Terms and Conditions

Terms of Service

Terms & Conditions

Date of Last Revision: Sept 8 2021

1.  Acceptance of Terms

1.   NextSmartShip Inc. (“NextSmartShip”, “we” or “our”) provides its Services (as defined below or in an ancillary agreement) to you (“you” or “your”) which are exclusively governed by these Terms & Conditions (“Agreement”). By accepting this Agreement, by accessing or using the Services, or clicking through on our website, you acknowledge that you have read, understood, have the authority to, and agree to be bound by this Agreement. The terms of your Order shall not modify this Agreement.
2.  If you are an individual, you certify that you are 18 years of age or older. If you are entering into this Agreement on behalf of your customer, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall also refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by this Agreement, you must not accept this Agreement and may not use the Services.
3.   You acknowledge and agree that we may change or revise this Agreement at our discretion. If any change or revision to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to support@NextSmartShip.com. Otherwise, you will be bound by the changed or revised terms. NextSmartShip may change or revise this Agreement from time to time by providing ten (10) days prior notice either by emailing the email address associated with your account, by posting a notice on the website at www.NextSmartShip.com or by providing notice on the NextSmartShip Platform (as defined below) (“Notice”). You can review the most current version of this Agreement at any time here or by logging into your account on the NextSmartShip Platform. Your use of the Services ten (10) days after this Notice shall constitute full acceptance of the revised or changed terms.
4.   You agree and acknowledge that you may be subject to additional terms applicable to certain Services provided by us that may be attached to such Services from time to time. All such terms are hereby incorporated by reference into these Terms of Service.
5.   In the event that you commit any breach or violation of any terms and conditions under our Terms of Service, we shall be entitled to immediately terminate our Services, suspend your account(s), and/or may take other legal action at our disposal.
   
   

2.  Registration.

1. In order to create an account with NextSmartShip , you agree that you will provide accurate information to the best of your knowledge and belief (“Registration Information”) and will promptly update such Registration Information as necessary. Access to, and use of, the NextSmartShip account is restricted to authorized users only.
2. You agree not to share your password(s), account information, or account access information to any third party. You are responsible for maintaining the confidentiality of password(s) and account information, and you are responsible for all activities that occur under your password(s) or account(s) or as a result of your access to the account(s). You agree to notify NextSmartShip immediately of any unauthorized use of your account. NextSmartShip shall not be liable for any unauthorized use of your account.
3. You may invite other users to share your account (“Invited Member”). However, you shall be responsible for the actions and activities by such Invited Member on your NextSmartShip account.
   
   

3. Description of Service

• The “Services” include, without limitation, (a) the receipt, counting, storage, packaging, and shipment of physical goods sold or shipped by you (the “Goods”) pursuant to the order (“Order”), (b) use of NextSmartShip’s proprietary platform and associated technology, in object code format only, which is made available by NextSmartShip to you and, when technically feasible and when implemented by you and NextSmartShip, is intended to permit you to, among other things, submit Orders for Goods and fulfill such Orders via NextSmartShip’s fulfillment centers (the “NextSmartShip Platform”), and (c) all data, reports, text, images, sounds, video, and content, including any offline reports, pricing matrices, or other content, made available to you through any of the foregoing (collectively referred to as the “Content”). We may separately enter into a Warehousing, Fulfillment and Service Level Agreement (“Service Level Agreement”) which may modify the terms of the Services. If we do so, the terms of the Service Level Agreement shall take precedence over any conflicting terms of this Agreement. The terms of any Service Level Agreement are incorporated into this Agreement by reference. In our sole discretion, we may provide you additional Services as set forth in the Excel and Bulk Upload(Upload Agreement ), Promotional/Volume Spikes Agreement (“Volume Agreement”). If we do, the terms of the Volume Agreement shall be incorporated into this Agreement. The terms of the Volume Agreement shall take precedence over any conflicting terms in this Agreement.
  
  

4. Access to and Use of the Services – Your Obligations

1.  Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title and interest in and to the Services (including all intellectual property rights) will remain with and belong exclusively to NextSmartShip. You shall not (i) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party; (ii) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services, or (iii) modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies or other notices NextSmartShip provides you or publishes in connection with the Services, and you shall promptly notify NextSmartShip if you learn of a security breach related to the Services.
2.  Any software made available to you by NextSmartShip in connection with the Services (“Software”), including but not limited to the NextSmartShip Platform, contains our proprietary and confidential information that is protected by applicable intellectual property laws and this Agreement. NextSmartShip hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license (“License”) to use the object code of any Software and Content on a single device solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any Content or right in any Software. You agree not to access the Services by any means other than through the interface that is provided by NextSmartShip. Any rights not expressly granted herein are reserved and no license or right to use any trademark of NextSmartShip or any third party is granted to you in connection with the Services. The License may be terminated immediately at NextSmartShip’s sole discretion and shall, in any event, terminate upon the termination or expiration of this Agreement.
3.   You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store in connection with or relating to the Services (“Your Content”). For every email sent outside of your organization via the Services, you acknowledge and agree that NextSmartShip shall have the right to automatically add an identifying footer in accordance with our standard policies then in effect. You agree to cooperate with and provide reasonable assistance to NextSmartShip in promoting and advertising the Services.
4.   You are solely responsible for maintaining the confidentiality of your login, password, Your Content and account and for all activities that occur under your login or account. NextSmartShip reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Services, you hereby do and shall grant NextSmartShip a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content. NextSmartShip has the right, but not the obligation, to monitor the Services, Content, or Your Content. You further agree that NextSmartShip may remove or disable any Content (including Your Content)at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or Your Content), or for no reason at all.
5. You understand that the operation of the Services, including Your Content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to NextSmartShip’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. NextSmartShip will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content, and you will indemnify and hold NextSmartShip harmless for any claims, damages or liability related to Your Content.
6. You own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow NextSmartShip to perform its obligations) in connection with the Services without obtaining any further releases or consents; Your Content and other activities in connection with the Services, and NextSmartShip’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
7. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Your Equipment”). You shall be responsible for ensuring that Your Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in NextSmartShip’s published policies then in effect. You shall also be responsible for maintaining the security of the Your Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or Your Equipment with or without your knowledge or consent.
8. You have no right to access our physical facilities or property. Under no circumstances, and at no time, during the Term of this Agreement or after, are you permitted to enter NextSmartShip’s facilities, fulfillment centers, or premises without prior express written notice by us. As your Goods may be commingled with the Goods of other vendors in NextSmartShip’s facilities, under no circumstances, during the Term or after, may you access the Goods while the Goods are stored in NextSmartShip’s facilities, without prior express written consent of NextSmartShip. If you are granted access, you will be monitored during the access period and your access can be terminated at our sole discretion.
9.  NextSmartShip reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on NextSmartShip’s website and in other communication with existing or potential NextSmartShip customers. To decline NextSmartShip this right you need to email support@NextSmartShip.com stating that you do not wish to be used as a reference.
10. NextSmartShip may (but has no obligation to) provide technical support services, through email in accordance with our standard practice. NextSmartShip bears no liability for such technical support services.
11. NextSmartShip is not the importer of record for Goods stored at NextSmartShip. NextSmartShip shall not be held liable for complying with your instructions through the NextSmartShip Services. You understand that NextSmartShip does not inspect your Goods nor does NextSmartShip take responsibility for the business decisions that you make and implement through the Services. For example, NextSmartShip cannot control or ensure that a buyer or seller with whom you do business will remit payment for Goods in accordance with your agreement with them. For purposes of clarity, NextSmartShip is not the Merchant of Record for any of your Goods. NextSmartShip is not responsible for items damaged during the pick and pack process or for breakage of items during transit that have been picked and packed by NextSmartShip.
    
    

5.  Service Fees and chargeables

Unless otherwise specified in your pricing dashboard, you shall pay the Fees set out in the https://nextsmartship/pricing

6.  Your Data Rights

1. You retain all right, title and interest in and to Your Data, other than the limited rights expressly granted in this Section 6. For purposes of this Agreement, “Your Data” means any and all information collected and/or stored by or on behalf of NextSmartShip in connection with your use of the Services, excluding data and information relating to the operation and/or performance of the NextSmartShip Platform.
2.  You hereby grant NextSmartShip the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary to provide the Services to you pursuant to the Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Your Data on an aggregate and anonymous basis for marketing purposes.
   
   

7. Payment Method and Liens

1.  Payment processing for Services are provided by Payoneer and are subject to the Payoneer Connected Account Agreement, which includes the Payoneer Terms of Service (collectively, the “Payoneer Service Agreement”) set forth at https://payoneer.com. By agreeing to this Agreement or continuing to operate as a User on the Services, you agree to be bound by the Payoneer Service Agreement, as the same may be modified by Payoneer from time to time. As a condition of NextSmartShip enabling payment processing Service through Payoneer, you agree to provide NextSmartShip accurate and complete information about you and your business, and you authorize NextSmartShip to share it and transaction information (including User Data) related to your use of the payment processing Service provided by Payoneer.
2. Unless otherwise specified by NextSmartShip, Payoneer will collect payment from you via credit card or ACH for Service Fees due on a daily, weekly or monthly basis depending on the account set-up; if necessary, payment may instead be collected at a later point. NextSmartShip cannot control any fees that may be charged to you by your bank related to Payoneer’s collection or disbursement of such payment, and NextSmartShip disclaims all liability in this regard.
3.  When you use the Services, all charges for the Services and any additional fees payable to NextSmartShip will be immediately charged to selected payment method(s) associated with your account. You agree to pay NextSmartShip the amount that is specified in accordance with this Agreement. If you dispute any charges you must let NextSmartShip know within thirty (30) days after the date that NextSmartShip invoices you.
4.   You agree and acknowledge that NextSmartShip shall maintain a warehouseman’s lien and security interest under the UCC for all Goods in NextSmartShip’s possession or control, regardless of whether a specific receipt is issued by NextSmartShip, to cover all charges, expenses, costs and Service Fees set forth in this Agreement. In the event NextSmartShip is required to exercise its lien or security interest, you shall be responsible for all necessary and reasonable costs incurred by NextSmartShip to enforce the lien or security interest including, but not limited to, reasonable attorney fees. You will execute all agreements and documents so that NextSmartShip may obtain, perfect and maintain its lien rights and security interest in the Goods. You will execute all documentation to permit us to perfect our liens.
   
   

8. Receiving Shipments – Your Obligations

1. You represent and warrant to NextSmartShip that (i) you are the legal owner and/or have lawful possession or control of the Goods and have the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (ii) there are no potential health, safety, or environmental hazards associated with the shipment, warehousing, or fulfillment of the Goods tendered to NextSmartShip under this Agreement, (iii) the Goods do not contain any material violating any federal, state, or local law (collectively, “Laws”); (iv) the Goods are not and do not contain any hazardous or dangerous materials under applicable Laws or do not follow the NextSmartShip hazardous and dangerous materials process at https://support.nextsmartship.com/HAZMAT, which is incorporated into this Agreement; and (v) the Goods do not violate our Acceptable Products policy at https://www.NextSmartShip.com/acceptable-products-use-policy/, which is incorporated into this Agreement. You will strictly meet or exceed any compliance obligations under these provisions. NextSmartShip may, in its sole discretion, reject Goods that NextSmartShip determines do not meet the above. If the Goods do not meet the foregoing requirements, You may incur additional fees from NextSmartShip, and if NextSmartShip rejects the Goods, this may result in a delay or non-shipment, and You agree that NextSmartShip shall not be liable for any loss or damage as a result of such delay or non-shipment.
2. Vendor shall provide NextSmartShip, in a digital format through the NextSmartShip dashboard, with bills of lading for the inventory of all receiving shipments of Goods prior to the shipment arriving to NextSmartShip’s facility. All Receiving shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. Vendor represents and warrants that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description and condition of the Goods, is accurate and complete and may be relied upon by NextSmartShip. If any Receiving inventory received doesn’t follow NextSmartShip’s WRO instructions, it will be subject to delays, and the Vendor will be charged an initial $25 fee as well as additional daily charges reflecting $25/day for every day that it remains unsolved. If the items in such shipment cannot be identified by NextSmartShip, they may be discarded and NextSmartShip assumes no responsibility for any associated losses. The warehouse receiving order shall be attached to the side of the box and the product name shall be clearly and conspicuously written on the outside of box.
3. You need to make an appointment in advance for any receiving freight shipment (non-parcel). Instructions are located here: https://support.NextSmartShip.com/en/articles/schedule-an-appointment.
   
   

9. Warehouse Process

1. All Receiving shipments must be received and inventoried before the Goods shall be shipped.
2.   Upon receipt, NextSmartShip, with paid services, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that NextSmartShip has no obligation to verify the quantity, content, condition or quality of the Goods delivered to NextSmartShip, without paid services, for storage and/or delivery. NextSmartShip may, at its sole discretion, reject to store and/or deliver any Goods that it deems, in its sole discretion, to be improperly labeled or packaged or, any Goods that contain any hazardous or illegal material.
3.  If there are any outstanding or pending Orders that need to be fulfilled first, you shall notify NextSmartShip of the number of Orders to be sent initially and the expected timeline of processing such Orders.
4. Unless otherwise specified in a Service Level Agreement or Volume Agreement, upon actual receipt of the Goods, you can expect a minimum of five business days for products to be inventoried at NextSmartShip’s warehouse. After five business days, your Orders will begin to be processed and labeled, beginning with outstanding and pending Orders.
5.  NextSmartShip will plan to fulfill the number of orders which was confirmed to ship in NextSmartShip Platform every day. Additional time may be required for special kitting, picking or any alterations in regular process.
6. NextSmartShip shall thereafter process, package, and ship all Orders within one business day of actual receipt of the Order from you provided that proper inventory amounts exist and there are no issues with the Order. This provision shall not apply to Orders that are altered, Orders with low inventory items (less than 10 items in stock), held Orders and bulk Orders.
7. You shall provide NextSmartShip with an expectation of the date to begin shipping Goods, which shall conform to the terms of this Agreement.
8. You shall be solely responsible for the accuracy of any information provided to NextSmartShip and/or inputted onto NextSmartShip’s website. You agree that NextSmartShip shall not be liable for any delay, loss, damage or costs as a result of any inaccurate information provided by you to NextSmartShip or any information inputted incorrectly by you onto NextSmartShip’s website.
9.  NextSmartShip’s obligations for Excel and Bulk Uploads and Promotional/Volume Spikes are set forth in our Excel and Bulk Upload Policy. NextSmartShip bears no other liability or obligations for Excel and Bulk Uploads or Promotional/Volume Spikes. This Volume Agreement shall apply to any excel upload orders or large spikes in volume above regular volume. Customers with inconsistent volume with frequent and infrequent spikes without prior notice to NextSmartShip create difficulty in predicting the labor required. Infrequent high volume makes it difficult for NextSmartShip to predict and plan labor and other resources. Accordingly, the following terms apply:

§  Excel and Bulk upload:

1.   Based on the number of Orders in an Excel upload, the following requirement apply:

1.   Order Count <100: No action required.

2.    Order count 100 – 999: Inform NextSmartShip using the below Excel Form at least 72 hours before Order placement.

3.    Order count 1,000 – 4,999: Provide notice to NextSmartShip using the Excel Form set forth below at least 72 hours before Order placement and allow order volume to be distributed over 2 days.

4.    Order volume >=5000: Customer shall contact NextSmartShip AM and Operations and work out a special schedule to complete Orders acceptable to NextSmartShip.

§  Promotional / Volume Spikes

1.   If Order volume is expected to be greater than 2 times the previous 30 day average and the Order count is greater than 100 Orders on a particular day, then 72 hour notice is required to maintain Services. Customer shall provide notice pursuant to the Large WRO early warning Excel form set forth below.

2.  The following exception applies to this Volume Agreement:

1.   If You do not provide 72 hour notice of an excel upload over 100 Orders, NextSmartShip will fulfill those Orders according to the below schedule:

1.   Tier 1: 0-100 orders – fulfilled within 1 day

2.  Tier 2: 100-249 orders – fulfilled within 2 days

3.   Tier 3: 250-499 orders – fulfilled within 3 days

4.   Tier 4: 500-749 orders – fulfilled within 4 days

5.   Tier 5: 750-4,999 orders – fulfilled within 5 days

6.   Tier 6: 5,000 and above – Shipment will depend on NextSmartShip’s AM and Operations and is subject to NextSmartShip’s discretion.

3. NextSmartShip will increase labor on hand to fulfill large Order drops same day. In the event these large Order drops do not occur, NextSmartShip will charge a fee to help recoup the costs of unnecessary additional labor. Clients may cancel a stated large order drop at no fee if they provide 48 hour written notice.

4.  In any event, the following additional charges for Services shall apply:

1.   If at least 50% of stated order volume is placed, no charge.

2.  If under 50% of stated Order volume is placed, a charge of $1.25 per Order for all Orders from the stated volume to the realized volume will be assessed to recoup labor costs. (For example, if You stated You would place 200 Orders and only placed 50 Orders, You would be assessed a fee of $187.50 (150 Orders at $1.25 per Order).

5. For Orders subject to this Volume Agreement, Customer will provide notice as follows:

1.   Promotional/Bulk Upload details Excel form:

Email to support@nextsmartship.com for Promotional/Bulk Upload notice, and a Customer Representative will help you.

2.      All forms must be true and accurate.

10.   Shippable Addresses.

1.  You are solely responsible for the accuracy and deliverability of Order shipping addresses. NextSmartShip may, at its sole discretion, verify Order shipping addresses, but this is not a replacement for merchant address diligence and verification by You. You agree and acknowledge that NextSmartShip has no obligation to verify any shipping addresses provided by You.
2. If NextSmartShip provides an Order shipping estimate on the basis of an address later discovered to be inaccurate or incomplete, you are solely responsible for any applicable address correction fees NextSmartShip incurs from the Carrier, any difference in shipping cost or for any other costs or fees due to the incomplete or inaccurate address. Examples of discrepancies for which you may be responsible include, but are not limited to, incomplete addresses, incorrect addresses, commercial/residential address status, and rural address status. NextSmartShip also reserves the right to put the order on hold if addresses are not validated by the NextSmartShip system.
   
   

11.  Service Level Agreement

• NextSmartShip’s SLA’s for non-excel upload and volume spikes can be found at the following link: https://support.nextsmartship.com/article/NextSmartShip-policies-and-SLAs. Additionally, during peak season (defined as the dates between Thanksgiving Day and Christmas Eve), NextSmartShip SLAs will increase by 1 business day for each category   due to increased volume.
  
  

12. Delays or Non-Delivery.

• Unless specifically excepted in a Volume Agreement or Service Level Agreement, NextSmartShip shall not be liable or responsible for any delays in domestic or international shipments of Goods or Orders, and is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third-parties, including carriers.
  
  

13. Fraudulent Orders.

• IT IS YOUR SOLE RESPONSIBILITY TO PROTECT YOURSELF FROM FRAUD. IT IS YOUR SOLE RESPONSIBILITY TO PAY ALL FEES RELATED TO ORDERS WHETHER THE ORDER IS FRAUDULENT OR THE PRODUCT IS DELIVERED OR NOT.
  
  

14. International Returns.

• International shipments that are not delivered are often returned by the Carrier and assessed return shipping, brokerage, and returns processing carrier fees. These fees assessed by the Carriers are billed through to merchants, often without notice. NextSmartShip strives to work with you to circumvent International returns or abandoned inventory at your request; however, this is done on a reasonable efforts basis and NextSmartShip reserves the right to charge you fees to the value of the original shipping cost, including all costs and expenses of returns. If a tariff is not available, NextSmartShip will either put orders on hold until tariff information is available or override the order with no liability to NextSmartShip.
  
  

15. International CDT.

• Customs, Duties and Taxes (“CDT”) on any international shipment charged by the Carrier are your sole responsibility and will be charged back to you regardless of whether they were or were not in the initial shipping estimate, or whether the order was or was not delivered.
  
  

16. Returns.

• All non-Carrier related returns (international and domestic) must follow the return policy at https://NextSmartShipsupport.force.com/Support/article/Returns-NextSmartShip, which may be updated from time to time. Custom returns may be rejected and/or subject to additional fees. Vendor shall be solely responsible for any fees assessed by any Carrier as a result of any shipments of Goods that are returned to NextSmartShip by the Carrier for any reason whatsoever.
  
  

17.  Required Removals.

• NextSmartShip may, at its sole discretion, require you to remove unsuitable or unsellable Goods from its distribution centers. NextSmartShip will notify You if it has any inventory that requires removal. Pick fees may also be assessed for labor incurred to remove inventory. If you do not remove the inventory within 30 days of receiving a required removal notice, NextSmartShip may dispose of the inventory listed in the required removal notice. You shall not be entitled to any damages or reimbursement for the value of Goods disposed of by NextSmartShip if you do promptly remove the Goods upon NextSmartShip’s written request.
  
  

18.  Abandoned Account.

• If your Service Fees (or any other amounts owed NextSmartShip) remain unpaid for a period greater than 30 days, then NextSmartShip reserves the right, at its sole discretion, to terminate this Agreement, suspend its performance, and/or reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. To the fullest extent permitted by law, upon an Account becoming an Abandoned Account, all rights to ownership of the Account Balance and Goods would then immediately be forfeited by you. Goods will become immediately and irrevocably unavailable to you, and liquidation proceedings would begin. You agree such Goods would be free and clear of liability, and that you would assume any liability therefore. You would have no rights to the liquidation proceeds. You would also remain liable for any pending Service Fees above and beyond the liquidation proceeds.
  
  

19.  Force Majeure.

• NextSmartShip shall not be liable for any failure or delay in performance hereunder which may be due, in whole or in part, to fire, explosion, earthquake, storm, flood, drought or other adverse weather condition, accident, casualty, breakdown of machinery or facilities, strike, lockout, combination of workmen or other labor difficulties (from whatever cause arising, and whether or not the demands of the employees are reasonable or within NextSmartShip’s power to grant), war, civil disturbance, acts of terrorism, insurrection, riot, act of God or the public enemy, law, act, order, proclamation, decree, regulation, ordinance, instruction or request of Government or other public authorities, judgment or decree of a court of competent jurisdiction, delay or failure of carriers, shippers or contractors, labor shortage or inability to obtain transportation, equipment, operating materials, plant equipment or materials required for our performance, curtailment or suspension of operations to remedy or avoid an actual or alleged violation or violations of Federal, State or local law, as may be in effect from time to time during the Agreement period, or any contingency or delay or failure or cause of any nature beyond the reasonable control of NextSmartShip, whether or not of the kind hereinabove specified and whether or not any such contingency is presently occurring or occurs in the future. NextSmartShip shall give notice of any force majeure event as soon as reasonably practicable by giving notice to your administrative email account.
  
  

20. Termination.

• You have the right to terminate this Agreement at any time, provided you do not have a balance due and owing (other than any amounts subject to a good faith dispute) by sending a termination request to support@NextSmartShip.com. Subject to earlier termination as provided below, NextSmartShip may terminate, at its discretion and without cause, this Agreement (or our shipments of Goods or Services hereunder) at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, NextSmartShip may also terminate this Agreement upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment) if you breach any of the terms or conditions of this Agreement. The termination of this Agreement shall constitute a termination of any Service Level Agreement or Volume Agreement. NextSmartShip reserves the right to immediately modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) if you are in breach of this Agreement. All of Your Content (if any) may be permanently deleted by NextSmartShip upon any termination of your account in NextSmartShip’s sole discretion.
  
  

21.  DISCLAIMER OF WARRANTIES.

1.  The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by NextSmartShip or by third-party providers, or because of other causes beyond our reasonable control. NextSmartShip shall use reasonable efforts to provide advance notice in writing or by email of any Services disruption. NextSmartShip shall not be liable for any such unavailability or disruption of Services.
2. THE SERVICES, INCLUDING THE NEXTSMARTSHIP PLATFORM AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND NEXTSMARTSHIP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS OR ANY ANCILLARY AGREEMENT, YOU ACKNOWLEDGE THAT NEXTSMARTSHIP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES NEXTSMARTSHIP MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
3.  Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.
4. NextSmartShip does not represent, warrant, or guarantee that any of its facilities will maintain any specific temperature ranges or humidity levels.
   
   

22.  LIMITATION OF LIABILITY

1.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) SHALL NEXTSMARTSHIP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. FOR AVOIDANCE OF DOUBT, NEXTSMARTSHIP IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE GOODS DAMAGE CAP OR THE AGGREGATE LIABILITY CAP SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT. NEXTSMARTSHIP WILL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR, ANY PRODUCT DAMAGE, LOSS, OR DETERIORATION CAUSED BY FLUCTUATIONS IN TEMPERATURE OR HUMIDITY LEVELS.
2.  Insurance, Damage and Loss of Goods:
   §  INSURANCE IS AVAILABLE AT YOUR SOLE COST AND EXPENSE. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE COVERAGE, IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION OF GOODS (“GOODS LOSS”) FOR WHICH NEXTSMARTSHIP IS OR MAYBE LEGALLY LIABLE, YOU AGREE THAT NEXTSMARTSHIP’S LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW. FOR INSURANCE TO APPLY TO YOUR CLAIM, YOU MUST PURCHASE THE INSURANCE PRIOR TO THE GOODS LOSS. NEXTSMARTSHIP DOES NOT REPRESENT, WARRANT OR GUARANTY THAT INSURANCE WILL COVER ALL OR A PORTION OF YOUR GOODS LOSS. NEXTSMARTSHIP SHALL NOT BE RESPONSIBLE OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF COVERAGE IS DENIED.§  NEXTSMARTSHIP’S MAXIMUM LIABILITY FOR GOODS LOSS IN NEXTSMARTSHIP WAREHOUSING FACILITIES IS THE PRODUCT DECLARED VALUE. FOR GREATER COVERAGE, YOU MUST ADD INSURANCE IN YOUR ACCOUNT SETTINGS ON THE GOODS THAT YOU WISH COVERED BY INSURANCE, IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE. NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE, OR DESTRUCTION TO ALL OR ANY PORTION OF THE GOODS HAS OCCURRED.
3.    Exclusive Remedy. THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION 22 SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST NEXTSMARTSHIP FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF GOODS, AND SHALL APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).
4.   IN ANY EVENT, NEXTSMARTSHIP’S MAXIMUM AGGREGATE LIABILITY TO YOU, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY NEXTSMARTSHIP, SHALL NOT EXCEED $2,000 FOR ANY CLAIMS NOT COVERED BY THE GOODS DAMAGE CAP. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT AND THE PARTIES RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
   
   

23.    Indemnification.

You shall defend, indemnify, and hold harmless NextSmartShip from and against any claims, actions or demands, liabilities (including court costs and attorney’s fees), tax obligations, fines and penalties, including without limitation reasonable legal and accounting fees and expenses, arising or resulting from: (a) your breach of this Agreement, (b) any of Your Content, (c) your negligence, fault, omissions, or willful misconduct, (d) your fraud or misrepresentation in connection with the Services or with your access, contribution to, or use of the Services, or (e) your misuse of the Services (“Claims”). NextSmartShip shall provide notice to you of any claim. NextSmartShip reserves the right to assume the exclusive defense and control of any third-party Claims which are subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting NextSmartShip’s defense of such Claim. This indemnity shall include, without limitations, all Claims in tort, contract, by statute or otherwise, including Claims for personal injury (including death) and actual or tangible property damage.

24. Government Matters

•  For using warehouse(s) and its services in United States, Your Compliance with Trade Laws.
• You may not remove or export from the United States or allow the export or re-export of Goods subject to this Agreement or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by NextSmartShip on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
• You agreed to comply to all the laws and regulations issued by local or state government where the warehouse is located.
• For using warehouse(s) and its services in other countries, Your Compliance with the Laws.
• You agreed to comply to all the laws and regulations issued by local or state government where the warehouse is located.
  
  

25.  Assignment.

• You may not assign this Agreement without the prior written consent of NextSmartShip, but NextSmartShip may assign or transfer this Agreement, in whole or in part, without restriction.
  
  

26.   Miscellaneous.

• If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect, and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, representation and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Except as specifically set forth in this Agreement (or a Volume Agreement or Service Level Agreement), the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement. The failure of NextSmartShip to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and NextSmartShip, even though it is electronic and is not physically signed by you and NextSmartShip, and it governs your use of the Services. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind NextSmartShip in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement or otherwise, the substantially prevailing party will be entitled to recover its costs, expenses and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  
  

27.  Express Program

1. Acceptance of Terms
   §  By electing the NextSmartShip 2-Day NextSmartShip 2-Day Express Shipping Option, you acknowledge that you have selected the NextSmartShip 2-Day Express Shipping Option and you have read, understood, and agree to be bound by these NextSmartShip 2-Day Express Fee Terms & Conditions.
2. Express Shipping Option
   §  NextSmartShip provides the NextSmartShip 2-Day Express Shipping Option in qualifying geographic areas.§  While NextSmartShip aims to provide 100% coverage of zip codes in the continental US, the “NextSmartShip 2-Day Express Shipping Option” is defined as a shipment with a transit time of two business days once fulfilled by NextSmartShip, with a cutoff time of 12:00 PM local time Monday through Friday.§  The NextSmartShip 2-Day Express Shipping Option may only be available in select zip codes in the United States, the list of which is available upon request. NextSmartShip reserves the right to modify such list of qualifying zip codes in its sole discretion and shall not be required to provide you with notice of any such modifications. The qualifying zip codes may also fluctuate in connection with the amount of your on hand inventory. §  NextSmartShip will be responsible for processing and routing shipments within the time frame set forth above. Due to carrier limitations, the following cannot be delivered within 2 business days from when the order is fulfilled: out of stock items, dangerous goods, orders shipping to Alaska, Hawaii, Puerto Rico, military addresses, and PO boxes. §  During peak season (defined as the dates between Thanksgiving Day and Christmas Eve), a transit time of 2 days may be impacted by changes to shipping carrier SLAs.
3. Vendor Agreements§  You agree to maintain inventory levels of a minimum of four weeks of “on hand inventory.” “On hand inventory” shall be calculated by multiplying the most recent two weeks of sales by two.§  You agree to send replenishment inventory to a fulfillment center designated by NextSmartShip promptly upon request by NextSmartShip.

   §  You agree that NextSmartShip may move inventory as reasonably required in NextSmartShip’s discretion to enable and ensure coverage for the NextSmartShip 2-Day Express Shipping Option.

4.  NextSmartShip 2-Day Express Shipping Option Fee§  Upon receipt of Vendor’s selection of the NextSmartShip 2-Day Express Shipping Option, NextSmartShip will advise Vendor of the fee (the “NextSmartShip 2-Day Express Shipping Option Fee”) for such service, and Vendor shall pay the NextSmartShip 2-Day Express Shipping Option Fee.§  The NextSmartShip 2-Day Express Shipping Option Fee shall be considered a Service Fee.
   
   

28.  B2B Orders:

• §  For orders being shipped to a business (“B2B Order”), NextSmartShip allows the use of pre-paid labels or client-directed freight shipments. When submitting a B2B order through NextSmartShip, the following conditions apply:

1.  NextSmartShip will notify you via email once a pre-paid parcel or client-arranged freight order has been packed.
2. After this notification, you will have 5 business days to upload a shipping label for pre-paid parcel shipments or to have a freight provider pick up your client-arranged freight order.
3. After 5 business days if the conditions in step 2 have not been met, you will be assessed a $25.00 fee for pre-paid parcel orders or a $50.00 fee for client arranged freight orders.
4. After 10 business days from the time an order was packed, if you have not yet uploaded shipping labels for your parcel order or have not yet had a freight company pick up your client-arranged freight order, NextSmartShip will restock your B2B order and you will be assessed a cancellation fee. This cancellation fee will be equal to NextSmartShip’s total cost to prepare the order, including, but not limited to, pick fees, prepaid label fees, and any other costs incurred to prepare the order.
5. If you cancel a B2B order after NextSmartShip has started pick your B2B order, you will also incur the above cancellation fee in additional to the original fee to prepare your B2B order.
6.  NextSmartShip reserves the right to charge for a prepaid order once it has been packed.
7.  If NextSmartShip does not pack a B2B order within NextSmartShip’s stated SLA, NextSmartShip will cover all costs if you provide proof of invoice for you having to reschedule freight, up to a maximum of $500.00. In this circumstance, NextSmartShip will not assess a late fee and also will hold the order for up to 15 business days before restocking, and, restocking will be done free of cost. If NextSmartShip fails to pack an order within NextSmartShip’s stated SLA, and you contact NextSmartShip to request a hold, NextSmartShip will hold the packed B2B order for up to 30 calendar days.