OpenBorder Terms and Conditions
These OpenBorder Terms and Conditions apply to the OpenBorder Services and constitute the entire agreement between Customer (as identified on the relevant SOW) and OpenBorder, Inc. for the OpenBorder Services (collectively, the “Agreement”). By executing the Service Agreement/SOW by and among Customer, Stord, Inc. and OpenBorder (the “SOW”) and/or accepting OpenBorder Services (as described in the relevant SOW), OpenBorder and Customer agree to these OpenBorder Terms and Conditions. OpenBorder may from time to time change these OpenBorder Terms and Conditions. Any changes are effective immediately upon posting on OpenBorder’s website at https://openborder.com/stord/termsv1-0 (password: growinternational). Capitalized terms not defined herein shall have the meaning set forth in the Stord Terms (as defined herein).
1. OpenBorder provides software that enables cross-border shipping options with tax, duty and product compliance (the "Enterprise International Services”).
2. Fees.
Customer agrees to pay the following fees (“Fees”) for the Enterprise International Services: (a) the rates set forth above; (b) any duties, tariffs, charges, postage, taxes, fuel surcharges, inspection fees, clearance fees, disposition fees, customs broker fees, carrier fees, third party brokerage fees, or other government-imposed fees related to the Enterprise International Services or the goods; and (c) any indirect taxes (VAT, GST, etc.) chargeable at the rate applicable to the Enterprise International Services. The exact amount of the Fees is contingent upon Customer providing accurate information for Enterprise International Services and the final Fees may increase if there are additional costs due to invalid or inaccurate information provided by Customer. Additional invoices may be sent if there are additional Fees due to inaccurate or invalid information provided by Customer. For the avoidance of doubt, under no circumstances will Stord or OpenBorder be liable for any duties, tariffs, charges, postage, taxes, fuel surcharges, inspection fees, clearance fees, disposition fees, customs broker fees, carrier fees, third party brokerage fees, other government-imposed fees, Taxes, or indirect taxes related to the Enterprise International Services or the goods.
3. Payment.
OpenBorder shall provide invoices to Customer on a monthly basis for the prior calendar month’s fees, which invoice shall be immediately due and payable. All past due amounts that are not subject to a reasonable, good faith dispute will subject to a late fee of 1.5% per month or, if lower, the maximum amount permitted under law, from the date such payment was due until the date paid. OpenBorder reserves the right to suspend performance of the OpenBorder Services for late payment. OpenBorder may recover from Customer any legal and other costs incurred by OpenBorder arising from Customer’s late payment or default in payment and the collection of any overdue money.
4. Taxes and Duties.
OpenBorder will use reasonable efforts to follow applicable laws concerning sales and use taxes, value-added taxes, import taxes, tariffs and duties (the “Taxes”) for goods sold to end-customers. OpenBorder will be responsible for calculation, payment and documentation of Taxes to the applicable authorities. OpenBorder will bill the Taxes back to Customer plus a 5% deferment fee. Customer acknowledges and agrees that the calculations are estimates based on the information available to OpenBorder on the date of the calculation, and the calculation may take into account any changes in duty and/or tax rates that are reasonably expected to go into effect before a shipment arrives at customs for processing. Customer is responsible for supplying complete and correct information to OpenBorder in order to provide the services contemplated hereunder, and OpenBorder reserves the right to bill any necessary amount to Customer as a result of Customer’s failure to provide complete or correct data. Neither Stord nor OpenBorder assumes liability for Customers’ obligations regarding any Taxes or for any income or other tax liability Customer may incur as a result of sales of goods to its customers or any other aspect of this Agreement. If OpenBorder is completing any registrations with applicable authorities on behalf of Customer, then Customer shall provide powers of attorney in the forms provided to Customer upon OpenBorder’s request.
5. Authorization.
Customer shall authorize OpenBorder and its agents to make and file customs declarations and all related actions as a direct representative, in the name of, and on behalf of, and at the risk of Customer or end-customer which expressly includes completing or changing any documents, amending product or Harmonized System codes, and paying any duties, taxes or penalties required under applicable laws and regulations and review and modify, as needed, Customer shipping and order data submitted by Customer to carriers pursuant to this authorization (provide, however, that this authorization does not release Customer from its responsibility to provide accurate documentation to OpenBorder). Merchant grants OpenBorder the legal right to act as the seller and merchant of record, and as the exporter of record.
6. Representations and Warranties.
6.1 Customer represents and warrants to OpenBorder and Stord as follows:Customer has full power and authority to enter into this Agreement and make the agreements specified herein.
6.2 Customer warrants that it is either the owner, or the authorized agent of the owner, of the goods.
6.3 The goods will be fit for human use and merchantable.
6.4 Customer shall not have any right or authority to make any representations or warranties on OpenBorder’s or Stord’s behalf, except as expressly approved in writing by OpenBorder or Stord; or to assume or create any obligations or responsibilities, express or implied, on behalf of OpenBorder or Stord; or to bind OpenBorder or Stord in any way; except as expressly set forth in this Agreement. OpenBorder and Stord shall not be liable for any unauthorized representations or warranties made by Customer.
6.5 To Customer’s best knowledge, the goods and the Customer property will not violate any person’s right of privacy or infringe any third party copyright, trademark, or other intellectual or contractual property rights.
6.6 Customer warrants that all goods and associated descriptions and text are complete, accurate, not misleading, not infringing of any third party’s intellectual property, personal or other proprietary rights, and the goods are compliant with all applicable laws.
6.7 Customer shall comply with all laws applicable to the operation of its business, the goods, and its performance hereunder.
6.8 Customer shall provide to OpenBorder all documentation, and make available all relevant information, relating to the goods, including anything that OpenBorder reasonably requests to comply with any obligation relating to the sale and delivery (including customs clearance), and Customer warrants that all statements, documentation and information are, and continue to be true, correct and complete.
7. Deemed Supplier Frameworks.
In order to comply with IOSS, a “deemed supplier” framework or as otherwise qualified by OpenBorder, upon an end-customer order that qualifies for the use of such frameworks, Customer shall be deemed to sell the goods to OpenBorder at the price paid by the end-customer, without applicable taxes and duties included, so that OpenBorder shall have the right to dispose of those goods at the time of the sale to the end-customer. Payment received by Customer from the end-customer for such order is deemed to discharge all of OpenBorder’s liability in respect of the amounts due to Customer for the purchase of the goods by OpenBorder at the time such payment is first processed. OpenBorder shall have no liability to Customer if the transaction for payment is cancelled, reversed or found be fraudulent, or for any other reason the end-customer does not pay in full. Title and ownership of the goods shall pass from Customer to OpenBorder and immediately from OpenBorder to the end-customer on payment in full by end-customer to Customer. Customer shall cause end-customers to be aware in its terms and conditions or contract or otherwise, that the good contained in such order shall be sold to the end-customer by OpenBorder
8. Customer Obligations.
Notwithstanding the on-paper sale of goods to OpenBorder hereunder, Customer retains sole responsibility for any warranty, returns, exchanges, refunds or end-customer service obligations with respect to the goods. Customer shall notify OpenBorder within five (5) business days of any return or refund of a end-customer order to enable OpenBorder to seek a credit or repayment of the applicable taxes and duties from the applicable authority.
9. Restrictions.
Customer will not reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, algorithms, programming methods or confidential information from the OpenBorder Services. Customer will not modify or create derivative works of the OpenBorder Services or use it in order to build a competitive product or service, or copy any features, functions or graphics of the Platform, its software or the website
10.Additional Terms.
Sections 2.2, 2.3, 3, 4 (excluding 4.2 and the last sentence of 4.12 and provided that the email for notice shall be legal@openborder.com) of Stord’s General Terms available at https://www.stord.com/legal/general-terms (the “Stord Terms”) and as may be updated from time to time are hereby incorporated into this Agreement as if fully set forth herein mutatis mutandis, including that all references to “Stord” shall be deemed to refer to “OpenBorder” and references to “Services” shall be deemed to refer to “OpenBorder Services.” To the extent of any conflict between the incorporated provision and this Agreement, this Agreement shall control. For clarity, OpenBorder and Stord may each provide services to the Customer under separate but coordinated agreements. The incorporation of Stord’s General Terms in this Agreement does not create any agency, partnership, or joint venture between Stord and OpenBorder except as expressly stated.
11. Indemnification.
Customer shall indemnify, defend and hold each of OpenBorder and Stord and their respective related Indemnified Parties harmless from and against any Claim brought against such Indemnified Parties (i) alleging that any good or Customer property (including its content) infringes any third-party patent, copyright, or trademark or misappropriates a trade secret; or (ii) for any Claim based upon or relating to any good, including false or misleading advertising, misrepresentation or product liability. Customer shall also indemnify, defend and hold harmless OpenBorder and Stord and their respective related Indemnified Parties against all Claims arising from (a) any act or omission by any OpenBorder Party in compliance with written instructions, product classifications or information given by or on behalf of any Customer Party apart from OpenBorder; (b) any handling, loading, storage or unloading of the goods by any Customer Party designated by Customer; (c) the nature, quality, quantity or condition of the goods; (d) that Customer improperly collected or handled any personal information independently collected by Customer; and (e) all fines imposed by any authority in respect of the goods’ failure to comply with applicable laws or any unpaid taxes previously owed. The foregoing indemnification obligations shall exclude any Claims to the extent caused directly by the gross negligence or willful misconduct of any OpenBorder Party or Stord Party. Customer shall have no liability for any infringement claim to the extent such claim is based on: (1) unauthorized modification of the Goods by OpenBorder; or (2) any open source or other third-party software to the extent incorporated by OpenBorder into the Platform.
