This agreement consists of this document and the Software Services Rate Card and, if applicable, Delivery Payment Services Rate Card, attached to this agreement or otherwise agreed between the parties from time to time (and if not agreed by the parties, made available by Shippit to the Merchant). Definitions and rules of interpretation can be found at the end of this document.
This agreement will continue until it is terminated pursuant to clause 3.2. During this term, Shippit may, unless otherwise agreed in writing between the parties, vary the Rate Cards on 7 days written notice.
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;
without prejudice to paragraph (ii) above, the Merchant is persistently late in paying any amounts due from it under this agreement; or
the Merchant is subject to a Change of Control without Shippit’s prior written consent.
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 3.1 permits them to terminate this agreement during the Initial Fixed Term; or
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).
Subject to payment in accordance with clause 5, Shippit must provide the Software Services until termination of this agreement.
Subject to payment in accordance with clause 5, 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.
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.
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.
The Merchant must not attempt to reverse engineer, disassemble, decompile or circumvent the Software or any part of the Software.
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.
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.
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.
Every 14 days Shippit must provide the Merchant with a tax invoice for all amounts owing to it under this clause 5 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).
If an Establishment Fee has been agreed between the Merchant and Shippit, Shippit may invoice it at any time and the Merchant must pay that invoice within 7 days of receipt, and in any case before Shippit commences any integration activities (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).
If it chooses to in relation to the Merchant, Shippit may also offer Delivery Payment Services in relation to some Carriers. If Shippit offers Delivery Payment Services to the Merchant in relation to a Carrier:
Shippit will agree rates and parameters and Carrier Terms with that Carrier which are available to Shippit’s customers;
Shippit will make that Carrier available as a Carrier in the Shippit platform, and allocate deliveries to it where appropriate;
in addition to payment under clause 5, the Merchant must pay to Shippit in respect of deliveries allocated to that Carrier, with Delivery Payment Services, a Delivery Fee;
Shippit must pay the amounts due to the Carrier from the Delivery Fee. 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; and.
for the avoidance of doubt, the contract for delivery services shall be between the Merchant and the Carrier, and Shippit shall not be liable for any failure by the relevant Carrier to perform its duties.
The Merchant must pay Shippit for the Delivery Payment Services amounts calculated according to the Delivery Payment Services Rate Card. For the avoidance of doubt, the amounts set out in the Delivery Payment Services Rate Card are GST-exclusive, and the Merchant must also pay any applicable GST.
To utilise Delivery Payment Services the Merchant must establish a credit card payment facility or (if approved by Shippit) bank account direct debit facility with Shippit. Unless otherwise agreed in writing, all Delivery Payment Services may be automatically drawn by Shippit via such facilities at the time the delivery in respect of which Delivery Payment Services are made is entered into the Shippit Software. Shippit may withdraw any more advantageous payment terms it agrees with the Merchant at any time, without notice.
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 and loading of the Carrier paramaters provided by the Merchant.
The Merchant must utilise the Software Services in relation to each End Customer’s online order which has a delivery destination in the Territory (and not utilise it in relation to any orders which do not).
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.
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 Merchant or the 3PL Provider to do any of the following things (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):
prevent the transmission of harmful code;
integrate as contemplated by this clause 8;
utilise the Software Services for the deliveries contemplated by, and only the deliveries contemplated by, this clause 8;
display the content contemplated by this clause 8;
provide the information contemplated by this clause 8 in the manner contemplated by this clause 8;
implement robust error handling and retry procedures as contemplated by this clause 8.
This clause shall affect the Merchant’s rights under, and take priority over, the remainder of this agreement (except clause 9.6).
Shippit confirms that it is currently capable of integrating with the Existing Carriers. Unless otherwise agreed in writing, Shippit has no responsibilities to provide Software Services in respect of other Carriers.
If it wishes to utilise the Software Services using its own rates agreed with Carriers or without using the Delivery Payment Services for any deliveries, the Merchant must or, must ensure that the Carriers:
supply the rate cards and other parameters applicable to each relationship between the Merchant and a Carrier, in a format reasonably requested by Shippit; and
provide Shippit with any changes to that information (in the same format) at least one Business Day before the change is to take effect.
Shippit is not responsible for any error in the Software 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).
Shippit is not responsible for any error in the Software Services or Delivery Payment Services, extra expenses, delayed delivery, other damage, costs or expenses or other results suffered as a result of:
any changes in a Carriers’ system disrupting Shippit’s integration with that Carrier;
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;
any delays in a Carrier providing tracking information to Shippit; or
any other act or omission of a Carrier.
Such errors, expenses, delays, damage, costs, expenses and other results may include:
tracking information being delayed or unavailable, and consequent delays or failures in providing that information to the Merchant or End User;
failure of the Carrier’s system to recognise the manifesting of a delivery even though delivery labels have been printed, and associated Carrier fees;
failures to deliver.
The Merchant must not use any 3PL Provider that has not been approved in writing by Shippit. Shippit must not unreasonably withhold such approval.
Where the Merchant uses any 3PL Provider:
the Merchant must ensure that the 3PL Provider abides by this agreement in all respects as if the 3PL Provider were itself the Merchant;
the provisions of this agreement relating to integration of the Merchant with the Software apply equally to integration of the 3PL Provider with the Software;
the Merchant may nominate the 3PL Provider as an authorised point of contact or recipient of certain communications under this agreement (to the exclusion of the Merchant until the Merchant withdraws that nomination);
the 3PL Provider is an authorised user for the purposes of the licence in clause 4.2;
except where unreasonable in the context, references in this agreement to the Merchant will be read as references to both the Merchant and the 3PL Provider; and
the Merchant must ensure that any failures or errors in the provision of services by the 3PL Provider do not adversely affect the Software Services or Shippit.
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 (including in respect of deliveries in relation to which Shippit provides Delivery Payment Services).
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 (including in respect of deliveries in relation to which Shippit provides Delivery Payment Services). Shippit is not liable for any breach of contract by a Carrier (including in respect of deliveries in relation to which Shippit provides Delivery Payment Services).
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 (including in respect of deliveries in relation to which Shippit provides Delivery Payment Services).
Subject to clause 9.6, 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, the GST-exclusive fees received by it for Software Services (disregarding the fees received by it for Delivery Payment Services) under this agreement in that calendar year.
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 or the Software Services.
Subject to clause 9.6, 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 or the Software Services.
Subject to clause 9.6, 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.
Subject to clause 9.6, 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 particular function or meet any particular requirements other than those set out in the definition of Software Services.
To the extent that the operation of this clause 9 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 9 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.
In this clause 10 Force Majeure Event means 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.
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.
If the Merchant persistently delays or defaults in the payment of amounts due under this agreement Shippit may, if it chooses to, require that party to pay monies to Shippit in advance to create a reasonable credit balance before further use of the Software 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 chooses to, suspend the performance of its obligations under this agreement until all overdue invoices have been paid.
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.
Shippit will provide reasonable technical support via email.
Words or expressions used in this clause 14 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.
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.
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 14 (GSTexclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GSTexclusive consideration multiplied by the prevailing rate of GST (GST Amount); and
subject to clause 14.6, 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 GSTexclusive consideration is payable or to be provided.
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.
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.
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.
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.
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.
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.
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.
This agreement may be altered only in writing signed by the Merchant and Shippit.
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.
Each party must pay its own costs of negotiating, preparing and executing this agreement.
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.
This agreement may be executed in counterparts. All executed counterparts constitute one document.
The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this 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.
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.
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.
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.
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
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.
Shippit may disclose that it provides services to the Merchant and the general nature of those services and use the Merchant’s logos and trade marks for that purpose in promotional materials with the prior written consent of the Merchant.
Shippit may also use any information gathered in the operation of its service for the following purposes:
analysis and improvement of the Software Services provided by Shippit generally (not just the Software Services provided to the Merchant or related end users);
using non-identifiable information to better inform marketing activities.
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.
This agreement is governed by the law of New South Wales, Australia and each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of New South Wales, Australia.
In this agreement:
means any entity which provides warehousing or non-Carrier logistics services to the Merchant
means the application programming interface provided by Shippit for interaction with the Hosted Software, as reviewed and amended from time to time
means a business providing delivery services to the Merchant
means the contractual terms between a Merchant and a Carrier (and in respect of deliveries in relation to which Shippit provides Delivery Payment Services, means the terms agreed between Shippit and the Carrier and made available by the Carrier to Shippit’s customers)
Change of Control
means, in relation to a party, that either:
means any indirect, special or consequential loss and any loss of profits, loss of revenue, loss of goodwill, loss or damage due to business interruption or loss of production
in relation to a company by a person:
in relation to a trust by a person:
means the amount described in clause 6.1(d)
Delivery Payment Services
means the payment of Carriers for their services by Shippit, on behalf of the Merchant
Delivery Payment Services Rate Card
means the rate card agreed between the parties, as amended from time to time in accordance with this agreement, and if no rate card has been agreed the rate card made available by Shippit to the Merchant.
means a retail customer of the Merchant that orders goods via the Merchant’s online sales site.
means any fee agreed between the Merchant and Shippit for establishment of the Merchant account and initial integration
means the software used by Shippit to provide the Software Services and Delivery Services and not provided by Shippit to the Merchant for installation on equipment controlled by the Merchant.
Initial Fixed Term
means any period agreed in writing between Shippit and the Merchant as the Initial Fixed Term.
affects a person if:
Intellectual Property Rights
means all intellectual property rights, including the following rights:
whether or not such rights are registered or capable of being registered.
means the software provided by Shippit to the Merchant for installation on equipment controlled by the Merchant
as reviewed and amended from time to time, and includes all improvements to modifications to that software from time to time.
Software Services Rate Card
means the rate card agreed between the parties, as amended from time to time in accordance with this agreement, and if no rate card has been agreed the rate card made available by Shippit to the Merchant.
means the territory specified in Shippit’s ‘Standard Territory’ link on the webpage setting out these terms and conditions