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BigArena Fulfillment Europe s.r.o.

Seredská 4084/30

917 05 Trnava

IČO: 54736374

DIČ: 2121821867

IČ DPH: SK2121821867


Terms of Service

Date of Last Revision: March 28, 2023


Table of Contents


Definitions

Applicable Terms and Acceptance; Registration; Description of Services

Access to the Services; Your Content; Account Security

Merchant Obligations and Warranties

Fees and Payment

Fulfillment Services

Service Level Agreement

Carriers

Confidentiality and Publicity

Indemnification

Insurance

Disclaimers

Limitation of Liability

Termination

Assignment

General Provisions

1. Definitions

Unless defined elsewhere in this Agreement, capitalized terms set out in the Agreement are defined as set forth in Appendix A. 


2. Applicable Terms and Acceptance; Registration; Description of Services

2.1 Terms: BigArena Fulfillment Europe s.r.o. provides Services to you through our Site and the BigArena Platform. In addition to these Terms of Service, the provision of Services is subject to the Policies and the Pricing and Billing Policies (collectively, the “Policies”), all of which are incorporated herein by reference (collectively, the “Agreement”). If there is any conflict between the Terms of Service and the Policies, the Terms of Service shall take precedence.

2.2 ACCEPTANCE: BY REGISTERING FOR AN ACCOUNT OR BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES OR THE BIGARENA PLATFORM.

2.3 Changes to the Terms of Service and/or the Policies: BigArena Fulfillment Europe s.r.o. may modify this Agreement. We may give notice to you of any modifications, however, it is your responsibility to regularly review this Agreement. Any Order that you submit after the effective date of the modifications will be subject to the modified Agreement. If any change to the Terms of Service or Policies is unacceptable to you, you have a right to terminate the Agreement in accordance with Clause 14 of these Terms of Service.

2.4 Registration: You must register for an Account in order for BigArena Fulfillment Europe s.r.o. to provide the Services. As part of the registration process, you will create an administrative username and password for your Account on the BigArena Platform, and you may create additional standard users (each with a user password). By registering for an Account, you confirm that you are the minimum age legally required to register for accounts of the nature of an Account and use our Services in your jurisdiction of residence and each jurisdiction in which you use our Services. To complete the registration for your Account, you must provide us with:


Your full legal name;

The company’s legal name;

The company’s trade or fictitious name (doing business as), if any;

The company’s tax number or identifier (if applicable);

Business address of the company’s headquarters, head office or principal place of business;

A valid phone number;

A valid business email address;

Countries where the business is incorporated or registered to do business;

Identifying information for any parent company or ultimate beneficial owner of >10% of the company; and,

Any other information indicated as required by BigArena Fulfillment Europe s.r.o..

BigArena Fulfillment Europe s.r.o. reserves the right to periodically require further information from you, and to require you to verify or update your information. If you fail to provide such further information in a timely manner or do not comply with the other requirements set out in this Clause 2 within fifteen (15) days, BigArena Fulfillment Europe s.r.o. may reject your application for an Account or suspend or terminate the Services and this Agreement until BigArena Fulfillment Europe s.r.o. has received and verified the requested information.


2.5 Description of Services: BigArena Fulfillment Europe s.r.o.’s services (the “Services”) include: (a) providing technology solutions to support the receipt, counting, storage, picking and packing (“fulfillment”) of Goods pursuant to your Orders by BigArena Fulfillment Europe s.r.o. or third party fulfillment or warehouse providers (“SFN Providers”) using BigArena Fulfillment Europe s.r.o.’s WMS at BigArena Fulfillment Europe s.r.o. and SFN Provider facilities (collectively, “BigArena Facilities”); (b) providing technology solutions to support the shipment of the Goods by Carriers; (c) providing access to the BigArena Platform; and (d) providing all data, reports, text, images, sounds, video, and content (including any offline reports, pricing matrices, or other content made available to you through any of the foregoing), including, in each case, all modifications of or updates to such material.


3. Access to the Services; Your Content; Account Security

3.1 Access to the Services and Software License: Any Software made available to you by BigArena Fulfillment Europe s.r.o. in connection with the Services, including the BigArena Platform, contains BigArena Fulfillment Europe s.r.o.’s Intellectual Property and confidential information that is protected by applicable intellectual property laws and this Agreement. BigArena Fulfillment Europe s.r.o. grants you a non-transferable, non-sublicensable and non-exclusive right and license (“License”) to use the Software solely in connection with the Services during the term of this Agreement, provided that you shall not (and shall not allow any third party to) copy, modify, publish, distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, license, sublicense, or otherwise attempt to transfer any right in any Software. You agree not to access the Services by any means other than through the interface that is provided by BigArena Fulfillment Europe s.r.o.. Any rights not expressly granted herein are reserved. BigArena Fulfillment Europe s.r.o. does not license or grant the right to use any trademark of BigArena Fulfillment Europe s.r.o. or any third party. The License may be terminated immediately if you fail to comply with this Clause 3.1 or any other term of this Agreement, or if BigArena Fulfillment Europe s.r.o., acting reasonably, forms the view that there is a risk that you have not complied with this Clause 3.1, or any other provision of this Agreement, and shall, in any event, terminate upon the termination or expiration of this Agreement.


3.2 Your Content: You are solely responsible for all data, information, feedback, suggestions, text, content, and other materials, including Personally Identifiable Information, that you upload, post, deliver, provide, transmit, or otherwise make available to BigArena Fulfillment Europe s.r.o. in connection with your use of the Services (including material you upload to the BigArena Platform) (“Your Content”). You agree that BigArena Fulfillment Europe s.r.o. shall not be liable for any delay, loss, damage or costs as a result of any inaccuracy in Your Content, including Personal Information. You retain all rights, title and interest in and to Your Content, other than the limited rights expressly granted to BigArena Fulfillment Europe s.r.o. in this Agreement and/or as reasonably needed to carry out the Services. BigArena Fulfillment Europe s.r.o. has the right, but not the obligation, to monitor Your Content. You further agree that, if the Content is not compliant with this Agreement (including any Policies), BigArena Fulfillment Europe s.r.o. may remove or disable Your Content at any time. You confirm, warrant and represent that you own all of Your Content and/or have obtained all such permissions, releases, rights, or licenses as are required to enable you to engage in your posting and all other activities associated with the Services, for BigArena Fulfillment Europe s.r.o. to Process Your Content and for BigArena Fulfillment Europe s.r.o. to perform its obligations and exercise its rights under this Agreement. You further confirm, warrant and represent that Your Content does not, and will not, violate, infringe or misappropriate any third party’s Intellectual Property or privacy rights, and that Your Content does not contain any material that is defamatory, obscene, violent, threatening, abusive, tortious, offensive, harassing or otherwise unlawful.


3.3 Use and Modification of Your Content: You grant BigArena Fulfillment Europe s.r.o. a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable right and license to access, collect, copy, use, store, host, transmit, modify, distribute, display, disclose, and otherwise process (“Process”) Your Content: (a) to the extent necessary to provide the Services pursuant to the Agreement; (b) in connection with internal operations and functions, including operational analytics and reporting, financial reporting and analysis, product or Service improvement or development, audit functions, and archival purposes; (c) to communicate with you about the Services or BigArena Fulfillment Europe s.r.o.’s other products and services; and (d) on an aggregate and anonymous basis for marketing and other lawful purposes.


3.4 Personal Information: To the extent BigArena Fulfillment Europe s.r.o. Processes Your Content that constitutes Personal Information in the provision of the Services to you, BigArena Fulfillment Europe s.r.o. and you will comply with the obligations set forth in BigArena Fulfillment Europe s.r.o.’s Data Processing Agreement (“DPA”), which is found here and is incorporated into this Agreement by reference. BigArena Fulfillment Europe s.r.o. will process such Personal Information in accordance with the DPA.


3.5 Account Confidentiality: You are solely responsible for maintaining the confidentiality of your login, password, Your Content and Account, and for all activities that occur under your login or Account, except to the extent a failure to maintain confidentiality or any activity conducted under your login or Account is caused by BigArena Fulfillment Europe s.r.o. or its employees. For support purposes, designated BigArena Fulfillment Europe s.r.o. employees have the ability to access your Account. This access includes but is not limited to production data, including Personal Information,within the dashboard and data storage locations. This access is audited on a regular basis as a part of BigArena Fulfillment Europe s.r.o.’s internal audit processes.


3.6 Security Acknowledgement: You understand that the operation of the Services, including Your Content, may be unencrypted and transmitted over various networks, changed to conform and adapt to technical requirements of connecting networks or devices, and transmitted to BigArena Fulfillment Europe s.r.o.’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content. Unless and to the extent that it was directly caused by BigArena Fulfillment Europe s.r.o.’s negligence, BigArena Fulfillment Europe s.r.o. shall not be liable for unauthorized access to or use of Your Content, or any corruption, deletion, destruction, or loss of any of Your Content.


3.7 Maintenance and Security of Equipment: You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including hardware, software, network and telephone services. You shall also be responsible for maintaining the security of your equipment and ancillary services, your Account, passwords (including administrative and user passwords), files and for all uses of your Account or your equipment and ancillary services.


4. Merchant Obligations and Warranties

4.1 Use of Services: Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title, and interest in and to the Services (including all Intellectual Property relating to the Services and in the BigArena Platform) will remain with and belong exclusively to BigArena Fulfillment Europe s.r.o.. You shall not: (a) sublicense, resell, rent, lease, transfer, assign, timeshare, or otherwise commercially exploit or make the Services available to any third party; (b) use the Services in any unlawful manner (including without limitation in violation of any data, privacy, or export control laws) or in any manner that interferes with or disrupts the integrity, security or performance of the Services; (c) allow any unauthorized person to access your BigArena Fulfillment Europe s.r.o. Account; or (d) modify, adapt, or hack the BigArena Platform, or otherwise attempt to gain unauthorized access to the BigArena Platform, or related systems and networks. You shall comply with any codes of conduct, policies, or other reasonable notices BigArena Fulfillment Europe s.r.o. provides to you or publishes in connection with the Services, and you shall promptly notify BigArena Fulfillment Europe s.r.o. if you learn of a potential security or privacy breach related to the Services. To the extent applicable to the Services, as defined in FAR section 2.101, the software and documentation installed by BigArena Fulfillment Europe s.r.o. on your equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.


4.2 International Trade Compliance Representations: You represent and warrant that neither you nor any of your agents or customers are (a) located, organized, or resident in any country or territory that is subject to comprehensive U.S. trade sanctions (including as of the date of updating these Terms of Service, Belarus, Cuba, Iran, North Korea, Russia, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine); (b) a person or entity named on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) List of Specially Designated Nationals and Blocked Persons (the “SDN List”) or any comparable list of sanctioned parties issued by the United States, United Kingdom, or European Union; (c) acting on behalf of any sanctioned person or entity; or (d) owned or controlled by any sanctioned person or entity. You further represent that you do not have any business or financial dealings (directly or indirectly) in any sanctioned country or territory or with any sanctioned person or entity. You agree to comply with all applicable international trade laws and regulations, including without limitation the U.S. Export Administration Regulations, UK Export Control Order (2008), the EU Dual Use Regulation (EC Regulation No. 428/2009), and trade and economic sanctions administered by the United Kingdom, the European Union, and the United States (collectively, “Trade Laws”). You understand and acknowledge that you are responsible for your own compliance with all applicable Trade Laws. You agree that you will not use the Services to export, directly or indirectly, any items to any destination, entity, or person unless authorized under applicable Trade Laws, and you will not cause BigArena Fulfillment Europe s.r.o. to directly or indirectly violate any Trade Laws. You will promptly notify BigArena Fulfillment Europe s.r.o. if you become aware that you are in breach of the representations in this provision. In the event of actual or suspected noncompliance with such regulations you further agree that BigArena Fulfillment Europe s.r.o. may immediately suspend any and all Services to you, and that BigArena Fulfillment Europe s.r.o. shall have no liability for shipments which are canceled or otherwise suspended due to actual or suspected noncompliance with these regulations.


4.3 Shipping and Legal Requirements: It is your expressly assumed obligation to ensure that your documentation and the instructions you provide (or are required to provide under this Agreement or pursuant to applicable law) specifically, separately, and correctly addresses any Legal Requirements (as defined below in this Clause 4.3) related to your Goods and the shipping requirements applicable to such Goods. The term “Legal Requirements” shall mean all present and future laws, statutes, ordinances, requirements, orders, directions, rules, and regulations of any kind or nature, whether statutory or common law, including all environmental and safety laws, customs, GST and VAT laws and regulations issued or enforced by any federal, state, provincial, or local authority or agency, which govern or apply in any way to your Goods or Goods provided by you or the shipping requirements applicable to such Goods that arise under this Agreement. To the extent there are Legal Requirements or requirements for storage or handling related to any Goods that are the subject of an Order and about which BigArena Fulfillment Europe s.r.o. must know and with which it must comply in order to properly perform the Services or otherwise meet its obligations under and pursuant to this Agreement, you shall make BigArena Fulfillment Europe s.r.o. aware of any and all such Legal Requirements in writing prior to you requiring Services to which such Legal Requirements apply; and in respect of new Legal Requirements introduced after you register for an Account, no less than sixty (60) days prior to the enactment of such Legal Requirements, particularly to the extent such Legal Requirements relate specifically to the safeguarding, receiving, storing, and handling of the Goods. If compliance with any Legal Requirement(s) prevents BigArena Fulfillment Europe s.r.o. from performing the Services, or materially increases BigArena Fulfillment Europe s.r.o.’s costs in performing such Services, BigArena Fulfillment Europe s.r.o. may choose to suspend performance of the Services without liability to you, or be reimbursed for any additional costs associated with compliance or resulting from non-compliance. Additionally, if at any time while performing Services for you, BigArena Fulfillment Europe s.r.o. becomes aware of your failure to comply with any Legal Requirements, BigArena Fulfillment Europe s.r.o. may either immediately suspend Services until such non-compliance is rectified or terminate this Agreement by notice with immediate effect.


4.4 Your Goods: You represent, warrant, and covenant that: (a) you have the legal power to enter into and perform your obligations under this Agreement and the person binding you to this Agreement on your behalf has been duly authorized to do so; (b) you are the legal owner of the Goods, including any underlying Intellectual Property rights, and/or have lawful possession of the Goods and have the sole legal right to store and thereafter direct the release and/or delivery of the Goods; (c) there are no potential health, safety, or environmental hazards associated with the Goods or with performance of the Services in relation to the Goods; (d) the Goods are not mislabeled, misbranded, adulterated (including adulteration by any insect or other hazardous infestation); (e) the information set forth on any shipment or delivery document, including information as to count, weight, description, and condition of the Goods, is accurate and complete and may be relied upon by BigArena Fulfillment Europe s.r.o.; (f) the Goods do not comprise any items which are prohibited by the applicable Prohibited and Restricted Items Policy for the region in which the Goods will be received, stored or shipped; (g) the Goods are in compliance with BigArena Fulfillment Europe s.r.o.’s Dangerous Goods / HAZMAT Policy; (h) your activities related to the promotion, sale, and distribution of the Goods comply with all applicable laws; and (i) your Goods do not violate the Policies or any applicable laws (including but not limited to the 1938 Food, Drug and Cosmetic Act (as amended) enforced by the U.S. Food and Drug Administration, the Therapeutic Goods Act (1989) (Cth) and Regulations and the Therapeutic Goods Administration, the Food Standards Australia New Zealand Act (1991) (Cth), Food Standards Australia New Zealand (FSANZ), laws enforced by the European Medicines Agency or the European Food Safety Authority, or laws enforced in the UK relating to the relevant Goods concerned, if applicable), nor do they contain or comprise of any of the following: (i) products that exploit or abuse children, including images or depictions of child abuse or sexual abuse, or that present children in a sexual manner; (ii) products that promote hate, violence, or discrimination against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition, or veteran status; (iii) products that contravene, or that facilitate, or promote activities that contravene, the laws or regulations of the jurisdictions in which you operate or do business or to which your product is to be shipped or stored, including the jurisdictions in which our warehouses are holding any of your products in inventory; (iv) products that infringe or may infringe on the patent, copyright, trademark, or other Intellectual Property rights or privacy rights of others; (v) products which contain or which are intended to transmit viruses or other malware or which are designed or intended to illegally or in an unauthorized manner gain entry to, harm, or disrupt the data or operation of our or a third party’s computing devices, networks, systems, infrastructure, or the like; (vi) products that contain personally identifiable information or confidential information, such as, but not limited to, credit card numbers, confidential national ID numbers, account passwords, medical records, employment records or the like, unless you comply with the DPA and have prior written consent from the person to whom the information belongs or who is otherwise authorized to provide such consent; (vii) products that promote self-harm; or (viii) products that imply or promote support or funding of, or membership in, a terrorist organization.


4.5 Rejected Goods: If you do not strictly meet the compliance obligations of Clause 4.4, BigArena Fulfillment Europe s.r.o. may, at its sole discretion, either reject your Goods, immediately suspend Services for such Goods, quarantine your Goods, or immediately terminate this Agreement by notice to you. Any Goods rejected, quarantined, or for which Services have been suspended shall be “Rejected Goods”. You may be required to reimburse BigArena Fulfillment Europe s.r.o. for the labor costs incurred to process, remove or package your Rejected Goods. Additionally, in the event the Rejected Goods cause damage to BigArena Fulfillment Europe s.r.o. Facilities, other BigArena Fulfillment Europe s.r.o. merchant’s Goods or any other third party’s property, you will be liable for the direct and indirect costs and expenses incurred by BigArena Fulfillment Europe s.r.o. and/or any third party as a result. This may include the costs incurred for storage and transportation of the Rejected Goods, storage and transportation of other affected Goods and/or third party property, return or destruction of the Rejected Goods, delay or non-shipment of any affected Goods, replacement of any affected Goods or third party property, pest control, hazard remediation and/or cleaning of BigArena Fulfillment Europe s.r.o. Facilities, legal costs in the event of an investigation into or court proceedings arising from the damage caused by the Rejected Goods, and any other reasonably incurred expenses caused by your failure to meet any of the above compliance obligations. IF YOU DO NOT REMOVE THE REJECTED GOODS WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, BIGARENA FULFILLMENT EUROPE S.R.O. MAY DISPOSE OF THE INVENTORY LISTED IN THE REQUIRED REMOVAL NOTICE AND MAY CHARGE YOU A REASONABLE DISPOSAL FEE. YOU SHALL NOT BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS DISPOSED OF BY BIGARENA FULFILLMENT EUROPE S.R.O. IF YOU DO NOT PROMPTLY REMOVE THE GOODS UPON BIGARENA FULFILLMENT EUROPE S.R.O.’S WRITTEN REQUEST IN ACCORDANCE WITH THIS CLAUSE.


4.6 Import Compliance: You shall comply with all applicable laws and regulations relating to, and bear all costs and responsibilities associated with, importing your Goods into another country or territory, including all customs, duty VAT/GST laws and regulations relating to the import of the Goods as well as determining proper tariff classification and country of origin of Goods and whether Goods qualify for administrative exemptions such as those provided under 19 USC 1321. You shall deliver the Goods Delivered Duty Paid (DDP) to BigArena Fulfillment Europe s.r.o. Facilities, with all duties and taxes paid, released for free circulation and free of any encumbrances. You shall not identify BigArena Fulfillment Europe s.r.o. as the consignee, importer of record, or the merchant of record. Beneficial title and interest to all Goods shall always remain with you, even when the Goods are stored at a BigArena Fulfillment Europe s.r.o. Facility. You are solely responsible for ensuring that: (a) the transport and delivery of your Goods by BigArena Fulfillment Europe s.r.o. or a Carrier pursuant to any Order does not contravene any applicable import or export control laws or sanctions; (b) all import and export licenses necessary for the import and export of your Goods pursuant to any Order are in place; (c) all customs duties necessary for the import and export of your Goods pursuant to any Order are paid prior to any deadlines; and (d) BigArena Fulfillment Europe s.r.o. is provided in good time with any documentation necessary or desirable to evidence compliance with import, export and customs requirements and to enable the efficient delivery of the Services by BigArena Fulfillment Europe s.r.o.. Notwithstanding anything else in this Agreement, BigArena Fulfillment Europe s.r.o. shall be under no obligation to transport or deliver your Goods if it reasonably believes or suspects such actions would be in contravention of any applicable import or export laws or sanctions.


4.7 Fraudulent Orders: It is your sole responsibility to protect yourself from fraud and to pay all Fees related to fraudulent Orders, regardless of whether the Goods are delivered.


5. Fees and Payment

5.1 Fees: Unless otherwise specified in your pricing dashboard, you shall pay the Fees set out in the Pricing and Billing Policies.

5.2 Changes to Fees: You acknowledge and agree that due to the nature of the Services, the Fees may be subject to change. BigArena Fulfillment Europe s.r.o. may pass through to you any GRI or other Carrier surcharges charged by Carriers in relation to fuel, dangerous goods, Peak Season, and other carrier surcharges, and BigArena Fulfillment Europe s.r.o. agrees to use commercially reasonable efforts to provide fifteen (15) days prior written notice of any such increases. Notwithstanding the foregoing, in the event any of our Carriers are impacted by a Force Majeure Event, if Carriersimpose surcharges, BigArena Fulfillment Europe s.r.o. will pass through such surcharges and provide the same notice, if any, that BigArena Fulfillment Europe s.r.o. receives. BigArena Fulfillment Europe s.r.o. may, in its discretion, change other Fees upon thirty (30) days’ prior written notice to you. Any Fee changes will only apply to Orders completed after the effective date of such change. Your continued use of the Services following the effective date of any Fee increase will mean you accept and agree to pay the increased Fees. If any change to the Fees is unacceptable to you, you have the right to terminate the Agreement in accordance with Clause 14 of these Terms of Service.


5.3 Pricing Quotations: Pricing quotations accepted through the BigArena Platform are estimates based on the best information available to BigArena Fulfillment Europe s.r.o. at the time. All monetary amounts stated in this Agreement and the Site will be in US dollars, unless otherwise specified. The Fees you will be required to pay will depend on a number of factors including the quantity and nature of the Goods for fulfillment, delivery locations and Carrier Charges. BigArena Fulfillment Europe s.r.o. does not accept liability for any Carrier shipping rate discrepancies due to inaccurate or incomplete information provided by you, including incorrect dimensions or weight.


5.4 Reimbursement of Taxes, Chargebacks, and Related Fees: You acknowledge that you are responsible for, and agree to reimburse BigArena Fulfillment Europe s.r.o. for, all sales taxes, transportation taxes, reversals, chargebacks, claims, fees, fines, penalties and other liabilities which may be incurred by BigArena Fulfillment Europe s.r.o. and its subcontractors (including Carriers), as applicable in connection with the Services. The aforementioned charges shall be posted to your Account within fifteen (15) days of BigArena Fulfillment Europe s.r.o.’s knowledge of such charges. Carrier and retail chargebacks may be subject to additional administrative fees as specified in the Policies.


5.5 Exclusive of International CDT and Transaction Taxes: Customs, duties and taxes (“CDT”) on any international shipment charged by a Carrier, customs officials, or other governmental agencies are your sole responsibility and will be charged back to you regardless of whether they were or were not in the initial estimate, or whether the Order was or was not delivered. You acknowledge and agree that all Fees, charges, and any other amounts charged by BigArena Fulfillment Europe s.r.o. to you are exclusive of all applicable value added, sales/use or inventory, CDT, and service taxes such as Goods and Services Tax (as that term is defined in the A New Tax System (Goods and Services Act) 1999 (Cth))(“Transaction Taxes”) which may be levied in connection with the Services. You are liable for all Transaction Taxes regardless of the jurisdiction in which they arise. If BigArena Fulfillment Europe s.r.o., in its sole discretion, pays any Transaction Taxes to a government authority on your behalf as a result of your failure to do so or your failure to properly submit compliance documentation (including improperly naming BigArena Fulfillment Europe s.r.o. as the consignee, importer of record or merchant of record), you will promptly reimburse BigArena Fulfillment Europe s.r.o. for all such amounts paid.


5.6 Payment Options: BigArena Fulfillment Europe s.r.o. offers you convenient payment online using the following methods: bank transfer & ACH (free), credit card (subject to additional service fees), or wire transfer (subject to standard bank fees). Payment processing is provided by Stripe. By agreeing to this Agreement or continuing to utilize our Services, you agree (a) to be bound by the Stripe Connected Account Agreement, as modified by Stripe from time to time and (b) to authorize BigArena Fulfillment Europe s.r.o. to share business and transaction information (including customer data) with Stripe for the purpose of facilitating and processing payments.


5.7 Forecast compliance Fee: Customers who declared volume for a calendar month (hereinafter referred to as the (“Settlement period”) or a concrete number of parcels, which is higher than 5,000 orders per month are agreeing to a "Forecast compliance Fee", which Big Arena has with all partnering couriers.


 In the event of a discrepancy between the declared volume and the actual volume in the respective settlement period, the Parties agree on the following conditions regarding the adjustment of remuneration due to the Operator.


1) in case of performance of Main services at below 30.00% of the declared volume the Operator shall charge the Customer with a surcharge for every Shipment in the amount of 45.00% of the total fee for a single Parcel,


 2) in case of performance of Main services at below 50.00% of the declared volume the Operator shall charge the Customer with a surcharge for every Shipment in the amount of 35.00% of the total fee for a single Parcel.

 

3) in case of performance of Main services at below 80.00% of the declared volume the Operator shall charge the Customer with a surcharge for every Shipment in the amount of 15.00% of the total fee for a single Parcel.



5.8 Abandoned Account and Liquidation: Failure to promptly pay Fees is a material breach of this Agreement. BigArena Fulfillment Europe s.r.o. will notify you via the BigArena Platform and your registered email address that your Fees are overdue. If your Fees (or any other amounts owed to BigArena Fulfillment Europe s.r.o. or Carriers) remain unpaid for more than thirty (30) days after notification they are overdue, BigArena Fulfillment Europe s.r.o. reserves the right, at our sole discretion, to terminate this Agreement or suspend our performance of Services. If the Service Fees remain unpaid for more than sixty (60) days after being notified by BigArena Fulfillment Europe s.r.o., then BigArena Fulfillment Europe s.r.o. will automatically reclassify your Account as an “Abandoned Account.” TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND YOUR GOODS WILL, SUBJECT TO BIGARENA FULFILLMENT EUROPE S.R.O. PROVIDING ANY NOTICES REQUIRED BY LAW, IMMEDIATELY BE FORFEITED BY YOU TO BIGARENA FULFILLMENT EUROPE S.R.O.. SUBJECT TO BIGARENA FULFILLMENT EUROPE S.R.O. COMPLYING WITH THE REQUIREMENTS OF ANY APPLICABLE LAW, GOODS WILL BECOME IMMEDIATELY AND IRREVOCABLY UNAVAILABLE TO YOU, AND LIQUIDATION PROCEEDINGS WILL BEGIN. Subject to BigArena Fulfillment Europe s.r.o. complying with its obligations under applicable statutes: (a) you agree that BigArena Fulfillment Europe s.r.o. will be free and clear of any liability to you for such Goods; (b) you assume any liability for the Goods in the event of such liquidation; and (c) you remain liable for any Fees above and beyond the amount recoverable from the proceeds of liquidation of the Goods.


6. Fulfillment Services

6.1 Inbound Shipment Instructions: Prior to any inbound shipment of Goods arriving at a BigArena Fulfillment Europe s.r.o. Facility, you must follow BigArena Fulfillment Europe s.r.o.’s Warehouse Receiving Order (“WRO”) instructions to provide BigArena Fulfillment Europe s.r.o. with digital bills of lading through the BigArena Platform and schedule an appointment for inbound freight shipments (non-parcel) prior to their arrival at a BigArena Fulfillment Europe s.r.o. Facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. Any inbound inventory received that does not follow the WRO instructions as determined by BigArena Fulfillment Europe s.r.o. will be classified as an Unidentified Receiving Order (“URO”) falling subject to the URO Policy (which includes delays and additional Fees set out in that policy).


6.2 Verification and Inspection: Per BigArena Fulfillment Europe s.r.o.’s Operations and Errors Policy, BigArena Fulfillment Europe s.r.o. may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that BigArena Fulfillment Europe s.r.o. has no obligation to verify the quantity, content, condition, or quality of the Goods delivered for storage and/or delivery. BigArena Fulfillment Europe s.r.o. may reject storing and/or delivering any Goods that BigArena Fulfillment Europe s.r.o. deems, in its reasonable opinion, to be violative of BigArena Fulfillment Europe s.r.o. Policies, to be improperly labeled or packaged (and so a URO), that appear to contain any hazardous or illegal material, or that appear to be adulterated (including adulteration by any insect or other hazardous infestation).


6.3 Outstanding and Pending Orders: If there are any outstanding or pending Orders that need to be fulfilled as a matter of priority (“Priority Order”), you shall notify BigArena Fulfillment Europe s.r.o. of the Priority Order(s) and the requested timeline for the processing of such Orders. BigArena Fulfillment Europe s.r.o. will use its reasonable efforts to fulfill your request. BigArena Fulfillment Europe s.r.o. cannot guarantee that your request for Priority Order(s) will be fulfilled.


6.4 Returns: All non-Carrier related returns (international and domestic) must follow the Return Policy. You shall be solely responsible for any Fees and any additional Carrier fees, including without limitation shipping, brokerage, or returns processing fees, for Goods that are returned to a BigArena Fulfillment Europe s.r.o. Facility for any reason whatsoever. Custom returns may be rejected and/or subject to additional fees.


6.5 BigArena Fulfillment Europe s.r.o. is Not Liable for International Returns: International shipments that are not delivered are often returned by the Carrier and assessed for return shipping, brokerage and returns processing Carrier fees. Such fees will be payable by (and are billed through to you by the Carrier (often without notice)). BigArena Fulfillment Europe s.r.o. will make reasonable efforts to circumvent international returns or abandoned inventory at your request; however, BigArena Fulfillment Europe s.r.o. reserves the right to charge you fees up to the value of the original Carrier shipping cost plus a fifteen percent (15%) administrative fee. If a tariff is not available, BigArena Fulfillment Europe s.r.o. will either put Orders on hold until tariff information is available or override the Order with no liability to BigArena Fulfillment Europe s.r.o..


6.6 Transfers between BigArena Fulfillment Europe s.r.o. Facilities: You agree that BigArena Fulfillment Europe s.r.o. may, in its reasonable discretion, transfer your Goods at any time to another BigArena Fulfillment Europe s.r.o. Facility in order to optimize its fulfillment network. You will be notified in writing via your Account where such transfer occurs, so that you have clear oversight of the location of your Goods and the BigArena Fulfillment Europe s.r.o. Facility from which they will be dispatched to your customers.


6.7 Restricted Access to BigArena Fulfillment Europe s.r.o. Facilities: Since your Goods may be stored along with the Goods of other merchants, you are not permitted to enter BigArena Fulfillment Europe s.r.o.’s Facilities or access your Goods in a BigArena Fulfillment Europe s.r.o. Facility, without reasonable advance notice and prior express written consent from BigArena Fulfillment Europe s.r.o. and the SFN Provider. If you are granted access to a BigArena Fulfillment Europe s.r.o. Facility, you will be monitored during the access period, and your access can be terminated if BigArena Fulfillment Europe s.r.o. or the SFN Provider determines, in its reasonable discretion, that your access may present a safety risk to any person or property, that your access unreasonably interferes with the operations of the BigArena Fulfillment Europe s.r.o. Facility, or if you otherwise fail to observe any site rules or requirements of the BigArena Fulfillment Europe s.r.o. Facility.


6.8 Warehouseman’s Lien: You agree and acknowledge that the BigArena Fulfillment Europe s.r.o. Facilities maintain an actual or constructive general and continuing warehouseman’s lien and security interest (under the UCC, in respect of Goods located in the United States, under this contractual right, and under any similar statute or common law rights applicable in any other jurisdiction in which Goods are located in a BigArena Fulfillment Europe s.r.o. Facility) for all Goods in such BigArena Fulfillment Europe s.r.o. Facility’s possession or control, regardless of whether a specific receipt is issued, to cover all charges, expenses, costs, and Fees set forth in this Agreement. In the event a BigArena Fulfillment Europe s.r.o. Facility is required to exercise a lien or security interest, you shall be responsible for all necessary and reasonable costs incurred to enforce the lien or security interest including reasonable attorneys’ fees. You will execute any and all agreements and documents so that the BigArena Fulfillment Europe s.r.o. Facility may obtain, perfect, and maintain the lien rights and security interest in the Goods. You will also execute any and all documentation to permit BigArena Fulfillment Europe s.r.o. to perfect the liens.


6.9 Temperature and Humidity Levels: BigArena Fulfillment Europe s.r.o. does not represent, warrant or guarantee that any BigArena Fulfillment Europe s.r.o. Facility will maintain a specific temperature range or humidity level, nor shall BigArena Fulfillment Europe s.r.o. be liable for any fluctuations.


7. Service Level Agreement

7.1 BigArena Fulfillment Europe s.r.o. SLAs: BigArena Fulfillment Europe s.r.o.’s service level agreements (“SLAs”) can be found at the following link: Turnaround Times, Policies, and SLAs.

7.2 Peak Season SLA Increases and Promotion and Bulk Orders: BigArena Fulfillment Europe s.r.o.’s SLAs are subject to vary during Peak Season by notification. BigArena Fulfillment Europe s.r.o. may also vary SLAs based on volume. Please review and use the Promotion and Bulk Order Upload Form for expected spikes in order volume.

7.3 SLA Exclusions: SLAs shall not apply: (a) to Orders received on BigArena Fulfillment Europe s.r.o. Holidays; (b) for Goods not currently in stock; (c) for improperly labelled Goods inventory; (d) to Orders where volume forecasts (per Orders or unit of Good) have not been timely provided; (e) to Orders where the volume per BigArena Fulfillment Europe s.r.o. Facility exceeds 20% of the prior thirty (30) day average number of Orders shipped for you from that respective BigArena Fulfillment Europe s.r.o. Facility; (f) to Orders where the volume exceeds the daily forecast allocation for you in relation to the relevant BigArena Fulfillment Europe s.r.o. Facility (if provided in advance by BigArena Fulfillment Europe s.r.o.); (g) to Orders received during a Force Majeure Event; (h) to cross-border shipments; (i) to Orders received while invoices payable by you are past due; (j) to Orders received during an inventory cycle count or additional physical inventories conducted at your request; (k) when you have failed to provide updated or accurate information regarding Goods on the BigArena Platform or to BigArena Fulfillment Europe s.r.o.; (l) where you have made errors when inputting data in relation to the Goods; (m) when Orders are materially affected by the negligent act or omission of a third-party under your actual or constructive control; and (n) to Orders received within the first thirty (30) days of BigArena Fulfillment Europe s.r.o. commencing fulfilling Orders for you.


8. Carriers

8.1 Carrier Relationships: You understand and agree that BigArena Fulfillment Europe s.r.o. does not carry your Goods and the BigArena Platform connects you with Carriers who are responsible for the actual performance of the carriage of your Goods. In the BigArena Platform, you will choose your preferred shipment option which may identify either a specific carrier or the expected speed of delivery (i.e., overnight, two-day, standard) and corresponding rates for shipment. BigArena Fulfillment Europe s.r.o. will use commercially reasonable efforts to select the lowest cost method to ship your Goods that complies with the shipment option you have chosen. If you choose a specific carrier to perform the delivery, and the carrier you select either cannot service the Goods or cannot provide the service for another reason (for example, due to a strike or work stoppage), or if BigArena Fulfillment Europe s.r.o. is unable to purchase the shipping label for the carrier due to the specified carrier’s technical difficulties, BigArena Fulfillment Europe s.r.o. will use commercially reasonable efforts to choose an appropriate alternative carrier for the affected shipment. BigArena Fulfillment Europe s.r.o. does not act as your agent in respect of any aspect of this Agreement including the engagement of any Carrier. To the extent that BigArena Fulfillment Europe s.r.o. does arrange for the transportation of shipments of Goods by Carriers in the United States, BigArena Fulfillment Europe s.r.o.’s performance will be in the capacity of a property broker (USDOT# 3883843 and MC 1425765), such other license or permit as may be required, or as Merchant’s agent.


8.2 Carrier Claims: If you make a claim for loss or damage against a Carrier for a shipment arranged through BigArena Fulfillment Europe s.r.o., BigArena Fulfillment Europe s.r.o. will help facilitate the filing of the claim. All such claims shall be subject to the Carrier’s standard bill of lading or seaway bill terms of carriage and BigArena Fulfillment Europe s.r.o.’s Lost in Transit and Damage Claims Policy.


8.3 Carrier Performance: BigArena Fulfillment Europe s.r.o. will use commercially reasonable efforts to facilitate each Carrier’s agreement to ensure that the Carrier: (a) has the necessary approvals, authorities, and licenses to provide the shipping services; (b) will comply with all federal, state, provincial, and local laws, regulations, and ordinances including safety laws and regulations; and (c) will maintain insurance as required by law and customary cargo liability insurance. You acknowledge that BigArena Fulfillment Europe s.r.o. makes reasonable efforts to determine the suitability of the Carrier but is not able to guarantee the standard of performance in relation to the carriage and the delivery of your Goods and is not able to guarantee the Carriers’ compliance with applicable laws or regulations.


8.4 Shippable Addresses: You are solely responsible for the accuracy and deliverability of the shipping address provided to BigArena Fulfillment Europe s.r.o. in respect of your Order (“Nominated Address”). BigArena Fulfillment Europe s.r.o. has no obligation to verify the Nominated Address. If the Goods cannot be delivered to the Nominated Address, you grant BigArena Fulfillment Europe s.r.o. the right to share your contact information with the Carrier to contact you for further instructions. If BigArena Fulfillment Europe s.r.o. provides an Order shipping estimate based on the Nominated Address and delivery failed due to the Nominated Address being inaccurate, incomplete, or undeliverable for any reason, you must pay any costs or expenses incurred by BigArena Fulfillment Europe s.r.o. relating to the return of Goods to BigArena Fulfillment Europe s.r.o.’s warehouse, redelivery, and additional storage as a result of a failed delivery. For the avoidance of doubt, examples of discrepancies include, but are not limited to, incomplete addresses, incorrect addresses, undeliverable addresses, commercial/residential address status, and rural address status.


9. Confidentiality and Publicity

9.1 Confidential Information: You and BigArena Fulfillment Europe s.r.o. have each developed certain confidential and proprietary information (“Confidential Information”) including financial statements, financing documents, trade secrets, new products, copyrights, computer software, documentation, specifications, systems, hardware, concepts, designs, configurations, schedules, costs, performance features, techniques, copyrighted matter, patentable and patented inventions, plans, methods, drawings, data, tables, calculations, documents or other paperwork, computer program narratives, flow charts, source and object codes, business and marketing plans, dealings, arrangements, objectives and locations. Confidential Information shall only include such information which is either explicitly designated as “confidential” at the time of disclosure or by its nature is reasonably identifiable as confidential. For purposes of this Agreement, a party disclosing the Confidential Information is the “Discloser” and a party receiving the Confidential Information is the “Recipient.” Confidential Information shall not, however, include any information that Recipient can establish: (a) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to Recipient by Discloser; (b) becomes publicly known or made generally available without a duty of confidentiality after disclosure to Recipient by Discloser through no action or inaction of Recipient; (c) is in the