Showable Terms of Service
This policy is for retailers who wish to sell products on the Showable platform. Please also see our general usage policies here.
ACCEPTABLE USE POLICY
the Acceptable Use Policy covers all shipments made from Showable (“Showable”) facilities or on Showable shipping accounts whether through a user’s own web site, the Showable application, any online marketplace, or any other forum.
Showable reserves the right to take preventive or corrective actions to protect itself and its users at any time. Any user violating this policy voids any implied or express warranties and violates the Showable Terms. Violating this policy may also result in temporary or permanent limitation of a user’s account, a held account, termination of an account with 30 days’ notice, or immediate termination. This includes the inability to ship merchandise, to remove financial information from an account, and for users to close their accounts as a way of evading the policy. additionally, users whose accounts are permanently limited for violating this policy are barred from future use of Showable and its services, and such users are not permitted to directly or indirectly open new or additional Showable accounts on behalf of themselves or others. Please note, additional information on held accounts and termination is provided in the support section of this site. If you encounter violations of this policy, please report them to Showable immediately.
FULFILMENT SERVICES AGREEMENT (Australia)
THIS FULFILLMENT SERVICES AGREEMENT (“Agreement”) is entered into by and between SHOWABLE PTY. LTD. an Australian Proprietary Limited Liability the Client doing business with Showable (“Showable Marketplace”) (“the Client” together with Showable, the “Parties,” and each a “Party”)
WHEREAS, the Client is in the business of selling and/or manufacturing certain products; and
WHEREAS, Showable provides to various retailers and manufacturers direct-to-customer order fulfilment services, pursuant to which Showable provides storage, packing and shipping products to the retailer’s customers; and
WHEREAS the Client desires to retain Showable’s services, and Showable desires to provide services to the Client, subject to the terms and conditions of this agreement; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
The Client hereby engages Showable to provide, and Showable hereby agrees, upon the terms and subject to the conditions set forth in this agreement, to provide the services (as defined below) to the Client for the duration of the Term and the Renewal Term described in Section 2. During the Term, and any Renewal Terms, the conduct of the Parties shall be subject to the terms and conditions of this agreement, including conformance with the various Showable policies https://showable.com.au/plans/ (“Pricing”).
2.1 Term. the term of this Agreement commences on the effective date and continues for a period of 1 year unless earlier terminated as provided under this agreement or applicable law (“Term”). Upon expiration of the Term, this agreement automatically renews for additional successive one (1) year terms unless either Party provides written notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable law (each a “Renewal Term”). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this agreement and any exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.
3. SHOWABLE SERVICES
3.1 Services. Showable shall provide the following services to the Client (collectively, the “Services”):
(a) Receive shipments from the Client of the Product
(b) Provide storage facilities for the Inventory in Showable’s warehousing facilities (“Warehouse”).
(c) Upon notification by the Client or via the Showable platform of a purchase of products by a customer, Showable will pick and package the Products from the available Inventory, and ship such Products directly to the customer (“End-User”).
(d) Showable will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
(e) Upon request by the Client, Showable will include the Client packing slip, and/or other the Client marketing materials concerning the Product, to be provided by the Client.
(f) Showable will process, package and ship all Product orders in accordance with Showable Policies, and as may be further specified in Exhibit A.
(g) Showable will maintain monthly ledger summaries of all orders shipped and received, available upon request by the Client.
(h) Showable will facilitate any Product returns from the End-User to the Client.
(i) Showable will provide payment processing services for products sold on the Showable Marketplace and any integrated platform.
(j) Digital Services including web hosting services, software, third party programmes and software required to deliver the features selected in the Clients selected subscription plan.
(k) End-user Customer Support Services to assist the facilitation of products sales on the Showable Platform and integrated third-party platforms.
(i) In addition to the above-described Services, Showable shall perform any additional services, including special projects, that the Client desires Showable to perform, as more fully described in the relevant sections of this agreement, or in a separate agreement if required to be amended from time to time as agreed upon by the Parties.
4. COMPANY PERFORMANCE
4.1 General Compliance With Laws. the Client shall at all times comply with all laws applicable to this agreement and its obligations under this agreement, including the Client’s sale of the Products to End-Users. Without limiting the generality of the foregoing, the Client shall, at its own expense, maintain all certifications, credentials, Insurance, licenses and permits necessary to conduct its business relating to the sale of the Products; and not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any law.
5. COMPENSATION AND REIMBURSEMENT FOR SERVICES
5.1 Showable Fees. the Client agrees to pay Showable for the Services, in the amounts described on the website at https://showable.com.au/plans/, to be amended from time to time.
Additional services Showable offers:
- Shipping materials – Pricing available upon request
- Duties and Taxes Payment Processing (for inbound shipments if applicable)
- Web based services; website, domain name, email, email marketing services
- Customer “End-User” before and after sales service
- Weight-based Surcharge – $1 per 2kg if the item is over 2kg.
5.2 Invoicing. Showable shall send invoices to the Client on a monthly basis, on the 20th of each month, the company agrees to pay for subscription services at least 4 weeks in advance. the the Client may pay for subscription services weekly, fortnightly, or monthly provided they maintain a minimum account credit of 4 weeks worth of subscription. Unless otherwise agreed to in the form of an advertised promotion or written agreement signed by an authorized agent of Showable new users will be required to pay a deposit of no less than three (3) months in advance. All advance subscription payments are non-refundable. All other fees will be deducted from the companies sales claim before payment is processed. In the unlikely event there is a negative sales claim where the fees are more than the amount made from sales then an additional invoice will be sent and full payment will be required no more than 15 days after the date of an invoice.
5.3 Product Invoicing. Showable will provide payment processing services for all products sold on the Showable Marketplace or Integrated platforms, under no circumstances will Showable ship any product sold without first receiving full payment from the Customer or End-user. For products sold on non-integrated platforms separate from Showable platform any and all fees due for the cost of the Product shall be paid directly by the End-User to the Client. Under this circumstance Showable will not accept, receive or otherwise be held responsible for payments from an End-User made in exchange for the Product.
5.4 Failure of the Client to Make Timely Payments. If Showable fails to receive payment from the Client within 15 days after the date of an invoice, all Services shall stop until Showable receives payment. Furthermore, after 30 days of non-payment, Showable has the right to automatically charge the saved payment method on file or any payment method used in the past for the amount due. Any products owned by the Client in Showable’s possession will be held until full payment is received.
5.5 Late Payment Fee – If Showable fails to receive payment from the Client by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.
5.6 Failure to Pay – If Showable fails to receive payment from the Client after 90 days after the date of an invoice, Showable reserves the right to sell any of the Client’s products in Showable’s possession at a price Showable decides in order to recoup any payment owing and any associated costs or losses caused as a result. In the event Showable earns back more then the amount owing Showable will pay the Client the difference. If Showable is unable to recoup the amount owing and any associated costs or losses caused as a result within 180 days after the date of an invoice, Showable may refer the balance to a debt collection agency of it’s choice. the Client will be liable for any additional costs associated related to debit collection.
5.6 Options & Ways to Pay – Showable provides the Client with a convenience to pay for their invoices online through the Client’s account using the following payment methods: Bank Transfer (Free), Credit Card (3% convenience fee), PayPal (4% convenience fee), check (Free), or a money order (Free may apply). Showable is using a 3rd party payment processing company. If the Client’s invoice remains unpaid for more than 30 days from the issue date, Showable reserves the right to auto-charge any payment method that has been used in the past.
5.7 Auto-Pay – the Client has the right to opt-in for “auto-pay” service, which will automatically charge the saved payment method on file 5 days before the due date, for the amount due on the invoice.
6. REPRESENTATIONS AND WARRANTIES
6.1 Showable’s Representations and Warranties. Showable hereby represents and warrants to the Client that:
(a) It is duly organized, validly existing and in good standing in the jurisdiction of its formation;
(b) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this agreement;
(c) It has the full right, power and authority to enter into this agreement, to grant the rights and licenses granted under this agreement and to perform its obligations under this agreement;
(d) the execution of this agreement by its representative whose signature is set forth at the end hereof has been duly authorised by all necessary action of Showable;
(e) When executed and delivered by each of Showable and the Client, this agreement will constitute the legal, valid and binding obligation of Showable, enforceable against Showable in accordance with its terms; and
(f) To the best of Showable’s knowledge, the execution, delivery and performance of this agreement by Showable will not violate, conflict with, require consent under or result in any breach or default under: (i) any of Showable’s organisational documents; or (ii) any applicable law.
6.2 the Client’s Representations and Warranties. the Client hereby represents and warrants to Showable that:
(a) they are duly organized, validly existing and in good standing in the jurisdiction of its formation;
(b) they are duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this agreement;
(c)they have the full right, power and authority to enter into this agreement, to grant the rights and licenses granted under this agreement and to perform its obligations under this agreement;
(d) the execution of this agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Client;
(e) When executed and delivered by each of Showable and the Client, this agreement will constitute the legal, valid and binding obligation of the Client, enforceable against the Client in accordance with its terms; and
(f) To the best of the Client’s knowledge, it is in material compliance with all laws applicable to this agreement, the Products and the operation of its business.
7. TITLE, RISK OF LOSS, AND INSURANCE
7.1 Title. the Client hereby agrees that Products are held by Showable as Inventory in the Warehouse. Showable hold title, ownership in the Inventory. Title in Inventory will continue to be held by the Client until such time as the Products are delivered to the End-User.
7.2 Risk of Loss. the Client hereby agrees that at no time during the period that Products are held by Showable as Inventory in the Warehouse will Showable carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by the Client until such time as the Products are delivered to the End-User.
7.3 Insurance. the Client hereby agrees that it is the Client’s responsibility, at all times, to maintain an insurance policy that covers the cost of the Products held in Inventory. the Client has the option of adding the Warehouse as a designated storage location to the Client’s general inventory policy.
7.4 No Insurance. the Client can choose not to insure its inventory. In this event, Showable will, under no circumstances, be liable for any loss or damage to the inventory stored at Showable facilities. these events include, but are not limited to, theft, misuse, fire, natural disaster or any other event, not directly caused by Showable.
8. COMPANY’S ACCOUNT
8.1 the Client’s Account. In order to create an account with Showable, the Client will provide Showable with identifying information, a password, company information and information about the Products (“Registration Information”). the Client agrees to provide accurate Registration Information and will promptly update such Registration Information as necessary, but in no event later than 30 days after any applicable change. Upon Showable’s acceptance of the Client’s request to register for an account (“Account”), the Client will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. the Client agrees not to share the following: password(s), Account information, or Account access information. the Client is responsible for maintaining the confidentiality of password(s) and Account information, and is responsible for all activities that occur under the Client’s password(s) or Account(s) or as a result of access to the Account(s). the Client shall notify Showable immediately of any unauthorized use of the Account. Showable shall not be liable for any unauthorized use of the Account. Through the Account, the Client will select various Services, in addition to or in conformance with Exhibit A. Showable will not be liable for any shipping rate errors due to inaccurate or incomplete the Client information in the Account.
8.2 Services Available Through the Account. Subject to the Client’s compliance with this Agreement, Showable shall perform the Services described in this Agreement as selected and authorized by the Client in the Account, and described on Exhibit A attached hereto. the Client may order Services through the Account (“Showable Services Orders”). All Showable Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, the Client acknowledges and agrees that Showable is a broker of third-party warehouse and shipping services; accepting shipments from, and making shipments to, third parties. Showable is an independent contractor for all purposes, and only acts as the agent of the Client with respect to Showable’s custody of the Products in its Inventory.
8.3 Account Balances. Any invoices Showable sends to the Client in accordance with Section 5 of this Agreement shall be based on any balance accrued in the Client’s Account. “3rd Party Fees” are the fees for postage, shipping and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums or other charges given during the Client’s use of Services) ordered through the Account and any special or additional fees assessed against the Account as permitted in this Agreement. the 3rd party fees for Services are billed during the month in which the Services are performed, but such 3rd Party Fees are subject to change due to circumstances beyond Showable’s control. The Client agrees and acknowledges that should the Client change Account billing plans during or at the end of any month, the previous pricing plan may no longer be available. All other fees for the Services to this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc.will be billed on the 20th day of the month following the conclusion of the month for which such Services were provided, or an Account Balance has accrued.
8.4 Showable Services Estimates. Quotes for 3rd party fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon Showable. Quotations accepted through Showable’s online interface are estimates based on the information available at the time made. the final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.
8.5 Currency Fluctuations. Showable reserves the right to adjust its pricing for the Services in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. All dollar amounts stated in this Agreement will be in Austrailan dollars and are exclusive of GST unless otherwise specified.
8.6 Usage Fee Disputes. Should the Client disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, the Client must submit written notice to Showable within 60 days of the fee being charged (“Dispute Period”). Showable will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
8.7 Liens. Showable shall have a priority security interest in all Products in Inventory and on the proceeds thereof to secure the payment of all Usage Fees and 3rd Party Fees as well as any reasonable expenses incurred by Showable for the preservation of the Inventory or its sale. In connection therewith, the Client hereby (a) grants to Showable a first priority security interest in all Inventory and the proceeds thereof to secure the payment of the User Fees and fees for Services, (b) consents to and grants to Showable the right to deliver and file any documentation required under applicable laws and regulations to perfect such security interest, and (c) irrevocably waives any requirements for its signature on any document filed by Showable under this Section 8.7.
8.8 Account Balance Disputes. If Showable becomes aware of, or is notified of a dispute relating to the Account Balance, then Showable will promptly review the dispute. Within 5 days after the resolution of the dispute, Showable will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
8.9 Abandoned Account and Liquidation. If the Client’s Usage Fees or 3rd Party Fees remain unpaid for a period greater than 30 days, then Showable reserves the right, at its sole discretion to reclassify the Client’s Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 90 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, the Client immediately forfeits all rights of ownership of such the Client’s Inventory. Inventory will become immediately and irrevocably unavailable to the Client, and liquidation proceedings would begin. the Client agrees the Inventory would be free and clear of liability, and that the Client assumes any liability therefore. the Client has no rights to any liquidation proceeds arising from an Abandoned Account and would remain liable for any pending Usage Fees and 3rd Party Fees above and beyond the liquidation proceeds.
8.10 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to the Client, and all activities will be suspended. Showable reserves the right to place an Account on hold for a number reasons, including but not limited to the following:
(a) Account Balance remaining unpaid within 30 days of receipt of invoice;
(b) suspicious activity on or through the Account;
(c) if anyone using the Account uses abusive language or otherwise threatens Showable or its staff;
(d) to allow time to resolve or investigate a third party complaint of a violation of this Agreement;
(e) To allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and
(f) To allow time for Showable to comply with any extraordinary support requests.
8.11 Termination with 30 days’ Notice. Showable reserves the right to terminate an account for any reason upon 30 days’ Notice (“Termination Notice Period”). the Client may have full or limited use of the account during the Termination Notice Period, subject to Showable’s discretion. Any Product inventory that remains in Showable’s inventory at the expiration of the Termination Notice Period will be shipped to the Client at the address on file and, if the address is not on file, the billing address on the Client’s credit card, at the Client’s expense. If no address is available or no balance is available to pay for shipment back to the Client, Showable will liquidate the Product inventory in accordance with an abandoned account.
8.12 Additional Actions. If the Client is in breach of any of the terms of this Agreement, Showable may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, Showable may also take any actions available, including, without limitation, any of the following :
(a) contact End-Users who have received Products, contact the Client’s bank or credit card issuer, and warn other users, law enforcement, or impacted third parties of the Client’s actions;
(b) refuse to provide the Services in the future;
(c) hold Account funds and Inventory for up to 180 days if reasonably needed to protect against the risk of liability; and
(d) take any available legal action.
8.13 Closing Accounts. the Client may close the account for any reason, upon giving Showable 30 day’s prior written Notice. Any remaining inventory will be returned at a rate of $0.5 / item plus any costs of delivery or packaging required. Any digitial assests remain the property of Showable, however any intelectal property owened by the client where practical be returned or transferred to the Clients chosen service provider at the clients expense. Expect where the intelectal property has become embeaded into the Showable platform and can-not be removed without negitivly affecting Showable’s delivery of services to other Clients or Customers “End-Users” any intelectal property that is not able to be or is not practical to return shall be distoryed or removed form the platform. Any money oweing to Showable must be paid in full before the Clients property can be returned.
9. SHOWABLE INTELLECTUAL PROPERTY RIGHTS
9.1 Showable Property. For purposes of this Agreement, “Showable Property” shall mean (a) Showable’s methodology for the provision of the Services; and (b) Showable’s Confidential Information. Showable hereby retains all worldwide right, title and interest in and to the Showable Property. Any rights not expressly granted herein to the Showable Property shall be retained by Showable. the Client acknowledges that all right, title and interest to the Showable Property is owned by Showable.
9.2 Additional Restrictions. Other than as permitted herein, the Client shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Showable Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights the Client receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Showable and the Client shall not copy, imitate, or use them without Showable’s express prior written consent. the Client may use logos provided by Showable through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to the Showable platform, the Client shall not alter, modify or change such logos in any way, use them in a manner that is disparaging or otherwise adverse to Showable or the Services, or display them in any manner that implies Showable’s sponsorship or endorsement. the Client shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access Showable’s website or Services for any purpose without Showable’s express written permission, (ii) interfere or attempt to interfere with the proper working of Showable’s website or any activities conducted on the website, or (iii) bypass any measures Showable may use to prevent or restrict access to Showable’s website or the Services.
9.3 Client Property. No Confidential Information obtained by Showable from the Client shall become Showable Property. All materials provided by the Client shall be deemed “Client Property” for purposes of this Agreement. the Client grants Showable a non-exclusive license to the Client Property solely as needed to provide the Services. This includes but is not limited to Client’s images, branding, trademarks, customer data base, product information, etc.
9.4 Data Security. Showable utilises software and services from third party providers. Registration Information, Account data, information and other data (“Data”) is currently stored and processed in the Australia however some Client information may be required to be shared with our software providers in order to deliver the features the Client has chosen as part of their subscription. Showable has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. these measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. Showable will use reasonable efforts to promptly notify the Client of any unauthorized Account access to, or use of, Data that comes to Showable’s attention. the Client agrees to immediately notify Showable of any suspected security breach at email@Showable.com.au, followed by contacting Showable customer support.
9.5 Third Party Software. Any third party software application the Client uses on the Showable website, to connect to the Services, or related to the Services (“Third Party Software”) is solely subject to any third party software provider software licenses. Showable does not own, control or have any responsibility or liability for any Third Party Software.
10. CONFIDENTIAL INFORMATION
10.1 Scope. From time to time during the Term, either Party (“Discloser”) may disclose or make available to the other Party (“Recipient”) Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as “confidential.” For purposes of this Agreement, “Confidential Information” includes all industrial and other intellectual property rights comprising or relating to:
(a) All patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models);
(b) All rights in and to Australian and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
(c) All rights and internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;
(d) All rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and
(e) All inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.
10.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:
(a) information that is or becomes generally available to and known by the public;
(b) information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;
(c) information published or otherwise made known to the public by Disclosure;
(d) information that was generated independently without reference to the Discloser’s Confidential Information; or
(e) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that the Recipient provide Disclosure with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
10.3 Protection of Confidential Information. Recipient shall protect and safeguard the confidentiality of Discloser’s Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and not disclose any such Confidential Information to any Person, except: (i) to Recipient’s representatives who need to know the Confidential Information to assist Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; or (ii) pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Recipient shall first provide Disclosure with: (A) prompt Notice of such requirement so that Disclosure may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Disclosure’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
the Recipient shall be responsible for any breach of this Section 10.3 caused by any of its representatives. the provisions of this Section 10.3 shall survive termination or expiration of this Agreement for any reason for a period of 5 year after such termination or expiration. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 10.3.
10.4 Return or Destruction. Other than transactional information that is retained in the ordinary course of Showable’s business, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed promptly after receipt of written request from the other party.
10.5 Aggregate Use. Subject to the terms and conditions of this Agreement, the Client hereby acknowledges and agrees that Showable may compile aggregate results from all, or a selection of the Client’s use of the Services, provided that Showable shall not disclose any information that would individually identify the Client (“Aggregate Information”). Such Aggregate Information shall be deemed to be Showable’s Confidential Information. the Client also hereby agrees that Showable may review and use the Client’s individual use of the Services in order to provide Services to the Client, to evaluate Showable’s provision of the Services, and to improve Showable’s service offerings.
11.1 the Client Indemnification. Subject to the terms and conditions of this Agreement, the Client shall indemnify, defend and hold harmless Showable and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, “Losses”)arising out of or resulting from any claim of a third party alleging:
(a) Breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by the Client;
(b) Any negligent or more culpable act or omission of the Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(c) Any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of the Client;
(d) the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Showable;
(e) Any failure by the Client to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or
(f) Any failure by the Client to comply with any applicable state, federal or international laws.
12.1 AS IS. SHOWABLE’S OBLIGATIONS UNDER THIS AGREEMENT AND THE ATTACHED EXHIBITS (INCLUDING THE USE OF SHOWABLE’S WEBSITE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHOWABLE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES, SHOWABLE’S WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF SERVICES, SHOWABLE WEB SITE, OR THIRD PARTY SERVICES IS AT COMPANY’S RISK.
12.2 No Continuous Access. Showable does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Showable’s control. However, Showable will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Showable makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
13. LIMITATION ON SHOWABLE LIABILITY
13.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER SHOWABLE NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY THE CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY SHOWABLE/ OR COULD HAVE BEEN REASONABLY FORESEEN BY SHOWABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL SHOWABLE’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY THE CLIENT TO SHOWABLE EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). SHOWABLE MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR THE CLIENT WAIVE ALL DAMAGES FROM SHOWABLE.
13.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE THE CLIENT EXCLUSIVE REMEDY AGAINST SHOWABLE FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT SHOWABLE CONVERTED THE INVENTORY TO ITS OWN USE. THE CLIENT HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
13.3 INVENTORY COUNT INACCURACIES. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT SHOWABLE IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND SHOWABLE IS HELD LEGALLY LIABLE, THE CLIENT AGREES THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND SHOWABLE’S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL SHOWABLE BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
13.4 PROJECTS. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“SPECIAL PROJECT”), THE CLIENT AGREES AND ACKNOWLEDGES THAT SHOWABLE’S LIABILITY SHALL BE LIMITED TO THE CHARGE THE CLIENT PAID TO SHOWABLE FOR THE PROJECT.
14. GENERAL PROVISIONS
14.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and Showable Services Orders constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
14.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.
14.3 No Waiver. Failure or delay of Showable to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
14.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to the Client must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal notices to Showable must be sent by postal mail to: Showable Pty Ltd, Attention: Legal Department, GPO BOX 3181 Brisbane QLD 4001
14.5 Assignment. the Client may not transfer or assign any rights or obligations under this Agreement without Showable’s prior written consent. Any attempted assignment without that consent will be void. Showable reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing provisions of this Section, this Agreement shall be binding on and inure to the benefit of the parties’ successors and assigns.
14.6 Conflict of Terms. If there is a conflict between this Agreement and the terms of any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, this Agreement shall control.
14.7 Attorneys’ Fees and Costs. Showable shall have the right to collect from the Client any reasonable costs and/or attorneys’ fees incurred in enforcing this Agreement.
14.8 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of Queensland or Tasmania without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of Australia. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in Queensland or Tasmania. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Brisbane City Queensland or Hobart City Tasmania. Notwithstanding the foregoing, Showable may seek injunctive or other equitable relief to protect Showable’s intellectual property rights in any court of competent jurisdiction.
14.9 Mandatory Mediation and Arbitration of Disputes. Except for disputes relating to payment for the Services or as otherwise expressly provided in this Agreement, all disputes arising under this Agreement, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, or otherwise from the use of or access to Showable’s website or the Services, shall be determined by arbitration in the States of Queensland or Tasmania, within Brisbane City Queensland or Hobart City Tasmania. (using the English language), before one arbitrator. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. the arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. the Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. the mediation may continue, if the Parties so agree, after the appointment of the arbitrators. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. the pendency of a mediation shall not preclude a Party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the Parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.
14.10 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). the Client’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or the Client actions or contract disputes will not excuse performance by the Client under this Section. the Client shall give Showable prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. the Client shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.
If requested by Showable, the Client shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. the rights granted to the Client with respect to excused delays under this Section are intended to limit the Client’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the Competition and Consumer Act 2010 (CCA) or any similar statute or regulation.
the information we learn from customers helps us personalize and continually improve your shipping experience at Showable. Here are the types of information we gather.
Information you give us: We receive and store any information you enter on our Web site or give us in any other way. You provide most such information when you price, ship, participate in a contest or questionnaire or communicate with customer service. As a result of those actions, you might supply us with such information as your name, address, and phone numbers; credit card information; people to whom packages have been shipped, including addresses and phone number; people (with addresses and phone numbers) listed in your address book; content of reviews and e-mails to us; personal description; and financial information, including Social Security and driver’s license numbers. You can choose not to provide certain information, but then you might not be able to take advantage of many of our features. We use the information that you provide for such purposes as responding to your requests, customizing future shipping for you, improving our site, and communicating with you.
Behavioural “retargeting” Advertising: We use third-party advertising companies to serve ads when you visit our Website. these companies may use information (not including your name, company, address, email address, or telephone number) cookies or web beacons to collect non-personally identifiable information such as IP address, pages viewed, and if a conversion and other information about your visits to this and other Web sites in order to provide advertisements about products and services of interest to you.
Email Communications: To help us make emails more useful and interesting, we often receive a confirmation when you open an email from Showable if your computer supports such capabilities. We also compare our customer list to lists received from other companies, in an effort to avoid sending unnecessary messages to our customers. If you do not want to receive email or other mail from us, please go to the My Account link in the header of any Showable page and adjust your Newsletter preferences.
Information from other sources: We might receive information about you from other sources and add it to our account information. Examples of information we receive from other sources include updated delivery and address information from our carriers or other third parties, which we use to correct our records and deliver your next shipment or communication more easily; account information, purchase or redemption information, and page-view information; pricing criteria and pricing result information; and credit history information from credit bureaus, which we use to help prevent and detect fraud and to offer certain credit services to some customers.
Information about our customers is an important part of our business, and we are not in the business of selling it to others. We share customer information only as described below.
Affiliated businesses we do not control: We work closely with our affiliated businesses. Examples of co-branded and joint offerings include carriers which handle the delivery of your packages, and brokers which provide your packages with cargo insurance. You can tell when a third party is involved in your transactions, and we share customer information related to those transactions with that third party.
Agents: We employ other companies and individuals to perform functions on our behalf. Examples include fulfilling orders, delivering packages, sending postal mail and email, removing repetitive information from customer lists, analyzing data, providing marketing assistance, providing search results and links (including paid listings and links), processing credit card payments, and providing customer service. they have access to personal information needed to perform their functions but may not use it for other purposes.
Promotional offers: Sometimes we send offers to selected groups of our customers on behalf of other businesses. When we do this, we do not give that business your name and address. If you do not want to receive such offers, please go to the My Account link in the header of any Showable page and adjust your Newsletter preferences.
Business transfers: As we continue to develop our business, we might sell or buy business units. In such transactions, customer information generally is one of the transferred business assets but remains subject to the promises made in any pre-existing Privacy Notice (unless, of course, the customer consents otherwise). Also, in the unlikely event that we or substantially all of our assets are acquired, customer information will, of course, be one of the transferred assets.
Law Enforcement: Showable’s policy is to notify members of requests for their data unless it is prohibited from doing so by statute or court order. Law enforcement officials who believe that notification would jeopardize an investigation should obtain an appropriate court order or other processes that specifically precludes member notification.
With your consent: Other than as set out above, you will receive notice when information about you might go to third parties, and you will have an opportunity to choose not to share the information.
We reveal only the last five digits of your credit card numbers when confirming a shipment. Of course, we transmit the entire credit card number to the appropriate credit card company during order processing. It is important for you to protect against unauthorized access to your password and to your computer. Be sure to sign off when finished using a shared computer.
Showable gives you access to a broad range of information about your account and your interactions with Showable for the limited purpose of viewing and, in certain cases, updating that information. If you are under 18, you may use Showable only with the involvement of a parent or guardian.