If the Service Fees remain unpaid for more than sixty (60) days after being notified by 3PHOST, then 3PHOST will automatically reclassify your Account as an “Abandoned Account.” TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND YOUR GOODS WILL, SUBJECT TO 3PHOST PROVIDING ANY NOTICES REQUIRED BY LAW, IMMEDIATELY BE FORFEITED BY YOU TO 3PHOST. SUBJECT TO 3PHOST COMPLYING WITH THE REQUIREMENTS OF ANY APPLICABLE LAW, GOODS WILL BECOME IMMEDIATELY AND IRREVOCABLY UNAVAILABLE TO YOU, AND LIQUIDATION PROCEEDINGS WILL BEGIN. Subject to 3PHOST complying with its obligations under applicable statutes: (a) you agree that 3PHOST will be free and clear of any liability to you for such Goods; (b) you assume any liability for the Goods in the event of such liquidation; and (c) you remain liable for any Fees above and beyond the amount recoverable from the proceeds of liquidation of the Goods.
Prior to any inbound shipment of Goods arriving at a 3PHOST Facility, you must follow 3PHOST’s Warehouse Receiving Order (“WRO”) instructions to provide 3PHOST with digital bills of lading through the 3PHOST Platform and schedule an appointment for inbound freight shipments (non-parcel) prior to their arrival at a 3PHOST Facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. Any inbound inventory received that does not follow the WRO instructions as determined by 3PHOST will be classified as an Unidentified Receiving Order (“URO”) falling subject to the URO Policy (which includes delays and additional Fees set out in that policy).
Per 3PHOST’s Operations and Errors Policy, 3PHOST may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that 3PHOST has no obligation to verify the quantity, content, condition, or quality of the Goods delivered for storage and/or delivery. 3PHOST may reject storing and/or delivering any Goods that 3PHOST deems, in its reasonable opinion, to be violative of 3PHOST Policies, to be improperly labeled or packaged (and so a URO), that appear to contain any hazardous or illegal material, or that appear to be adulterated (including adulteration by any insect or other hazardous infestation).
If there are any outstanding or pending Orders that need to be fulfilled as a matter of priority (“Priority Order”), you shall notify 3PHOST of the Priority Order(s) and the requested timeline for the processing of such Orders. 3PHOST will use its reasonable efforts to fulfill your request. 3PHOST cannot guarantee that your request for Priority Order(s) will be fulfilled.
All non-Carrier related returns (international and domestic) must follow the Return Policy. You shall be solely responsible for any Fees and any additional Carrier fees, including without limitation shipping, brokerage, or returns processing fees, for Goods that are returned to a 3PHOST Facility for any reason whatsoever. Custom returns may be rejected and/or subject to additional fees.
International shipments that are not delivered are often returned by the Carrier and assessed for return shipping, brokerage and returns processing Carrier fees. Such fees will be payable by (and are billed through to you by the Carrier (often without notice)). 3PHOST will make reasonable efforts to circumvent international returns or abandoned inventory at your request; however, 3PHOST reserves the right to charge you fees up to the value of the original Carrier shipping cost plus a fifteen percent (15%) administrative fee. If a tariff is not available, 3PHOST will either put Orders on hold until tariff information is available or override the Order with no liability to 3PHOST.
You agree that 3PHOST may, in its reasonable discretion, transfer your Goods at any time to another 3PHOST Facility in order to optimize its fulfillment network. You will be notified in writing via your Account where such transfer occurs, so that you have clear oversight of the location of your Goods and the 3PHOST Facility from which they will be dispatched to your customers.
Since your Goods may be stored along with the Goods of other merchants, you are not permitted to enter 3PHOST’s Facilities or access your Goods in a 3PHOST Facility, without reasonable advance notice and prior express written consent from 3PHOST and the SFN Provider. If you are granted access to a 3PHOST Facility, you will be monitored during the access period, and your access can be terminated if 3PHOST or the SFN Provider determines, in its reasonable discretion, that your access may present a safety risk to any person or property, that your access unreasonably interferes with the operations of the 3PHOST Facility, or if you otherwise fail to observe any site rules or requirements of the 3PHOST Facility.
You agree and acknowledge that the 3PHOST Facilities maintain an actual or constructive general and continuing warehouseman’s lien and security interest (under the UCC, in respect of Goods located in the United States, under this contractual right, and under any similar statute or common law rights applicable in any other jurisdiction in which Goods are located in a 3PHOST Facility) for all Goods in such 3PHOST Facility’s possession or control, regardless of whether a specific receipt is issued, to cover all charges, expenses, costs, and Fees set forth in this Agreement. In the event a 3PHOST Facility is required to exercise a lien or security interest, you shall be responsible for all necessary and reasonable costs incurred to enforce the lien or security interest including reasonable attorneys’ fees. You will execute any and all agreements and documents so that the 3PHOST Facility may obtain, perfect, and maintain the lien rights and security interest in the Goods. You will also execute any and all documentation to permit 3PHOST to perfect the liens.
3PHOST does not represent, warrant or guarantee that any 3PHOST Facility will maintain a specific temperature range or humidity level, nor shall 3PHOST be liable for any fluctuations.
3PHOST’s service level agreements (“SLAs”) can be found at the following link: Turnaround Times, Policies, and SLAs.
3PHOST’s SLAs are subject to vary during Peak Season by notification. 3PHOST may also vary SLAs based on volume. Please review and use the Promotion and Bulk Order Upload Form for expected spikes in order volume.
SLAs shall not apply:
You understand and agree that 3PHOST does not carry your Goods and the 3PHOST Platform connects you with Carriers who are responsible for the actual performance of the carriage of your Goods. In the 3PHOST Platform, you will choose your preferred shipment option which may identify either a specific carrier or the expected speed of delivery (i.e., overnight, two-day, standard) and corresponding rates for shipment. 3PHOST will use commercially reasonable efforts to select the lowest cost method to ship your Goods that complies with the shipment option you have chosen. If you choose a specific carrier to perform the delivery, and the carrier you select either cannot service the Goods or cannot provide the service for another reason (for example, due to a strike or work stoppage), or if 3PHOST is unable to purchase the shipping label for the carrier due to the specified carrier’s technical difficulties, 3PHOST will use commercially reasonable efforts to choose an appropriate alternative carrier for the affected shipment. 3PHOST does not act as your agent in respect of any aspect of this Agreement including the engagement of any Carrier. To the extent that 3PHOST does arrange for the transportation of shipments of Goods by Carriers in the United States, 3PHOST’s performance will be in the capacity of a property broker (USDOT# 3883843 and MC 1425765), such other license or permit as may be required, or as Merchant’s agent.
If you make a claim for loss or damage against a Carrier for a shipment arranged through 3PHOST, 3PHOST will help facilitate the filing of the claim. All such claims shall be subject to the Carrier’s standard bill of lading or seaway bill terms of carriage and 3PHOST’s Lost in Transit and Damage Claims Policy.
3PHOST will use commercially reasonable efforts to facilitate each Carrier’s agreement to ensure that the Carrier:
You acknowledge that 3PHOST makes reasonable efforts to determine the suitability of the Carrier but is not able to guarantee the standard of performance in relation to the carriage and the delivery of your Goods and is not able to guarantee the Carriers’ compliance with applicable laws or regulations.
You are solely responsible for the accuracy and deliverability of the shipping address provided to 3PHOST in respect of your Order (“Nominated Address”). 3PHOST has no obligation to verify the Nominated Address. If the Goods cannot be delivered to the Nominated Address, you grant 3PHOST the right to share your contact information with the Carrier to contact you for further instructions. If 3PHOST provides an Order shipping estimate based on the Nominated Address and delivery failed due to the Nominated Address being inaccurate, incomplete, or undeliverable for any reason, you must pay any costs or expenses incurred by 3PHOST relating to the return of Goods to 3PHOST’s warehouse, redelivery, and additional storage as a result of a failed delivery. For the avoidance of doubt, examples of discrepancies include, but are not limited to, incomplete addresses, incorrect addresses, undeliverable addresses, commercial/residential address status, and rural address status.
You and 3PHOST have each developed certain confidential and proprietary information (“Confidential Information”) including financial statements, financing documents, trade secrets, new products, copyrights, computer software, documentation, specifications, systems, hardware, concepts, designs, configurations, schedules, costs, performance features, techniques, copyrighted matter, patentable and patented inventions, plans, methods, drawings, data, tables, calculations, documents or other paperwork, computer program narratives, flow charts, source and object codes, business and marketing plans, dealings, arrangements, objectives and locations. Confidential Information shall only include such information which is either explicitly designated as “confidential” at the time of disclosure or by its nature is reasonably identifiable as confidential. For purposes of this Agreement, a party disclosing the Confidential Information is the “Discloser” and a party receiving the Confidential Information is the “Recipient.” Confidential Information shall not, however, include any information that Recipient can establish:
Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the Discloser. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder. Recipient may disclose Confidential Information to its officers, directors, employees, contractors, subcontractors, affiliates or representatives (“Representatives”) who are required to have the Confidential Information in order for the Recipient to perform its obligations under these Terms of Service, are informed of its confidential nature, and are subject to written confidentiality obligations at least as protective of the Confidential Information as this Agreement. The Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures it employs to protect its own Confidential Information of like importance, and shall use no less than a reasonable degree of care in protecting such Confidential Information. The Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Confidential Information. Notwithstanding the other provisions of this Clause 9.2, 3PHOST reserves the right to disclose Confidential Information to the extent required by law or for purposes of judicial proceedings, or in the event that 3PHOST reasonably suspects illegal activity by you.
The Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Discloser, entitling Discloser to obtain injunctive relief in addition to all legal remedies without showing or proving any actual damage and without any bond being required to be posted.
3PHOST reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on the Site and in other communication with existing or potential merchants. To decline 3PHOST this right you need to email support@3PHOST.com stating that you do not wish to be used as a reference. You shall not, without the prior express written consent of 3PHOST (a) issue any statement, printed material or other communication acknowledging your relationship with 3PHOST or its affiliates, or (b) use 3PHOST’s or its affiliates’ name or logo in any manner.
You shall defend, indemnify, and hold harmless 3PHOST from and against any claims, actions or demands, liabilities (including court costs and attorneys’ fees), tax obligations, fines, and penalties, including without limitation reasonable accounting fees and expenses, arising or resulting from or in connection with:
3PHOST shall provide notice to you of any Claim. 3PHOST reserves the right to assume the exclusive defense and control of any response to any Claims which are subject to indemnification under this clause. In such case, you agree to cooperate with any reasonable requests assisting 3PHOST’s defense of such Claim. In addition, you agree to cooperate and provide information to 3PHOST to assist with any investigation, proceedings, intervention or enforcement action by a regulatory body or enforcement authority relating to activities carried out pursuant to this Agreement. This indemnity shall include all Claims in tort, contract, by statute or otherwise, Claims for personal injury (including death) and actual or tangible property damage that arise out of or in connection with this Agreement or the provision of Services to you. The indemnity provided by you in this clause will be reduced only to the extent the loss is caused or has been contributed to by 3PHOST’s willful misconduct or gross negligence.
You agree that 3PHOST and its subcontractors are not liable for your Goods beyond the Limitations of Liability set forth below in Clause 13. Neither 3PHOST nor its subcontractors provide insurance for your Goods. You may purchase insurance for your Goods at your sole discretion, cost, and expense. You may purchase parcel insurance for individual shipments of Goods under an insurance policy that is issued to 3PHOST by Cabrella Parcel Insurance by following the instructions provided at this link: Add Insurance to Shipments. 3PHOST is not an insurance company or a licensed insurance agent and does not assume any liability or risk associated with the purchase or sale of insurance.
To the extent that Services are provided in Australia, this Agreement may be subject to consumer protection laws, including the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (“CCA”) and other applicable consumer protection laws and regulations. Nothing in this Agreement is intended to have the effect of excluding (i) any Consumer Guarantee that you may have under the CCA; (ii) either party’s liability to the other party for any fraudulent acts or omissions or fraudulent misrepresentation by a party or its agents, officers, directors or employees; (iii) either party’s liability to the other party for any death or personal injury resulting from a party’s negligence; or (iv) either party’s liability for any other liability or for any other party that cannot be excluded, restricted or modified under applicable law (collectively “Non-Excludable Rights”).
The Services, including use of the 3PHOST Platform and WMS, and all server and network components, are provided on an “as is” and “as available” basis without any express or implied warranties of any kind, and 3PHOST expressly disclaims any and all warranties, whether express or implied, including the warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Except as expressly set forth in this Agreement, you acknowledge that 3PHOST does not warrant that the Services will be uninterrupted, timely, secure, error-free, or virus-free, nor does 3PHOST make any warranty as to the results that may be obtained from use of the Services, and no information, advice, or services obtained by you from 3PHOST shall create any warranty not expressly stated in this Agreement.
The Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance or due to other causes beyond our reasonable control (“Service Disruption”). 3PHOST shall use reasonable efforts to ensure a Service Disruption does not occur during Peak Season. 3PHOST will aim to provide advance notice of any Service Disruption to you and endeavor to resolve the Service Disruption as efficiently as possible. 3PHOST shall not be liable for any such unavailability or disruption of Services.
YOU ACKNOWLEDGE AND AGREE THAT WHEN CARRIERS ARE IN POSSESSION OF YOUR GOODS, CARRIERS, AND NOT 3PHOST, ARE SOLELY RESPONSIBLE FOR ANY ACTUAL OR ALLEGED HARMS SUSTAINED BY YOU OR YOUR GOODS AS DETERMINED UNDER APPLICABLE LAW. SUBJECT TO THE FOREGOING, GOODS THAT ARE THE SUBJECT OF A DELAYED DELIVERY OR ARE LOST OR DAMAGED BY A CARRIER WILL BE MANAGED IN ACCORDANCE WITH 3PHOST’S LOST IN TRANSIT AND DAMAGE CLAIMS POLICY. 3PHOST’S LIABILITY FOR GOODS LOST IN TRANSIT SHALL NOT EXCEED THE LESSER OF ONE HUNDRED DOLLARS ($100.00) OR THE MAXIMUM OF THE APPLICABLE CARRIER’S LOSS LIMITATION.
SUBJECT TO ANY NON-EXCLUDABLE RIGHTS, UNDER NO CIRCUMSTANCES SHALL 3PHOST BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, LOSS OF GOODWILL OR REPUTATION, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, 3PHOST’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.
HANDLING GOODS IN 3PHOST FACILITIES COULD RESULT IN LOSS OR DAMAGE OF GOODS. 3PHOST MAINTAINS HIGH STANDARDS, HOWEVER OCCASIONALLY 3PHOST FACILITIES EXPERIENCE CONCEALED SHORTAGES, PRODUCT DAMAGES, MISLABELED GOODS, MIS-PICKED GOODS AND/OR CROSS-SHIPMENTS. YOU AGREE THAT 3PHOST WILL HAVE A 0.5% SHRINK ALLOWANCE BASED ON THE TOTAL VALUE OF ALL UNITS OF YOUR GOODS IN 3PHOST’S FACILITIES ON AN ANNUAL BASIS (“GOODS VALUE”).
YOU AGREE THAT 3PHOST’S MAXIMUM LIABILITY FOR LOSS OR DAMAGE TO GOODS (INCLUDING LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE LIMITED TO THE ACTUAL PRODUCT VALUE OF THE LOST OR DAMAGED GOODS WHICH SHALL BE MEASURED BY THE ORIGINAL PURCHASE INVOICE FROM THE MANUFACTURER OR SUPPLIER (OR THE INVOICES FROM THE ORIGINAL COMPONENT MANUFACTURERS OR SUPPLIERS IF YOU HAVE ASSEMBLED THE GOODS), SUBJECT TO A CAP OF 5% OF THE TOTAL ACTUAL PRODUCT VALUE OR ONE (1) MONTH OF BILLABLE STORAGE, WHICHEVER IS LOWER (“GOODS DAMAGES CAP”). FURTHERMORE, 3PHOST’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CLAIMS, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS UNDER THIS AGREEMENT, INCLUDING THE BREACH OF THIS AGREEMENT BY 3PHOST, SHALL NOT EXCEED THE LESSER OF: (i) $10,000 OR (ii) 100% OF THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY MERCHANT FOR SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PROVISIONS OF THIS CLAUSE ALLOCATE THE RISKS UNDER THIS AGREEMENT, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE RIGHTS, THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST 3PHOST FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE, AND/OR DESTRUCTION OF GOODS, AND SHALL APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).
You have the right to terminate this Agreement at any time and for any reason, provided you do not have a balance due and owing, by sending a termination request to support@3PHOST.com. 3PHOST may terminate this Agreement with or without cause (including your breach of this Agreement or any term of a 3PHOST policy or your nonpayment of any amounts due to 3PHOST under this Agreement) by providing thirty (30) days’ prior written notice to the administrative email address associated with your Account. Notwithstanding the foregoing, 3PHOST may immediately terminate this Agreement in the event of a material breach of this Agreement by you that is not remedied within ten (10) Business Days of 3PHOST’s written notification to you of such material breach. 3PHOST may also immediately terminate this Agreement by notice and without any liability to you if you are in breach of any of the following clauses, a breach of which is considered of such severity as to justify 3PHOST’s needing to have the right to so terminate: 3.2, 4.2, 4.3, 4.4, 4.6, 9.2.
Your Content may be permanently deleted by 3PHOST upon any termination of your Account. All rights to payment shall survive termination or expiration of this Agreement. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect. 3PHOST shall reasonably cooperate to transition services to you or your designee. Prior to you removing all of your remaining Goods following termination as stated herein, you shall pay (or pre-pay, as the case may be) 3PHOST all current fees outstanding for Services and a good faith estimate of fees that will become due for Services that will be incurred as a result of removing all Goods from the 3PHOST Facility. After all Goods are removed from 3PHOST’s Facilities, 3PHOST will remit to you any surplus paid by the Merchant in respect of the fees for Services for removal of all Goods from 3PHOST’s Facilities, to the extent that the actual fees are less than the amounts paid by you to 3PHOST, and you must pay 3PHOST any deficiency in respect of the fees for the Services for removal of all Goods from 3PHOST’s Facilities, to the extent that the actual fees are greater than the amounts paid by you. Should you not fully and timely pay any fees owed, your Account shall be deemed an Abandoned Account in accordance with Clause 5.8 above.
You may not assign or transfer this Agreement without the prior written consent of 3PHOST, which will not be unreasonably withheld or delayed. 3PHOST may assign or transfer this Agreement, in whole or in part, without restriction. This Agreement is binding upon, and will inure to the benefit of, the successors and permitted assigns of the parties.
Subject to the extent permitted by law and subject to the Non-Excludable Rights, both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, representations, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be agreed in writing signed by both parties, except as otherwise provided herein. You acknowledge that this Agreement is a legally enforceable contract between you and 3PHOST, even though it is electronic and is not physically signed by you and 3PHOST, and it governs your use of the Services.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect, and enforceable.
The failure of either party to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind 3PHOST in any respect whatsoever.
Except as specifically set forth in an agreement signed by 3PHOST, the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement relating to the Services.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; upon the date of delivery as confirmed by the third party postal provider; or if sent by certified or registered mail, upon the date of delivery as confirmed by the third party postal service provider.
Neither party will be liable for any failure to perform or delay in performing any of its obligations under the Agreement (other than any obligation to pay) where such failure is caused by a Force Majeure Event. For the purposes of this clause, “Force Majeure Event” means the occurrence of an act of God, hurricane, tidal wave, flood, tornado, cyclone, wind storm, earthquake, pandemic, epidemic, disease, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce (including that of subcontractors), failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of goods, closure of public highways, railways, airways or shipping lanes, governmental interference or regulations, or other contingencies, similar or dissimilar to the foregoing, beyond the reasonable control of the affected party.
This Agreement and all Claims or disputes between the parties shall be governed by the laws of the State of Illinois without regard to its conflicts of law provisions. All Claims, lawsuits, causes of action, and disputes between the parties shall be brought exclusively in the state or federal courts located in Chicago, Illinois and you agree to submit to the exclusive personal jurisdiction and venue of these courts.
