Shopify Fulfillment Network – Terms of Service

1. Definitions

Those capitalized terms not defined within the SFN Agreement will have the following meanings:

1. “Account Suspension” has the meaning set out in Section 7.5.
2. “Administrative Console” means the Shopify web administrative console associated with your account.
3. “Affiliate” of an entity means an entity controlling, controlled by, or under common control with such entity.
4. “Approved Rate Card” has the meaning set out in Section 6.2.
5. “Authorized Payment Method” means any valid payment method that you authorize Shopify to bill.
6. “Confidential Information” has the meaning set out in Section 11.1.
7. “Corrective Action Plan” has the meaning set out in Section 7.5.
8. “DDP” means delivered duty paid as defined in the International Chamber of Commerce Terms (Incoterms).
9. “Effective Date” means the earliest of (a) the effective date stated in the SFN Merchant Order, (b) the date you clicked on “I agree” (or a similar box or button) when signing up for Fulfillment Services, or (c) the date you started using any Fulfillment Services.
10. “EXW” means ex works as defined in the International Chamber of Commerce Terms (Incoterms).
11. “Fees” means the rates set out in the Approved Rate Card.
12. “Fulfillment Locations” means each warehouse location in which Shopify has agreed to have Products warehoused.
13. “Fulfillment Services” has the meaning set out in the recitals.
14. “Infraction Notice” has the meaning set out in Section 7.5.
15. “International Locations” means any mailing address that is not within the fifty states of the United States. Territories of the United States are International Locations.
16. “Losses” has the meaning set out in Section 9.2.
17. “SFN Merchant Order” means the order form related to Fulfillment Services and agreed to by you.
18. “Product” has the meaning set out in Section 2.2.
19. “Released Parties” has the meaning set out in Section 9.2.
20. “Releasing Parties” has the meaning set out in Section 9.2.
21. “Shopify AUP” means the Shopify Acceptable Use Policy set out at https://www.shopify.ca/legal/aup.
22. “Shopify IP” has the meaning set out in Section 2.6.
23. “Shopify Privacy Policy” means the privacy policy set out at https://www.shopify.ca/legal/privacy.
24. “Shopify Terms of Service” means the terms of service set out at https://www.shopify.ca/legal/terms.
25. “Shrinkage Allowance” has the meaning set out in Section 12.1.
26. “Store” means your online store or physical retail location registered with Shopify.
27. “Suggestions” has the meaning set out in Section 14.9.
28. “Standard Packaging” means the standard packaging supply categories approved by Shopify and stated in your approved rate card(s) in the Administrative Console, as applicable.

2. Fulfillment Services

1. Fulfillment Services. During the Term, Shopify shall provide Fulfillment Services to you in respect of orders on Shopify, including those that originate from any sales channel that Shopify supports. Shopify shall perform the Fulfillment Services as selected and authorized by you from your Administrative Console.

2. Product Approval.

   i. Registration. Following the Effective Date, you must register each product with Shopify that you wish to fulfill and ship using the Fulfillment Services. For each such product that you wish to register with Shopify you must provide Shopify with a full description of the product together with the replacement value of the product and any special product storage, handling or shipping requirements, and you agree to provide any detail to Shopify that Shopify may request in this regard. Each product must be approved by Shopify (once approved, a “Product”) before it is eligible to be fulfilled and shipped using the Fulfillment Services.

   ii. Changes. You may request the addition of new products to the list of Products from time to time during the Term in accordance with Section 2.2(i). You agree that Shopify shall have no obligation to consider or approve new products between the dates of October 1st and December 31st in any calendar year of the Term Shopify must receive at least thirty (30) days prior written notice from you for all registration requests for new products.

   iii. Product Description. Any Product description provided by you to Shopify will correctly describe the weight and dimensions of each Product, as well as the Harmonized Sales Tariff Code for such Product. If a Product’s described weight or dimensions are different from the actual Product upon review by Shopify, Shopify’s Fee estimates may be inaccurate and you agree to pay any difference in Fee or other additional cost when the actual fulfillment cost for such Product is incurred, including the resulting administrative cost incurred by Shopify for any corrective measures. Shopify takes no liability for, and will not be responsible for, any cost or expense due to erroneous Product weight or dimension descriptions, and Shopify will not issue any refund or payment to you for any resulting overpayment of carrier charges. Any carrier charges quoted by Shopify are estimates. Shopify may edit any Product characteristics, including dimensions and weight, at its sole discretion in order to reflect correct packing requirements.

   iv. Unapproved Changes. Where (a) you provide less than thirty (30) days prior written notice to Shopify for a new product registration request, or (b) Shopify has not approved a product, Shopify is under no obligation to provide Fulfillment Service with respect to such products and Merchant will bear all cost or expense incurred by Shopify to process or return such products, including Special Project Fees.

3. Additional Services Provided by Shopify. Shopify may provide contact information for Fulfillment Services support where Shopify determines such support is required.

4. Fulfillment Services Relationship. You acknowledge and agree that, in addition to providing warehouse and shipping services directly, Shopify is also a broker of third-party warehouse and shipping services, and you are directing Shopify to share information with such third-party warehouse and shipping services to facilitate the Fulfillment Service. The Fulfillment Service helps you to accept shipments from, and make shipments to, third parties. Shopify is an independent contractor for all purposes where the warehouse and products are provided by third parties. Shopify is acting solely as an agent of the Merchant with respect to the custody of the Products.

5. Shopify Intellectual Property. Merchant acknowledges and agrees that: (i) the Fulfillment Services, including without limitation any associated software, documentation, applications, websites, tools and products, and any modifications, enhancements and updates thereto, and all intellectual property rights therein (collectively, “Shopify IP”) are exclusively owned by Shopify or our third party providers; (ii) the Shopify IP contains valuable copyrighted material and is protected by Canadian, U.S. and international copyright and other intellectual property laws; (iii) subject to Merchant’s compliance with the Agreement, Shopify grants Merchant a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to access and use the Shopify IP, solely for the purposes of using the Fulfillment Services in compliance with the Agreement; and (iv) Merchant has no rights in the Shopify IP, other than the rights and licenses granted herein.

3. Inbound Product Delivery, Forecast, Variance

1. Inbound Product Delivery. You will comply with all inbound Product requirements provided by Shopify, including providing Shopify with an estimated time of arrival and tracking number for all inbound shipments, and any other requirements or information requested by Shopify. If the inbound Product requirements are not met, Shopify may refuse any non-compliant inbound shipment, or invoice you for the cost to remedy any non-compliant inbound shipments, as described in your Approved Rate Card. Shopify makes no commitment with respect to timing and availability of the Fulfillment Services for non-compliant inbound shipments and Products, and such services will be delayed by at least ten (10) clear business days. Shopify may refuse any inbound shipment at Shopify’s sole discretion, including where Product volumes at a Fulfillment Location exceed at least six (6) months’ demand forecast as determined by Shopify.

2. Freight Delivery by Merchant. You shall deliver the products DDP Fulfillment Location. For the avoidance of doubt, Shopify will not act as importer of record, and you are responsible for all costs incurred to ship the Products to the Fulfillment Locations (including costs of freight and transit insurance). Shopify will not pay any cost or expense associated with inbound shipping and receiving, including inbound shipping costs. You are responsible for payment of all customs, duties, taxes, and other charges. Shopify may, at its sole option, allow you to ship Products to the Fulfillment Locations using discounted shipping rates that Shopify makes available to you for certain carriers. If you are using such discounted shipping rates made available by Shopify, you will use the processes and supply the information required by Shopify to offer such discounted shipping rates.

3. Title and Risk of Loss. Risk of loss of or damage to any Products while at a Fulfillment Location is described below at Section 12 (Shrinkage, Loss and Merchant Insurance). Title to the Product shall remain with you at all times except where otherwise specified by the SFN Agreement, including Section 5.3 (Disposal). If Product is returned then risk of loss or damage for such Product shall pass in accordance with Section 5 (Returns & Disposal). If Product is sent at your request from a Fulfillment Location then risk of loss or damage to a Product shall pass when that Product is made available for pick up by a carrier at a Fulfillment Location.

4. Forecasting. Shopify will recommend an estimated forecast of inbound and outbound Products to you on a regular basis (“Forecast”) for your confirmation. If no objection to the Forecast is provided to Shopify within fourteen (14) days of the Forecast being provided to you, the Forecast is deemed confirmed as provided.

5. Variance. Shopify will measure variance, which is the difference between actual inbound and outbound Products and the Forecast (the “Variance”). Shopify will allow Variance of 80% of fulfillments volume up to 120% of fulfillments volume when compared to the Forecast. Variance will be calculated daily and billed monthly.

   i. Excess Variance. Variance exceeding 120% of fulfillments volume when compared to the Forecast will be fulfilled by Shopify on a best commercial efforts basis and will not have an SLA guarantee.

   ii. Shortfall Variance. Variance less than 80% of fulfillments volume when compared to the Forecast may incur additional Fees equal to the Forecast.

4. Storage

1. Access to Inventory. Once your Product is accepted to a Fulfillment Location, such Products will no longer be available for inspection, exchange or pickup by you without an outbound shipment including any fees incurred for handling and such outbound shipment. You will submit a standard order for shipping if you elect to move your Product to another location, including an alternate Fulfillment Warehouse or any other location. You agree that it is not permitted to visit any Fulfillment Location without Shopify’s prior written approval.

2. Product Movement. Shopify is permitted to move Products between Fulfillment Locations without your prior approval at Shopify’s sole discretion and expense.

3. Product Records. Shopify will keep electronic records that track inventory of Products by identifying the number of Products stored in any Fulfillment Location. Shopify is not required to physically mark or segregate Products from other third party products, unless the Parties mutually agree in writing.

5. Returns & Disposal

1. Returns. You will be responsible for, and will accept, process, and provide refunds and adjustments for returns of your Products. Shopify may accept Product returns to a Fulfillment Location where (a) the Product was not ordered from an International Location, (b) the Product’s Merchant is registered in the United States, and (c) Shopify has previously expressly approved your requested standard operating procedure for warehouse returns in writing. In the event that a Product is returned by a customer to a Fulfillment Location, you will incur additional Fees to process returns. For all other Product returns, Products must be delivered EXW Merchant location and not back to a Fulfillment Location.

2. Return to Merchant. You may request at any time, and at your sole cost and expense, (a) that Products be returned to you at your designated shipping address or (b) that Shopify dispose of any Products. Where you request that Products be returned to you, you agree to submit a standard order pursuant to Section 4.1. Product returns will be sent EXW Merchant location. For the avoidance of doubt, all such Product returns will be at your sole cost and expense, and Shopify may invoice you for the cost to process any return under this Section 5.

3. Return by Shopify & Disposal. At Shopify’s sole discretion, Shopify may return to Merchant any Product, including Products that have been stored at one or more Fulfillment Locations for more than one (1) year. Product returns will be sent EXW Merchant location. Shopify may dispose of any Product, including if Shopify determines in its sole discretion that such Product violates the Shopify AUP (and you will be deemed to have consented to Shopify’s actions): (i) immediately if Shopify determines in its sole discretion that the Product creates a safety, health, or liability risk to Shopify, its personnel, or any third party; (ii) if you do not direct Shopify to return or dispose of any Product within thirty (30) days of Shopify notifying you that the Product has been recalled or is unfit for delivery to a customer; or (iii) if you fail to direct Shopify to return or dispose of any Product within thirty (30) days of Shopify notifying you that Product is being returned. You will reimburse Shopify for any expenses that Shopify incurs in connection with any return or disposal of Product pursuant to Section 5. Shopify may dispose of any Product at Shopify’s sole discretion, in any manner that Shopify elects. Title to each disposed Product will transfer to Shopify at no cost to Shopify as necessary for Shopify to dispose of such Products.

6. Fees

1. Merchants are responsible for paying Shopify all applicable Fees. The rates applicable to each of the Fees are set out in the Shopify web administrative console associated with the Merchant’s account (“Administrative Console”), as may be amended from time to time.You will pay Shopify the Fees that you incur, without setoff or deduction.

2. Approved Rate Card. The Administrative Console contains Merchant’s approved rates for Fulfillment Services (“Approved Rate Card”). Merchant may have more than one Approved Rate Card listed in the Administrative Console if Products are located at Fulfillment Locations in both the United States and Canada, or if Products have special requirements. The Parties agree that these Fees are subject to change, including according to Section 6.8 (Fee Changes) below. Shopify reserves the right to update and change the Fees by posting updates and changes to the Administrative Console.

3. Billing Schedule. All Fulfillment Service charges incurred under the SFN Agreement are itemized and are viewable in the Billing section of the Billing page in your Administrative Console. Fees will be charged on a daily or monthly basis according to the Fulfillment Service being charged, as stated in the Administrative Console. All other charges under the SFN Agreement will be charged by Shopify as they accrue. All Fees will be charged to your Authorized Payment Method.

4. Applicable Currency. Unless the parties agree otherwise in writing, all Fees and any other charges related to the SFN Agreement will be calculated in U.S. dollars, and all payments shall be made in U.S. dollars.

5. Taxes. You shall, in addition to the other amounts payable under the SFN Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state, provincial or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by the SFN Agreement, excluding only taxes based on Shopify’s net income. You agree to indemnify, defend, and hold Shopify, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from any failure to report or pay any such taxes, duties or assessments.

6. Disputed Charges. It is your responsibility to review all invoices for accuracy. Failure to dispute any charge within thirty (30) days of the applicable invoice date, whichever is later, will constitute your agreement that the invoiced Fees and other applicable charges are accepted and valid, and you waive any claims you may have had regarding such Fees or charges.

7. Unpaid Fees. If Shopify is not able to process payment of Fees using the Authorized Payment Method, Shopify will notify you. If the outstanding Fees remain unpaid for thirty (30) days following the date of suspension, Shopify may terminate the SFN Agreement. Any unpaid Fees (excluding amounts reasonably disputed by you in good faith) will bear interest at the rate of 1.5% per month, or the highest rate permitted by applicable law. You shall pay all reasonable expenses (including attorney’s fees and court costs) incurred by Shopify in collecting unpaid Fees, excluding amounts reasonably disputed by you in good faith.

8. Fee Changes. The Parties agree that Shopify may amend the rates applicable to each of the Fees as follows:

   a. Input Costs & Carrier Rate Increases. The Parties agree that the Fees (a) are subject to change according to the terms stated in the SFN Agreement, and (b) may increase from time to time by an amount equal to any increase to Shopify’s input costs for the Fulfillment Services (such as, without exclusion, increases to the carrier rates that Shopify receives from third party carriers)

   b. Account Adjustments. The Parties may amend the rates applicable to each of the Fees on mutual written agreement. Such rates will be binding on the Parties as of the date mutually agreed in writing by the Parties, and shall replace those otherwise stated in the Administrative Console.

   c. Fee Changes. Shopify may amend the rates applicable to each of the Fees (f) including, without limitation, for changes to input costs such as transportation cost increases. Where Shopify amends rates pursuant to this Section 8(c), Shopify will endeavor to provide thirty (30) days’ prior written notice of such changes to Merchant (“Fee Change Notice”). The rates stated in such a Fee Change Notice will be binding on the Parties as of the date specified in the Fee Change Notice, and shall replace those otherwise stated in the Administrative Console.

   d. Pricing Model Changes. Shopify may amend the rates applicable to each of the Fees at Shopify’s sole discretion where Shopify updates the pricing model for services. Where Shopify amends rates pursuant to this Section 8(d), Shopify will provide at least ninety (90) days’ prior written notice of such changes to Merchant (“Pricing Model Change Notice”). The rates stated in the Pricing Model Change Notice will be binding on the Parties as of the date specified in the Pricing Model Change Notice, and such rates shall replace those otherwise stated in the Administrative Console.

7. Term, Termination and Suspension

1. Term. Unless terminated earlier pursuant to the terms and conditions of the SFN Agreement, the SFN Agreement shall commence on the Effective Date and shall remain in force until terminated in accordance with this Section 7 (the “Term”).

2. Termination for Convenience. You may terminate the SFN Agreement at any time during the Term by providing Shopify with at least forty-five (45) days’ prior written notice. Shopify may suspend or terminate the SFN Agreement at any time during the Term by providing Merchant with at least forty-five (45) days' prior written notice.

3. Termination. In addition to Shopify’s right to terminate the Services (as defined in the Shopify Terms of Service) pursuant to the Shopify Terms of Service and the Shopify AUP, and the termination rights set out elsewhere in the SFN Terms of Service, including Section 2(b), either party may terminate the SFN Terms of Service upon written notice if the Merchant Agreement is terminated in accordance with its terms or if the other party: (i) assigns or attempts to assign the SFN Terms of Service to a third-party in violation of the SFN Terms of Service; (ii) fails to correct a material breach of its obligations under the SFN Terms of Service within 30 days after receipt of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) initiates a bankruptcy, reorganization or insolvency proceeding, or has such a proceeding initiated against it, makes an assignment for the benefit of creditors, or consents to the appointment of a trustee. For the avoidance of doubt: (a) if the SFN Terms of Service terminates in accordance with its terms, the Shopify Terms of Service will not co-terminate unless the Shopify Terms of Service is also terminated in accordance with terms of the Shopify Terms of Service; and (b) if the Shopify Terms of Service terminates in accordance with its terms, then the SFN Terms of Service will co-terminate on the same day as the Shopify Terms of Service.

4. Effect of Termination. Upon the termination of the SFN Terms of Service by either party for any reason:

   (a) Shopify will cease providing you with the Fulfillment Services and you will no longer have access to the Fulfillment Services section in your Administrative Console for the Store(s);

   (b) unless otherwise provided in the SFN Agreement, you will not be entitled to any refunds of any prepaid Fees, pro rata or otherwise;

   (c) any outstanding balance of any Fees or other charges owed by you to Shopify up to the effective date of termination will immediately become due and payable in full; and

   (d) returned Products will be sent to your designated shipping address at your sole cost and expense. However, if Shopify and Merchant do not agree on appropriate return shipping and storage arrangements and charges for returned Products, then you must collect all returned Products within thirty (30) days of Shopify sending notice of termination of the SFN Terms of Service, after which the Parties agree that the Product(s) will be deemed abandoned and Shopify may elect to dispose of the Product(s) in Shopify’s sole discretion, and at Merchant’s sole cost and expense.

5. Account Suspension. Shopify may issue notice to you for non-compliance with (a) this SFN Agreement or (b) for any Shopify requirement in delivery of the Fulfillment Services, at Shopify’s sole discretion (“Infraction Notice”). Where Merchant receives three (3) Infraction Notices in any rolling twelve (12) month period, Shopify may suspend your SFN account (“Account Suspension”) for a period of two (2) weeks, or such other duration as Shopify determines at its sole discretion. While a Merchant is under Account Suspension, Shopify will be under no obligation to perform Product fulfillment or to otherwise perform any Fulfillment Services for Merchant. Prior to reinstatement of any SFN account, Shopify may require Merchant to provide a corrective action plan (“Corrective Action Plan”) setting out the remedial steps that Merchant will perform to address the Infraction Notices, and any such Corrective Action Plan must be acceptable to Shopify.

8. Representations and Warranties

1. SHOPIFY WARRANTIES. SHOPIFY REPRESENTS AND WARRANTS TO YOU THAT (a) DURING THE TERM IT WILL PROVIDE THE FULFILLMENT SERVICES IN A MANNER CONSISTENT WITH THESE SFN TERMS OF SERVICE; (b) IT HAS THE LEGAL POWER TO ENTER INTO AND PERFORM ITS OBLIGATIONS AND GRANT THE RIGHTS TO YOU SET OUT IN THESE SFN TERMS OF SERVICE.

2. YOUR WARRANTIES AND COVENANTS. YOU REPRESENT, WARRANT AND COVENANT THAT:

   (a) YOU HAVE THE LEGAL POWER TO ENTER INTO AND PERFORM YOUR OBLIGATIONS UNDER THE SFN TERMS OF SERVICE AND THE PERSON BINDING YOU TO THE SFN TERMS OF SERVICE ON YOUR BEHALF HAS BEEN DULY AUTHORIZED TO DO SO;

   (b) YOU ARE THE LEGAL OWNER AND/OR HAS LAWFUL POSSESSION OF THE PRODUCTS AND HAS THE SOLE LEGAL RIGHT TO STORE AND THEREAFTER DIRECT THE RELEASE AND/OR DELIVERY OF THE PRODUCTS;

   (c) THERE ARE NO POTENTIAL HEALTH, SAFETY OR ENVIRONMENTAL HAZARDS ASSOCIATED WITH THE WAREHOUSING OR FULFILLMENT OF THE PRODUCTS TENDERED TO SHOPIFY UNDER THESE SFN TERMS OF SERVICE; AND

   (d) THE PRODUCTS (A) DO NOT VIOLATE ANY APPLICABLE LAWS, AND (B) DO NOT CONTAIN ANY MATERIAL OR COMPONENT THAT VIOLATES ANY APPLICABLE LAWS.

9. Disclaimers

1. Disclaimer. EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION, THE FULFILLMENT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. SHOPIFY AND ITS THIRD PARTY LICENSORS AND SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE FULFILLMENT SERVICES OR ANY PRODUCTS PROVIDED UNDER THE SFN TERMS OF SERVICE AND SHOPIFY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SHOPIFY DOES NOT WARRANT THAT THE FULFILLMENT SERVICES WILL MEET YOUR EXPECTATIONS OR SPECIFICATIONS, BE SECURE, TIMELY, UNINTERRUPTED OR FREE FROM DEFECTS OR ERRORS, OR THAT DEFECTS OR ERRORS WILL BE CORRECTED. SHOPIFY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF USING THE FULFILLMENT SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CUSTOMER BASE, COMMERCIAL ADVANTAGE, OR RISK OF INJURY TO YOUR SYSTEMS OR NETWORK. THE USE OF THE FULFILLMENT SERVICES OR THIRD-PARTY SERVICES IS AT YOUR OWN RISK.

2. Release. You, on your own behalf and on behalf of any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the “Releasing Parties”), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge Shopify and each of its Affiliates, and any and all of its and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all persons acting by, through, under, or in concert with any of them (collectively, the “Released Parties”), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, “Losses”) which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or any of them, arising out of, resulting from, or in any way related to the shipment, export, or delivery of your Products to International Locations, including any tax registration or collection obligations. You, on your own behalf and on behalf of all other Releasing Parties, recognize that you, and each of the Releasing Parties, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after Effective, which the Releasing Parties are giving up by agreeing to the SFN Terms of Service.

3. Regulatory Compliance. In addition to those terms otherwise stated in this Section 9 (Disclaimers), you agree that Shopify is not responsible for any Losses resulting from, or in any way related to, any action by a government agency or other regulatory authority including, without limitation, search or seizure of Products at any time or place by U.S. Government Trade Agencies such as the Department of Homeland Security.

10. Indemnities and Limitation of Liability

1. Merchant Indemnity. You will indemnify and hold Shopify and (as applicable) its subsidiaries, affiliates, partners, officers, directors, agents, and employees, harmless from and against any third party claims, demands, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) (“Claims”) due to, arising out of or related to: (i) the Products; (ii) Your use or misuse of the Fulfillment Services except to the extent such Claims arise solely from a third party claim that Shopify IP infringes third party rights or violates applicable law; (iii) disputes arising from transactions made via the Store(s), or Your relationship with any of your customers; (iv) any breach of Your representations and warranties; (v) Your breach of the SFN Terms of Service; or (vi) Your violation of any applicable law or Third Party Rights.

2. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHOPIFY BE LIABLE TO YOU FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SHOPIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SHOPIFY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THESE SFN TERMS OF SERVICE EXCEED THE FEES PAID BY YOU UNDER THESE SFN TERMS OF SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 10.2 ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED BY SHOPIFY FOR THE FULFILLMENT SERVICES AND THAT IF SHOPIFY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, THE FEES WOULD OF NECESSITY BE SUBSTANTIALLY INCREASED.

11. Confidentiality and Privacy

1. Confidential Information. For the purposes of these SFN Terms of Service, “Confidential Information” includes any information, technical data, or know-how concerning either party, including, but not limited to, that which relates to research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, reports and audits, business plans or finances, and the relationship between the parties as evidenced by the SFN Terms of Service. You acknowledge that Confidential Information may contain material, non-public information of Shopify, and You are aware, and your representatives have been advised, that applicable securities laws prohibit any person having material, non-public information about Shopify from purchasing or selling securities of Shopify. Confidential Information also includes any materials or information provided by either party to the other that are identified by the disclosing party as confidential or proprietary, or that the receiving party should reasonably understand to be confidential and proprietary. Confidential Information does not include information that: (i) was in the public domain at the time the receiving party received it; (ii) comes into the public domain after the receiving party received it through no fault of the receiving party; (iii) the receiving party received from a third party without breach of the receiving party’s or third party’s confidentiality obligations; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information; or (v) the receiving party is required by law to disclose. For the avoidance of doubt, the terms and conditions of the SFN Agreement shall be considered Confidential Information of both parties.

2. Confidentiality Obligations. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under the SFN Terms of Service or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature (and in any case no less than a reasonable degree of care). Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, directors, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the SFN Terms of Service and who are subject to confidentiality obligations at least as restrictive as those in this Section 11.

3. Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.

4. Other Exceptions. Notwithstanding the foregoing provisions in this Section 11, the parties may disclose the terms and conditions of the SFN Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the SFN Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of the Merchant Order or any rights under the SFN Agreement, provided that reasonable measures are used to preserve the confidentiality of the Confidential Information; (v) in confidence, to auditors, accountants and their advisors who are subject to confidentiality obligations at least as restrictive as those in this Section 11; and (vi) in confidence, in connection with a change of control or potential change of control of a party or an affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the SFN Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure of Confidential Information, including the terms and conditions of the SFN Agreement. For greater certainty, nothing in this Section 11 will diminish a receiving party’s obligations under these SFN Terms of Service to comply with applicable privacy and personal information protection laws.

5. Personal Information. The Shopify Privacy Policy will govern Shopify's use and storage of, and access to, personal information, its purchasers, users or Store visitors transmitted via or stored on the Fulfillment Services. Any personal information that you transmit to Shopify, or that Shopify collects on your behalf relating to residents of the European Economic Area will be processed by Shopify’s Irish affiliate Shopify International Ltd., in accordance with the Shopify Privacy Policy.

6. Testimonial and Case Study. Unless the parties have previously agreed in writing that this Section 11.6 does not apply to Merchant, at Shopify’s request, Merchant will: (i) Produce at least 2 pieces of joint marketing material per calendar year (examples include co-hosted webinars, thought leadership content articles, client testimonials); (ii) Collaborate with Shopify to develop relevant client case study/s (used on websites and/or social media and presentations) highlighting the utility of the Fulfillment Services; and (iii) Participate in up to five (5) calls with other merchants to discuss the Merchant’s experience using the Fulfillment Services.

12. Shrinkage, Loss and Merchant Insurance

1. Shrinkage. Handling physical products could result in loss or damage of Products. Shopify strives to maintain high standards, however occasionally facilities experience concealed shortages, product damages, mislabeled, miss-picked Products and/or cross-shipments. You agree that Shopify will have a 0.5% shrink allowance based on the total value of Your Products known to be in a Fulfillment Location based on the total original purchase invoices from your supplier for all Products on an annual basis (the “Shrinkage Allowance”). Explainable, offsetting Inventory adjustments based on miss-marked Products or receiving Product errors will not be deemed a Product shrinkage event or lost Product.

2. Loss & Product Cost. If there is a loss of or damage to any Products while at a Fulfillment Location in excess of the Shrinkage Allowance (a) you will be solely responsible for any such loss of, or damage to, any Products, except that (b) Shopify will be liable for loss or damage to the Products where such loss or damage is directly caused by Shopify’s gross negligence or willful misconduct. To the extent Shopify is liable for any loss or damage to the Products in excess of the Shrinkage Allowance and pursuant to this Section 12.2, you agree that Shopify’s liability for such damage caused to the Products shall be limited to the actual product cost of the Products, which shall be measured by the original purchase invoice from your supplier.

3. Product Acceptance. Shopify’s confirmed receipt of delivery does not: (a) indicate or imply that any Product has been delivered free of loss or damage, or that any loss or damage to any Product later discovered occurred after confirmed receipt of delivery; (b) indicate or imply that Shopify actually received the number of Products specified by you for such shipment; or (c) waive, limit, or reduce any Shopify rights under the SFN Agreement. Shopify reserves the right to impose, and change from time to time, scheduling restrictions and volume limitations on the delivery and storage of your inventory in Fulfillment Locations, and you will comply with any of these restrictions and limitations.

4. Merchant to Obtain Insurance. You acknowledge that the Products stored or warehoused by Shopify are not insured against loss or damage by Shopify, and you shall be solely responsible for obtaining insurance coverage for the Products. You acknowledge that Shopify has strongly recommended that you purchase insurance from a reputable insurance provider notwithstanding the value of the Products, and you represent and warrant that you have secured such insurance.

5. Carrier Claims. At Shopify’s sole discretion, Shopify may administer claims regarding lost, stolen or damaged orders during transit for you, in which case Shopify will provide prior written notice to you and you agree that (a) Shopify may file a claim with the applicable carrier for Products valued at less than or equal to $100.00, (b) where the carrier approves the claim, a credit will be applied on the next invoice for the amount the carrier paid to Shopify, (c) you will provide Shopify with any requested information in connection with the submission of a claim to the carrier, and (d) if the carrier denies the claim, you agree that under no circumstances will Shopify have any liability for such shipment.

13. General

1. Relationship of Parties. You and Shopify are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venture or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology in connection with the Fulfillment Services or these SFN Terms of Service (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.

2. Assignment. You may not assign the SFN Merchant Order, these SFN Terms of Service, or any part of the SFN Agreement without the prior written consent of Shopify, such consent not to be unreasonably withheld. Shopify may assign these SFN Terms of Service and the SFN Agreement at any time.

3. Governing Law; Jurisdiction; Limitation of Action. The SFN Agreement is governed by and is to be construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the SFN Terms of Service and is hereby expressly excluded. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the SFN Terms of Service.

4. Compliance with Laws. Each party agrees to fully comply with all applicable laws in their performance of the SFN Agreement.

5. Severability. If any provision of the SFN Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of the SFN Agreement shall remain in full force and effect.

6. Force Majeure. Except for obligations to pay any Fees owing under the SFN Agreement, neither party shall be deemed to be in breach of the SFN Agreement for any failure or delay in performance caused by reasons beyond such party’s reasonable control, including but not limited to acts of God, extreme weather, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party’s employees). If either party’s performance is prevented by a force majeure event for a period of more than 30 calendar days, the other party may terminate the SFN Agreement without further obligation or liability, subject to any payment amounts due and payable as of the effective date of termination.

7. No Exclusivity. Shopify reserves the right to provide services (including Fulfillment Services) to your competitors and makes no promise of exclusivity in any particular market segment.

8. Legal Notice. Any notices or demands to or upon a party shall be made in writing and sent to such party electronically using the email address and the notice contact specified in this Section 8. Notices for you will be sent to the address identified in the Administrative Console. Notices for Shopify will be sent to the following addresses:

   Shopify Inc.,
   

   Attn: General Counsel,
   via email to contract_notices@shopify.com.

   Except as otherwise specified in the SFN Terms of Service all notices, permissions and approvals will be deemed to have been given upon the first business day after sending by email.

9. Right of Set-Off. Shopify may deduct any amount owed to Shopify by you that has not been credited against payments owed by Shopify. Shopify may deduct the entire amount owed against the charges otherwise payable or expenses owed to you under the SFN Terms of Service until such time as the entire amount owed to Shopify has been paid. Shopify will have the right to withhold any charges it disputes in good faith under the SFN Terms of Service and such withholding shall not thereby constitute or be deemed to constituted a default or breach by Shopify of the SFN Terms of Service and you shall not thereby be released from or permitted to cease performance of any of its obligations hereunder during the continuance of any such good faith dispute the resolution of which continues to be diligently pursued in good faith by either of the parties.

10. Suggestions and Feedback. Shopify welcomes any ideas and/or suggestions regarding improvements or additions to the Fulfillment Services. Under no circumstances shall any disclosure of any idea, suggestion or related material (collectively, “Suggestions”) to Shopify be subject to any obligation of confidentiality or expectation of compensation. By submitting a Suggestion to Shopify, you waive any and all rights in the Suggestion and that Shopify is free to implement and use the Suggestion if desired, as provided by you or as modified by Shopify, without obtaining permission or license from you or from any third party.

11. Amendment and Waiver. You acknowledge and agree that Shopify may amend these SFN Terms of Service at any time by posting the relevant amended and restated Terms of Service on Shopify’s website, available at https://www.shopify.ca/legal/fulfillment and such amendments to the SFN Terms of Service are effective as of the date of posting. Your continued use of the Fulfillment Services after the amended SFN Terms of Service are posted to Shopify’s website constitutes your agreement to, and acceptance of, the amended SFN Terms of Service. If you do not agree to any changes to the SFN Terms of Service, do not continue to use the Service. The failure of either party to exercise or enforce any right or provision of the SFN Terms of Service shall not constitute a waiver of such right or provision or any other provision of the SFN Terms of Service or otherwise affect the rights of such party.

12. Entire Agreement. The SFN Agreement and any documents incorporated by reference constitute the entire agreement between the parties respecting your use of the Fulfillment Services and supersede any prior written or oral agreements between the parties with respect to the Fulfillment Services.

13. Survival. All sections of the SFN Terms of Service that by their nature should survive termination will survive such termination, including, without limitation, payment obligations, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnities and limitations of liability.