This agreement
This agreement consists of this document, the Delivery Services Rate Card attached to this agreement or otherwise agreed between the parties from time to time and the Software Services Rate Card attached to this agreement or otherwise agreed between the parties from time to time. Definitions and rules of interpretation can be found at the end of this document.
Term and Rate Cards
This agreement will continue until it is terminated pursuant to clause 5.2. During this term, Shippit may, unless otherwise agreed in writing between the parties, vary the Software Services Rate Card and the Delivery Services Rate Card on 7 days written notice.
Termination
Termination during Initial Fixed Term
This clause 3.1 only applies if Shippit and the Merchant have agreed an Initial Fixed Term.
During the Initial Fixed Term, the Merchant can terminate this agreement by notice in writing to Shippit if:
an Insolvency Event occurs in relation to Shippit;
Shippit breaches this agreement in a material way and either:
30 days has elapsed since the Merchant gave Shippit notice of the breach and required Shippit to remedy the breach, and Shippit has failed to remedy the breach; or
the breach is not capable of being remedied.
During the Initial Fixed Term, Shippit can terminate this agreement by notice in writing to the Merchant if:
an Insolvency Event occurs in relation to the Merchant; or
the Merchant breaches this agreement in a material way and either:
30 days has elapsed since Shippit gave the Merchant notice of the breach and required the Merchant to remedy the breach, and the Merchant and Franchisee has failed to remedy the breach; or
the breach is not capable of being remedied; or
without prejudice to paragraph (ii) above, the Merchant is persistently late in paying any amounts due from it under this agreement.
Termination after the Initial Fixed Term
Following the Initial Fixed Term, or if no Initial Fixed Term was agreed, the Merchant and Shippit can each terminate this agreement in the circumstances and in the manner in which clause 5.1 permits them to terminate this agreement during the Initial Fixed Term.
Following the Initial Fixed Term, or if no Initial Fixed Term was agreed, the Merchant and Shippit can each terminate this agreement without cause by 30 days notice in writing to the other (and if there is an Initial Fixed Term then may give such notice prior to the expiry of the Initial Fixed Term, provided it does not take effect until after the expiry of the Initial Fixed Term).
Software Services and licence
Provision of services
Subject to payment in accordance with clause 8, Shippit must provide the Software Services until termination of this agreement.
Licence
Subject to payment in accordance with clause 8, Shippit grants the Merchant a non-exclusive licence to:
use, during the term of this agreement, the object code in the Software (other than the Hosted Software, which shall only be used by Shippit); and
communicate with, via the API, the Hosted Software, for the purpose of obtaining the Software Services and the Delivery Services.
Intellectual Property Rights
The Intellectual Property Rights in the Software and in all systems, procedures and confidential information related to the Software, the Software Services or the Delivery Services vest wholly and exclusively in Shippit. Nothing in this agreement confers any Intellectual Property Rights on the Merchant, other than pursuant to the express terms of the limited licence above.
Improvements
The Intellectual Property Rights in any improvements, additions or modifications to the Software made by the Merchant, whether made with or without the authority of Shippit, are hereby assigned to Shippit.
No reverse engineering
The Merchant must not attempt to reverse engineer, disassemble, decompile or circumvent the Software or any part of the Software.
No malware
The Merchant must take reasonable care to ensure that no malicious or harmful code is transmitted to Shippit in connection with its use of the Software Services or Delivery Services.
Changes
Shippit may change, modify and improve the Software from time to time, but where any such action would require the Merchant to materially modify the way it delivers information to the Hosted Software via the API, must give the Merchant as least 7 days notice before the change is implemented.
Payment for Software Services
Payment according to rate card
The Merchant must pay Shippit for the Software Services amounts calculated according to the Software Services Rate Card. For the avoidance of doubt, the amounts set out in the Software Services Rate Card are GST-exclusive, and the Merchant must also pay any applicable GST.
Payment terms
Every 14 days Shippit must provide the Merchant with a tax invoice for all amounts owing to it under this clause 8 in respect of Software Services provided over the previous 14 days. The Merchant must pay that invoice within 14 days of receipt (and if it fails to do so then Shippit will be entitled to interest calculated at the Commonwealth Bank of Australia’s ‘overdraft index rate’, or if there is no such rate the most equivalent rate published by the Commonwealth Bank of Australia, from time to time).
Software integration
Subject to clause 2, the Merchant is responsible for integrating its e-commerce platform and other operations with the Shippit Software and procedures. Shippit is not required to perform any integration services other than provision of the API.
The Merchant must offer the Shippit shipping option to each End Customer who places an order for an item which meets the Package Criteria (and not offer it in relation to any items which do not meet the Package Criteria).
The Merchant must do all things reasonably requested by Shippit to ensure that End Customers are exposed to any content reasonably requested by Shippit, including terms and conditions, privacy notices, receipt instructions, links to Shippit websites and applications and the like.
The Merchant must ensure that its systems provide all information required by Shippit’s Software in the manner contemplated by, and otherwise in conformance with, the API.
Delivery Services
Provision of services
Subject to payment in accordance with clause 11, Shippit must provide the Delivery Services until termination of this agreement.
Nature of delivery services
The Merchant appoints Shippit as its agent to conclude contracts with Carriers for the delivery of goods in accordance with the instructions of the End Customers, in accordance with the Carrier Terms.
For the avoidance of doubt, Shippit is not a courier company, and the Merchant’s rights in respect of the physical delivery of orders shall arise under a direct contract between the Merchant and the relevant Carrier. Shippit is not liable for any breach of contract by a Carrier.
Shippit must make the Carrier Terms for each Carrier available to the Merchant upon request.
Shippit must pay the amounts due to each Carrier in respect of deliveries arranged via the Delivery Services on behalf of the Merchant from monies due to it under clause 11. To the extent that there is a shortfall, Shippit must bear the shortfall, and to the extent that there is an excess, Shippit is entitled to the excess.
For the avoidance of doubt, and without limiting paragraph (b) above, Shippit shall not be liable for any failure by the relevant Carrier to perform its duties, including any failure by a carrier to meet a booked or predicted collection or delivery window, and including any such failure that is due to weather or traffic conditions.
Payment for Delivery Services
Payment according to rate card
The Merchant must pay Shippit amounts calculated according to the Delivery Services Rate Card in respect of Delivery Services. For the avoidance of doubt, the amounts set out in the Delivery Services Rate Card are GST-exclusive, and the Franchisee must also pay any applicable GST.
Payment terms
Every 14 days Shippit must provide the Merchant with a tax invoice for all amounts owing to it under this clause 11 in respect of Delivery Services provided over the previous 14 days. The Merchat must pay that invoice within 14 days of receipt (and if it fails to do so then Shippit will be entitled to interest calculated at the Commonwealth Bank of Australia’s ‘overdraft index rate’, or if there is no such rate the most equivalent rate published by the Commonwealth Bank of Australia, from time to time).
Risk and liability
Limit on Shippit’s liability
Subject to clause 13.5, Shippit’s maximum aggregate liability for Claims under or in connection with this agreement, the Software Services or the Delivery Services, including Claims from the Merchant and Claims from any other party including the Merchant’s customers, is limited to, in respect of a Claim arising in any calendar year, any amount by which the GST-exclusive fees received by it under this agreement in that calendar year exceed the GST-exclusive fees that it has paid or is required to pay to Carriers in respect of that same period as contemplated by clause 10.2(d).
Notice of claims
The Merchant must give notice to Shippit as soon as possible upon becoming aware of events or circumstances which may give rise to a Claim against Shippit under or in connection with this agreement, the Software Services or the Delivery Services.
Consequential Loss
Subject to clause 13.5, but despite anything else in this agreement, Shippit shall in no circumstances be liable for any Consequential Loss in respect of any Claims arising under or in connection with this agreement, the Software Services or the Delivery Services.
Implied terms
Subject to clause 13.5, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this agreement.
Software
Subject to clause 13.5, Shippit does not warrant that the Software will operate with any particular hardware or software, will be error free or operate without interruption or disruption or will provide any function or meet any requirements not previously demonstrated to the Merchant.
Non-excludable Claims
To the extent that the operation of this clause 13 would contravene or be rendered void under any provision of the Australian Consumer Law or any similar legislation, then the relevant part of this clause 13 shall be read down to the extent necessary to avoid that result. If such a reading down occurs in a manner that prevents the limits on Shippit’s liability above operating then, to the extent permitted by law, Shippit’s liability shall still be limited to supplying the relevant services again or the cost of having the relevant services supplied again.
Force Majeure
Force Majeure Event
In this clause 14 Force Majeure Eventmeans anything outside the reasonable control of a party, including but not limited to:
war, acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action, sabotage, terrorism, cyber attack, cyber activism, cyber sabotage, cyber terrorism, telecommunications failure, telecommunications congestion, failure of or material adverse changes in any supplier systems (including Australia Post or Carriers) or malware;
industrial action (including a picket); and
any legislation or regulation and any action or inaction of any government or government agency.
Consequences
If a party is wholly or partially unable to perform its obligations because of a Force Majeure Event then:
as soon as reasonably practicable after the Force Majeure Event arises, that party must notify the other party of the extent to which the notifying party is unable to perform its obligations; and
that party's obligation to perform those obligations will be suspended for the duration of the delay arising directly out of the Force Majeure Event.
If the delay arising directly out of a Force Majeure Event continues or is likely to continue for more than 60 days, either the Merchant or Shippit, may terminate this agreement by notice in writing to the other.
Credit terms – Merchant
If the Merchant persistently delays or defaults in the payment of amounts due under this agreement Shippit may, if it elects, require that party to pay monies to Shippit in advance to create a reasonable credit balance before further use of the Software Services or Delivery Services.
If the Merchant fails to pay any amount due under this agreement within 2 Business Days of its being due then Shippit may, if it elects, suspend the performance of its obligations under this agreement until all overdue invoices have been paid.
Capacity
Each party represents and warrants to each other party that:
it is validly existing under the laws of its place of incorporation or registration;
it has the power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement;
it has taken all necessary action to authorise its entry into and performance of this agreement and to carry out the transactions contemplated by this agreement;
its obligations under this agreement are valid and binding and enforceable against it in accordance with their terms; and
the execution, delivery and performance by it of this agreement (and any other agreement required to be entered into by it in connection with this agreement) will not:
result in a breach of, or constitute a default under, any agreement or arrangement to which it is party or by which it is bound; or
result in a breach of any law or order, judgment or decree of any court, governmental agency or regulatory body to which it is a party or by which it is bound.
Support
Shippit will provide reasonable technical support via email, and in relation to Delivery Services will facilitate the provision of support by its Carriers in accordance with those Carriers’ usual practices.
GST
Interpretation
Words or expressions used in this clause 18 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)( GST Act ) have the same meaning in this clause.
Consideration is GST‑exclusive
Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as 'GST inclusive', does not include an amount on account of GST.
Gross up of consideration
Despite any other provision in this agreement, if a party ( Supplier ) makes a supply under or in connection with this agreement on which GST is payable (not being a supply the consideration for which is specifically described in this agreement as 'GST inclusive'):
the consideration payable or to be provided for that supply under this agreement but for the application of this clause 18 ( GST‑exclusive consideration ) is increased by, and the recipient of the supply ( Recipient ) must also pay to the Supplier, an amount equal to the GST‑exclusive consideration multiplied by the prevailing rate of GST ( GST Amount ); and
subject to clause 18.7, the GST Amount must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST‑exclusive consideration is payable or to be provided.
Reimbursements (net down)
If a payment to a party under this agreement is a reimbursement or indemnification or otherwise calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST group that party is a member of (as the case may be), is entitled in respect of that loss, cost or expense.
Revenue (net down)
If the consideration for a supply under this agreement is calculated by reference to the consideration for another supply, in performing that calculation, the consideration payable or to be provided for the supply under this agreement excludes any GST payable included in the consideration payable for that other supply.
Tax invoices
The Recipient need not pay the GST Amount in respect of a taxable supply made under or in connection with this agreement until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
Adjustment events
If an adjustment event arises in respect of a supply made under or in connection with this agreement, then:
if the Supplier's corrected GST Amount is less than the previously attributed GST Amount, the Supplier will refund the difference to the Recipient; or
if the Supplier's corrected GST Amount is greater than the previously attributed GST Amount, the Recipient will pay the difference to the Supplier; and
the Supplier must issue an adjustment note to the Recipient.
Notices and other communications
Service of notices
A notice, demand, consent, approval or communication under this agreement ( Notice ) must be:
in writing, in English and signed by a person duly authorised by the sender; and
hand delivered or sent by prepaid post, facsimile or email to the recipient's address for Notices specified in the Details, as varied by any Notice given by the recipient to the sender.
Effective on receipt
A Notice given in accordance with clause 19.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
if hand delivered, on delivery;
if sent by prepaid post, two Business Days after the date of posting (or seven Business Days after the date of posting if posted to or from a place outside Australia);
if sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice; and
if sent by email, when transferred to the recipient’s mail server with the correct address details,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
Assignment
The Merchant may only assign this agreement or a right under this agreement with the prior written consent of the other party. Shippit may only assign this agreement or a right under this agreement if it does so in the course of assigning all such agreements or rights related to its business, or related to its business in a particular area.
Miscellaneous
Alterations
This agreement may be altered only in writing signed by the Merchant and Shippit.
Approvals and consents
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally, or withhold, any approval or consent under this agreement.
Costs
Each party must pay its own costs of negotiating, preparing and executing this agreement.
Survival
Any indemnity or any obligation of confidence under this agreement is independent and survives termination of this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement.
Counterparts
This agreement may be executed in counterparts. All executed counterparts constitute one document.
No merger
The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
Entire agreement
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transactions contemplated by it.
Severability
A term or part of a term of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of this agreement continue in force.
Waiver
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Relationship
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
Confidentiality
A party may only use confidential information of another party for the purposes of this agreement, and must keep (and must procure that its related bodies corporate also keep) the existence and the terms of this agreement, related agreements annexed to this agreement, the transactions contemplated by those agreements and any other confidential information of another party confidential except where:
the information is public knowledge (but not because of a breach of this agreement) or the party has independently created the information;
disclosure is required by law or a regulatory body (including a relevant stock exchange) and (if practicable) the notifying party has taken reasonable action to minimise the extent of such disclosure and has given the other party a reasonable opportunity to comment on the contents of, and the requirement for, the disclosure; or
disclosure is made to an employee or service provider of that party who must know for the purposes of this agreement on the basis that the person keeps the information confidential.
Announcements
A public announcement in connection with this agreement or a transaction contemplated by it must be agreed by the parties before it is made, except if required by law or a regulatory body (including a relevant stock exchange), in which case the party required to make an announcement must, to the extent practicable, first consult with and take into account the reasonable requirements of each other party.
Governing law and jurisdiction
This agreement is governed by the law of New South Wales, Australia and each party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the courts of New South Wales, Australia.
Defined terms & interpretation
Defined terms
In this agreement:
API | means the application programming interface provided by Shippit for interaction with the Hosted Software, as reviewed and amended from time to time |
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Carrier | means any courier or logistics company arranged by Shippit from time to time |
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Carrier Terms | means the terms, excluding the terms as to payment, on which a Carrier is willing to carry goods in connection with the Delivery Services |
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Consequential Loss | means any indirect, special or consequential loss and any loss which is consequential loss within the meaning of Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26 |
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Delivery Services | means arranging, as agent for the Merchant contracts with and orders with Carriers for the delivery of orders to End Customers. |
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Delivery Services Rate Card | means the rate card agreed between the parties, as amended from time to time in accordance with this agreement |
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End Customer | means a retail customer of the Merchant that orders goods via the Merchant’s online sales site. |
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Hosted Software | means the software used by Shippit to provide the Software Services and Delivery Services and not provided by Shippit to the Merchant. |
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Initial Fixed Term | means any period agreed in writing between Shippit and the Merchant as the Initial Fixed Term. |
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Intellectual Property Rights | means all intellectual property rights, including the following rights:
patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have Confidential Information kept confidential;
any application or right to apply for registration of any of the rights referred to in paragraph (a); and all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
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an Insolvency Event | affects a person if: a receiver, liquidator, provisional liquidator or administrator is appointed to that person or that person’s undertakings or assets; if that person is not solvent, within the meaning of s.95A of the Corporations Act 2001; that person enters into any arrangement with its creditors as a general body; or any of those things occur in relation to a related body corporate (within the meaning of the Corporations Act 2001) of that person.
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Package Criteria | means the package criteria set out in the Delivery Services Rate Card |
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Software | means the: (a) the API;
any software development kit or other software, including html code, provided to the Merchant by Shippit to assist Shippit to utilise the Software Services or Delivery Services;
(c) the Hosted Software, as reviewed and amended from time to time, and includes all improvements to modifications to that software from time to time.
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Software Services | means the ordering, tracking and reporting of deliveries functions demonstrated to the Merchant (other than the Delivery Services) |
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Software Services | means the provision of delivery ordering, tracking, reporting and management functions to the Merchant, including the provision of printable courier labels. |
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Software Services Rate Card | means the rate card agreed between the parties, as amended from time to time in accordance with this agreement. |
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