Terms of service

Effective date: December 11, 2018

Preamble

The terms and conditions of these Terms of Service govern the services provided by Bigblue to the Client. These Terms of Service should be read together with any Statement of Work entered into between Bigblue and the Client. Each Statement of Work and Terms of Service (collectively, “the Agreement”) comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. If and to the extent that the Terms of Service conflict with the Statement of Work, the Statement of Work shall prevail.

Capitalized terms used but not defined in these Terms of Service shall have the meanings set out in the Statement of Work.

References to ‘we’, ‘us’ and ‘our’ are to Bigblue and references to ‘you’ and ‘your’ are to the Client.

Our Services

Bigblue shall provide the services to the Client as described in the Statement of Work (the “Services”) in accordance with these Terms of Service. Bigblue will perform the Services with reasonable skill and care.

We may outsource certain functions and work in relation to the Services to third party carriers, couriers, customs brokers, agents and others to which the Client’s goods and packaging materials (the “Client’s Goods”) are entrusted for transportation, packaging, handling, delivery, storage or otherwise (“Third Parties”) either locally or abroad. Where this occurs, we will take all reasonable steps to ensure that those Third Parties recognise and comply with their obligations of confidentiality. You consent to such outsourcing arrangements including the transfer of any personal data to such Third Parties. Bigblue shall not be liable or responsible for any negligence, malpractice, fault, errors or omissions in the performance of the Services by any Third Parties.

Client’s Obligations

The Client shall:

(a) Cooperate with Bigblue in all matters relating to the Services and provide such materials and/or information as may be required by Bigblue for the purposes of carrying out the Services in a timely manner and ensure that such materials or information are complete and accurate;

(b) Respond promptly to Bigblue’s requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Bigblue to carry out the Services in accordance with the requirements of these Terms of Service; and

(c) Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to Bigblue’s Services before the date on which the Services are to commence.

Rate Cards and Cost Simulation

(a) Bigblue shall provide the client with a rate card (“Rate Card”) and/or an initial cost simulation based on the information provided by the client during the engagement process (the “Cost Simulation”). Rate Cards or Cost Simulations provided by Bigblue to the client are for informational purposes only and are subject to changes without notice. The Rate Cards and/or Cost Simulations shall not be binding upon Bigblue.

(b) Typically, known surcharges such as fuel surcharges and delivery area surcharges will be included in the shipping price at the time of shipment. The amount set out in the final billing invoice may differ from the cost simulation as the final chargeable amount may vary based upon a number of factors including, inter alia, incomplete or inaccurate product information, returns to sender, changes in couriers or shipping prices and additional services requested by the client. Therefore, Bigblue reserves the right to bill for, and the client shall be responsible for, additional fees including, without limitation, customs and brokerage fees, additional delivery attempts and other carrier adjustments, additional storage fees and additional warehousing services fees that are billed to Bigblue by Third Parties.

Bigblue Fulfillment Portal

  • As part of the Services provided by Bigblue, the Client may integrate or connect its online shopping cart or ecommerce platform with Bigblue’s cloud-based fulfillment portal (the “Bigblue Fulfillment Portal”). The Bigblue Fulfillment Portal may be updated and modified from time to time, often without prior notice to you. Your continued use of the Bigblue Fulfillment Portal constitutes your acceptance of such modifications.
  • The Client may specify one or more administrators (each an “Administrator”) to manage its account on the Bigblue Fulfillment Portal. Administrators have the ability to access, monitor, use, export and disclose content on the Bigblue Fulfillment Portal. The Client is responsible for
  • the selection of its Administrator(s);
  • maintaining the confidentiality of passwords and Administrator accounts;
  • managing access to Administrator accounts; and
  • ensuring that each Administrator’s use of the Bigblue Fulfillment Portal complies with these Terms of Service. Bigblue shall not be held liable for any actions on the part of the Client’s Administrator(s).
  • The Bigblue Fulfillment Portal is made available to you by Bigblue for the purposes of carrying out the Services, which use must be in compliance with all applicable laws, rules and regulations and must not infringe or violate third party rights.

Inbound Goods and Receiving Policy

  • Bigblue may require the Client to send product samples to Bigblue’s office address for inspection before confirmation of the Inbound Date.
  • The Client shall be responsible for arranging inbound shipment of the Client’s Goods to Bigblue’s warehouse and for all related transportation and handling charges with relevant third parties, including duties, customs or charges related to the Client Goods.
  • The Client shall be responsible for ensuring that all Client’s Goods are properly packaged and correctly labelled in accordance with Bigblue’s labeling requirements as set out herein or on Bigblue’s website before delivery to Bigblue’s warehouse.
  • Bigblue shall not be liable for any discrepancy in the quantity, quality or condition of the Client Goods that are received at Bigblue’s warehouse. Receiving checks for incoming Client Goods will be based on a carton level, provided that each carton is clearly and properly labelled, unless there is a prior written agreement between the Client and Bigblue on a per piece inventory count. The Client shall be responsible for insuring all inbound shipments of Client Goods.
  • Bigblue may, in its sole discretion, refuse, return or dispose of any inbound shipment that does not comply with its receiving policy or is determined to be illegal, hazardous or otherwise, at the Client’s cost, and shall not be liable or responsible for any loss or damage of any nature to, or related to, such refused goods.

Labelling and Orders Policy

  • The Client shall be responsible for providing such information as Bigblue may require in accordance with the timeline set out in the Statement of Work. The Client shall ensure that all information provided is accurate and complete. Any inaccurate or incomplete information may result in delays to the Fulfillment Date and Bigblue shall not be liable for any resulting loss or damage.
  • The Client shall be responsible for sending all order submissions to Bigblue in accordance with Bigblue’s requirements and should ensure that all provided information is complete and accurate to ensure that shipments are not delayed. Bigblue shall not be responsible for any order submission errors or delays by the Client. Any amendments made by the Client after
  • an order has been approved and is pending fulfillment; or
  • the applicable cut-off time

may not be processed and Bigblue shall not be responsible for any shipping delays or incorrect shipments as a result thereof. Any subsequent requests by the Client to amend shipping labels may result in delays and/or the Client incurring additional charges.

  • The Client shall be responsible for ensuring that all Client’s Goods (at both carton and unit level) have the proper and correct barcode label to ensure proper inventory management as well as proper pick and pack and fulfillment processes. Bigblue shall not be held liable for the accurate record keeping or fulfillment of Client Goods that are not properly and correctly labelled. Bigblue may label any Client Goods at an additional cost to the Client.
  • Bigblue’s order edit cut off time is 8 a.m. France Time from Monday to Friday (“Cut-Off Time”). Bigblue aims to process all orders that have been submitted and approved via the Fulfillment Portal Order before the Cut-Off Time within 24 to 48 hours. However, order processing may be delayed during
  • peak season dates including the month of December and the week of Chinese New Year;
  • public holidays in France.

Couriers and Shipping Policy

  • Bigblue shall not be responsible or liable for delays or failed deliveries and any resulting loss or damage caused by Third Parties selected to render the Services. Delays may be caused by various factors beyond Bigblue’s control, such as natural disasters, strikes or peak fulfillment periods during holiday seasons. Further, Bigblue cannot guarantee delivery for international shipments as customs and customs agents can delay, refuse to process, assess brokerage, lose or impose unanticipated customs, tax or duties to international shipments at their discretion.
  • Bigblue shall use its best judgement in selecting the appropriate packaging and gift packaging for all orders. If the Client has provided ship-ready Client Goods or custom packaging and Bigblue determines the packaging to be unfit for shipping, Bigblue may offer additional packaging for an additional fee or return the Client Goods to you at your cost.
  • Bigblue shall provide tracking numbers to the Client, if applicable, and shall not be held responsible for any delayed or missing tracking updates, as this information is and can only be updated by Third Parties.
  • The Client may request a proof of delivery (“POD”) if there is no status update from any Third Parties for 14 Business Days or if the delivery status does not indicate whether the Client Goods have been delivered after normal postal transit time of 3 to 4 weeks from the fulfillment date. Upon the Client’s request, Bigblue shall use all reasonable efforts to acquire a POD on behalf of the Client from Third Parties. Bigblue cannot guarantee that Third Parties will provide a POD and shall not be responsible for any delays caused by Third Parties in providing a POD.
  • All claims in connection with damaged or lost Client Goods during delivery shall be brought solely against relevant Third Parties and/or its agents. In connection with any such claim, Bigblue shall reasonably assist and cooperate with the Client, which may be liable for any charges or costs incurred by Bigblue. As Third Parties require claims to be submitted within a specific time period, it is the Client’s responsibility to notify Bigblue in advance of any claims it intends to bring.

Duties, taxes or clearance related charges

  • The Client shall be responsible for all duties, taxes, or clearance related charges for all applicable inbound and outbound shipments of the Client Goods. If the Client chooses to send packages Delivery Duties Paid (DDP) for outbound shipments, the Client shall also be responsible for all administration fees charged by Third Parties for processing such duties, taxes or clearance related charges. Where the Client decides to ship Delivery Duties Unpaid (DDU), no administrative fees for processing duties, taxes or clearances related charges will be charged to the Client.
  • Bigblue will not provide credit terms to the Client in respect of, inter alia, duties, taxes, and tariffs such as gross or general sales taxes (GST) and value added taxes (VAT) or any related charges. The Client must either prepay such amounts to Bigblue prior to shipping, or place a security deposit on these amounts.

Storage and Inventory Policy

  • The Client Goods are not insured by Bigblue against any loss or damage, however caused. Bigblue strongly recommends that the Client procures insurance for the Client’s Goods at its own cost.
  • Bigblue does not anticipate inventory shrinkage for Client’s Goods held by Bigblue. However, Bigblue will have an annual 5% shrinkage allowance based on the stated cost value of the Client Goods held at Bigblue’s warehouse as set out in the Fulfillment Portal. In the event of inventory loss in excess of the annual inventory shrinkage allowance due to inventory count inaccuracies for which Bigblue is held legally liable, Bigblue’s liability shall be limited to the actual value of the Client Goods. In no event shall Bigblue be liable for any lost sales revenue from the inventory loss.
  • Title to the Client’s Goods will remain with the Client. Notwithstanding anything herein to the contrary, nothing in this Agreement may be deemed to waive or otherwise limit any lien rights that Bigblue may have under applicable law with respect to the Client’s Goods.
  • Bigblue may move the Client’s Goods within a warehouse and between warehouses by giving 30 days’ notice. Any request by the Client to move the Client’s Goods to another warehouse will be at the Client’s own costs.
  • Bigblue reserves the right to dispose or sell the Client’s Goods by giving 7 Business Days’ notice if the Client fails to collect any Client Goods stored in Bigblue’s warehouse within a reasonable period after the due date of the final invoice.

Fees and Payment Terms

  • Clients must provide valid credit card details when registering on the Fulfillment Portal.
  • The Client agrees to pay our fees as set out in our invoices in consideration of the Services provided by Bigblue. Our invoices are to be paid in the currency stated therein.
  • Bigblue shall bill the Client on a monthly, weekly or daily basis as determined by Bigblue from time to time.
  • Bigblue reserves the right to charge the Client’s credit card account once the Client’s debit balance exceeds USD 500.
  • Bigblue’s service pricing is subject to changes. A minimum of 30 days’ notice will be provided to the Client in writing before new prices are in effect. The Client acknowledges that in some instances, Fees charged by Third Parties may be subject to changes without notice and therefore such Fees may be charged by Bigblue without notice.
  • The Client shall pay all invoiced amounts due to Bigblue within 7 Business Days from the date of Bigblue’s invoice. Bigblue will notify the Client of the accepted payment methods and regularly communicate any changes to such payment methods. The Client shall be responsible for any bank remittance service charges levied and Bigblue will only credit the final amount received to the Client’s account.
  • In the event payments are not received by Bigblue within 7 Business Days after becoming due, Bigblue reserves the right to charge interest on any such unpaid amounts at a rate of 1% per month from the date such payment was due until the date it is paid and to suspend performance for all services until payment has been fully completed.
  • Bigblue may at its sole discretion, request full payment as a condition for release of the Client’s Goods. Bigblue reserves the right to charge the Client for any reasonable charges and services incurred on behalf of the Client, including, without limitation, customs, duties, taxes, remote area delivery type charges, unexpected storage charges, revised billings from Third Parties, and ad-hoc labor requests.
  • Documentation handling fees (“Documentation Fee”) will be charged for orders that are shipped on the Client’s own courier accounts instead of Bigblue’s accounts. The Documentation Fee is a handling fee only and does not replace the work of advice of a professional customs and clearance brokers. Supporting documentation may be requested and this does not waive the Documentation Fee. Bigblue may publish or change the Documentation Fee at any time without notice.

Lien

Bigblue shall have a lien on the Client’s Goods in Bigblue’s actual or constructive possession, custody or control in respect of all sums of whatever nature that are due and payable by the Client to Bigblue, including, but not limited to, interest and legal costs and expenses. Bigblue may refuse to surrender possession of the Client’s Goods until all sums due and payable to Bigblue are fully paid. If such amounts remain unpaid for 30 days after Bigblue’s demand for payment, Bigblue may, at its absolute discretion, sell the Client Goods by way of public or private sale or any other method Bigblue deems appropriate without further notice and apply the net proceeds to the sums owed to Bigblue. Any surplus from such sale shall be transferred to the Client and the rights of Bigblue are reserved for any shortfall subsequent to the disposal of the Client Goods. If Bigblue, after a reasonable effort, is unable to sell the Client’s Goods, Bigblue may dispose of them in any lawful manner and shall incur no liability by reason of such disposition.

Termination

  • Without affecting any other right or remedy provided under these Terms of Service, Bigblue may at any time terminate the Agreement with immediate effect by giving written notice to the Client if the Client:
  • fails to pay any amount when due under this Agreement and such failure continues for 7 Business Days after receipt of written notice of nonpayment;
  • has not otherwise performed or complied with any of the Terms of Service, in whole or in part;
  • suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  • Either Bigblue or the Client may, without prejudice to its other rights or remedies, terminate this Agreement for any reason upon giving 30 days’ written notice to the other party (the “Termination Notice Period"). The Client may have full or limited access to the Bigblue Fulfillment Portal during the Termination Notice Period. Bigblue shall continue to process and fulfill all orders which have been submitted by the Client via the Bigblue Fulfillment Portal or otherwise during the Termination Notice Period.
  • Upon termination of this Agreement for any reason, the Client shall immediately pay Bigblue any outstanding unpaid invoices and interest due to Bigblue. Bigblue shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Client shall pay these invoices immediately on receipt. Bigblue shall promptly refund such portion of the sums prepaid by the Client as it relates to the period after expiry or termination on a pro rata basis.

Intellectual Property

  • Bigblue shall retain ownership of all its patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (“Intellectual Property Rights”).
  • The Client shall retain ownership of all Intellectual Property Rights in the Client’s Goods and any other materials and data supplied by the Client to Bigblue.
  • You agree that Bigblue may use and refer to your company, trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in Bigblue’s marketing and advertising materials.

Confidential Information

  • Neither Bigblue nor the Client shall disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except to:
  • its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause XIV; and
  • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Agreement.

Limitation of liability

  • The Client acknowledges and agrees that Bigblue shall not be responsible or liable for any damage to or loss suffered by the Client whether due to non-delivery or mis-delivery or mis-direction of the Client’s Goods or for any delay or deviation in respect of the transportation or delivery or other handling of the Client’s Goods as a result of any act or omission (including, without limitation, any negligence or willful neglect or default) of any Third Parties whether or not selected by or retained by Bigblue.
  • Without prejudice to the Agreement, Bigblue shall not be responsible or liable for any damage to or loss suffered by the Client unless it is proved that such damage or loss was due to the wilful neglect or wilful default of Bigblue or its agents, subcontractors and personnel.
  • Subject to Clause XVI-B, Bigblue’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to the actual value of the Client’s Goods or the amount paid or payable by the Client to Bigblue for the Services (excluding fees to Third Parties), whichever is less.
  • The Client agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) Bigblue shall not in any circumstances have any liability otherwise than in accordance with the express terms of this Agreement; and
  • Without prejudice to the generality of this Clause XVI, Bigblue shall not in any event, whether under Clause XVI-B or otherwise, be liable to the Client for any incidental, indirect, consequential loss or damage of any kind (including, without limitation, loss of market, profits, sales, agreements, contracts, anticipated savings, business or goodwill) whether in contract, tort (including negligence), for breach of statutory duty, or otherwise.

Indemnity

The Client agrees to indemnify and to hold harmless Bigblue and its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of the Client’s use of Bigblue’s Services and/or the Client’s violation of any term or condition of the Agreement.

Force Majeure

  • Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for one month, the party not affected may terminate this Agreement by giving 14 days’ notice to the affected party.
  • If termination occurs under Clause XVIII-A), all sums paid to Bigblue by the Client under this Agreement shall be refunded to the Client, except that Bigblue shall be entitled to payment on a quantum meruit basis for all work done before termination, provided that Bigblue takes all reasonable steps to mitigate the amount due.

Insurance

Each of the Parties undertakes to contract all the necessary insurance against possible failures arising in the course of the exercise of their respective activities.

Bigblue may insure the goods entrusted in storage according to the tariffs defined in the document Tariff Offer and Service Commitments available on request. In this case, the insurance will cover up to the last known selling price of the goods, damages related to:

  • Fire, explosion, lightning, electrical damage,
  • Water damage,
  • Burglary,
  • Gel,
  • Storm and hail on the roofs,
  • Smoke,
  • Fall of air navigation equipment,
  • Shock of land vehicle,
  • Riots, attacks, popular movements, acts of vandalism, sabotage and terrorism,
  • Natural disasters,
  • Collapse resulting from snow accumulation on the roof.

Bigblue will be able to ensure the transport of the parcels so as to be able to compensate transport disputes in the case where the responsibility of the carrier is clearly committed. Bigblue is responsible for obtaining the refund of the product in damage or in loss.
In the event that the transport of the goods is not insured, the reimbursement is made per kilo transported and according to the GTS of the carriers (generally of 23 € per kilo with a ceiling of compensation of 750 €)In the case where the transport of the goods is insured, the refund is made up to the price of sale transmitted in the command interface on the platform.

The Client may decide to insure itself the storage of its products. In this case, the Client will waive all recourse that it would be justified to exercise against Bigblue and its insurers, for all types of damages or prejudices that it may suffer and undertakes to obtain the same waiver from its insurers.A waiver of recourse will then have to be provided to Bigblue by the Client.

Severability

Each clause and sub-clause of the Agreement shall be independently interpreted and enforceable. If any clause or sub-clause of the Agreement is declared void, illegal or otherwise unenforceable by a court of competent jurisdiction, the remainder shall survive unaffected.

Counterparts

This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

Waiver

Our failure to exercise or enforce any right or provision of this Agreement, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or our right to act with respect to subsequent or similar breaches.

Amendments and Modifications

Any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of France. The competent court shall be the “Tribunal de commerce de Paris”.

  • Any variation to the Services set out in the Statement of Work shall not be effective unless it is in writing and signed by the parties (or their authorised representatives).
  • Bigblue may amend or replace these Terms of Service from time to time. In such circumstances we shall notify you of the changes and the new or amended Terms of Service will become part of the Agreement 14 days after such notification.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service and notices related to the Client’s account, will be in writing and given via email using the email address associated with your account. The date of receipt will be deemed the date on which such notice is transmitted.

Disputes

Should any dispute or claim arise out of or in connection with the Services or this Agreement, we and you will attempt to resolve the dispute or claim in good faith in the first instance by negotiation. If such negotiation is unsuccessful, we and you may agree to seek to resolve the dispute or claim by mediation. If it is not possible to resolve the dispute or claim by negotiation or mediation, then it may be dealt with by legal proceedings as provided below. Subject to Clause XXVI below, in relation to any legal action or proceedings ("Proceedings”) arising out of or in connection with the Services (whether contractual or non-contractual obligations), each of the parties irrevocably submits to the exclusive jurisdiction of the courts of France and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum.

Governing Law

Any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of France. The competent court shall be the “Tribunal de commerce de Paris”.

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