Terms of Service
[Revised March 2026]
By requesting or accepting goods or services, accessing or using software, or using related applications or APIs available through endlesscommerce.com from Endless Commerce Inc., and/or its subsidiaries and affiliates (collectively, “Endless Commerce”), the Customer agrees to the following terms and conditions of service (“Terms and Conditions”).
Endless Commerce may from time to time change these Terms and Conditions. Any changes are effective upon publication on our website at https://endlesscommerce.com/terms, with thirty (30) days’ notice provided either by email to the address associated with Customer’s account or by posting a notice on the Site. Continued use of the Services after the effective date constitutes acceptance of the revised Terms and Conditions.
The Endless Commerce Privacy Policy is incorporated by reference: https://endlesscommerce.com/privacy.
These Terms and Conditions govern the use of Endless Commerce’s Software, Freight Forwarding, and Physical Services (as defined herein).
1. Definitions
1.1 Company: shall mean Endless Commerce, Inc., its subsidiaries, successors, or assigns, or related companies including, without limitation, other authorized agents and/or representatives.
1.2 Customer: shall mean the person or entity for which the Company is rendering service or accessing the Services at endlesscommerce.com, as well as its agents, representatives, and/or transactional counterparties, including but not limited to suppliers, vendors, shippers, customers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, and consignees. It is the responsibility of the Customer to provide notice and copies of these Terms and Conditions to all such agents or representatives.
1.3 Application Data: shall mean any data associated with or related to the Services provided by Company to Customer (excluding User Content or data managed by Company on behalf of other customers), including but not limited to ports, carriers, tariffs, cargo manifests, invoices, price quotes, and associated metadata. All Application Data shall be considered Confidential Information of Company.
1.4 Services: shall mean the services included in an application provided by the Company, including but not limited to the Company’s CommerceOS Platform, OMS App, Software App, Warehousing App, client apps including reports and analytics, visibility offerings, and services offered by Company at endlesscommerce.com. “Endless Commerce Software Services” are Services that provide necessary document, data, and structured work formats to enable Customer and Company service providers or partners to view and manage order, inventory, customer, shipment, and product data.
1.5 Freight Forwarding Services: shall mean any international or domestic freight coordination, ocean or air freight booking, customs brokerage support, carrier management, or related logistics services arranged or facilitated by Company as a freight forwarder on behalf of Customer, whether provided directly or through contracted third-party carriers and agents.
1.6 Physical Services: shall mean any third-party logistics, fulfillment, warehousing, receiving, storage, pick-and-pack, freight coordination, or 4PL services provided by Company or its affiliated or contracted operators in connection with Customer’s use of the platform.
1.7 User Content: shall mean all content, data, and materials selected and provided by Customer and its Users to Company in electronic or hard copy formats, entered into the Services or software. All User Content shall be considered Confidential Information of Customer.
1.8 Confidential Information: shall mean, with respect to a party hereto, (a) the terms and conditions of any agreement executed between the parties, (b) all nonpublic information concerning the business, technology, products, services, strategies, software, documentation, Intellectual Property Rights, source or object code, databases, customers, financial information, and licensing policies of the disclosing party, and (c) any other information clearly labeled as confidential or which should be reasonably understood to be confidential. The following information will not be considered Confidential Information: (i) information in the public domain prior to disclosure; (ii) information that becomes public through no violation of these Terms and Conditions; (iii) information independently developed by the receiving party; or (iv) information received from a third party not under confidentiality obligations.
1.9 User Proposals / Feedback: shall mean any suggestions, comments, or other feedback that Customer provides to Company with respect to the Website, the Services, or any other Company product or service.
1.10 Inventory: shall mean any physical goods, products, or materials belonging to Customer that are received, stored, handled, or processed by Company or its affiliated operators in connection with Physical Services.
1.11 Products: shall mean Customer’s goods that are the subject of Freight Forwarding Services or Physical Services, including any goods stored at or shipped through Company or its Fulfillment Partners.
2. Software Usage
2.1 Terms and Conditions. By accessing and using the Services, Customer agrees to be bound by these Terms and Conditions, effective on the first day that Customer uses any of the Services.
2.2 Registration. In order to use many aspects of the Services, Customer must complete a registration process via the Website. Customer agrees: (a) to provide accurate, current, and complete information, including a valid email address and full legal name; (b) to maintain the security of Customer’s password(s); (c) to maintain and promptly update Registration Data; (d) that Customer is responsible for all activities that take place using their account(s) or password(s), even if they were not aware of them; and (e) to notify Company immediately of any breach of security or unauthorized use of Customer’s account.
2.3 Access to the Services. Subject to these Terms and Conditions and registration criteria, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to: (i) access and use the Services solely in conjunction with Customer’s own internal activities; and (ii) access and use any data or reports that Company provides as part of the Services solely in conjunction with Customer’s use of the Services.
2.4 Duration. For Endless Commerce Software Services, Customer will be able to access endlesscommerce.com pursuant to the Service Plan for which it has subscribed. For all other Services, Customers will be able to access such Services for the period such Services are utilized or as otherwise communicated by Company.
2.5 Users. Each User account is valid for one User only and may not be shared concurrently or otherwise by or among multiple Users. Customer may reassign User accounts to new Users within its organization. Users are limited solely to Customer’s employees or their suppliers.
2.6 Use Limitations. Modification, reverse engineering, reverse compiling, disassembly of, or creation of derivative works incorporating the Services or any component thereof is expressly prohibited. Customer and its Users shall not sublicense, assign, transfer, distribute, rent, resell, or lease the Services or any component thereof to any third party. Customer agrees not to use automated tools, scripts, or other technologies to access, extract, or manipulate Application Data without express written permission. Customer may not: (a) use the Services to store or transmit any viruses or code designed to harm software, hardware, or data; (b) build a competitive product or service or copy any features of the Services; (c) interfere with or disrupt the integrity or performance of the Services; (d) disclose to any third party any performance information or analysis relating to the Services; (e) remove, alter, or obscure any proprietary notices; (f) use the Services for any illegal or unauthorized purpose; or (g) cause or permit any third party to do any of the foregoing.
2.7 Right to Terminate Usage. Company reserves the right to deny or revoke access to the Services, or any part thereof, at any time at Company’s sole discretion, with or without cause.
2.8 Access After Termination. Following expiration or termination of Customer’s subscription, Company will retain Customer’s User Content for thirty (30) days (the “Retention Period”), during which Customer may request an export by contacting support@endlesscommerce.com. Company has no obligation to proactively notify Customer of the commencement or expiration of the Retention Period.
2.9 Third-Party Vendors. Customer understands that Company uses third-party vendors and hosting service providers to provide the necessary hardware, software, networking, storage, and related technology required to provide the Services. Company is not and will not be liable or responsible for the acts or omissions of such third-party vendors or hosting service providers.
2.10 Electronic Communication. By using the Services, Customer consents to receiving electronic communication from Company for all purposes, including logistical and marketing purposes. All notices required or permitted under these Terms and Conditions may be delivered by email to the address on file, and such notice shall be deemed received upon transmission.
2.11 Reference Rights. Endless Commerce reserves the right to use Customer’s name and/or company name as a reference for marketing or promotional purposes on Endless Commerce’s website and in communications with existing or potential customers. To decline this right, Customer must email support@endlesscommerce.com stating that it does not wish to be used as a reference.
3. Endless Commerce Software Services
3.1 Subscription. If Customer subscribes to Endless Commerce Software Services, such services will be made available based on the usage level specified in Customer’s subscription plan. Customer agrees to pay the amount due for each payment or subscription period. Current pricing will be communicated by Company as set forth at https://endlesscommerce.com or in other agreements entered into with Customer (“Service Plan”).
3.2 Fees and Renewal. Subscription fees for Endless Commerce Software Services are billed in advance and are non-refundable. Customer is responsible for all fees due as outlined in the Service Plan for the entire subscription period, even if Customer cancels prior to the end of the subscription period. Unless otherwise stated, subscriptions will automatically renew at the end of each billing cycle unless canceled by the Customer before renewal. Customers are responsible for managing their subscription status and payment details to avoid unintended renewals.
3.3 During the subscription period and subject to Customer’s compliance with these Terms, Customer will have a limited right to access and use the Endless Commerce Software Services consistent with the subscribed Service Plan(s) for Customer’s internal business purposes only.
4. Freight Forwarding Services
4.1 Role of Company. When providing Freight Forwarding Services, Company acts as a freight forwarder and agent of Customer, and not as a carrier, unless otherwise expressly agreed in writing. Company arranges transportation on Customer’s behalf through contracted carriers and agents and assumes no liability for the acts or omissions of such carriers or agents beyond what is set forth herein.
4.2 Customer Responsibilities. Customer is solely responsible for: (a) the accuracy and completeness of all shipping instructions, commodity descriptions, weights, dimensions, and declared values; (b) compliance with all applicable export, import, customs, and trade regulations; (c) obtaining all required licenses, permits, and authorizations for the shipment of Products; and (d) ensuring that all Products tendered for shipment are properly packaged and labeled. Company shall have no liability for losses, delays, or penalties arising from Customer’s failure to comply with the foregoing.
4.3 Carrier Terms. Customer acknowledges that the terms and conditions of the applicable carrier, including ocean bills of lading, airway bills, and carrier tariffs, will govern the carriage of Products. Company will provide Customer with applicable carrier terms upon request. Customer’s acceptance of Freight Forwarding Services constitutes acceptance of the applicable carrier terms.
4.4 Customs and Regulatory Compliance. Company is not the importer of record for any Products. Customer is solely responsible for all customs duties, taxes, tariffs, and regulatory compliance obligations. Company may, at Customer’s request and expense, assist with customs documentation, but such assistance does not make Company the importer of record or relieve Customer of compliance obligations.
4.5 Freight Charges and Third-Party Accounts. When Company ships orders using Customer’s own carrier or freight accounts, Company will use commercially reasonable efforts to ensure proper weights and dimensions are recorded. However, Company is dependent on the accuracy of product data provided by Customer. Company will not be liable for any carrier fees, charges, surcharges, premiums, or insurance premiums that result from inaccurate product data or when freight is billed to Customer’s third-party account. Customer is solely responsible for managing all insurance claims, adjustments, and disputes with carriers when Customer’s freight accounts are used.
4.6 Damage in Transit. For orders shipped using Company’s freight accounts, Company will submit insurance claims to carriers on Customer’s behalf and will credit any shipping insurance proceeds or carrier refunds to Customer’s account. For orders shipped using Customer’s freight accounts, Customer is solely responsible for filing and managing all insurance claims. Company will provide reasonable documentation support upon request. Company’s obligations under this Section are contingent on Customer providing accurate shipment documentation and timely notice of any damage claim.
4.7 Limitation on Freight Forwarding Liability. Company’s liability for any loss, damage, or delay arising from Freight Forwarding Services shall be limited to the lesser of: (a) the actual proven loss or damage; or (b) the freight charges paid by Customer to Company for the specific shipment giving rise to the claim. In no event shall Company be liable for consequential, indirect, or punitive damages arising from Freight Forwarding Services. Customer waives any rights to rely upon any presumption of conversion imposed by law, unless Customer can prove by affirmative evidence that Company converted Products to its own use.
5. User Content and Ownership
5.1 Customer retains ownership rights to their registration data, user logs, configuration settings, and any other data contributed by Customer in connection with the Services (“User Content”). By making available any User Content through the Services, Customer grants to Company a worldwide, non-exclusive, royalty-free license to use, copy, adapt, and modify User Content solely for the purpose of providing the Services to Customer.
5.2 Aggregated Data. Company may collect and analyze data and other information relating to the provision, use, and performance of the Services and related systems and technologies. Company will be free to use such information to improve and enhance the Services, and to disclose such data solely in aggregate or de-identified form in connection with its business, provided that such aggregations do not directly or indirectly identify Customer.
5.3 Company will only disclose User Content to its employees, contractors, and affiliated organizations that need to know that information in order to process it on Company’s behalf or to provide the Services, and that have agreed not to disclose it to others. Company discloses User Content only when required to do so by law, or when Company believes in good faith that disclosure is reasonably necessary to protect the property or rights of Company, third parties, or the public.
5.4 Company does not claim any ownership rights in User Content, and nothing in these Terms and Conditions will be deemed to restrict any rights Customer may have to use and exploit Customer’s User Content. Customer is solely responsible for all User Content and for ensuring that such data abides by all applicable laws.
5.5 By submitting User Proposals to Company, Customer grants Company a royalty-free, irrevocable, perpetual, non-exclusive, worldwide license to use, copy, adapt, modify, sublicense, distribute, display, sell, transfer, incorporate into Company’s products or services, create derivative works from, or otherwise exploit any such User Proposals without compensation to Customer.
5.6 Customer acknowledges that by submitting or uploading User Content to the Services, such as by filing an exception or posting a comment in a message thread relating to a shipment, Customer is making such User Content visible to authorized third parties having access to such data.
5.7 Data Retention. The retention period for custom information and associated documentation in the EU and US is respectively seven (7) and five (5) years. Customers may request an export of their data within this period; after which, data will be permanently deleted unless otherwise required by law. These retention periods apply solely to documentation and records subject to applicable statutory retention requirements and do not extend Company’s obligations to maintain SaaS account data or User Content beyond the periods set forth in Section 2.8.
6. Intellectual Property & Trademarks
6.1 Company owns all rights, title, and interest in and to the Services and all Intellectual Property Rights therein. The look and feel of the Services, including any custom graphics, button icons, and scripts are the property of Company, and Customer may not copy, imitate, or use them, in whole or in part, without Company’s prior written consent. Company reserves all rights not expressly granted to Customer in these Terms and Conditions.
6.2 Customer acknowledges and agrees that any Company names, trademarks, service marks, logos, trade dress, or other branding included on the Services are the property of Company and may not be used without Company’s prior written consent.
7. Customer Representations and Warranties
Customer represents and warrants to Company that: (a) Customer has full power and authority to enter into these Terms and Conditions; (b) Customer owns all User Content or has obtained all permissions, releases, rights, or licenses required to engage in Customer’s activities in connection with the Services; (c) User Content and Customer’s other activities in connection with the Services do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy, or other personal or proprietary right, nor does User Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing; (d) Customer will comply with all applicable laws, regulations, and government orders in connection with its use of the Services, including all export, import, and customs laws; and (e) Customer is eighteen (18) years of age or older.
8. Indemnification
8.1 Customer Indemnification. Customer shall defend, indemnify, and hold harmless Company and its officers, directors, employees, agents, and successors from and against any claims, actions, demands, losses, damages, costs, and expenses (including reasonable legal and accounting fees) arising from or resulting from: (a) Customer’s breach of these Terms and Conditions; (b) any User Content; (c) Customer’s other access, use, or misuse of the Services; (d) Customer’s violation of any applicable law or third party right; or (e) any claims by third parties arising from the shipment, storage, or handling of Customer’s Products. Company shall provide notice to Customer of any such claim, suit, or demand. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification under this section, in which case Customer agrees to cooperate with Company’s defense.
8.2 Company Indemnification. Company shall defend, indemnify, and hold harmless Customer from and against any claims, actions, or demands arising directly from Company’s infringement of any third party’s intellectual property rights in the Services (excluding Customer’s User Content). Company’s indemnification obligations shall not apply to claims arising from: (a) Customer’s modification of the Services; (b) Customer’s combination of the Services with other products or services; or (c) Customer’s use of the Services in violation of these Terms and Conditions.
9. Disclaimer of Warranties
9.1 THE SERVICES, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ENDLESS COMMERCE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ENDLESS COMMERCE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
9.2 Company is not the importer of record for Products stored at or shipped by Company. Company shall not be held liable for complying with Customer’s instructions regarding the Services. Company does not inspect Products, does not take responsibility for the business decisions that Customer makes and implements through the Services, and is not the Merchant of Record for any Products.
10. Limitation of Liability
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL ENDLESS COMMERCE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA.
10.2 Software Services Liability Cap. With respect to any claim arising out of or relating to Software Services, Company’s liability shall be limited to the lesser of: (a) the fees Customer paid to Company in the six (6) months preceding the event giving rise to the claim; or (b) $1,000 per occurrence, with an absolute per annum cap of $10,000 regardless of the number of occurrences. If Customer was not receiving paid services, Company’s maximum liability shall be $100.00 per annum.
10.3 Physical Services and Inventory Loss. With respect to any claim arising out of or relating to Physical Services, including loss, damage, destruction, shortage, or mysterious disappearance of Inventory, Customer’s sole and exclusive remedy shall be limited to: (a) Company’s liability for Inventory loss, which shall be limited to $0.50 per pound for lost, damaged, and/or destroyed Products; (b) a 1.5% annual shrink allowance based on the total Product value as determined in Company’s sole reasonable discretion (“Product Value”), measured annually; and (c) Company’s maximum liability for Inventory loss shall be limited to the lesser of 5% of total Product Value or one month of average billable storage. Explainable, offsetting Product adjustments based on miss-marked Products or receiving errors will not be deemed a shrinkage event. Company will not be liable for lost sales revenue from Inventory loss. Customer hereby waives any rights to rely upon any presumption of conversion imposed by law, unless Customer can prove by affirmative evidence that Company converted Inventory to its own use.
10.4 Freight Forwarding Liability. With respect to any claim arising out of or relating to Freight Forwarding Services, Company’s liability is limited as set forth in Section 4.7.
10.5 The limitations set forth in this Section shall not apply to (a) Company’s indemnification obligations under Section 8.2, or (b) damages caused by Company’s gross negligence or willful misconduct.
11. Billing and Payment
11.1 Payment Authorization. By enrolling in any paid Service or Physical Service, Customer authorizes Company to collect payment via the bank account, ACH transfer, credit card, or other payment method provided by Customer at enrollment. Company may automatically draw the balance due for each invoice on its due date from the payment method on file. Customer is responsible for maintaining a valid and current payment method at all times.
11.2 Payment Processing Fees. Customer is responsible for all payment processing fees associated with its chosen payment method, including credit card processing fees, ACH transfer fees, and wire transfer costs. These fees will be included in or added to invoices as applicable.
11.3 Late Fees. Invoices not paid in full by their due date will accrue late fees at the rate of two percent (2%) per month (24% per annum), calculated monthly, commencing the day after the invoice due date, until the balance is paid in full. Company reserves the right to apply any payments received to any invoices due to Company and its affiliates, in any order, including applying payments to the oldest outstanding invoices first.
11.4 Billing Disputes. If Customer believes an invoice contains an error, Customer must notify Company in writing within fifteen (15) days of the invoice date. Company will review the dispute within five (5) business days of receiving written notice. Failure to notify Company of a dispute within fifteen (15) days constitutes Customer’s acceptance of the invoice as accurate and binding. Disputed amounts do not relieve Customer of its obligation to pay undisputed amounts by their due date. Customer shall pay all freight and accessorial charges in full, without any reduction based upon an alleged offset, counterclaim, or other deduction. Full payment of all undisputed charges is a condition precedent to Customer’s right to assert an offset, counterclaim, or deduction.
11.5 Suspension for Non-Payment. If any invoice remains unpaid in whole or in part for fifteen (15) or more days past its due date, Company may, without notice, suspend all Services and Physical Services, including outbound shipments, and withhold release of any Inventory until all outstanding amounts are paid in full. Suspension of services does not relieve Customer of its obligation to pay storage fees or any other fees that continue to accrue during the suspension period.
11.6 Credit Terms. Company’s standard payment terms require receipt of payment before performance of services. Company may, in its sole discretion, extend credit to Customer. The amount and terms of credit are subject to Company’s periodic review, and Company may increase, decrease, suspend, or revoke credit at any time for any reason and without advance notice.
11.7 Full payment terms are governed by the Endless Commerce Payment Terms & Conditions, available at https://endlesscommerce.com/payment_terms_and_conditions.
12. Inactive Accounts and Data Disposition
12.1 Account Inactivity. An account is considered inactive if (a) Customer’s subscription has lapsed, been canceled, or been terminated for any reason; (b) Company has not received payment for thirty (30) or more days after it is due; or (c) Customer has initiated cancellation without completing removal of associated data or connected configurations. Company has no obligation to provide notice of inactivity status or to remind Customer of any impending data deletion.
12.2 Data Retention After Termination. Following expiration or termination of Customer’s subscription, Company will retain Customer’s User Content for thirty (30) days (the “Retention Period”). During the Retention Period, Customer may request an export of its User Content by contacting support@endlesscommerce.com. Company has no obligation to proactively notify Customer of the commencement or expiration of the Retention Period.
12.3 Data Deletion. Upon expiration of the Retention Period, Company may permanently delete all User Content, account data, connected integration configurations, inventory records, and any other data associated with Customer’s account without further notice. Company shall have no liability to Customer or any third party for such deletion, except as required by applicable law per Section 5.7.
12.4 No Obligation to Store. Company is under no obligation to maintain, archive, back up, or otherwise preserve any User Content beyond the Retention Period. Customer is solely responsible for exporting and preserving any data it wishes to retain prior to account termination or expiration of the Retention Period.
12.5 Reactivation. Company makes no representation that data deleted pursuant to this Section may be recovered. In the event Customer reactivates an account after data deletion has occurred, Customer acknowledges that all prior User Content may be permanently unavailable, and Company shall have no liability arising therefrom.
13. Physical Inventory and 4PL Services
13.1 Applicability. This Section applies to any Customer that utilizes Physical Services, whether provided directly by Company or through Company’s affiliated or contracted operators. By using any Physical Services, Customer agrees to be bound by all provisions of this Section. In the event of a conflict between this Section and any separately executed agreement for Physical Services, the terms most favorable to Company shall control.
13.2 Receiving Requirements. For all inbound shipments to any Company facility, Customer must provide a packing list and advance shipment notice (“ASN”) at least forty-eight (48) hours before products arrive. Any inbound shipment exceeding five (5) pallets requires a scheduled delivery appointment; shipments arriving over five pallets without a confirmed appointment may be refused and rescheduled at Customer’s cost. Inbound shipments arriving without an ASN are subject to a fee of $250 per occurrence. Company will notify Customer of any discrepancy between received and expected quantities. Company is not obligated to count individual units inside inner cartons or master cartons during standard receiving.
13.3 Warehouseman’s Lien. Company and its affiliated operators shall have, and Customer hereby grants, a warehouseman’s lien and security interest on all Inventory to secure the payment of all amounts due to Company and its affiliates under these Terms and Conditions and any related agreements. Customer consents to Company’s filing of any financing statements or other documentation required under applicable law to perfect such security interest, without further consent or signature from Customer. Company and/or its Fulfillment Partners may refuse to surrender possession of Inventory until all amounts, charges, and fees are paid in full.
13.4 Escalating Storage Fees for Aged Inventory. Company reserves the right to apply escalating storage fees to Inventory that has remained in storage without order activity for ninety (90) or more consecutive days (“Aged Inventory”). Escalating storage rates will be communicated to Customer via the platform or by email to the address on file. Customer’s continued use of storage services following such communication constitutes acceptance of the revised rates.
13.5 Abandonment. Inventory is deemed abandoned (“Abandoned Inventory”) upon the occurrence of any one of the following, without requirement of notice from Company: (a) Customer’s subscription has lapsed or been terminated and Customer has not arranged for removal of Inventory within thirty (30) days; (b) invoices for Physical Services have remained unpaid for thirty (30) or more days past their due date; or (c) Customer has initiated cancellation without providing written removal instructions for all Inventory then in storage. The occurrence of any triggering event automatically establishes abandonment as of the date of that event; no further action, notice, or declaration by Company is required.
13.6 Disposition of Abandoned Inventory. Upon abandonment as defined in Section 13.5, Company may, at its sole discretion and without further notice, take any one or more of the following actions: (a) continue storing Inventory at escalated rates; (b) liquidate Inventory through any commercially reasonable means and apply the net proceeds first to all outstanding amounts owed to Company, with any remainder remitted to Customer at the address on file; (c) donate Inventory to a charitable organization; or (d) destroy or dispose of Inventory that has no reasonably recoverable market value. Company shall have no liability to Customer for any action taken under this Section, and Customer hereby waives any claim arising from Company’s good-faith disposition of Abandoned Inventory.
13.7 Customer’s Removal Obligations. Upon termination or expiration of Physical Services for any reason, Customer is responsible, at its sole cost and expense, for arranging removal of all Inventory within thirty (30) days of the termination date. Following payment in full of all outstanding amounts, Company will cooperate with Customer in shipping remaining Inventory to Customer-directed locations at Customer’s cost. Inventory not removed within thirty (30) days of termination is subject to the abandonment provisions of Section 13.5 without further notice.
13.8 Title and Risk of Loss. Title to Inventory remains with Customer at all times. Company does not hold title to or ownership interest in any Inventory, except as necessary to exercise its lien and disposition rights under this Section. Risk of loss for Inventory remains with Customer from the time Inventory is received by Company until delivery to the end customer or return to Customer, except in cases of Company’s gross negligence or willful misconduct.
13.9 Property Insurance. Customer is solely responsible for maintaining property insurance covering the full replacement value of all Inventory held by Company at all times. Company shall not be liable for any loss, damage, or destruction of Inventory caused by events including but not limited to theft, fire, flood, natural disaster, or other circumstances not directly caused by Company’s gross negligence or willful misconduct.
13.10 Product Liability Insurance. Customer is required to maintain general commercial liability insurance and product liability insurance covering all products stored or shipped by Company. Upon Company’s request, Customer shall add Company as an additional insured on its product liability insurance policy and provide a certificate of insurance (“COI”) reflecting the same within ten (10) business days of such request. Customer’s failure to provide a COI upon request is a material breach of these Terms and Conditions.
13.11 Receiving Costs. There is a base cost to receive inventory into the warehouses (“Receiving Cost”). In the event that there are additional costs associated with non-standard receiving, as determined in Company’s sole discretion (“Additional Costs”), such Additional Costs shall be in addition to the Receiving Costs and Customer agrees to pay such Additional Costs. Company, at its sole discretion, may require a Receiving Cost deposit to cover inventory arriving to or in the warehouse.
14. Links to Third-Party Websites or Resources
The Services may contain links to third-party websites or resources. Company provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources. Customer acknowledges sole responsibility for, and assumes all risk arising from, Customer’s use of any third-party websites or resources.
15. Changes to Terms and Conditions
15.1 Company reserves the right to change or modify these Terms and Conditions, or any of its other policies or guidelines, at any time. Company will provide notice by posting the updated Terms and Conditions on Company’s website and revising the date at the top of these Terms and Conditions. Any changes will be effective thirty (30) days after publication at https://endlesscommerce.com/terms. Customer acknowledges that Customer’s continued use of the Services following such notice constitutes acceptance of the modified Terms and Conditions.
15.2 Company reserves the right at any time, and without notice or liability to Customer, to modify the Services, or any part of them, temporarily or permanently.
16. Privacy Policy
Company will process all personal information in accordance with its privacy policy available at https://endlesscommerce.com/privacy. By using the Services, Customer consents to Company’s collection, use, and disclosure of information as set forth in Company’s privacy policy. Company may update that policy from time to time.
17. Governing Law and Arbitration
17.1 Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the laws of (i) the Netherlands, if Customer is domiciled in a country in Europe, or (ii) the United States of America and the State of California, if Customer is domiciled anywhere else, in each case excluding rules governing conflict of law and choice of law.
17.2 Arbitration. Any dispute arising out of these Terms and Conditions shall first be submitted to binding arbitration under the American Arbitration Association (AAA) in Orange County, California, or the Netherlands Arbitration Institute (NAI) in Amsterdam, depending on the governing law. There shall be a single arbitrator appointed from the applicable roster, who must be an attorney or retired judge with experience in commerce, logistics, technology, or a related field. If the parties are unable to agree on an arbitrator, the applicable arbitration body shall appoint one. The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the parties. The arbitrator shall have authority in his or her discretion to award or apportion attorneys’ fees and costs to the prevailing party.
17.3 Jurisdiction for Enforcement. In the event of any court proceeding to challenge or enforce an arbitrator’s award, the parties hereby consent to the exclusive jurisdiction of the state and federal courts sitting in Orange County, California (or the courts in Amsterdam, the Netherlands, as applicable); agree to exclusive venue in that jurisdiction; and waive any claim that such jurisdiction is an inconvenient forum.
17.4 The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to these Terms and Conditions nor to any dispute or transaction arising out of these Terms and Conditions.
18. Force Majeure
18.1 Any delay or failure of either party to perform its obligations under these Terms and Conditions will be excused to the extent that the delay or failure was caused directly by an event beyond such party’s control, without such party’s fault or negligence, and that by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable. Such events may include natural disasters, embargoes, government intervention, explosions, riots, pandemics, wars, or acts of terrorism (each, a “Force Majeure Event”).
18.2 The following will not constitute a Force Majeure Event: Customer’s financial inability to perform; changes in cost or availability of materials, components, or services; market conditions; Customer’s own actions; or contract disputes between Customer and third parties.
18.3 Each party shall give the other party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration. Each party shall use all diligent efforts to end the Force Majeure Event and resume full performance. If such event continues for more than ten (10) days, Customer shall have the right to terminate Physical Services and Freight Forwarding Services, provided that Customer shall remain liable to pay Company all amounts owed as of the date of termination.
19. DMCA
19.1 The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Endless Commerce will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. A notification of claimed copyright infringement should be emailed to support@endlesscommerce.com (subject line: “DMCA Takedown Request”), or mailed to:
Endless Commerce, Inc., Attention: Copyright Agent, 1023 Calle Sombra, Suite G, San Clemente, CA 92673, USA.
19.2 Notification of claimed infringement must include: (a) an electronic or physical signature of the person authorized to act on behalf of the copyright owner; (b) a description of the copyrighted work claimed to have been infringed; (c) a description of where the infringing material is located on the Site; (d) Customer’s address, telephone number, and email address; (e) a statement of good faith belief that the disputed use is not authorized by the copyright owner; and (f) a statement under penalty of perjury that the above information is accurate and that the submitting party is the copyright owner or authorized to act on its behalf.
19.3 Counter-Notice. If Customer believes that content that was removed or disabled is not infringing, Customer may send a written counter-notice to the Copyright Agent containing: (a) Customer’s physical or electronic signature; (b) identification of the removed content and where it appeared before removal; (c) a statement of good faith belief that the content was removed as a result of mistake or misidentification; and (d) Customer’s name, address, telephone number, and email address, a statement consenting to jurisdiction of the federal court located within the Northern District of California, and a statement that Customer will accept service of process from the complaining party.
19.4 Repeat Infringer Policy. Endless Commerce has adopted a policy of terminating, in appropriate circumstances and at its sole discretion, those who are deemed to be repeat infringers. Endless Commerce may also limit access to the Site and/or terminate accounts of any users who infringe any intellectual property rights of others.
20. U.S. Government and Export Matters
Customer may not remove or export from the United States, or allow the export or re-export of, the Services or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
21. General
21.1 No Waiver. The failure of Company to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision.
21.2 Severability. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties agree that the court should give appropriately valid effect to the intention of these Terms and Conditions as reflected in the provision, and the other provisions shall remain in full force and effect.
21.3 Assignment. These Terms and Conditions and any rights granted to Customer may not be transferred or assigned by Customer, whether voluntarily, by operation of law, or otherwise, without Company’s prior written consent. Any attempted assignment or transfer shall be null and void. These Terms and Conditions may be assigned or novated by Company at Company’s sole discretion.
21.4 Entire Agreement. These Terms and Conditions, together with any Service Plan and any separately executed physical services or freight forwarding agreement, constitute the entire agreement between the parties with respect to the subject matter herein and supersede all prior representations, discussions, negotiations, and agreements, whether written or oral. In the event of a conflict between these Terms and Conditions and any separately executed agreement for Physical Services or Freight Forwarding Services, the terms most favorable to Company shall control.
21.5 Survival. The following provisions shall survive any termination or expiration of these Terms and Conditions: Sections 5 (User Content and Ownership), 6 (Intellectual Property), 7 (Customer Representations and Warranties), 8 (Indemnification), 10 (Limitation of Liability), 11 (Billing and Payment), 12 (Inactive Accounts and Data Disposition), 13 (Physical Inventory and 4PL Services), and 17 (Governing Law and Arbitration).
21.6 No Agency. No agency, partnership, joint venture, or employment is created as a result of these Terms and Conditions and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
21.7 Notices. All notices under these Terms and Conditions will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.