Online Hosted Service Agreement

Last updated on August 27, 2018 

THIS ONLINE HOSTED SERVICE AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN SHIPEDGE LLC, WITH BUSINESS OFFICES LOCATED AT 4364 SOUTH ALSTON RD. SUITE 120. DURHAM, NC 27713  (“SHIPEDGE”), AND YOU (THE “SUBSCRIBER”). THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY SIGNING ONLINE (“EFFECTIVE DATE”). BY SIGNING ANY EXHIBIT OR BY COMPLETING YOUR INITIAL PAYMENT YOU DECLARE THAT YOU HAVE CAREFULLY READ AND AGREED TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. EACH OF SHIPEDGE AND SUBSCRIBER IS A “PARTY” AND TOGETHER THEY ARE THE “PARTIES”.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 1. Introduction and Definitions.

1.1  Under the terms of this Agreement, Shipedge will provide Subscriber on a hosted service basis with use of the Shipedge Warehouse Management System and service more particularly described on Exhibit A, which, together with associated documentation made generally available by Shipedge (“Documentation”), installation, development, customization and all hosting and support services provided by Shipedge, and all updates to these items made available hereunder (the “Service”).

1.8 In this Agreement unless the context otherwise requires or unless the Parties agree on a different meaning, the terms hereby defined will have the meanings set out below:

“Subscriber”: Principal user of the Warehouse Management System (hereinafter “WMS”);

“Merchant”: Sometimes called Client, is the Principal user of the Order Management System (hereinafter “OMS”);

“Consumer” Delivery consignee of product sold by Merchant and delivered by Subscriber

“Exhibit” A biding agreement containing Commercial Terms provided in a separate document (Hereinafter “Exhibit”).

Hosted Software” means the Shipedge Platform software system made available on a hosted, “Software as a Service” basis over the Internet, including all updates thereto made available hereunder.

2. Service.

2.1. Subject to the terms and restrictions herein and in the Exhibits provided by email or an invoicing system, Shipedge hereby grants to the Subscriber a limited, non-exclusive, non-transferable, non-sublicensable right and license to: (i) market, promote and sell access to and use of the Order Management System (OMS) portion of the Service, but not the Warehouse Management System (WMS) portion of the Service, to Merchants (as defined above) (each, an “OMS License”); (ii) use a demo site for the Service, if and as provided by Shipedge, solely in support of Subscriber’s sales efforts under this Agreement; and (iii) use any then-current documentation (if any) provided by Shipedge in connection with Subscriber’s sales and support of the Service for its Merchants (collectively, “Documentation”).  Subscriber shall be permitted to sell and provide access to the Order Management System to its Merchants, with respect to the number of Locations (as defined below) for which Subscriber has paid, or has agreed to pay, the applicable subscription fees and solely for use by each such Merchant for its internal business purposes as permitted under this Agreement. Subscriber may use and access the Service and Hosted Software solely through one or more mutually agreed web sites identified on Exhibit A (each, a “Site”) with respect to the physical location(s) identified on Exhibit A: Shipedge Commercial Terms (each, a “Location”). Subscriber and Shipedge shall update and execute a new Exhibit A: Shipedge Commercial Terms for each additional Location for which Subscriber desires to use the Service, and replace Exhibit A to this Agreement.  If the new location is in another country or subject to new pricing terms, Subscriber and Shipedge shall execute a new Exhibit A. The initial and each successive Shipedge Commercial Terms will be numbered as Exhibit A, A-1, A-2, and so on, and each shall be deemed to incorporate by reference the terms of this Agreement.  Subscriber and its users acknowledge that its use of such Sites is conditioned upon agreeing to the Terms of Use (if any) and Privacy Policy (if any) applicable thereto and accessible therefrom.  Shipedge may update such Terms of Use and/or Privacy Policy by posting a new version on such website(s) and/or page(s). In the event of any conflict between any such Terms of Use or Privacy Policy and this Agreement, this Agreement will prevail, except as expressly set forth in this Agreement. Subscriber’s rights to use the Service are non-exclusive and non-transferable. Subscriber agrees to comply with all applicable federal, state, local and foreign laws, rules and regulations in connection with its use of the Service.

2.2. The Service must be used and accessed for the benefit of Subscriber and its Merchants and only by Subscriber’s and such Merchants’ respective employees and independent contractors (“Authorized Users”). Subscriber shall be responsible for all Authorized Users’ use of the Service and their compliance with the terms of this Agreement.

2.3. Subscriber shall be solely responsible for ensuring that its own users and its Merchants’ use of the Service is in compliance with Subscriber’s agreements with any third parties.

2.4. Subscriber further acknowledges that it is solely responsible for: (a) all use of the Service made using its Authorized Users’ user names and passwords, and (b) maintaining the confidentiality of its Authorized Users’ user names and passwords. Subscriber agrees to notify Shipedge immediately of any unauthorized use of any Authorized User’s email address, user name or password, or any other breach of security regarding the Service of which Subscriber becomes aware.

2.5. Shipedge will use commercially reasonable efforts to make the Service available on a 24 hours a day, 7 days a week, and 365 days a year basis, subject to Section 12.1 (Force Majeure) below and to planned downtime for maintenance purposes.  Shipedge offers 100% Network Uptime Guarantee.  This guarantee is passed along to you from our Supplier and assures that all major routing devices within their network are reachable from the global internet 100% of the time. In the event of a WMS server hardware failure, Shipedge guarantees that the faulty hardware will be replaced within 1 hour of identifying the problem. In the event that this guarantee is not met, Shipedge will issue a credit for ten times the pro-rated amount of additional downtime recorded by service monitoring logs. The amount of compensation may not exceed the customer’s monthly recurring charge. This guarantee does not include the time it requires to perform additional software related maintenance, including rebuilding OMS accounts from backups, cloning hard drives, reloading the operating system, reloading the application and configuring applications, or rebuilding integrations or testing related with updates. Many possible situations are completely beyond the control of Shipedge, and are not in the scope of this agreement. Any downtime incurred as a result of any of these situations will not be counted towards downtime credits. These situations include but are not limited to the following examples:

    • Scheduled Network Maintenance – occasionally network maintenance will be required. Shipedge will do everything possible to minimize and avoid downtime during this maintenance. You will receive prior notification of upcoming maintenance either to the e-mail address we have on file or/and through the Shipedge interface.
    • Hardware Maintenance – on rare occasions, the hardware in your WMS Server may need maintenance or replacement. Shipedge will take commercially reasonable efforts and support the efforts of our Subscriber or Suppliers to minimize any downtime in these situations.
    • Software Maintenance – an important part of managing a WMS Server is keeping the software up to date. Occasional third party software updates will be required to address security or performance issues. Usually you will experience little or no downtime in these situations, but we cannot guarantee a specific amount of time in all situations.
    • Malicious Attacks – if a third party not associated with Shipedge initiates a “Denial of Service” or other form of disabling attack against your WMS Server or major portions of our network, Shipedge will do everything in its power to stop the attack, but cannot guarantee a resolution time.
    • Associates Actions – Our guarantees are provided based on terms agreed with Shipedge’s Suppliers or Integrated Channels, and the Subscriber’s tools, other service providers or any external entity, collectively addressed as Associates.  If any Associate fails to meet their services or contractual obligations, Shipedge will make all commercially reasonable efforts to migrate or update its application to keep the Service up and running.
    • Legal Actions – In the case that a legal action is taken against a Shipedge Subscriber or any user and Shipedge is required to act in accordance with the order, Shipedge will not be responsible for any damages.
    • Integration Issues –  If you choose to use one of our integrations, we will monitor the service but cannot guarantee error free data or connectivity. The Subscriber and its users are responsible for Access  Credentials, Connectivity Data, Translations Setup and/or any data consistency required for the integration to work correctly. Any third party updates could adversely affect all or part of the services related integration and the Service. Shipedge work with the Subscriber and do whatever is necessary to fix any Integration related problems, but cannot guarantee a resolution time.

Shipedge will, to the extent practicable, give at least one (1) day prior notice for maintenance downtime and schedule maintenance downtime on holidays, weekends or between 8:00 pm (20:00) USA Eastern time and 7:00 am USA Eastern time on business days or as mutually agreed with the Subscriber.

2.6. Subscriber shall not: (i) except for Subscriber’s right to resell the Service to Merchants as expressly set forth in Section 2.1, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, create derivative works from or otherwise commercially exploit or make the Service available to or for any third party’s benefit, other than as specifically set forth in this Agreement; (ii) send spam or otherwise unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation to third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) copy, frame or mirror any part or content of the Service; (vi) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vii) access the Service in order to (x) build a competitive product or service or (y) copy any features, functions or graphics of the Service; or (viii) attempt to gain unauthorized access to the Service or its related systems or networks. Shipedge may in its sole discretion deny or remove access to any user of the Service who, in Shipedge’s reasonable judgment, tampers with or abuses the Service.

2.7. Subscriber shall be solely responsible for executing a customer agreement with each Merchant for use of the Service, which customer agreement shall be in accordance with the terms of this Agreement, and Subscriber will not provide any warranties or representations regarding the Service other than as expressly set forth herein. In addition, prior to accessing or using the Service or creating a Merchant account, each Merchant shall accept via online clickwrap agreement Shipedge’s then-current terms of service for use of the Service (each, a “EULA”).  Subscriber shall be responsible for collection of any fees from its Merchants, all use of the Service by its Merchants, and shall be liable for any breach of the terms of this Agreement by such Merchant as though performed by Subscriber.  Where applicable, Shipedge will deliver to Subscriber the main warehouse manager user ID and password.  Additionally Shipedge may grant Subscriber master access to all Merchants’ accounts through a service manager portal login page to access the Service for internal use in accordance with this Agreement. Subscriber is responsible for all activities conducted under its user IDs and passwords and for ensuring its employees’ and agents’ compliance with this Agreement.

2.8. Subscriber shall be solely responsible for testing any and all systems configuration related or unrelated to custom developments and/or feature priority  work performed in the system.  Furthermore, the Subscriber shall make sure data entered into the system performs as expected.  If an error is found, the Subscriber shall notify Shipedge’s management team immediately and stop using the feature to allow reasonable time to fix the problem. Shipedge shall not be liable for data or code entered into the system by Subscriber’s request.

2.9. Subscriber is responsible for all hardware, computers, networks, Internet access, operating systems, and other physical devices or components necessary for access to the Service.

3. Support and maintenance services

3.1.This Section 3 governs the provision of support and maintenance services (“Support Services”) by Shipedge to Subscriber under the Hosted Service Agreement between the parties (the “Agreement”). Shipedge will not be obligated to provide Support Services in the event that the Agreement is terminated, or Subscriber does not pay the Subscription Fee or any other amount due to Shipedge.

3.2. Telephone and Email Assistance. Subscriber may request Shipedge’s assistance (“Service Request”) by telephone or by e-mail in connection with the general operation and use of the Service and in connection with suspected problems with the Service. Customer Support and Training will be provided at no cost to the Main Technical Contact for each warehouse location. Providing training to a new Main Technical Contact may be subject to training fees following Section 4, Exhibit A.

3.3. Telephone assistance will be provided from 9:00 AM to 6:00 PM Eastern Time, Monday through Friday excluding holidays. Shipedge will provide an initial response to any ticket via telephone or e-mail within one (1) business hour to requests for assistance.

3.4. Error Corrections. Shipedge will use reasonable efforts to correct material deviations between the Service and its Documentation (“Errors”) that are reported to Shipedge by Subscriber.  If a reported Error causes the Service or any material part to be inoperable, or if such Error substantially adversely affects Subscriber’s use of the Service, Shipedge will use its reasonable commercial efforts either to correct the Error or to provide a workaround as expeditiously as possible.  Under no circumstances, however, does Shipedge warrant or represent that all Errors can and will be corrected.

3.5. Shipedge will provide Subscriber with upgrades to the Service (“Upgrades”) that Shipedge generally makes available for no additional charge to its Subscribers.  Upgrades do not include new products or services, part of a different product, base-code or repository.  Shipedge will use commercially reasonable efforts to allow Subscriber access to major Upgrades on a test basis and platform, to allow Subscriber to validate the Upgrade to ensure its compliance with these terms.

3.6. Contact Person. Subscriber will designate up to 2 full-time technical employees as the designated “Contact Persons” for dealing with Shipedge on support questions.  Before contacting Shipedge with a question, a Contact Person shall take reasonable steps to resolve the question.  For example, a Contact Person shall recreate and verify the alleged problem and review the Documentation before contacting Shipedge. Calls for Support Services shall be initiated by Subscriber to Shipedge only by a Contact Person.

3.7. Additional Subscriber Responsibilities. Subscriber shall perform tasks as requested by Shipedge to aid in the resolution of problems, and shall implement all reasonable workarounds to problems as directed by Shipedge.  Shipedge may identify errors arising from non-Shipedge hardware or software or from unauthorized modifications to the Service.  In such cases Shipedge reserves the right to charge Subscriber for correcting such errors at then current rates for services.

3.8. Additional Services; Customer Support

3.8.1. Shipedge will not be obligated to provide any support-related services in addition to those set forth in this Section 3 (“Additional Services”). Unless otherwise agreed, Subscriber shall pay Shipedge at Shipedge’s then-current hourly rates for Additional Services provided. Additional Services include, but are not limited to, the following:  (a) detailed advice or support regarding the use and operation of the Service; (b) on-site service of any kind; (c) data conversion, system integration or consulting services; (d) service or maintenance of third-party software, operating software, hardware, or other equipment; (e) services caused by Subscriber’s fault, misuse, negligence or failure to perform Subscriber’s responsibilities; or (f) services caused by a malfunction of or problem with any product or goods other than those provided by Shipedge.

3.8.2. Shipedge’s primary support interface will be the Subscriber, not the Subscriber’s Merchant, Subscriber’s customer or any user of the Service (“User”). Subscriber will act as the primary support interface for Users; however, Shipedge may provide support directly to a User (“Direct Support”) in order to deal with urgent issues in connection with the Service. Subscriber will pay Shipedge for Direct Support on a time and materials basis, at Shipedge’s then-current support rate as set forth in a Statement of Work. For the sake of clarity, Shipedge and Subscriber acknowledge and agree that Shipedge may from time to time enter into a direct contractual relationship with one or more Users, at such User’s sole cost and expense, and that Subscriber will have no rights, duties or obligations with respect to such contractual relationship unless mutually agreed in writing by Shipedge, Subscriber and the applicable User. Shipedge has no obligation to provide support or maintenance for external software or hardware used by Subscriber.

4. Proprietary Rights.

4.1. Subscriber acknowledges and agrees that Shipedge is the sole owner of all intellectual property rights in and to the Service, the Hosted Software, and the Site (excluding the Subscriber Data, defined below), including but not limited to the structure, organization, design, algorithms, methods, templates, data models, logic flow, Documentation, and screen displays associated therewith. Subscriber will not reverse engineer, decompile or disassemble the Hosted Software, and will not otherwise attempt to reconstruct or discover the source code for the Hosted Software.  Shipedge reserves all rights in the Service not expressly granted to Subscriber hereunder.

4.2. Subscriber and its Merchants shall retain ownership of the information it or they provide to Shipedge in connection with the Service (“Subscriber Data”) and in the data acquired by Subscriber and its Merchants from their respective use of the Service (“Usage Data”); provided that Shipedge may provide such Usage Data and Subscriber’s and Merchants’ Confidential Information to third parties solely for purposes of providing the Service. Shipedge reserves the right to archive Usage Data that is eighteen (18) months old or older. If Subscriber chooses to keep Usage Data that is over eighteen (18) months old available to them and their Merchants on the Service, Shipedge has the right to charge a reasonable fee for such Usage Data maintenance, including as may be required to provide for the additional server capacity requirements and as mutually agreed by the parties.  Shipedge shall have the right to use and access the Subscriber Data and Usage Data to provide the Service to Subscriber.  In addition, Shipedge shall have the right and license to: (a) use the Subscriber Data and Usage Data internally to develop and enhance the Service and other software, technology, products and services, and (b) derive and compile from the Subscriber Data and Usage Data and other information related to Subscriber’s and its Merchants’ use of the Service certain aggregated or analytical information, so long as such aggregated or analytical information does not reveal any Confidential Information about the Subscriber or its Merchants. Such data may be used for Shipedge’s own purposes and without restriction, including, but not limited to, using such data in conjunction with data from other sources to test, demo and improve Shipedge’s products and services and create new data models and products.  From time to time and without previous notice, Shipedge may enhance or modify existing features or add new features.

4.3. Except for Subscriber Data and Usage Data, Shipedge shall retain ownership of all intellectual property rights in all software, documentation, and other inventions and work product developed by Shipedge as a result of Development Services (defined below).

4.4. Shipedge shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by Subscriber or any Authorized User relating to the Service.

4.5. Use of Names and Logos; Marketing. Subscriber shall identify and market the Service as a product of Shipedge.  Subject to Shipedge’s right to approve each use of the Shipedge trademarks, service marks, trade names and logos identified by Shipedge, including without limitation, the mark SHIPEDGE, from time to time (collectively, the “Shipedge Marks”), Shipedge hereby grants to Subscriber a non-exclusive, non-transferable, non-sublicensable license to use the Shipedge Marks during the term of this Agreement and subject to the terms of this Agreement solely for the purposes of Subscriber marketing and reselling the Service as provided in this Agreement.  Subscriber shall obtain Shipedge’s prior written approval (which approval may be obtained via e-mail) for each new instance of use of the Shipedge Marks and shall otherwise abide by Shipedge’s then current trademark use guidelines as Shipedge provides to Subscriber from time to time.  All goodwill arising out of Subscriber’s use of the Shipedge Marks will inure solely to the benefit of Shipedge. Except as otherwise expressly provided herein, nothing in this Agreement shall be construed as granting Subscriber any rights to use, or any other rights in or to, the Shipedge Marks.

5. Development, Implementation and Support Services

5.1. Shipedge agrees to provide the set-up, training, installation, development, customization and/or implementation services (“Development Services”) set forth in a Statement of Work mutually agreed and signed by the parties if applicable. Subscriber agrees to perform the tasks and provide resources and information as set forth in the Statement of Work attached hereto as Exhibit B. The initial and each successive Statement of Work will be numbered as Exhibit B, B-1, B-2, and so on, and each shall be deemed to incorporate by reference the terms of this Agreement.

5.2. Shipedge will notify Subscriber when the Service is available for implementation’s use (the “Installation Date”). The parties agree to use best commercial efforts to complete their respective implementation activities (as described in the Statement of Work) in the time frames set forth in the Statement of Work (sample provided hereunder).

5.3. Beginning on the Installation Date, Shipedge will provide support and maintenance services in accordance with Section 3 of this agreement. Unless otherwise specified in Exhibit A (Proposal), there is no separate support and maintenance fee.

5.4. Subscriber shall provide Shipedge with access to Subscriber’s technical personnel, facilities, databases, information, security clearance and other items as reasonably requested by Shipedge and as reasonably necessary for Shipedge to perform its obligations under this Agreement including but not limited to as necessary for the ongoing operation of the Service. Any delay resulting from Subscriber’s failure to provide any such items, or any delay resulting from Subscriber’s failure to provide timely decision and approvals may extend any schedule that may be specified in Exhibit-A (Proposal) or Exhibit-B (Statement of Work).

5.5. Shipedge may also from time to time provide Subscriber with additional consulting, training or advisory services (“Consulting Services”) as set forth in a mutually agreed Statement of Work incorporating the terms of this Agreement.

5.6. In addition, Subscriber agrees that unless otherwise expressly set forth in a Statement of Work, Shipedge shall be the sole owner of any and all intellectual property rights in any software, documentation, inventions and work product developed, created or delivered by or on behalf of Shipedge in connection with a Statement of Work (collectively, “Work Product”), including without limitation all intellectual property rights in and to any modifications to and/or customizations of the Software. Subscriber specifically agrees that no Work Product shall be deemed to be a “work made for hire” or a “specially commissioned work” as such terms are used in United States copyright law.

6. Fees and Expenses

6.1. Subscriber shall pay Shipedge the fees set forth in Section 3 of Exhibit A for its use of the Service, the OMS License fees set forth in Section 3 of Exhibit A for each Merchant’s use of the Service, and any fees set forth in the applicable Statement of Work for Development Services, in accordance with the terms and conditions set forth therein. The method of payment described here, as well as the fees and rates set forth in the Exhibit A are subject to change by Shipedge with written notice of at least sixty (60) days. All payments due under this Agreement by Subscribers will be payable on the first calendar day of each Service month or year, as set forth in Section 3 of Exhibit A (Proposal). Payments must be automated by filling the Electronic Payment Authorization form provided in Shipedge’s Invoicing System or received by wire transfer at least 7 days prior to the due date. Subscriber certifies that he is an authorized user of the credit card or bank account and will not dispute scheduled transactions with the bank or credit card company provided. Subscriber agrees to notify Shipedge in writing of any changes of the account information provided or termination of this authorization at least 15 days prior to the next billing date. Declined payments due to insufficient funds, expired card or any for other reason whatsoever, are subject to a $35 declined payment fee.  The system may notify the payment account holder electronically and provide a way to update its payment method.  The invoicing system may retry to initiate payment automatically one day after until the payment is successfully received. Unless otherwise agreed in Exhibit A, all payments under this Agreement are non-refundable and shall be made in United States dollars. International customers are responsible for currency conversion and transfer fees and any applicable local taxes. Past-due payments will be subject to late payment charges of $100 plus the lesser of: (a) two percent (2%) per month, or (b) the maximum rate allowed by law. Any adjustments to automatic charges must be requested in writing within ten (10) days after the date a payment is charged (Adjustment Period). If accepted by Shipedge, the adjustment will be entered into the next month’s or year’s fees. No adjustments will be accepted after the Adjustment Period. Subscriber is responsible to ensure correctly sending electronic payments to Shipedge and all the fees associated with the payment, including transfer fees, bank fees, currency conversion or any other applicable. Failure to receive payments due to lack of funds or any electronic communication problem does not constitute a valid excuse for delayed payment.

6.2. Subscriber agrees to reimburse Shipedge for approved, out-of-pocket expenses incurred in the performance of this Agreement.

6.3. Subscriber shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, and use taxes and any taxes or amounts in lieu thereof paid or payable by Shipedge, but excluding taxes based upon the net income of Shipedge.

6.4. If a payment becomes forty (40) days or more overdue, and has not been reasonably disputed within the Adjustment Period by Subscriber, Shipedge reserves the right to suspend access to the Service and the Site without liability to Subscriber, until payment is made in full.

6.5. The Subscriber may add Services or Modules to the Monthly Plan at will simply by using the service or module.  For example, Processing additional Line Items, adding android devices or creating new OMS accounts will result in updates to the next monthly invoiced charges with fee increases following the agreed pricing in Exhibit A.  Downgrading a service level or removing a module requires a 60 day written notice to billing@shipege.com.  New Training, Integrations or any other Implementation Services may be requested by the Subscriber.  Shipedge will then provide a new Statement of Work and/or an Addendum to this Agreement by email or through the invoicing system as a Quote for the subscriber to approve or reject the quote.  Payment of the quote will signify acceptance of the Addendum.

6.6. For the duration of each applicable EULA, Shipedge shall be entitled to receive payment from Subscriber for the Merchant’s use of the Service. Upon termination of this Agreement, or if Subscriber’s agreement with a Merchant terminates as to any products or services but such Merchant otherwise retains use of the Service, Subscriber shall direct such Merchant to pay Shipedge or its designee, and Shipedge shall continue to receive payments directly from the Merchant for the duration of that Merchant’s EULA. In such circumstances, Subscriber shall have no further obligation to remit payment to Shipedge for the Service applicable to such Merchant unless such Merchant pays Subscriber for amounts that should have been properly paid to Shipedge. Further, in such event, Shipedge may make a copy (“Copy”) of Merchant’s Subscriber Data and Usage Data to redeploy it in a different Shipedge WMS host server so Merchant can continue their operations.

6.7. Referral Program. If Subscriber desires Shipedge to provide prospective customer referrals to Subscriber for Subscriber’s fulfillment services, Subscriber may opt-in to the Shipedge Referral Program by executing and delivering to Shipedge the Referral Program by signing  6.7. (available upon request).

7. Confidentiality

7.1.Confidential Information” means any information or data (including without limitation any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to this Agreement that is marked as confidential or that because of its nature would reasonably be considered confidential by the receiving party. Confidential Information of Shipedge (whether or not marked) includes, but is not limited to, the terms of this Agreement; the Service, as well as the structure, organization, design, algorithms, methods, templates, data models, logic flow, and screen displays associated with the Service; the Documentation; and Shipedge’s pricing, sales and training materials and procedures. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.

7.2. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, Subscriber shall disclose and allow access to the Service only for the purpose of supporting and augmenting Subscriber’s use of the Service.  Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.

7.3. Each party acknowledges and agrees that any violation of this Section 6 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.

7.4. Upon the termination or expiration of this Agreement, the receiving party will return to the disclosing party all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.

8. Term and Termination

8.1. This Agreement shall commence as of the Effective Date and continue in effect for the duration of the Initial Term and Renewal Terms (as stipulated in Exhibit A).  Thereafter this agreement shall continue in effect until either party provides written notice of its intent to terminate this Agreement at least ninety (90) days prior to the desired end date. Any paid or due fees, for the Service, implementation, integrations, customization and training fees are non-refundable. For a termination request to be deemed valid, Subscriber must be up-to-date on all its payments without balance due on any invoice. This agreement will not be terminated until all applicable fees due between the termination request and the end date are paid in full.

8.2. Neither party shall have the right to terminate this Agreement without cause. Only in case of a material breach of the terms and conditions of this Agreement, a Party may provide a notice to the other Party requesting compliance with the terms of this Agreement within 30 calendar days. If upon the 30 days the other Party’s material breach continues, the requesting Party will have the right to terminate this Agreement. Except as otherwise provided in this Agreement, such termination shall be Subscriber’s sole and exclusive remedy in case of a material breach of this Agreement by Shipedge.  Shipedge will have the right to suspend Subscriber’s use of or access to the Service in the event of a material breach of this Agreement by Subscriber.

8.3. The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management prior to resorting to litigation.

8.4. The terms provided in Sections 3.1, 3.2, 3.3, 5, 6, 7, 8.2, 9, 10, 11, and 12 of this Agreement shall survive any termination of this Agreement. In addition, upon termination Subscriber shall immediately pay Shipedge all outstanding amounts due to Shipedge under this Agreement or any Exhibit, Addendum or Statement of Work.  If this Agreement is terminated by Shipedge due to Subscriber’s breach, then all fees unpaid for the remainder of the then-current term shall become immediately due and payable by Subscriber to Shipedge as liquidated damages, without any further demand by Shipedge. The parties acknowledge that Shipedge’s actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of Shipedge’s potential losses.

9. Relationship of Parties

9.1. The parties are and intend to be independent contractors with respect to the services contemplated hereunder. Shipedge agrees that neither it, its employees, nor its contractors shall be considered employees of Subscriber. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.

9.2. The parties to this Agreement have invested substantial resources to hire and train staff. Each party agrees that, while this Agreement is in effect, and for twelve (12) months thereafter, neither party shall solicit or hire any employee of the other to work for their organization as an employee, consultant, or in any indirect capacity, except with the other party’s prior written consent.

9.3. Upon Shipedge’s request, Subscriber agrees to participate in a mutually agreed press release regarding the relationship established by this Agreement. In addition, Subscriber agrees from time to time, as reasonably requested by Shipedge and subject to Subscriber’s approval, participate in Shipedge promotional activities, such as preparation of case studies; participation in media interviews; and preparation of quotes and other marketing materials for Shipedge.  Approvals under this Section 8.3 shall not be unreasonably withheld or delayed by Subscriber.

10. Warranties; Disclaimers

10.1. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder. In addition, Shipedge warrants that the Service will substantially conform to the Documentation provided in connection with the Service. If it does not after a reasonable opportunity to cure, at Shipedge’s option, Shipedge will either make it conform or terminate the applicable Service and refund on a pro-rata basis any Fees for the Service at issue for the current period.  This is the exclusive remedy for breach of the foregoing warranty.

10.2. Shipedge does not warrant that the Service will operate without interruption or error-free. Subscriber is solely responsible for the accuracy and adequacy of the information and data furnished for processing with the Service. Subscriber further understands that successful use of the Service is dependent on Subscriber’s use of proper procedures and systems. Subscriber shall be solely responsible for all decisions made using the Service, and acknowledges and agrees that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.

10.3. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SHIPEDGE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF SUBSCRIBER USAGE IN THE TRADE OR BY COURSE OF DEALING.

11. Indemnification; Limitation of Liability

11.1. Shipedge shall defend, indemnify and hold Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party alleging that the Service as provided by Shipedge and used by Subscriber in accordance the applicable Documentation infringes or misappropriates the intellectual property rights of a third party that is enforceable in the United States. Upon notice of a claim of intellectual property infringement or if, in Shipedge’s opinion, a claim of intellectual property infringement is likely, Shipedge shall have the right, at its sole option and expense, to: (a) procure for Subscriber the right to continue using the Service under the terms of this Agreement; (b) replace or modify the Service to be non-infringing without material decrease in functionality; or (c) if the foregoing options are not commercially reasonable, terminate this Agreement and refund Subscriber all prepaid fees for the remainder of its subscription term after the date of termination. Shipedge shall have no obligation or liability for any claim pursuant to this Section to the extent arising from: (i) the combinations, operation, or use of the Service supplied under this Agreement with any product, device, or software not supplied or expressly authorized in writing by Shipedge, to the extent the combination creates the infringement; (ii)  the unauthorized alteration or modification by Subscriber or its Merchant of the Service, or (iii) Shipedge’s compliance with Subscriber’s or its Merchant’s designs, specifications, requests, or instructions pursuant to an engagement with Shipedge relating to the Service to the extent the claim of infringement is based on the foregoing.  The remedy set forth in this Section 10.1 states the sole and exclusive obligation and liability of Shipedge, and the sole and exclusive remedy for Subscriber, for intellectual property rights infringement or misappropriation of any kind.

11.2. Subscriber shall defend, indemnify and hold Shipedge harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Shipedge by a third party alleging that the Subscriber Data or Usage Data, or Subscriber’s, or any Subscriber’s Merchant’s, use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property rights of, or has otherwise harmed, such third party or for any breach of Subscriber’s representations and warranties set forth in this Agreement.

11.3. The indemnified party will (i) promptly notify the indemnifying party in writing of any Claim for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (ii) allow the indemnifying party to solely control the defense of any Claim and all negotiations for settlement (provided that in no event may either party enter into any third-party agreements which would in any manner whatsoever affect the rights of, or bind the other party in any manner to such third party, without the prior written consent of the other party) and (iii) provide reasonable cooperation to the indemnifying party, at the indemnifying party’s sole expense, in defending the Claim.

11.4. Except with respect to Shipedge’s indemnification obligations under Section 10.1 or a breach of the confidentiality provisions of Section 6, the limit of Shipedge’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to Subscriber or to any third party concerning performance or non‑performance by Shipedge, or in any manner related to this Agreement, for any and all claims shall not exceed in the aggregate the lesser of (i) the Subscription Fees paid by Subscriber to Shipedge hereunder with respect to the Service at issue during the one (1) month prior to the date that the relevant cause of action accrued and (ii) U.S. $2,000.00.

11.5. In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, savings, data, or the cost of recreating lost data), even if it has been advised of their possible existence.

12. Data

12.1. Subscriber represents and warrants that all Subscriber Data provided to Shipedge in connection with Subscriber’s use of the Site and the Service: (i) is owned by Subscriber, or Subscriber has the full right to provide the Subscriber Data to Shipedge; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. Subscriber further represents and warrants that its use of the Subscriber Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that Subscriber has to any other person or entity. Subscriber is solely responsible for the accuracy and sufficiency of the Subscriber Data, and acknowledges that Shipedge has no responsibility or intent to review or monitor any Subscriber Data.

13. Miscellaneous

13.1. Neither party shall be liable for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers. However, to the extent that a party is unable to remedy such delay or failure within thirty (30) days, the other party may terminate the Agreement in accordance with Section 7.2.

13.2. This Agreement, including all Exhibits, including Accepted Proposals, Addendum and Statements of Work, constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral agreements with respect to its subject matter. Except as provided expressly herein, this Agreement shall not be modified, amended, or in any way altered except by express written consent by both of the parties.  No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance.  Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement.

13.3. This Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to conflict of law provisions. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.

13.4. All notices required or permitted hereunder shall be in writing, delivered personally or by telephonic facsimile, certified or registered mail, or overnight delivery by an established national delivery service at the respective addresses of the parties or through an Online Invoicing System. Notices to Shipedge shall be sent to the attention of President or to such other person designated by Shipedge in a written notice to Subscriber. Notices to Subscriber shall be sent to the attention of the Subscriber financial contact set through an Online Invoicing System or to such other person designated by Subscriber in a written notice to Shipedge.  All notices shall be deemed effective upon personal delivery; or on the day following receipt by telephonic facsimile; or when received if sent by certified or registered mail or by overnight delivery. Notices will be deemed delivered on the date shown on the postal return receipt or on the courier, or facsimile confirmation of delivery. Unless required by law, all notices can also be submitted electronically by email to the parties’ emails as set out in the Online Invoicing System.

13.5. The Parties hereby consent to the jurisdiction of the courts of the State of North Carolina, U.S.A. Each of the Parties hereby consent to the enforcement of all judgments and orders of the said courts in North Carolina. The Parties agree that the Party initiating a dispute may be responsible for the other Party’s legal costs involved in the dispute, as determined by the appropriate Court. The provisions of this Clause shall survive the termination of this Agreement.

13.6. Subscriber acknowledges that access to the Service from outside the United States, or other export of the Hosted Software or Service, is subject to U.S. export laws, and agrees to comply with such export laws.

13.7. Subscriber may not assign or transfer this Agreement or its rights or obligations under this Agreement, whether by operation of law, change of control or otherwise, without the prior written consent of Shipedge, and any such attempted assignment shall be null and void.