Although you (“you”) have been looking at merchandise on a retailer’s (“Retailer”) website (for the sake of clarity, “website” as used herein means a site on the internet, mobile app, tablet app, or similar concepts) or a marketplace’s (“Marketplace”) website, any purchases that you make through this checkout (the “Borderfree Checkout”) will be made from Borderfree, Inc. ("Borderfree", “we” or “our”) (as more fully described below). By visiting the Borderfree Checkout, placing an order for the purchase of merchandise from Borderfree, including through a Marketplace, and/or using your Borderfree account, you are agreeing that such order for a purchase (a “Purchase”) is bound by the terms & conditions (“Terms & Conditions”) set forth herein.
Nature of Transaction. Borderfree contracts with online retailers, including the Retailer, and Marketplaces to make available retailers’ merchandise to consumers, such as you, for international delivery through the Borderfree network. The high-level view of the process (and your and our related rights and obligations) is as follows (please note this is only the high-level view – with more specifics and exceptions provided in these Terms & Conditions below):
- You choose merchandise on the Retailer’s website.
- Through the Borderfree Checkout, you will be provided with an opportunity to make a Purchase at a price and in a currency selected by you, inclusive of parcel processing, international shipping, brokerage and customs clearance costs. You may also be given the option (a) to have the price be inclusive of import duty and taxes and/or (b) not to have the price be inclusive of import duty and taxes (and therefore be responsible for payment of import duties and taxes). Please note that the Purchase price total is exclusive of any surcharges that may be imposed by the issuing bank of any credit card you use for the Purchase.
- By clicking the “Submit Order” button, you are making a Purchase through the Borderfree Checkout, and you acknowledge that your transaction will be with Borderfree, not with the Retailer. Borderfree will send you an email stating that your Purchase request has been received.
- Please note that when you click the "Submit Order" button (or equivalent) this does not mean that your Purchase has been accepted, as all orders are subject to acceptance by Borderfree. We are not obliged to accept and/or process your Purchase and may, at our discretion, decline to accept and/or process your Purchase. You do, however, acknowledge that by clicking on the "Submit Order" button (or equivalent), you enter into an obligation to pay for your Purchase in the event that your Purchase is accepted by us. Upon successful verification by Borderfree of the payment information you provide, Borderfree will purchase, with its own payment information, such merchandise from the Retailer for the sole purpose of reselling it to you.
- After Borderfree has purchased the merchandise from the Retailer and before Borderfree accepts your Purchase, Borderfree will authorize the price total through the payment method that you have selected. A hold or a tentative charge for the price total will be placed on your payment method until the time when Borderfree accepts your Purchase. If we successfully authorize or capture the price total, we will send you an order confirmation email. You acknowledge that if Borderfree is unable to verify the payment information you provide, Borderfree representatives may contact you and/or your tender type issuer and/or take other commercially reasonable actions to confirm your identity and/or your intent to place the order. If the merchandise does not arrive at Borderfree’s facility within thirty (30) days of your Purchase, the price total authorized through your payment method will be released.
- If Borderfree does not accept your Purchase, Borderfree makes no commitment of any kind to provide merchandise to you and no contract is formed between you and Borderfree. If we have successfully authorized the price total, Borderfree will accept your Purchase at the point in time when we receive the merchandise that you ordered from the Retailer. We will send you a shipment confirmation email and capture the price total that we had previously authorized when we ship the ordered merchandise to you.
- The merchandise in your Purchase shall materially conform to the product description of such merchandise that you viewed (prior to purchase) on Retailer’s website. If you are under 18 years old, considered a minor in your local jurisdiction, or the equivalent thereof, you may use the Borderfree Checkout only with the permission and involvement of a parent or guardian. To the extent not prohibited by applicable law and subject to the provisions of these Terms & Conditions, Borderfree reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
Non-Commercial Use Intent and Compliance with Applicable Export, Import and Sanctions Law(s). Merchandise available for Purchase from Borderfree is intended for non-commercial use, and purchase of any merchandise for resale purposes is prohibited. Further, by agreeing to these Terms & Conditions, you are certifying that any items in a Purchase will not be re-exported, sold, or transferred in violation of any applicable laws, including the U.S. Export Administration Regulations or applicable U.S. sanctions and embargoes administered by the U.S. Department of the Treasury. Any attempt to have commodities, technology and/or software exported from the United States that are not in accordance with the U.S. Export Administration Regulations and any other applicable law is strictly prohibited. ALTHOUGH WE ARE FACILITATING A PURCHASE AND DELIVERY TO YOU, YOU ARE THE PARTY IMPORTING MERCHANDISE INTO YOUR COUNTRY (“IMPORTER OF RECORD”) OR THE CONSIGNEE, AS APPLICABLE, AND YOU MUST COMPLY WITH ALL LAWS AND REGULATIONS OF THE COUNTRY INTO WHICH THE PURCHASED ITEMS ARE BEING DELIVERED. It is your responsibility to know the laws in the country into which you are receiving the merchandise. By purchasing items hereunder, you are acknowledging that such delivery does not violate any laws or regulations in the country into which the purchased merchandise will be delivered.
- Title to Merchandise. After Borderfree purchases and takes title to the relevant merchandise from the Retailer, title of such merchandise shall transfer from Borderfree to you, in the United States, at the time Borderfree ships the merchandise to you from Borderfree's facility in the United States provided the price total in respect of the merchandise has been received by Borderfree.
- Pricing and Billing. Borderfree uses commercially reasonable efforts to provide accurate commodity pricing information, but Borderfree does not guarantee pricing inaccuracy. Borderfree reserves the right, at its sole discretion and before a contract is formed (as described in Section 1 above), to not process or to cancel any orders placed for a product that was priced incorrectly on a Retailer website or in the Borderfree Checkout as a result of an error. If this occurs, Borderfree will notify you by email. In addition, Borderfree reserves the right, at its sole discretion, to correct any error in the stated price total and may contact you with the corrected price total for your acceptance. If the corrected price total is lower than the original price total stated, a refund will be issued to you for the difference. If the corrected price total is higher than the original price total stated, you will be presented with one or more payment options, and if you choose to accept the corrected price total, you will be billed by Borderfree. Charges to your account may be accompanied by a descriptor that includes “Borderfree”, “BF”, the Retailer name, other descriptor or some combination thereof. Borderfree complies with the applicable rules regarding those payment options (including the timeline of when you will be billed). In the event of the receipt by us of any parcel from Retailer containing only part of your Purchase, Borderfree will process the merchandise received, and will only bill for an amount commensurate with the price of the merchandise therein, pro-rated amounts for shipping and/or handling, plus any applicable duty, taxes, or VAT. Notwithstanding the foregoing, unless expressly consented to by you, in no instance will the aggregate amount billed to you by Borderfree exceed the total amount presented at the time of order placement by you. Borderfree may provide you with certain of the services outlined in these Terms and Conditions, including payment processing services, either directly or indirectly through its affiliates or subsidiaries, including without limitation: Borderfree, Ltd. and Pitney Bowes PayCo Holdings Limited, located at 51/52 Fitzwilliam Square West, Dublin 2, Ireland; Pitney Bowes Inc., located at 3001 Summer Street, Stamford, Connecticut 06926; Pitney Bowes Australia Pty Limited and Pitney Bowes PayCo Australia PTY Limited, located at 95 St. Hilliers Road, Auburn NSW 2144, AU, Australia; Pitney Bowes Canada PayCo Limited, located at 181 Bay Street, Suite 2100, Toronto, ON, M5J 2T3, Canada; Pitney Bowes PayCo UK Limited, located at Building 5 Trident Place, Hatfield Business Park, Mosquito Way, Hatfield, Hertfordshire, AL10 9UJ, United Kingdom; Pitney Bowes PayCo Hong Kong Limited, located at 1401 Hutchison House, 10 Harcourt Road, Hong Kong; Pitney Bowes PayCo Japan KK, located at Gotenyama Trust Tower, 7-35, Kitashinagawa 4-chome, Shinagawa-ku, Tokyo, Japan; Pitney Bowes PayCo Korea Limited, located at Pan Ocean Building, 102 Jundang-daero, Jung-gu, Busan, Korea; Pitney Bowes PayCo Singapore Pte Ltd, located at 8 Marine Boulevard, #05-02, Marina Bay Financial Centre, 018981, Singapore; Pitney Bowes PayCo Switzerland GmbH, located at Steigstrasse 26, CH-8406 Winterthur, Switzerland; Pitney Bowes PayCo EMR Limited, located at PO Box 9371, Dubai, United Arab Emirates; and Pitney Bowes PayCo México, S. de R.L. de C.V., located at Bosque de Ciruelos 180, PP 101, Bosques de la Lomas, 11700 Ciudad de Mexico, Mexico. You hereby acknowledge and agree that Borderfree may carry out such services through Borderfree’s related entities, which may include affiliates and subsidiaries in your country.
- Shipping and Brokers. By making a Purchase, you hereby authorize a licensed customs broker chosen by Borderfree to act as your agent and transact business with foreign revenue authorities to clear your merchandise, account for duties and taxes on your behalf, return your merchandise, and if applicable, prepare and submit refund claims on your behalf for any merchandise that you return. Please note that we do not ship certain merchandise, to certain locations, or to certain people (due to legal restrictions and/or other reasons).
Shipments to Canada by Canada Post: Borderfree, Inc. is an approved CREDITS participant with the Canada Border Services Agency (CBSA). By ordering goods from Borderfree, Inc., I hereby authorize Livingston International Inc. an approved customs broker on CREDITS, to act as my agent, and to transact business with the CBSA, to obtain release of my merchandise, account for duties and taxes, control the return merchandise to Borderfree, Inc., and electronically submit refund claims on my behalf. Under CREDITS, I understand that the CBSA will send any refund of duties and taxes that were paid on the returned merchandise to the customs broker, and that I will obtain the refund directly from Borderfree, Inc.. Further, I also authorize the customs broker to forward any refund issued by the CBSA in my name to Borderfree, Inc. so they can be reimbursed.
Shipments to Canada by DHL Express: Borderfree, Inc. is an approved CREDITS participant with the Canada Border Services Agency (CBSA). By ordering goods from Borderfree, Inc., I hereby authorize DHL Express Canada Ltd an approved customs broker on CREDITS, to act as my agent, and to transact business with the CBSA, to obtain release of my merchandise, account for duties and taxes, control the return merchandise to Borderfree, Inc., and electronically submit refund claims on my behalf. Under CREDITS, I understand that the CBSA will send any refund of duties and taxes that were paid on the returned merchandise to the customs broker, and that I will obtain the refund directly from Borderfree, Inc.. Further, I also authorize the customs broker to forward any refund issued by the CBSA in my name to Borderfree, Inc. so they can be reimbursed.
Shipments to the Russian Federation. When making a Purchase of merchandise destined for the Russian Federation, you may be given the option to select DHL Express as the shipping carrier responsible for delivery. By selecting DHL Express as the shipping carrier responsible for delivering your order to the Russian Federation, you hereby also agree (in addition to these Terms & Conditions) to DHL Russia's terms and conditions documented at https://www.borderfree.com/#/DHL-Express-Russia.
- Customs, Duties, Taxes and Collection Fees. When you are making a Purchase, you may be given an option to prepay import taxes and customs duties levied by the destination country, and any disbursement fees, advancement fees or similar fees imposed by the shipper, broker, the customs authority of the destination country or other party (collectively, “Import Fees”). We will make commercially reasonable efforts to estimate the amount of Import Fees (such estimate, the “Estimate”). However, the Estimate may be more or less than the final actual amount of Import Fees due and payable. We have no control over the Import Fees and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import taxes and customs duties that may be applicable to your Purchase. Import Fees do not include any state, provincial, or local use or similar taxes that a tax authority in the country or other local jurisdiction of destination may levy after the import on apply in respect of your Purchase (“Other Taxes”). Borderfree will not include any Other Taxes in the Estimate, and you will remain responsible for the payment of all Other Taxes as applicable.
Prepaying Import Fees. If you choose to prepay the Import Fees, you agree and acknowledge that (a) the actual Import Fees may be more or less than the Estimate and (b) you will NOT be asked to pay more money OR receive any refund in the case that the actual Import Fees differ from the Estimate. You authorize Borderfree to submit refund claims on your behalf where Borderfree has paid higher Import Fees to customs authorities in the destination country than the Estimate that you have paid, and you hereby acknowledge and agree that Borderfree shall be entitled to directly receive such refund in reimbursement for Import Fees that it has paid on your behalf.
Deferring Payment of Import Fees. IF YOU CHOOSE TO NOT PREPAY THE IMPORT FEES, YOU AGREE AND ACKNOWLEDGE THAT (I) THE ACTUAL IMPORT FEES MAY BE MORE OR LESS THAN THE ESTIMATE; (II) YOU (AND NOT BORDERFREE, THE BROKER, THE SHIPPER, THE RETAILER OR ANY OTHER PARTY) MUST BEAR THE RESPONSIBILITY OF PAYING ALL ACTUAL IMPORT FEES; (III) IN THE CASE THAT ANY ENTITY OTHER THAN YOU MUST PAY SOME OR ALL OF THE ACTUAL IMPORT FEES ON YOUR BEHALF TO EFFECT CUSTOMS CLEARANCE, YOU WILL REIMBURSE THAT ENTITY IN FULL FOR THE ACTUAL IMPORT FEES PAID ON YOUR BEHALF; AND (IV) FAILURE BY YOU TO PAY IMPORT TAXES IN A TIMELY MANNER MAY NOT ONLY CAUSE DELAYS BEYOND OUR ORIGINAL DELIVERY ESTIMATES, BUT ALSO MAY PUT YOU AT RISK OF POTENTIAL LIABILITY FOR TAXES AND OTHER FEES.
Failure to Pay Import Fees IF YOU CHOOSE TO NOT PREPAY THE IMPORT FEES AND IF YOU (OR THE RECIPIENT) SUBSEQUENTLY REFUSE OR FAIL TO ACCEPT THE DELIVERY OF THE MERCHANDISE, REFUSE OR FAIL TO PAY IMPORT FEES, AND/OR ATTEMPT TO RETURN THE MERCHANDISE TO AVOID PAYING IMPORT FEES: (1) THE COSTS YOU PREPAID BORDERFREE FOR SHIPPING AND/OR HANDLING WILL NOT BE REIMBURSED TO YOU; (2) YOU WILL BE RESPONSIBLE FOR ALL CHARGES RESULTING FROM SAID REFUSAL OR FAILURE TO PAY IMPORT FEES (SUCH AS COSTS FOR SHIPPING AND HANDLING BACK TO BORDERFREE IN THE U.S. AND ANY OTHER FEES RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR FAILURE TO PAY THE IMPORT FEES); (3) SUBJECT TO YOUR CONSUMER RIGHTS, YOU UNDERSTAND THAT ALL SALES ARE FINAL AND WE ARE NOT REQUIRED TO REFUND YOU THE COST OF THE MERCHANDISE, BUT WE MAY DO SO IN CERTAIN CASES IN OUR SOLE DISCRETION; (4) YOU ARE STILL RESPONSIBLE FOR ALL ACTUAL IMPORT FEES; (5) YOU WILL NOT REQUEST THAT BORDERFREE OR ANY OTHER ENTITY REIMBURSE YOU FOR ANY IMPORT FEES PAID; (6) YOU MAY HAVE THE OPTION (DEPENDING ON LOCAL LAWS AND REGULATIONS) TO BE REIMBURSED BY A GOVERNMENTAL OR OTHER AUTHORITY FOR SOME OR ALL OF THE ACTUAL IMPORT FEES (AND YOU SHOULD CONTACT THE LOCAL CUSTOMS OFFICE FOR MORE INFORMATION ON THIS), BUT YOU (AND NOT BORDERFREE OR ANY OTHER ENTITY) WILL BE RESPONSIBLE FOR TAKING ACTION TO TRY TO BE SO REIMBURSED; (7) IF BORDERFREE IN OUR SOLE DISCRETION DECIDE TO ATTEMPT TO DEAL WITH THE IMPORT FEES DIRECTLY WITH A GOVERNMENTAL OR OTHER AGENCY, WE WILL NO LONGER HOLD YOU RESPONSIBLE FOR THE IMPORT FEES; (8) ANY PORTION OWED TO YOU (AFTER ACCOUNTING FOR THE ITEMS DISCUSSED ABOVE) WILL BE REFUNDED TO YOU AND (9) ANY PORTION OWED TO BORDERFREE (AFTER ACCOUNTING FOR THE ITEMS DISCUSSED ABOVE), THAT WE HAVE NOT ALREADY COLLECTED FROM YOU, WILL BE BILLED TO YOU THROUGH YOUR INITIAL METHOD OF PAYMENT.
- Returns. As noted above, although you have been looking at merchandise on a Retailer’s or marketplace’s website or app, any Purchases that you make through this Checkout are made from Borderfree. We are ultimately responsible for facilitating delivery of a Purchase to you and facilitating returns. Borderfree’s return policy for any merchandise you Purchase is substantially similar to the terms you will see on the Retailer’s website (“International Returns Policy”), and you may review those terms to determine if any item you may purchase or have purchased may be returned to Borderfree in compliance with such policy (“Allowable Returns”). We have contracted with the Retailer to have them act on our behalf and publish Allowable Returns policies relevant to that Retailer’s merchandise and assist in our process of allowing or disallowing returns. Please note that not all Retailers have published a returns policy for international Purchases. If they have not, then any reference to such a policy herein should be ignored for your Purchase. Borderfree’s policy is to not accept a return of any such merchandise. Also, this means that if you want to return any merchandise that you have Purchased, you must contact the relevant Retailer for a returns authorization in order to initiate Borderfree’s return process. Regardless of whether a return is an Allowable Return, subject to applicable law, Borderfree may in its reasonable discretion disallow a return for valid business reasons (“Returns Exception”). For example, Borderfree may disallow the return of an item containing animal sourced materials regardless of whether it is an Allowable Return because the import of such items into the United States is restricted. If a return that is not subject to a Returns Exception is authorized by the Retailer and the International Returns Policy is initiated, either Borderfree or the Retailer, on Borderfree’s behalf, will provide you with information regarding the return and instructions on where to ship your return parcel. If and where parcels are shipped back to Borderfree’s facility or shipped to a local facility to be consolidated before being shipped to Borderfree’s facility, title to the merchandise that you are returning will transfer from you to Borderfree after the parcel has arrived at Borderfree’s facility in the United States and we have confirmed the contents of the parcel as conforming to merchandise for which the Retailer authorized the return. If the return has been authorized and we determine that we will dispose of or liquidate the parcel after it has arrived at the local facility rather than shipping it back to Borderfree’s facility, title to the merchandise will transfer automatically from you to the third party designated by Borderfree to carry out the liquidation or destruction, and you authorize Borderfree to carry out such destruction or liquidation provided that Borderfree will reimburse you for the return as set forth in this Section after the destruction or liquidation has been carried out. If allowed pursuant to the International Returns Policy and the processes related to such return, Borderfree will reimburse you for any or all of the following, based on the amount that you paid: the original sales prices of the returned merchandise, duties, taxes, and any credits or debits. Unless otherwise stated in the International Returns Policy (or otherwise determined by Borderfree), if merchandise is allowed to be returned hereunder, (a) you are responsible for all costs associated with returning the merchandise (including without limitation shipping costs, duties or taxes imposed for the return, or non-Borderfree fees that may be levied or charged) and (b) if you are being reimbursed your original shipping costs (or some part of that) pursuant to a service gesture, the International Returns Policy or pursuant to relevant law, and you are only returning part of your order, we may only return those shipping costs (or part of those shipping costs) prorated for the merchandise being returned.
EU Consumer Rights: Notwithstanding any other provision of these Terms & Conditions, regarding Purchases that have a ship-to address in the European Union, you have a right to cancel your Purchase and return the merchandise (other than Non-Returnable Merchandise, discussed below) at any time before your order is delivered and within 14 days of the day after your receipt of the merchandise. If your order is delivered in multiple shipments, then the 14-day clock starts on the day after your receipt of the last item in the order. That returns period may be longer if specifically stated in the International Returns Policy. When canceling a Purchase and returning merchandise that was shipped to the European Union, we will reimburse all payments received from you for the merchandise purchased and will also reimburse delivery charges for the least expensive type of delivery offered by us. The refund will be normally made by the original method used by you to pay for the Purchase. When canceling a Purchase and returning merchandise that was shipped to the European Union, in addition to the method described above, you may complete a withdrawal form, located at: https://www.borderfree.com/#/help/eu-withdraw. In order to successfully withdraw from a Purchase, you must send back the merchandise to Borderfree (postmarked) within 14 days of notifying us that you are returning the merchandise. You have a legal obligation to take reasonable care of the merchandise purchased while they are in your possession. If you fail to comply with this obligation, we may have a right to deduct the cost of any deterioration, up to the price of your Purchase, from the refund to which you are otherwise entitled. If you cancel a Purchase within the 14-day cooling off period (see above), we will process the refund due to you as soon as possible and, in any case, within 14 days after the day on which we or the Retailer as applicable receive the merchandise back or, if earlier, the day on which we receive evidence that you have returned the merchandise to the returns address. “Non-Returnable Merchandise” means the following and may not be returned (unless otherwise stated in the International Returns Policy): perishables (food), items that pose a hygiene risk (e.g., underwear and bathing suits), custom-made or personalised items, and sealed audio-visual items (e.g., CDs and DVDs) or software that are unsealed after delivery, unless such merchandise was damaged or faulty when delivered to you.
- Contacting Borderfree. You can contact Borderfree (for questions, comments, praise, complaints, etc.) at [email protected], 27 Waterview Drive, Shelton, CT 06484.
- Electronic Communications. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- DISCLAIMER OF WARRANTIES, LIMITED WARRANTY BY SUPPLIER AND LIMITATION OF LIABILITY. THE BORDERFREE CHECKOUT AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BORDERFREE CHECKOUT ARE PROVIDED BY BORDERFREE ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. BORDERFREE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE BORDERFREE CHECKOUT OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BORDERFREE CHECKOUT, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE BORDERFREE CHECKOUT IS AT YOUR SOLE RISK. BORDERFREE WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO CONTRACTUALLY REQUIRE THE RETAILER TO HONOR LIMITED WARRANTIES POSTED ON THEIR WEBSITES AT THE TIME OF YOUR PLACEMENT OF ORDERS WITH BORDERFREE. YOU AGREE TO ADDRESS ANY QUESTIONS ABOUT MERCHANDISE AND REQUESTS FOR MERCHANDISE SUPPORT DIRECTLY WITH THE RETAILER. THIS INCLUDES, WITHOUT LIMITATION, ANY CONCERNS YOU MAY HAVE ABOUT THE FITNESS, QUALITY, OR SAFETY OF ANY MERCHANDISE. THE RETAILER PROVIDES ALL PRODUCT IMAGES, DESCRIPTIONS AND SPECIFICATIONS TO BORDERFREE, AND BORDERFREE DOES NOT WARRANT THE ACCURACY, RELIABILITY, OR COMPLETENESS OF ANY SUCH IMAGE, DESCRIPTION OR SPECIFICATION. BORDERFREE PROVIDES NO WARRANTIES, GUARANTEES OR COVENANTS OF ANY KIND RELATING TO THE FITNESS, QUALITY, SAFETY, OR INABILITY TO USE, OR INABILITY TO HAVE REPAIRED OR SERVICED, ANY MERCHANDISE IT SELLS TO YOU. TO THE MAXIMUM EXTENT ALLOWED BY LAW, BORDERFREE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO FITNESS, QUALITY, OR SAFETY OF MERCHANDISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU AGREE THAT BORDERFREE AND ITS SUBSIDIARIES AND AFFILIATES (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND REPRESENTATIVES) SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE MERCHANDISE YOU PURCHASE. YOU FURTHER AGREE THAT BORDERFREE AND ITS SUBSIDIARIES AND AFFILIATES (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND REPRESENTATIVES) SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND ARISING FROM A RETAILER’S MISUSE OF YOUR PERSONAL DATA, WHERE YOU EXPLICITLY INSTRUCTED BORDERFREE TO PROVIDE YOUR PERSONAL DATA TO THE RETAILER FOR THE PURPOSE OF SUBSCRIBING YOU TO THEIR MARKETING MESSAGES. LIABILITY IS SPECIFICALLY EXCLUDED FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL AND PUNITIVE DAMAGES, EVEN IF YOU HAVE ADVISED BORDERFREE OF THE POSSIBILITY OF SUCH DAMAGES.
- LIMITED WARRANTY BY BORDERFREE AND LIMITATION OF LIABILITY. BORDERFREE PROVIDES A LIMITED WARRANTY RELATED EXCLUSIVELY TO ITS STORAGE, HANDLING, AND DELIVERY OF MERCHANDISE AS SET FORTH AND LIMITED BY THIS SECTION. YOU ACKNOWLEDGE THAT BORDERFREE SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE TO, OR DELAY IN DELIVERY OF MERCHANDISE YOU PURCHASE, UNLESS CAUSED BY BORDERFREE DURING THE STORAGE, HANDLING, OR DELIVERY OF THE MERCHANDISE FOLLOWING ITS RECEIPT BY BORDERFREE. BORDERFREE SHALL HAVE NO LIABILITY FOR ANY DELAYS OR FAILURE TO SHIP IN THE EVENT THAT ANY MERCHANDISE YOU INSTRUCT BORDERFREE TO PURCHASE FROM RETAILER IS CONTROLLED UNDER U.S. EXPORT CONTROLS AND/OR SANCTIONS LAWS SUCH THAT THE MERCHANDISE CANNOT BE SHIPPED TO YOU. IN ADDITION, BORDERFREE SHALL HAVE NO LIABILITY FOR DAMAGE OR DELAY UNLESS CAUSED BY ITS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. SUBJECT TO THE FOREGOING, BORDERFREE'S LIABILITY SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE ACTUAL PRICE PAID BY YOU FOR THE PRODUCT OR USD $15,000.00, WHICHEVER IS LESS. BORDERFREE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU IN THE EVENT THAT: (I) THE MERCHANDISE WAS NOT RECEIVED BY BORDERFREE FROM THE RETAILER AT BORDERFREE’S APPLICABLE FACILITY IN THE U.S., OR IN THE CASE OF A RETURN FROM YOU, AT BORDERFREE’S APPLICABLE FACILITY IN YOUR COUNTRY OR THE U.S., OR WAS NEVER IN BORDERFREE'S PHYSICAL POSSESSION, OR NO CONTRACT WAS FORMED BETWEEN YOU AND US, OR (II) WHERE NEITHER RETAILER NOR YOU ARE ABLE TO PROVIDE SATISFACTORY PROOF OF SUCH RECEIPT OF THE MERCHANDISE BY BORDERFREE. NOTWITHSTANDING THE FOREGOING LIMITED WARRANTY, BORDERFREE SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL AND PUNITIVE DAMAGES, EVEN IF YOU HAVE ADVISED BORDERFREE OF THE POSSIBILITY OF SUCH DAMAGES.
- ADDITIONAL LIMITATION OF LIABILITY. THE CUMULATIVE LIMITATION OF LIABILITY IN THIS SECTION IS SUPPLEMENTAL, AND THEREFORE APPLIES IN ADDITION TO, ANY OTHER LIMITATIONS OF LIABILITY IN THESE TERMS & CONDITIONS. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE MERCHANDISE, BORDERFREE SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY YOU FOR THE PURCHASE OF SAID MERCHANDISE.
- Consumer Rights. Nothing in these terms of conditions shall affect your consumer rights under applicable law.
- No Exclusion of EU Rights. If you are a consumer based in the EU nothing in these Terms & Conditions shall limit liability for (a) death or personal injury arising from our negligence or that of our employees and agents, (b) for defective products under any mandatory consumer rights or product liability legislation, or (c) for breach of implied terms under any mandatory sale of goods legislation. We do not seek to exclude liability for fraud or fraudulent misrepresentation or any other matter for which our liability cannot be limited or excluded under applicable law.
- Consumer Rights in Germany. If you are a consumer in Germany, please read your supplementary rights available at https://www.borderfree.com/#/de-consumer-rights.
- Copyright. All content included on the Borderfree Checkout, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Borderfree, its affiliates, the Retailer or its licensors and protected by United States and international copyright laws. The software and compilation of all content on this site is the exclusive property of Borderfree, its affiliates, the Retailer or its licensors and is protected by U.S. and international copyright laws.
- Trademarks. Borderfree, borderfree.com, FiftyOne, fiftyone.com, E4X, e4x.com, Bundle Tech and Duty Calculator and other borderfree.com graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Borderfree or its affiliates in the U.S. and/or other countries. Such trademarks and trade dress may not be used in connection with any product or service that is not Borderfree's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Borderfree. All other trademarks not owned by Borderfree that appear in the Borderfree Checkout are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Borderfree.
- Patents. One or more patents owned, pending or licensed by Borderfree or its affiliates may apply to the Borderfree Checkout and to the features and services accessible via the Borderfree Checkout, including US Pat. No. 6,892,184 and US Pat. No. 6,460,020.
- Force Majeure. Borderfree shall not be liable for any damage, loss, cost or expense arising in connection with any failure in performing any obligation caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, acts of governments, pandemics, natural disasters, strike, lockout ("Force Majeure"). Upon the occurrence of any event of Force Majeure, we will promptly inform you and in the event of any delay, the obligation to deliver shall be suspended.
- Severability. These Terms & Conditions state the entire agreement between you and Borderfree, although nothing in this Section shall operate to exclude any representation made by Borderfree fraudulently. If any term or condition herein shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining terms shall not in any way be affected or impaired thereby. You and Borderfree agree that it is our mutual intent that these Terms & Conditions, including without limitation any limitation of liability herein, be enforced as written, but otherwise to the maximum extent allowable by law.
- Jurisdiction and Applicable Law. The laws of the State of New York in the United States of America, excluding its conflicts-of-law rules, shall govern these Terms & Conditions. These Terms & Conditions and the transactions contemplated herein are not and never will be subject to the United Nations Convention on the Uniform Sale of goods or the Uniform Computer Information Transactions Act (prepared by the National Conference of Commissioner on Uniform State Laws) as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction.
Arbitration. Any dispute, claim or controversy that arises out of or relates to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or ability to arbitration, such a dispute, claim or controversy will be determined by binding arbitration as set forth in this Section.
ARBITRATION AFFECTS HOW DISPUTES ARISING FROM THESE TERMS & CONDITIONS WILL BE RESOLVED. BY USING THE BORDERFREE CHECKOUT, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION AND CLASS ACTION WAIVER. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis many of the same damages and relief as a court. Injunctive and declaratory relief or statutory damages may be granted, but punitive or exemplary damages will not be awarded. The arbitrator must follow the terms of these Terms & Conditions as a court would.
The arbitration in this Section will be administered by the Judicial Arbitration Mediation Service (“JAMS”) pursuant to its arbitration rules and procedures then in effect. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267 (international rates may apply). Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules. We will reimburse those fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, Borderfree will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. Judgment on the award may be entered in any court having jurisdiction. The arbitration in this Section must be brought in New York, NY U.S.A before one (1) arbitrator. The decision of the arbitrator will be rendered within thirty (30) days following conclusion of the arbitration and will be in writing and will set forth in detail the reasons for such decision.
You and Borderfree agree that any dispute, claim or controversy arising out of or relating to this Agreement will be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class proceeding.
Modifications. We reserve the right to make changes to the Borderfree Checkout, our policies, and these Terms and Conditions at any time. Your access and/or use of services hereunder subsequent to the effective date of any updated Terms and Conditions constitute your agreement thereto. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining conditions.
Consumer Rights in Germany
A: Section 14 of the Terms & Conditions means that all defects will be remedied upon receipt of notification from you within the statutory period of two (2) years commencing on the date of delivery. You have the option to request either repair or delivery of a replacement item. If you opt for replacement you have to return the defective goods. In the event that the defect cannot be remedied within a reasonable period of time or if repairs or replacement are not successful, you may elect a reduction in the purchase price or rescind the agreement. In the event that the statutory requirements are met you may also be entitled to damages including damages instead of performance and payment of wasted costs. If you have been given a seller guarantee, you have additional rights; please refer to the guarantee document.
B: If you are a consumer based in Germany the following applies in addition to Section 16 of the Terms & Conditions: Nothing in these Terms & Conditions shall limit liability for (i) intentional misconduct (Vorsatz), (ii) gross negligence (grobe Fahrlaessigkeit) (iii) fraudulent misrepresentation (iv) statutory liability that is imposed regardless of fault such as product liability or liability pursuant to contractual guarantees and (v) negligent breach of key duty (Kardinalpflichten); liability for negligent breach of key duty is limited to the typically foreseeable loss. Except as stated in the previous sentence or in Section 16 of the Terms & Conditions all liability is excluded for (i) ordinary light negligence (leichte Fahrlaessigkeit) and (ii) unforeseeable loss.
Retailer as Shipping Agent
In cases where the Retailer acts as Borderfree’s shipping agent, the Retailer facilitates the delivery of purchased merchandise to you. The title to such merchandise will transfer to you from Borderfree at the time of shipment from the Retailer’s facility. The Retailer, not Borderfree, will be the exporter of record and the U.S. Principal Party in Interest (USPPI) and will be responsible for managing all export compliance with any relevant regulatory agency and/or customs authority. Specifically, Section 5 hereinabove does not apply. Instead, you will work with your Retailer to authorize a licensed customs broker to act as your customs clearance agent.