Master Services Agreement

1.1. In this MSA and each SOW (unless expressly indicated otherwise) the following definitions apply: 

3PL Provider means any entity which provides warehousing or non-Carrier logistics services to the Customer.

API means the application programming interface provided by Shippit for interaction with the Hosted Software, as reviewed and amended from time to time. 

Business Day means any day that is not a Saturday, Sunday or public holiday in the State of New South Wales, Australia. 

ACDC means the Australian Commercial Disputes Centre Limited.

Carrier means a physical delivery business engaged by the Customer to deliver orders to Customer’s End Users and includes the Existing Carriers. 

Carrier Terms means the contractual terms between the Customer and the Carrier (and in respect of deliveries in relation to which Shippit provides Partner Rate Services, means the terms agreed between Shippit and the Carrier.)

Customer means the party identified above and any parent company of that party and each subsidiary of that party (being an entity in which the party holds at least 50% of the ordinary shares or common stock) as may be notified by the party to Shippit, and only for so long as the parent company or subsidiary remains a parent company or subsidiary of the party.  

Confidential Information of a party is information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organisational structure, financial position, personnel, policies and business strategies. 

CPI means the Consumer Price Index published by the Australian Bureau of Statistics from time to time or the index officially substituted for it and if no such index is available, such published price index agreed by the parties acting reasonably.

Shippit IP means all rights, including Intellectual Property Rights, in any software, formulae, algorithms, know-how, ideas, concepts, techniques, data compilations, documentation, trade marks, trade secrets, copyright, inventions, instructions, directions, or technical process developed and owned by Shippit or its licensors, including all rights in the Deliverables (excluding any Intellectual Property Rights held by Customer),

Dispute Notice has the meaning given to it in clause 11.4.

End User means a retail customer of the Customer who orders goods via the Customer’s e-commerce site. 

Existing Carriers are carriers that Shippit is capable of integrating with at any given point in time, as may vary from time to time (a current list is available upon Customer’s request). 

Force Majeure means any event caused by occurrences beyond a party’s reasonable control, including, but not limited to, acts of God, fire or flood, war, terrorism, pandemic, system malfunction, cyber attack, failure of or material adverse changes in any supplier systems (including Carriers and Australia Post), industrial action, governmental regulations, policies or actions enacted or taken subsequent to execution of this MSA or any SOW, or any labour, telecommunications or other utility shortage, outage or curtailment.  

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hosted Software means the software used by Shippit to provide the Software Hosting Services.

Insolvency Event, in respect of a party, means any one or more of the following events: 

• (a) the appointment of a receiver or receiver and manager to the party;
• (b) the appointment of an administrator to the party;
• (c) an order being made or a resolution being passed for the winding up of the party, other than for the purpose of an amalgamation or reconstruction;
• (d) the party is, or states that it is, unable to pay its debts as and when they fall due for payment;
• (e) the party is or states that it is insolvent within the meaning of the Corporations Act; 
• (f) the party ceases or threatens to carry on business or
• (g) the party resolves to enter into a scheme of arrangement or composition with or an assignment for the benefit of its creditors.

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Online Order means a direct order from the Customer’s End User via the Customer’s online sales site.

Prohibited Items mean the items listed at Schedule 3, as may be amended from time to time. 

MSA means this Master Services Agreement.

Personal Information has the meaning given to it under the Privacy Act.

Personnel of a party means the officers, employees, contractors, sub-contractors and agents of that party.

Privacy Act means the Privacy Act 1988 (Cth) as amended and any regulations made under it.

Representative means any director, officer, employee or agent appointed by a party under clause 10.

Service Levels means the levels of service (if any) applicable to a Service as provided by Shippit to Customer.

Software means:

• (a) the API;
• (b) any software development kit or other software, including html code, provided to the Customer or the 3PL Provider by Shippit to assist in the utilisation of the Services; and
• (c) the Hosted Software,

as reviewed and amended from time to time, and includes all improvements to and modifications to that software from time to time. 

Services means the services to be provided by Shippit to Customer as indicated in the Details section above and set out in Schedule 1 and any applicable SOW.

Statement of Work or SOW has the meaning ascribed to it in clause 2. 

SOW Start Date means the start date indicated on each relevant Statement of Work. 

Start Date means the start date of the MSA specified in the table above.

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1.2 In the interpretation of this MSA and each SOW, the following provisions apply unless the context otherwise requires:

• (a) the singular includes the plural and vice versa;
• (b) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision; 
• (c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
• (d) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this MSA;
• (e) a reference to dollars or $ means the lawful currency of Australia;
• (f) headings are for ease of reference only and do not affect interpretation; 
• (g) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this MSA or any SOW or any part of it; and
• (h) any indemnity given by a party under this MSA or any SOW is not the exclusive remedy of the party holding the benefit of the indemnity, which party may at its option, in addition or in the alternative, pursue remedies at common law, in equity, under statute or other remedies under the MSA or SOW.

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1.3 The party described as the Customer in the table above enters into this MSA and each SOW on its own behalf and as agent for any other entity which at any time falls within the definition of Customer.

2.1 This MSA applies to all Services provided by Shippit to Customer.

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2.2 From time to time during the Term, Shippit and the Customer may agree in writing on Statements of Work in the form of Schedule 2 – Statement of Work, setting out details of the Services agreed to. When a Statement of Work is signed by both parties, that Statement of Work becomes binding on the parties.

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2.3 If there is any inconsistency between the terms of a Statement of Work and the MSA, the terms of the Statement of Work will prevail to the extent of the inconsistency.

3.1. This MSA commences on the Start Date and, subject to earlier termination in accordance with its terms, will remain in force without limit of period until the last of the Statements of Work expires or is terminated.

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3.2 Each Statement of Work will commence on the SOW Start Date and will operate for the term set out in the relevant Statement of Work (such term to include any applicable Renewal Mechanism as detailed in the relevant Statement of Work) unless terminated earlier in accordance with this MSA.
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3.3 If under any Statement of Work that is for a fixed term, Shippit continues to supply and Customer continues to receive Services beyond the expiry of the prescribed initial term, both parties must continue to comply with their obligations and, for so long as the parties make no objection, such Statement of Work will be deemed to be extended for successive periods of 12 months.

4.1 Subject to Customer’s compliance with this MSA, Shippit will provide the Services in accordance with this MSA (including the terms of Schedule 1 “Services”), the terms of the relevant SOW and the applicable Service Levels (if any). 

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4.2 Subject to Customer complying with its obligations under clause 5, Shippit will use its reasonable efforts to commence each of the Services on the Start Date. However, Customer acknowledges that timeframes are estimated dates only. 

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4.3 Shippit undertakes to provide the Services with all due skill and care.  

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4.4 Subject to payment of the relevant Fee, Shippit grants Customer a non-exclusive licence to:

• (a) use, during the terms of this Agreement, the object code in the Software (other than the Hosted Software, which shall only be used by Shippit); 
• (b) communicate with, via the API, the Hosted Software; and
• (c) authorise its 3PL Provider to do the same stated in 4.4(a) and (b) above,

for the purpose of obtaining the Services, in relation to the Customer’s own business.

5.1 Customer must:

• (a) hold all authorisations, permits and licences required to be held by Customer under applicable law to receive and utilise the Services; and
• (b) comply with the requirements of all laws of any kind applying to Customer and the receipt and utilisation of the Services. 

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5.2 If this MSA or a SOW provides for Customer to supply Shippit with data, information or documents either in writing or in a format that is readily accessible by Shippit to allow Shippit to facilitate the provision of the Services, Customer must use its commercially reasonable endeavours to do so in the manner and at such times as set out in this MSA or relevant SOW.

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5.3 The Customer must ensure that no malicious or harmful code is transmitted to Shippit as a result of its use or its 3PL Provider’s use of the Services. 

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5.4 The Customer cannot use the Services in order to send Prohibited Items. Customer acknowledges that Prohibited Items could be subject to non-collection or return, in which case no refund of carriage will be given and return charges may be applicable. No claim for loss or damage can be made on a Prohibited Item and in addition, the Customer will be liable for any damages caused in transit to other shipments or property resulting from sending Prohibited Items. 

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5.5 Customer acknowledges that a failure to declare any dangerous goods can lead to prosecution and that the responsibility for this rests solely on the Customer. 

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5.6 Customer is responsible for checking that its contents can be shipped

6.1 The Customer is responsible for integrating (and procuring that its 3PL Provider integrates) its e-commerce platform and other operations with Shippit’s Software and procedures.  Unless specifically agreed to in writing, Shippit is not required to perform any integration services other than provision of the API.

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6.2 If the Customer or the 3PL Provider fail to perform sufficient integration to enable the Services to commence on the Go Live Date then Customer acknowledges that the Go Live Date may be postponed to a later date without affecting the relevant Start Date, and Shippit shall be entitled to receive from the Customer the monthly charges.

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6.3 During the Term the Customer must utilise the Services in relation to Online Orders.

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6.4 The Customer will use its reasonable endeavours to ensure that End Users agree to any content reasonably requested by Shippit, including terms and conditions, privacy notices, receipt instructions, links to Shippit websites and applications.

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6.5 The Customer will ensure that its and its 3PL Provider’s systems provide all information required by Shippit’s Software in the manner contemplated by, and otherwise in conformance with, the API, and that such information is accurate and complete. 

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6.6 The Customer will ensure that its and its 3PL Provider’s systems implement robust error handling and retry procedures in relation to communications via the API. 

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6.7 Shippit shall not be liable for any costs, damage, losses, claims or other consequences to the extent caused or contributed to by any failure of the Customer or the 3PL Provider to do any of the following (regardless of whether or not another provision of this agreement imposes an absolute obligation to do those things or an obligation to use reasonable endeavours to do those things):

• (a) prevent the transmission of harmful code;
• (b) integrate as contemplated by clause 6.1;
• (c) utilise the services for the deliveries contemplated by, and only the deliveries contemplated by, clause 6.3;
• (d) display the content contemplated by clause 6.4;
• (e) provide the information contemplated by clause 6.5;
• (f) implement robust error handling and retry procedures as contemplated by clause 6.6.

7.1. Shippit is currently capable of integrating with the Existing Carriers and can consider requests to integrate with additional Carriers at an additional cost.

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7.2. The Customer must supply or ensure that the Carriers supply: 

• (a) the rate cards and other parameters applicable to each relationship between the Customer and a Carrier, in a format reasonably requested by Shippit; and
• (b) any changes to that information (in the same format) at least one Business Day before the change is to take effect.  

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7.3 Shippit is not responsible for any error in the Services, extra expenses, delayed delivery or other damage, costs or expenses suffered as a result of such information being incorrect or not being updated (or formatted correctly).  

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7.4 Customer acknowledges that the shipping quotes generated by Shippit’s Software are based on the data provided by or made available to Shippit by the Customer and the relevant Carrier, and that the accuracy of such quotes is dependent on the accuracy of the underlying data. It is Customer’s responsibility to promptly inform Shippit of any changes to its contracts and shipping rates if these rates are being applied using a rate card.

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7.5 Shippit is not responsible for any error in the Services, extra expenses, delayed delivery, other damage, costs or expenses or other results suffered as a result of:

• (a) any changes in a Carriers’ system disrupting Shippit’s integration with that Carrier; 
• (b) any errors in a Carrier’s system or failure of a Carrier’s system to properly handle information submitted to it by Shippit in accordance with the integration measures agreed between Shippit and the Carrier; or
• (c) any delays in a Carrier providing tracking information to Shippit. 

Such errors, expenses, delays, damage, costs, expenses and other results may include:

• (a) tracking information being delayed or unavailable, and consequent delays or failures in providing that information to the Customer, 3PL Provider or End User;
• (b) failure of the Carrier’s system to recognise the manifesting of a delivery even though delivery labels have been printed, and associated Carrier fees;
• (c) failures to deliver.

8.1. Customer must not use any 3PL Provider that has not been approved in writing by Shippit, such approval not to be unreasonably withheld.

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8.2. Where Customer uses any 3PL Provider:

• (a) Customer must ensure 3PL Provider abides by this agreement in all respects as if 3PL Provider were itself the Customer;
• (b) the provisions of this agreement relating to integration of the Customer with the Software apply equally to integration of the 3PL Provider with the Software;
• (c) Customer must ensure any failures or errors in the provision of services by the 3PL Provider do not adversely affect the Software Services or Shippit.

9.1 Customer is solely responsible for all use of the Services, including all fees and charges in connection with that use, even where the use and/or charges may have been fraudulent, illegal or not authorised by Customer, except where the use of the Services is by Shippit or its Personnel or except where Shippit has knowledge of such fraudulent, illegal and/or unauthorised use and fails to inform Customer or fails to seek to limit or prevent such use.

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9.2 Nothing in clause 9 will be construed as imposing an obligation on Shippit to monitor, detect and/or report fraudulent, illegal or unauthorised use of the Services.

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9.3 Customer may use the Services only in accordance with all applicable laws and regulations.

10.1 Customer must appoint and notify to Shippit in writing its representative under this MSA (Representative).  Unless otherwise agreed in any SOW, the Representative will be responsible for the day-to-day administration of this MSA and the day-to-day administration of each SOW on behalf of Customer.  The initial Representative for Customer will be the person named as Customer’s contact in the table at the beginning of this MSA.

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10.2 Customer must notify Shippit immediately should its Representative be removed or replaced, together with the contact details of its new Representative, or of any change to its Representative's contact details.

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10.3 Customer will be responsible for the acts, omissions and defaults of its Representative.  Any direction, instruction, notice, approval or other communication made or given to the Representative will be deemed to have been made or given to Customer.

11.1 Subject to clause 11.4, Customer must pay to Shippit the fees set out in each SOW for providing the Services. Customer must make all payments to Shippit in accordance with the rates and charges set out in each SOW and this MSA. 

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11.2 Customer must pay to Shippit the amount of any expenses or additional costs incurred by Shippit in relation to the performance of the Services (such as travel). 

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11.3 Invoices are payable within seven (7) calendar days after the date of invoice by direct debit, or credit card (credit card fees may apply) unless otherwise agreed (a Direct Debit link will be provided  to the Customer). Customer acknowledges and agrees that Fees for some Services (such as hosted services) may be payable monthly in advance and that credit card fees may apply.

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11.4 If any invoice is disputed in good faith by Customer, Customer must give written notice to Shippit of the dispute, which must include the reasons for the dispute (Dispute Notice), no less than seven (7) days before the due date of the invoice.  After this date, all invoices will be final. All paid invoices will also be treated as final. 

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11.5 If Customer has issued a Dispute Notice by the due date for payment, Customer may withhold only those amounts that are directly related to disputed elements of the invoice. 

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11.6 The parties will use reasonable endeavours to resolve any invoice dispute within thirty (30) days after a Dispute Notice is issued.  Any payment to be made following resolution is to be paid within seven (7) days after such resolution.

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11.7 If the parties are unable to resolve the dispute under clause 11 within thirty (30) days, the dispute is to be resolved in accordance with the procedure set out in clause 27.

12.1 If Customer fails to pay Shippit any amount payable for a Service under a SOW when due, then:

• (a) all money owing to Shippit by Customer becomes immediately payable; 
• (b) Shippit may suspend the performance of the Service; 
• (c) Customer must pay, in addition to the amount outstanding, interest at the rate equal to the cash rate target published by the Reserve Bank of Australia plus an additional 5% on the amount outstanding for each day during which the default continues; and
• (d) Customer must pay all reasonable expenses incurred by Shippit in enforcing the SOW, including, but not limited to, all expenses of any legal proceeding and all reasonable attorneys' fees incurred in connection with such action.

13.1 If Customer directs Shippit in writing to alter or vary the Services, or directs Shippit to carry out any work of a character similar to the Services, Shippit may provide to Customer a separate offer to supply the additional or varied Services at fees to be determined by Shippit. If Customer accepts in writing the fees set out in the offer, Shippit will supply those additional or varied Services for the agreed fees. The provision of any additional or varied Services will be subject to this MSA and any SOW for those Services.

14.1 If, as a consequence of the supply of incorrect information or the failure to supply information by Customer, the cost to Shippit of performing the Services is increased, Shippit reserves the right to charge extra fees at its then prevailing rates to cover the additional costs and expense where Shippit can demonstrate that:

• (a) the information supplied by Customer is incorrect or Customer has not supplied Shippit with sufficient information; and 
• (b) the incorrect or lack of information actually caused an increase in costs and expenses to Shippit in performing the Services.

15.1 In respect of each SOW, on and from 1 July each year: 

• (a) if there is an increase in the CPI over the twelve (12) month period ending 31 March of that year, the fees and hourly rates will be increased by an amount equivalent to the increase in the CPI over that twelve (12) month period; and
• (b) if there is a decrease in the CPI over the twelve (12) month period ending 31 March of that year, the fees and hourly rates will stay the same.

16.1 Customer must reimburse Shippit for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under this MSA and each SOW, excluding income taxes on profits which may be levied against Shippit.

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16.2 Without limiting clause 16.1, all consideration provided for any taxable supply under this MSA and each SOW is exclusive of GST unless the contrary is clear.  The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply.  The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due or, if the supplier has to pay (or allow credit against) the relevant GST before then, the additional amount must be paid at that earlier time.

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16.3 If an amount of consideration under this MSA or any SOW is calculated as specific compensation or reimbursement for an expense, loss or liability of a supplier the consideration must be calculated after excluding any amount for which the supplier is entitled to an input tax credit as recipient of the item to which the expense loss or liability relates.

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16.4. A party is not obliged to make any payment for GST unless it is provided with a tax invoice which complies with the GST Act.

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16.5 If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under this MSA or any SOW:

• (a) a corresponding adjustment must be made; 
• (b) adjustment notes must be issued; and
• (c) any payment must be made, 

between the parties as may be necessary to give effect to the adjustment.

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17.1 Customer retains all Intellectual Property Rights held by Customer in any information, content and documentation provided by Customer to Shippit.  However, Customer irrevocably grants Shippit a royalty free licence to use, reproduce and create derivative works based on that information, content and documentation as needed to perform the Services.

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17.2 Unless otherwise agreed to in a SOW, upon payment in full of all fees set out in this MSA and in the applicable SOW, Shippit grants Customer a non-exclusive license during the term of this Agreement to: 

• (a) use the object code in the Software (other than the Hosted Software, which shall only be used by Shippit);
• (b) communicate with, via the API, the Hosted Software; and
• (c) authorise its 3PL Provider to do the same stated in (a) and (b) above, provided Customer ensures that the 3PL Provider’s use is strictly in accordance with the terms of this agreement. 

This licence does not preclude Shippit from using, reproducing or creating derivative works based on the Shippit IP for other customers of Shippit.

18.1 Shippit owns all rights in the Shippit IP, whether pre-existing or created during the provision of the Services.

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18.2 The Intellectual Property Rights in any improvements, additions or modifications to the Software made by the Customer, whether made with or without the authority of Shippit, are hereby assigned to Shippit.

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18.3 Customer must not claim any right or title to use the Shippit IP except use permitted under this MSA or a SOW.  Customer must not dispute or challenge the entitlement of Shippit to the Shippit IP or join any third parties to challenge or contest the validity of Shippit IP. 

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18.4 Customer must not attempt to reverse engineer, disassemble, decompile or circumvent the Software or any part of the Software, and will ensure that its 3PL Provider and any other person who obtains exposure to the Software or the Services in connection with this agreement does not do so.

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18.5 Customer agrees to notify Shippit promptly of any infringement, or suspected or threatened infringement, of the Shippit IP.

19.1 The parties acknowledge that in the course of performing their responsibilities under this MSA and any SOW, they each may be exposed to or acquire Confidential Information of the other party. The parties agree:

• (a) to hold such information in strictest confidence; 
• (b) not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties; 
• (c) not to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of obligations under this MSA or any SOW as otherwise agreed; and
• (d) to advise each of their employees, agents and representatives of their obligations to keep such information confidential. 

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19.2 Each party must use reasonable efforts to assist the other party in identifying and preventing any unauthorised use or disclosure of the other party’s Confidential Information.

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19.3 Each party agrees to notify the other immediately if it learns or has reason to believe that any person who has had access to the other party’s Confidential Information has violated or intends to violate the terms of this MSA or any SOW, and to reasonably cooperate with the other party in seeking injunctive relief and/or other available remedies against any such person.

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19.4 The confidentiality obligations of the parties set out in this clause19, do not extend to information that: 

• (a) is, as of the time of its disclosure or which after its disclosure becomes, part of the public domain through a source other than the receiving party and in a manner not in violation of the disclosing party’s proprietary rights; 
• (b) was known to the receiving party as at the time of its disclosure and was not stated to be or noted as confidential; 
• (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; 
• (d) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party and was not stated to be or noted as confidential; or 
• (e) is required to be disclosed under a duly authorised subpoena, court order or government authority, provided that the receiving party gives prompt written notice to the disclosing party prior to such disclosure, so that the disclosing party may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, the receiving party agrees to disclose only that portion of the Confidential Information which is required by law or order.

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19.5 The parties acknowledge that any breach of a party’s obligations arising under this clause 19, may give rise to irreparable damage to the other party and that such breach may be inadequately compensable in damages. Accordingly, either party, reasonably believing the other party to be in breach of its obligations under this clause19, may seek and obtain injunctive relief or other equitable remedies against such breach or threatened breach, in addition to any other legal remedies which may be available. The parties agree that the covenants contained in this clause are necessary for the protection of legitimate business interests of owners of the Confidential Information and are reasonable in scope and content.

20.1 Each party must comply with the Privacy Act and any other applicable laws and codes dealing with privacy.

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20.2 Each party warrants to the other that:

• (a) any Personal Information that it discloses to the other under this MSA has been collected in accordance with the Privacy Act;
• (b) the individual to whom the information relates has been made aware of the recipient's identity, of how to contact the recipient, and of the other matters of which the recipient is required to inform a person about whom it collects information under the Privacy Act; and
• (c) the other is authorised to collect the information for the disclosure and use the information for the purposes of this MSA.

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20.3 In relation to any Personal Information disclosed by a party under this MSA, the recipient must:

• (a) not use, disclose, store, transfer or handle the information except in accordance with the Privacy Act;
• (b) only use or disclose the information for a purpose connected with this MSA, or as required by law;
• (c) co-operate with any reasonable request or direction of the discloser which relates to the protection of the information or the exercise of the functions of the Privacy Commissioner under the Privacy Act;
• (d) ensure that access to its Personnel is limited to people required to access that information for the purposes of this MSA and that they comply with the requirements of this clause  and of the Privacy Act.

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20.4 Each party must promptly inform the other in writing of any complaint that it receives concerning the use, disclosure, storage, transfer or handling of Personal Information and comply with any reasonable direction of the other in relation to a complaint concerning the use, disclosure, storage, transfer or handling of Personal Information.

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21.1 Customer acknowledges that the supply of the Services is dependent on a number of factors outside Shippit’s control.  For example, communication links are the property and responsibility of third parties and are subject to suspension without notice due to events beyond Shippit’s control.

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21.2 Except for any payment obligations, neither party is liable for any delay or failure to perform any of its obligations under this MSA and any SOW to the extent that the delay or failure is caused by reason of Force Majeure.

22.1 Shippit represents and warrants that: 

• (a) it holds the necessary licences, permits, consents and authorisations required under any law in relation to the provision of the Services and will continue to do so at all times during the term of this MSA;
• (b) it has the power and authority to enter into and perform its obligations under this MSA and any SOW; and

• (c) it has taken all necessary steps, including any corporate action necessary, to authorise its entry into and performance of all of its obligations under this MSA and any SOW and to carry out the transactions contemplated by them.

22.2 Customer represents and warrants that: 

• (a) it has the power and authority to enter into and perform its obligations under this MSA and any SOW; and
• (b) it has taken all necessary steps, including any corporate action necessary if it is a corporation, to authorise its entry into and performance of all of its obligations under this MSA and any SOW and to carry out the transactions contemplated by them.

23.1 Shippit makes no representation or warranty:

• (a) that Customer’s use of any of the Services will be error-free, uninterrupted or compatible with Customer’s equipment and software configurations; 
• (b) that any of the Services will be fit for Customer’s purpose; or
• (c) that use of any of the Services will improve the financial performance or profitability of Customer or any other party. 

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23.2 Customer must ensure that the Services supplied by Shippit are suitable for its purposes before Customer engages Shippit to provide the Services. Customer must carry out and rely on its own due diligence in that regard. Except to the extent expressly specified by Shippit in writing, Shippit supply Services by specification and Customer decides for what purpose to use or re-supply the Service. To the extent that Shippit expressly specifies in writing a purpose for which the Services are suitable, Shippit supplies those Services for use only as specified for that purpose

24.1 Nothing in this MSA or any SOW is or should be interpreted as an attempt to modify, limit or exclude terms, guarantees or warranties which are imposed by statute and which cannot be modified, limited or excluded.

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24.2 Shippit excludes to the extent permitted by law all other terms, guarantees conditions and warranties which might be implied into this MSA and any SOW, including but not limited to any warranties arising from a course of dealing, usage or trade practice.

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24.3 Customer does not rely on any representation, warranty, guarantee or other provision made by Shippit or on its behalf which is not expressly stated in this MSA or any SOW.

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24.4 Subject to clauses 24.1, 24.5 and 24.6, the maximum aggregate liability of Shippit to Customer in respect of any one claim or series of connected claims under a SOW, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty, under an indemnity or otherwise during any 12 month period commencing on the relevant Start Date or on any anniversary of the Start Date is limited in aggregate to the minimum fees paid by Customer to Shippit (excluding fees paid to third parties including Carriers) during the relevant 12 month period.

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24.5 Subject to clause 24.1, if Shippit is liable to Customer for a breach of a term, condition, guarantee or warranty implied into this MSA or any SOW by statute, that liability is limited to:

in the case of goods, any one or more of the following:

• (i) the replacement of the goods or the supply of equivalent goods;
• (ii) the repair of the goods;
• (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
• (iv) the payment of the cost of having the goods repaired; or

in the case of services:

• (v) the supplying of the services again; or
• (vi) the payment of the cost of having the services supplied again.

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24.6 Shippit is not liable for any damage, economic loss, loss of revenue, loss of saving on overheads, loss arising from business interruption, loss of data, loss of business opportunities, loss of goodwill or loss of profits whether direct, indirect, general, special or consequential from any cause except as set out in this clause 24, even if Shippit has been advised of the possibility of such damages or loss. 

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24.7 Any claims for loss or damage by Customer against Shippit must be made within two (2) years after the occurrence of the event giving rise to the loss or damage.

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24.8 Shippit and Customer must each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Services.

25.1 Either party, as applicable, has the right, in addition and without prejudice to and use of any other rights or remedies, to terminate this MSA or any given SOW as follows:

• (a) by either party for any material breach of the MSA or SOW that is not cured within thirty (30) days after receipt by the party in default of a written notice specifying the breach and requiring its cure;

• (b) by either party, immediately upon receiving written notice, if an Insolvency Event occurs in respect of the other party.

25.2 Without limitation to clause 25.1, Shippit may immediately terminate this MSA or a given SOW by written notice to Customer if any of the following occurs:

• (a) Customer fails to pay an amount that is due (and not under dispute under clause 16), within fourteen (14) days after receiving notice from Shippit that the amount is overdue;
• (b) Customer engages in fraudulent, illegal or unauthorised use of the Services;
• (c) Customer is in breach of an applicable law, licence, permit, authorisation or directive of any competent authority relating to Customer’s use of the Services;
• (d) Shippit becomes aware or is advised by any regulatory authority that applicable or relevant laws, rules, regulations or authorities, or any decision of a court or government authority, prohibits the provision of the Service;
• (e) any application for a consent or permit required for the provision of the Service is rejected or is cancelled, lapses or is otherwise terminated and no further replacement, consent or permit can reasonably be obtained; or
• (f) Shippit becomes entitled to terminate any other SOW between Shippit and Customer due to a material breach of that SOW by Customer.

26.1 Termination of a SOW does not affect any accrued rights or liabilities of either party under that SOW nor does it affect any provision of that SOW which is expressly or by implication intended to operate after termination. 

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26.2 On termination of this MSA or a SOW: 

• (a) Customer must immediately stop accessing and using the Service supplied by Shippit under that SOW or this MSA, as applicable;
• (b) Customer must promptly delete or destroy, from all computers within its control, all copies of any software provided by Shippit to use or access the Service supplied by Shippit under the SOW or this MSA, as applicable; 
• (c) Customer must immediately pay to Shippit any and all outstanding invoices or any charges or fees incurred; and
• (d) if requested by Shippit, Customer must provide Shippit with a statement signed by an authorised officer of Customer, certifying that Customer has complied with clause 26.2(b).

27.1 Where a party claims that a dispute has arisen under or in relation to this MSA or a SOW, it must give written notice to the Representative of the other party specifying the nature of the dispute.  The Representatives of each party must then endeavour to resolve the dispute. 

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27.2 If the Representatives cannot resolve the dispute within fourteen (14) days after receipt of the notice given under clause 27.1, the dispute must be referred to the chief executive officer (or another senior executive offer nominated by the chief executive officer) of each party.

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27.3 If the executive officers cannot resolve the dispute within fourteen (14) days after the dispute is referred under clause 27.2, the dispute must be submitted to mediation administered by ACDC.

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27.4 The mediator must be selected from a panel suggested by ACDC.  The parties must ask the ACDC to appoint the mediator if they cannot agree on who it should be.  The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation and must be held in Sydney, unless otherwise agreed by both parties.

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27.5 Nothing in this clause 27 prohibits a party from seeking injunctive relief from a court of competent jurisdiction if a breach or prospective breach of this MSA or a SOW by the other party which would cause irreparable harm to the first party.

28.1 Shippit may subcontract some or all of its obligations under this MSA or any SOW to one or more third-parties. Shippit remains responsible to Customer for the performance of its obligations despite any subcontract and is liable to Customer for the acts, defaults and negligence of each of the subcontractors, or personnel of each subcontractor as if they were the acts, defaults or negligence of Shippit.

29.1 Neither this MSA nor any SOW may be assigned, sublicensed or otherwise transferred by Customer, whether by operation of law or otherwise, without Shippit’s prior written consent, such consent not to be unreasonably withheld.  

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29.2 Shippit may, at any time, novate, assign or transfer part or all of its rights and obligations under this MSA or any SOW to any third party and to the extent required Customer consents to the novation, assignment or transfer.  Customer agrees to enter into a novation, assignment or transfer agreement on terms specified by Shippit.

30.1 This MSA together with each SOW constitutes the entire understanding between the parties and supersedes all previous and contemporaneous communications, representations, or agreements with respect to Shippit’s supply, and Customer’s access and use, of the Services.

31.1 Neither party is an agent, legal representative, partner, joint venturer, franchisee, employee, or servant of the other party hereto for any purpose. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party in any capacity. Unless otherwise noted, both parties are responsible for all expenses incurred by them in the course of exercising any rights or responsibilities accepted by them under this MSA or any SOW.

32.1 If any provision of this MSA or a SOW is held to be unenforceable, the parties agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision. 

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32.2 If any one or more of the provisions of this MSA or a SOW are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of this MSA or that SOW will be unimpaired and will remain in full force and effect.  For purposes of resolving the matter before any such court or arbitral panel the invalid, illegal or unenforceable provision will be revised by such court or panel (ie, “blue pencilled”) as necessary to become a valid, legal and enforceable provision which comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision.

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33.1 The provisions of this MSA will not be varied, except by agreement in writing signed by the parties.

34.1 No failure or delay of either party in exercising any right, power, or privilege under this MSA or a SOW (and no course of dealing between the parties) operates as a waiver of any such right, power or privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power or privilege.

35.1 This MSA and any SOW may be signed in any number of counterparts with the same effect as if the signatures on each counterpart were on the same instrument.

36.1 All notices required to be given under this MSA and each SOW must be given in writing in English and sent by electronic mail confirmed by first class mail, first class registered or certified mail, return receipt requested, or by delivery by a courier service obtaining a receipt, in all cases to the relevant addressee at its address as set out in this MSA or the relevant SOW, or to such other address as may be notified by either party to the other from time to time. All such notices will be deemed to have been given when received.

37.1 Each party agrees to refrain from soliciting for employment, or engagement as a contractor, any Personnel employed or contracted by the other during the term of this MSA, and until the first anniversary following the expiry of this MSA, without the prior written consent of the other party.

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37.2 Each party agrees to advise the other if any Personnel of the other party seeks to be employed or contracted by the first mentioned party during the term of this MSA, and until the first anniversary following the expiry of this MSA.

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37.3 If a party breaches its obligations under this clause 37, the other party will be entitled to: equitable relief to protect its interests, including but not limited to, 

• (a) injunctive relief; and 
• (b) monetary damages in the amount equal to the total annual remuneration package (including salary, superannuation, motor vehicle, allowances, benefits, commissions, bonuses and other means of financial compensation) payable to the employee or contractor during the first year of employment or contract with the defaulting party.  

The defaulting party agrees that this amount is a fair and genuine pre-estimate of the loss and damage that will be suffered by the other party.

38.1 Customer agrees that Shippit may use the name of and identify Customer as a customer, in advertising, publicity, or similar materials distributed to prospective customers.

39.1 Each party must do everything, and sign and deliver all documents, reasonably required by the other to give full effect to this MSA and each SOW.

40.1 This MSA and each SOW and all matters regarding the interpretation and/or enforcement of each of them, are governed exclusively by the laws in force in New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

PART 1 – Implementation

1.1 Implementation Services can include some or all of the following, as agreed and documented in the relevant Implementation Services SOW:

• (a) Installation and setting-up of the Software;
• (b) Set-up of account(s), password(s) and access to Software for use by the Customer and Authorised Users; 
• (c) Integration and Customisation as required by Customer and agreed by Shippit;
• (d) User Acceptance Testing;
• (e) Production launch and associated post-production limited support. 

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1.2 The Implementation Services will be provided in accordance with the detail, terms and conditions of this MSA (including all Schedules) and the relevant Implementation SOW.

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1.3 The Customer must provide all information and assistance requested by Shippit to install, prepare and implement the Software.

PART 2 – Software Hosting Services

2.1 The Software Hosting Services will be provided:

• (a) on the serving infrastructure operated under the control of Shippit (Host Servers).  
• (b) in accordance with the terms of this MSA (including all Schedules) and any applicable Service Levels.

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2.2 The Host Servers will be located at a location or locations selected by Shippit in its absolute discretion.

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2.3 Shippit may arrange for a nominated service provider or providers to provide the Host Servers and associated hosting services, however, if Shippit does so, it will not be relieved of any of its obligations under this agreement.  

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2.4 The mere fact that the Software and data are stored on the Host Servers does not give or create any proprietary right or interest for the benefit of Customer in any part of the Host Servers on which the Software and data are stored.

PART 3 – Support Services

3.1 Shippit offers Support Services in respect of either or both of (a) the Hosted Software and (b) the Partner Rate Services (as applicable and agreed between the parties).  
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3.2 Any Support Services agreed between Shippit and Customer will be detailed in the relevant Support Services SOW and provided in accordance with the details, terms and conditions of this MSA (including all Schedules), the relevant Support Services SOW and any applicable Service Levels.

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3.3 The Customer acknowledges that from time to time, the Support Services will be unavailable due to maintenance. Shippit will take reasonable endeavours to program schedule outages and maintenances so as to limit the effect on the Customer.

3.4 The Customer acknowledges that the Support Services may be interrupted by factors beyond the control of Shippit and Shippit will have no liability for any such outages or maintenances.

PART 3 – Support

3.1 Shippit offers Support Services in respect of either or both of (a) the Hosted Software and (b) the Partner Rate Services (as applicable and agreed between the parties).  
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3.2 Any Support Services agreed between Shippit and Customer will be detailed in the relevant Support Services SOW and provided in accordance with the details, terms and conditions of this MSA (including all Schedules), the relevant Support Services SOW and any applicable Service Levels.

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3.3 The Customer acknowledges that from time to time, the Support Services will be unavailable due to maintenance. Shippit will take reasonable endeavours to program schedule outages and maintenances so as to limit the effect on the Customer.

3.4 The Customer acknowledges that the Support Services may be interrupted by factors beyond the control of Shippit and Shippit will have no liability for any such outages or maintenances.

PART 4 – Professional Services

4.1 Professional Services can include some or all of the following, as agreed and documented in the relevant Professional Services SOW:

• (a) Integration and customisation of the Software to align to the Customer’s requirements; and/or 
• (b) Consultancy services to assist with the use and adoption of the Software; and/or
• (c) Training and enablement services,

as required by Customer and agreed by Shippit. 

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4.2 All Professional Services will be provided in accordance with the detail, terms and conditions of this MSA (including all Schedules) and the relevant Professional Services SOW. 

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4.3 Customer must provide all information and assistance reasonably requested by Shippit in order for Shippit to be able to deliver the Professional Services.

PART 5 – Partner Rate Services

5.1 If Shippit offers Partner Rate Services to the Customer in relation to a Carrier:

• (a) Shippit will agree rates, parameters and Carrier Terms with that Carrier; and
• (b) Shippit will make that Carrier available as a Carrier in the Shippit platform and allocate deliveries to it where appropriate.

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5.2 The Partner Rate Services Fee will be the amount calculated according to the relevant rate card and the information disclosed and confirmed by the Customer at the time of booking.

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5.3 Shippit will pay the amounts due to the Carrier from the Partner Rate Services Fee. To the extent that there is a shortfall or additional delivery surcharge imposed, the Customer may be liable for additional charges at Shippit’s discretion.

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5.4 The actual delivery services will be governed by the Carrier Terms for the relevant Carrier, which must be agreed to and accepted by the Customer prior to using the Carrier’s services. Shippit shall not be liable for any failure by the relevant Carrier to perform its obligations. 

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5.5 All Partner Rate Services will be provided in accordance with the detail, terms and conditions of this MSA (including all Schedules) and the relevant Partner Rate Services SOW.

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5.6 Customer accepts and agrees that variances may occur between the shipping quotes generated by the Shippit’s Software and the final invoice it receives from the Carrier. Such variances can arise from, but are not limited to factors including:

• changes to Carrier rates or contract terms;
• Carrier-applied excess fees, ancillary fees or surcharges. Where a fee or surcharge is payable, it may be charged directly to the payment method used by the Customer to make the initial order.  By making a booking on Shippit, the Customer consents to this payment method being charged directly for relevant fees or surcharges. Any surcharges represent the additional charges which Shippit may incur from the Carriers from time to time and are not penalties imposed by Shippit.
• any difference between Customer’s declared parcel weight, dimensions or other classifications and the chargeable parcel weight, dimensions (and resultant volumetric weight) or classifications determined by the Carrier. This includes instances where a parcel's shape, dimensions, or weight may change due to packaging integrity, movement during transit, or handling by any party (including the carrier) between the time of declaration and final Carrier measurements;
• freight charges are calculated on the basis of the number of items and/or dead weight and/or volumetric weight of the goods. Where volumetric weight is applicable, it is calculated on the basis of a cubic allowance of 250kg per cubic metre  (or 200kg for SEA based carriers), or such other volumetric conversion factor as may be applied by Shippit or the carrier. Shippit reserves the right to adjust the freight charges in the event of any discrepancy between the Customer’s declared number of items and/or dead weight and/or volumetric weight and the actual number of items and/or dead weight and/or volumetric weight of the goods as determined by a re-weigh or re-measure by Shippit or its nominated agents.
• in instances where the Customer's declared parcel weight, dimensions, or other classifications exceed the chargeable parcel weight, dimensions (and resultant volumetric weight), or classifications as determined by the Carrier (an "Over-declaration"), the Carrier will typically charge based on the greater of the declared or actual measurements. In such cases, the Customer acknowledges and agrees that Shippit will bill the Customer based on the charges levied by the Carrier, which will reflect the Over-declaration, and the Customer will not be entitled to a refund for the difference between the declared and actual measurements. To avoid charges arising from an Over-declaration, the Customer must cancel the order and rebook with the correct details prior to carrier pick-up. Any disputes regarding Over-declarations after pick-up are subject to Carrier policies and may not result in a refund.
• any other factors beyond Shippit’s reasonable control.

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5.7 The Customer acknowledges and agrees that the Carrier's measurements and classifications, as determined during their handling and processing of the parcel, will be conclusive for billing purposes, and Shippit is not liable for any variance between the quotes generated in Shippit’s Software and the invoices Customer receives from the Carrier.

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5.8 Customer agrees to the following terms in respect of any Online Orders sent to international destinations via Shippit’s Software using Partner Rates Services.

a. Export/Import Laws

• (i) Customer is solely responsible for seeking information from the destination and transit country’s relevant authorities about import and export laws.
• (ii) Customer represents and warrants that it complies with all applicable customs  laws, including U.S. laws and regulations, such as, but not limited to U.S. import/ customs and export control laws (“Customs Laws”). Specifically, Customer warrants that it is in compliance with all applicable Customs Laws including any export or import declaration filing, payment of customs duties, compliance with import quotas, import registration or any other similar requirements related to the exportation or importation of goods by Shippit.

b. Customs compliance - The Customer is obliged to prepare, address and package each shipment in such a way as to protect it against loss and damage and as to ensure its safe transportation and final delivery to the recipient. The Customer must prepare the Shipment for customs clearance before the Shipment is collected by a Carrier, including completing all the necessary accompanying documents (e.g. customs declaration, export licenses or permits) accurately and attaching them to the Shipment. The Customer acknowledges that the processing of a Shipment may be delayed or not delivered as a result of the Customer providing inaccurate or incomplete information.

c. Import Charges - The Customer undertakes to pay all fees and expenses due in relation to the customs clearance, such as customs duties, taxes (including but not limited to sales taxes,  VAT and GST if applicable), levies, penalties, fines and storage charges, including any fees and levies charged to Shippit by Third Parties (including fiscal, regulatory, governmental or customs authorities) (“Import Charges”). This includes any fees, duties, taxes or charges levied during the customs clearance of the Shipment which are additional to the fees, duties, taxes or charges charged at the time of booking the Shipment. The Customer agrees that any additional Import Charges incurred after the time of Booking will be included in their invoice and paid by direct debit or credit card in accordance with Shippit’s normal payment terms.

d. No Liability - Shippit does not assume any liability and/or responsibility for (i) any Import Charges (ii) for the preparation of the Shipment and the completion of the accompanying documents for customs clearance by the Customer and/or (iii) for customs decisions made by customs authorities in relation to the inspection of the Shipment (iv) any variance between the Import Charges payable on a Shipment during customs clearance and pre-calculated Import Charges charged at the time of booking the Shipment.

e. Indemnification

The Customer remains solely responsible for and indemnifies and holds Shippit harmless from any all Import Charges and consequences resulting from:

• the incomplete, incorrect, or fraudulent customs documentation; and
• any decisions made by customs authorities in relation to Import Charges for a Shipment.

The Customer shall indemnify and hold Shippit harmless from any claims made:

• against Shippit and from any losses, liability, damages, costs, fines, penalties and/or legal costs that Shippit may incur; and
• by any Third Party (including fiscal, regulatory, governmental or customs authorities),

which are the result of actions by the Customer, its employees, representatives or agents and its failure to comply with these terms or any applicable laws or regulations including US Customs Laws.

f. Personal Information - The Customer gives its consent to the transmission of the Personal Information accompanying the Shipment to the customs authorities of the countries concerned, in accordance with the laws in force in those countries.

PART 6 – Transit Protection Services

6.2 The Customer may elect to receive Transit Protection Services in return for paying the Transit Protection Services Fee. 

6.3 All Transit Protection Services will be provided in accordance with the terms and conditions at (Transit Protection Terms) as may be amended from time to time. The Transit Protection Terms, if applicable, form part of and are to be read in conjunction with this MSA. To the extent of any inconsistency, the Transit Protection Terms will prevail.

See link to Statement of Work Template

The following items are strictly prohibited from shipment and must not be sent through our services under any circumstance. Any of these items being sent may result in prosecution, heavy fines and imprisonment.

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1. Any item that is not currently packaged or in a box
2. Aerosol cans/sprays
3. Tobacco and tobacco products
4. Animal skins / Furs on the cities list of endangered species. (certificate required; refer to www.cities.org)
5. Ivory and ivory products
6. Articles of exceptional value (eg, works of art, antiques, precious stones, gold and silver).
7. Box with Hazardous label – Items sent with a Hazardous label attached will be classed as such. DO NOT REUSE OLD HAZARDOUS BOXES
8. Car Batteries
9. Airbag Modules
10. Dangerous goods – eg Explosives / Fireworks / Christmas Crackers / Radioactive Materials / Deactivated
11. Engines / Generators / Gearboxes or any part containing or having contained oil/petrol unless flushed through
12. Fire Extinguishers / Life Jackets
13. Gold & Silver & precious metal Jewellery
14. Goods moving under ATA Carnet and all temporary exports and imports; goods moving under FCR, FCT and CAD (Cash Against Document)
15. Hazardous materials eg Paint / Adhesives / Chemicals / Flammable resins/ solvents/ liquids / Compressed Air & Empty cylinders / Items containing any gases – See Also Household goods
16. Household goods containing flammable or corrosive liquids, such as oven or drain cleaners / perfume, aftershave/ hairspray/ nail varnish and remover/ antiseptic wipes …
17. Human Remains / Body Fluids
18. Liquids / Adhesives / Paint / Oil / Creams / Gels
19. Living animals or plants
20. Dead animals
21. Magnets or items containing ferro-magnetic material
22. Milk Powder to China, Singapore & Hong Kong
23. Mobile Phone with Sim card / Mobile phone with or without Sim to any Residential address in Turkey
24. Currency
25. Antiques, works of art or valuable documents.
26. Glass or glass related products
27. Personal Effects
28. Pornographic materials (Please check country)
29. Toner / Ink Cartridges / Printers / Fax Machines or Photocopiers to any destination outside of the UK.
30. Wet or Lithium Batteries or any item containing them (Such as, but not limited to, an iPhone (Not including Dry Cell)
31. Prescribed Drugs / Medication / Any Controlled and Illegal substance including Khat to all countries.