STANDARD TERMS OF SERVICE
STANDARD TERMS - SHIPSI SERVICES AGREEMENT
The following definitions (and additional definitions provided below) will apply to this Agreement:
- “Affiliate” of a Party means (i) any entity that such Party controls, (ii) any entity that controls such Party, or (iii) any entity under common control with such Party. To “control” means owning or otherwise controlling 50% or more of the voting securities or rights of an entity, or otherwise having the power to dictate its activities.
- “Anonymous Data” means Usage Data that has been anonymized and does not identify Store Owner or Store Owner Users as the source of such Usage Data.
- “Confidential Information” means non-public information, technical data or know-how of a Party and/or its Affiliates, which is furnished to the other Party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving Party and not subject to a confidentiality obligation to the providing Party; (ii) independently developed by the receiving Party; (iii) publicly disclosed or available through no fault of the receiving Party; (iv) rightfully received by the receiving Party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing Party; or (vi) is Anonymous Data.
- “Confirmed Order” means an Order for which you have approved the Shipsi Delivery Price submitted by Shipsi and have authorized the delivery.
- “Courier” means the third-party providing courier or carriage services for delivering items.
- “Documentation” means the manuals, specifications, and other written and electronic materials describing the functionality, features, and operating characteristics, maintenance, operation, and use of the Software, as provided or made available by Shipsi.
- “End-Users” means the individuals who place orders for items on the Store Owner’s Website and select the method of delivery for such items using the Solution.
- “Shipsi Delivery Price” means the price quoted and returned to the Merchant for each Order.
- “Merchants” means a person or company engaged in the business of selling or trading goods.
- “Order” means a delivery request submitted by you through the Shipsi Instant Delivery App or API, requesting delivery of an item to a certain customer of yours or deliver a third party’s item.
- “Personal Data” means any information relating to an identified or identifiable natural person.
- “Sender” means any individual that is at least 18 years of age and has all right and authority to lawfully use the Services or otherwise has the full right and authority to contract for the delivery and send all items contained in a delivery.
- “Services” means, collectively, all services provided or made available to Store Owner by Shipsi under this Agreement, including but not limited to the access to and functionality of the Software.
- “Shipsi Instant Delivery App” means the application that runs on Store Owner’s Shopify store and provides the Solution enabling End-Users to select delivery.
- “Shopify App Store” means the applications available through Store Owner’s Shopify admin whereby Store Owner may install the Shipsi Instant Delivery App.
- “Software” means Shipsi’s software platform known as “Shipsi Instant Delivery,” including any cloud-based or local extensions or modules thereto, Application Programming Interface (“APIs”) modules, the relevant functionality, content (excluding Store Owner-Supplied Content), concepts, features, and documentation related thereto, as well as all updates and customizations to any of the foregoing.
- “Solution” means the solution provided to End-Users based on the Store Owner’s instruction to the Software and/or use of the Services.
- “Store Owner Account” means Store Owner’s account used to access the Software, and all usernames relating thereto, including Store Owner User accounts.
- “Store Owner Representative” means the Store Owner Users designated by Store Owner as authorized to create Store Owner User accounts, administer Store Owner’s use of the Service and otherwise represent Store Owner for the purpose of this Agreement.
- “Store Owner User” means one of Store Owner’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Store Owner in connection with Store Owner’s business affairs who are authorized to access the Software on Store Owner’s behalf and have been supplied Store Owner-specific administrative credentials by Store Owner (or by Shipsi at Store Owner’s request).
- “Store Owner Website” means the website provided by the Store Owner to End-Users for the purposes of placing orders for items supplied by the Store Owner.
- “Store Owner” means the legal entity or individual that enters into this Agreement with Shipsi.
- “Store Owner-Supplied Content” means graphics, text, audio, photos, software, music, sounds, video or similar information or material provided or submitted by or on behalf of Store Owner to Shipsi or the Software in the course of utilizing the Software or in connection with this Agreement.
- “Support Services” means the support services of Shipsi as posted on the Website or otherwise agreed in writing and executed by an authorized representative of each Party.
- “Usage Data” means any information or data provided or submitted by Store Owner or any Store Owner User or End-User to Shipsi or the Software in the course of utilizing the Software.
- “Website” means the content of the site available at shipsi.com.
II. Shipsi Instant Delivery App Subscription
- Shipsi Instant Delivery App. The Shipsi Instant Delivery App connects consumers with a person or company engaged in the business of selling or trading goods (“Merchants”), and with independent contractor couriers (“Couriers”), to facilitate on-demand delivery or pickup services. Through the Platform, consumers may request that merchandise or food be made available for pick-up or delivered to them from a Merchant by Couriers who contract with SHIPSI to access the Shipsi Instant Delivery App and receive delivery opportunities. Shipsi’s Services are provided through the Shipsi Instant Delivery App after it is downloaded from the Shopify App Store. The Shipsi Instant Delivery App enables an End User to select delivery terms on Store Owner’s Website, which is then facilitated by the Software providing Courier options. Shipsi may supply Store Owner with its API for accessing certain elements of the Software and Services. Shipsi is not a retail store, restaurant, food delivery platform, merchandise delivery platform or food preparation entity. Shipsi is not liable or responsible for Merchants’ compliance with applicable federal, state, or local laws, rules, regulations or standards pertaining to their businesses. In addition, Shipsi does not guarantee the quality of what Merchants sell and does not independently verify, and is not liable for, representations made by Merchants regarding their products on the Shipsi Instant Delivery App.
- Shipsi serves as an intermediary between Store Owner and the Courier selected by the End User. Shipsi does not transport or deliver shipments and Shipsi is not a party to any contract Store Owner forms with a Courier to pick up, transport, or deliver its shipments. At checkout, Store Owner agrees to display “SHIPSI Same-Day Delivery (x-y hours)” and underneath the top line “Get it today within y hours” where “y” is calculated by the information that Store Owner, Store Representative or Store User enters when submitting a location in the Shipsi Instant Delivery App on the Store Owner’s Shopify checkout page when displaying the shipping options to be selected by the End User.
- Subscription & Fees. After downloading the Shipsi Instant Delivery App, Store Owner shall be required to sign up as a member for a Shipsi account and select a password and user-name (the “Subscription.” The Subscription term is a month-to-month subscription and Store Owner’s Membership will remain active until cancelled. If you sign up for the monthly subscription, you will be charged your first monthly subscription fee and any applicable taxes on the date you purchase your subscription or, if your subscription includes a free trial, on the day after your free trial ends. Your subscription will automatically continue on a monthly basis, and you will continue to be charged on a monthly basis at the then-current price (including any applicable taxes), until you cancel your subscription or we terminate it. Subscription fees are listed here, which may be updated from time to time. Store Owner is required to register a method of payment utilizing Visa, MasterCard, American Express, or Discover in order to secure the Membership. Membership fees and the fees and taxes applicable to that period will automatically be charged at the start of each subscription period. By authorizing recurring payments, Store Owner is authorizing Shipsi and/or Shipsi’s authorized payment processors to store Store Owner’s payment instrument and process such payments. To update any payment information, Store Owner must visit the member account page. Store Owner may cancel at any time but will be billed for all fees associated during the cancelation month. To cancel Store Owner’s Shipsi account, must contact [email protected] Shipsi reserves the right to (a) charge the method of payment on file once a Store Owner’s outstanding balance owed in delivery fees due passes $100; and (b) impose additional fees on delinquent payments. Membership Fees are separate and apart from Service Fees, as set forth below.
- Free Trial Period. If Store Owner is taking part in any trial-period offer, Store Owner must cancel the trial service(s) by the end of the trial period to avoid incurring new charges, unless otherwise notified. If Store Owner does not cancel the trial service(s) by the end of the trial period, Shipsi may charge for the Membership and Service(s).
III. Couriers & Delivery
It is every Sender’s duty and obligation to know and comply with all applicable federal and state laws relating to the pick-up and delivery locations of any delivery and all items contained in a delivery, including without limitation those laws governing the transportation of items over State lines, prohibiting the transportation or shipment of certain items both within a State and between States, restricting the amounts of certain items that can be shipped, and age restrictions. Senders have the responsibility to package items appropriately based on level of risk, fragility, and other factors specific to the individual item. SHIPSI is not liable for loss or damage to any delivery if it is not properly packed to withstand transport, or to ensure the safety and integrity of the item or in compliance with all applicable laws. Sender will be fully responsible for all liabilities arising from Sender’s failure to comply with these Terms, or all applicable laws with respect to the inclusion of specific items contained in a delivery.
- Facilitation of Delivery. The Services provide links or connections to Couriers or other third-party websites or services that are not owned or controlled by Shipsi. Shipsi’s display on or through the Services of delivery service options offered by third parties does not in any way imply, suggest, or constitute any sponsorship or approval of any such Courier or any affiliation between any such Courier and Shipsi. Display of specific options does not suggest a recommendation by Shipsi of the Courier or its delivery options. Store Owner’s interaction with any Courier or other third party found on or through our Services, and/or by using the Shipsi Instant Delivery App, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, is solely at Store Owner’s own risk. Store Owner agrees that Shipsi will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any Courier or other third party or for any personal injuries, death, property damage, or other damages or expenses resulting in any manner from Store Owner’s interactions with any Courier. Store Owner agrees to abide by the terms or conditions of purchase imposed by any Courier. The circumvention of a Courier’s rules is prohibited. The use of prohibited practices may result in the termination of Store Owner’s Membership account and the Services, the Courier taking actions including the cancellation of a service order, denied delivery, additional charges to Store Owner’s credit card, additional charges collected at the delivery or collection, or future invoicing.
- Services Fees and Taxes. You will pay the SHIPSI Delivery Price in each Confirmed Order. The SHIPSI Delivery Price will also be calculated pursuant to SHIPSI’s Cancelation Scenario Table (below) which may be updated from time to time with no notice to you and in SHIPSI’s sole discretion. Fees for Services are due and payable as set forth below and other charges do not include federal, local, foreign, sales, transaction, use or value added taxes (“Taxes”) now or hereafter levied, all of which shall be Store Owner’s responsibility. If Shipsi is required to pay Taxes on Store Owner’s behalf, Shipsi shall invoice Store Owner for such Taxes, and Store Owner shall reimburse Shipsi for such amounts in accordance with this Agreement. Shipsi will invoice Store Owner for Services Fees. Unless otherwise specified by Shipsi, Shipsi will invoice Store Owner monthly, with payment being no later than thirty (30) days after issuance by Shipsi. Late payment charges may be assessed on overdue amounts at the lesser of five percent (5%) per month, or the highest rate allowed by law.
- Non-Cancellable and Non-Refundable. Unless otherwise expressly set forth in this Agreement all Services Fees incurred and payments made under this Agreement are non-refundable.
- Returned Items. In the event that a Confirmed Order cannot be completed as a result of the recipient being unavailable at the drop-off location after you, the Courier, and/or Shipsi have made commercially reasonable attempts to contact the recipient (which in no case will require more than 5 minutes of waiting time by a Courier at the drop-off location), or a recipient rejects the delivery due to the wrong items being delivered, you will pay Shipsi the Shipsi Delivery Price as well as an additional delivery fee for the return trip to the Location and reception of the item or items. In the event that a Confirmed Order cannot be completed as a result of you or recipient cancelling the order before pickup or as a result of your operations (including, but not limited to the inaccessibility of the item to be delivered within 5 minutes of a Courier’s arrival at the Location for such Confirmed Order), you are not responsible for the Shipsi Delivery Price but will pay Shipsi a cancellation fee for such Confirmed Order.
If a Courier spends no more than 10 minutes within 200 meters of the pickup location and arrives within 200 meters of the drop-off location no more than 45 minutes after the drop-off window quoted to Partner for the Confirmed Order, and you shall be responsible for Shipsi Delivery Price. If the foregoing conditions are not met, Shipsi will refund you the Shipsi Delivery Price.
Before courier accept
After courier accept
After courier pickup
- For alcohol or cannabis items, the Courier reserves the right, at his or her discretion, to refuse delivery and return the item(s) if the name on your ID does not match the name on your order, if you are not at least twenty-one (21) years old (“Legal Age”), if you cannot provide a bona-fide government-issued photo identification that shows you are of Legal Age, or if you are visibly intoxicated.
- You will not use the SHIPSI API or any delivery networks associated with the SHIPSI Shopify app or API to deliver people, firearms, ammunition, weapons (i.e. knives, switchblades etc.), live animals or any other item or substance for which delivery violates any federal, state, or local law, rule, or regulation. You may not use the SHIPSI Shopify app or API to deliver any age restricted or controlled substance without SHIPSI prior written permission. SHIPSI reserves the right to revoke your API access if we determine, in our sole discretion, that any product you are delivering is not consistent with our API Terms, these Policies, or otherwise jeopardizes SHIPIS’s Service.
- If you receive invoice refunds, you’ll see all refunds on your monthly invoices listed as credit. You’ll typically receive invoices by the 10th of the month.
- Mileage limits are set at the market-level to optimize the experience for your customers. For more information on mileage limits by market, please contact your Account Manager or submit a Support request. To expedite response time, please provide the pickup addresses for which you’re requesting a mileage limit in your initial request.
IV. Access and Availability to Software
- Authorized Users. Only Store Owner Users may access and use the Software on behalf of Store Owner. Store Owner shall ensure that all Store Owner Users, comply with the terms and conditions of this Agreement and shall remain responsible for the acts and omissions of such Store Owner Users. The Store Owner Representative shall act as the point(s) of contact for Shipsi under this Agreement and regarding Store Owner’s Account, with authority to bind Store Owner regarding the Software and this Agreement, and shall administer Store Owner and Store Owner User’s use of the Software and the Store Owner Account. Store Owner is responsible for maintaining the security and confidentiality of Store Owner’s Account. Store Owner agrees to notify Shipsi immediately of any unauthorized use of Store Owner’s Account or any other known or suspected breach of security.
- Availability. Shipsi does not guarantee, represent or warrant that access to the Software or Services will be uninterrupted or error-free, and Shipsi does not guarantee that Store Owner will be able to access or use all of the Software or Service features at all times. Shipsi will make reasonable efforts to notify Store Owner of system outages and scheduled downtime. Support services are available through a ticketing system available on the Website.
- Suspension. Shipsi may suspend or interrupt the Services, including but not limited to access to the Software, in whole or in part, if (i) Store Owner or Store Owner Users are using the Software or Services in violation of this Agreement or in violation of the law, (ii) Store Owner’s or Store Owner Users’ system or account has been compromised or unlawfully accessed, (iii) End-Users are accessing or using the Solution in violation of this Agreement or in violation of the law, (iv) suspension of the Software or Services is necessary to protect the infrastructure of Shipsi or its Affiliates, (v) suspension is required under the law, or (v) Store Owner fails to pay the Fees applicable under this Agreement within ten (10) days of when due, provided that Store Owner has been notified in writing of its failure to pay and given ten (10) days to remedy this failure.
- SHIPSI will reimburse a Sender for its actual costs to replace Senders’ items lost or damaged during a delivery if arising directly from a Courier’s negligence or willful misconduct, up to a maximum of $100.00 per delivery. Such maximum applies no matter how many items are included in the
- Additional Protection
A Sender has the option to purchase insurance. The additional insurance must be purchased at the time the delivery is arranged or prearranged with SHIPSI at the account level. No insurance can or will be added once the delivery is assigned to a Courier.
- If a Sender purchases insurance, SHIPSI will reimburse Sender for its actual costs to replace Senders’ items that may be lost or damaged during a delivery up to a maximum amount equal to the insurance purchased. The total amount of insurance purchased for a delivery applies no matter how many items are included in the delivery. A Sender must prove the value of the item(s) in the delivery subject to the claim, regardless of the value declared or the amount of insurance purchased. SHIPSI will not pay on a claim without proof of the declared value. You must also provide documentation that verifies the replacement cost of the item subject to the claim.
- PLEASE BE AWARE THAT NO MATTER WHAT TOTAL VALUE YOU DECLARE FOR YOUR DELIVERY OR ANY INDIVIDUAL ITEM(S) CONTAINED IN SUCH DELIVERY, SHIPSI’S MAXIMUM REIMBURSEMENT TO YOU FOR LOSS OR DAMAGE TO ANY OR ALL ITEMS IN THE DELIVERY IS $100.00 UNLESS YOU PURCHASE INSURANCE.
- Filing A Claim: As a Sender, you must file a claim within 72 hours of the being delivered. To file a claim, a Sender must provide itemized documentation with proof of purchase for the items that are part of the claim including a completed claim form filled out. Fill out all fields on the claim form and email the completed claim form with proof of purchase and itemized documentation to [email protected].
Proof of Value: A Sender must prove the value of the item in the Gig subject to the claim, regardless of the value declared or the amount of additional protection purchased. Roadie will not pay on a claim without proof of the declared value. You must also provide documentation that verifies the replacement or repair cost of the item subject to the claim.
- Retention by Shipsi. Shipsi retains all right, title and interest in and to the Software and Shipsi’s Instant Delivery App. Title to and ownership of any modifications, upgrades, updates or customizations of the Software shall be held exclusively by Shipsi. In addition, Store Owner grants Shipsi the right and license to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit error reports, corrections, feedback and suggestions provided by Store Owner concerning the Software and modifications based thereon or incorporated therein, which may include new functional features. Store Owner agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of Shipsi set forth in this section.
- Updates. Store Owner agrees that Shipsi may update, upgrade or modify the Software, at any time, including the removal or modification of previously available functionality. Subject to the foregoing, any updates, upgrades, enhancements and/or modifications provided to Store Owner by Shipsi will automatically be considered part of the Software and will be subject to the terms of this Agreement.
- Store Owner-Supplied Content. All Store Owner-Supplied Content provided in the course of the foregoing and Store Owner’s use of the Software is and shall remain the property of Store Owner its applicable licensor. Store Owner grants to Shipsi a non-exclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Store Owner-Supplied Content during the Term (and thereafter for historical purchases, such as continued display in communications with others on the Software), for the purpose of distributing the Store Owner-Supplied Content on the Software at Store Owner’s direction, facilitating Store Owner’s communications with End-Users and other users, for private back-end operations of the Software and for any other purpose that Store Owner instructs.
VII. Limitations and Restrictions; Notices
- Content Restrictions. Store Owner shall ensure that Store Owner, Store Owner Users or End-Users shall not, nor permit any third party, to distribute, upload, transmit, store, make available or otherwise publish or process through the Software any Store Owner-Supplied Content that: (1) is unlawful or encourages another to engage in anything unlawful; (2) is untrue, inaccurate, outdated or not current, (3) contains a virus or any other similar programs or software which may damage the operation of Shipsi’s or another’s computer; (3) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (4) is libellous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Shipsi reserves the right to edit, modify or remove content being hosted by Shipsi, including for violations of the above standards. Store Owner shall ensure that all Store Owner-Supplied Content is true and accurate at all times and shall promptly update any such Store Owner-Supplied Content accordingly.
- Use Restrictions. Store Owner shall ensure that Store Owner, Store Owner Users and End-Users shall not (1) use the Software or Services for any conduct or activity that violates applicable law or for any illegal or unlawful purpose; (2) resell, distribute, or sublicense the Software or Services or use any of the foregoing for the benefit of anyone than you or the Users; (3) use the Software or Services to build or research a competing product or service; (4) interfere with, impair or disrupt the Software or Services and related Shipsi systems; (5) introduce any virus or programming routine which is intended to or does disrupt or interrupt the use of the Software or Services or Shipsi’s systems; (6) reverse engineer or otherwise conduct research into the internal operations of the Software; or (7) fail to adhere to any shipment requirements (including but not limited to the packaging, labelling and content requirements of Shipsi made know to the Store Owner). All rights in and to the Software not expressly granted herein are retained by Shipsi.
VIII. Usage Data
- Ownership. All Usage Data, whether posted by Store Owner, Store Owner Users or End-Users will remain the sole property of Store Owner or such Store Owner Users or their licensors, as applicable. Store Owner grants to Shipsi a non-exclusive, sub-licensable license to use, copy, store, transmit and display Usage Data to the extent necessary for Shipsi and its vendors to provide and maintain the Software and to provide Services to Store Owner and its Store Owner Users, and to End-Users and other third parties to the extent instructed Store Owner’s use of the Software or necessary to accomplish Store Owner’s instruction to the Software.
- Controls. Store Owner agrees that Shipsi may monitor Store Owner’s, Store Owner Users’ and End-Users’ use of the Software and collect and use data and related information on such use, which may be gathered to ensure compliance with this Agreement, to study and improve the Software and Services, to facilitate the provision of updates, product support and to provide Services under this Agreement. Aggregated statistical data may include Usage Data on an anonymized basis, may be combined with other data, and will be the property of Shipsi and may be used for Shipsi’s general business purposes. Anonymous Data shall be the property of Shipsi and may be used for Shipsi’s general business purposes.
- Backup Responsibility. The Software is a productivity tool, not a backup system. Store Owner understands that it is Store Owner’s responsibility to back up its Usage Data in the manner and at intervals of its choosing, and that Shipsi does not have the obligation to maintain copies or backups of Usage Data.
- By Shipsi. Shipsi will defend, indemnify, and hold Store Owner (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any copyright, patent, trademark, or misappropriation of a trade secret by the Software as provided to Store Owner by Shipsi (other than that due to Store Owner-Supplied Content, third-party content available on the Software, Usage Data or unauthorized use by Store Owner, Store Owner Users or End-Users). In case of such a claim, Shipsi may, in its discretion, procure a license that will protect Store Owner against such claim without cost to Store Owner, may replace the Software with non-infringing Software, or if it deems such remedies not practicable, Shipsi may terminate this Agreement without fault, provided that in case of such termination, Store Owner will receive a pro-rata refund of any Fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES MERCHANT’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
- By Store Owner. Store Owner will defend, indemnify, and hold Shipsi (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Usage Data, Store Owner-Supplied Content or other data, content or information supplied by Store Owner or Store Owner Users infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; (ii) arising out of claims relating to Store Owner or Store Owner Users’ or End-Users’ use of the Shipsi Instant Delivery App, Services, Software or Solution in violation of the law; (iii) arising out of or related to any breach or alleged breach of this Agreement by Store Owner or Store Owner Users, (iv) arising out of or related to any personal injury or property damage caused by products sold by Store Owner through the use of the Services or deliveries made on sales facilitated by the Solution or Store Owner’s use of the Services; (v) arising out of any violation of any Courier or shipment requirements (including but not limited to the packaging, labelling and content requirements).
- Procedure. In case of any claim that is subject to indemnification under this Agreement, the Party that is indemnified (“Indemnitee”) will provide the indemnifying Party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each Party will cooperate in good faith with the other to facilitate the defence of any such claim and will tender the defence and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
X. Representations and Disclaimers
- Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
- THE SHIPSI INSTANT DELIVERY APP, SOFTWARE, SOLUTION AND ALL SERVICES SUPPLIED BY PROVIDER ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FUNCTIONALITY, SUITABILITY, AVAILABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. MERCHANT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SOFTWARE OR SOLUTION IS ACCURATE OR SUFFICIENT FOR MERCHANT’S PURPOSES. PROVIDER DOES NOT WARRANT THAT USE OF THE SOFTWARE OR SOLUTION WILL BE ERROR-FREE OR UNINTERRUPTED.
XI. LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) AMOUNTS OWED BY MERCHANT TO PROVIDER HEREUNDER, OR (B) THE FEES INCURRED BY MERCHANT HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY MERCHANT MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
XII. Confidentiality & Data Privacy
- Limitations. Neither Party will use the other Party’s Confidential Information provided during the Term of the Agreement except as provided herein and as reasonably required for the performance of this Agreement. Each Party will hold in confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Other than pursuant to the direction of a Party regarding its own Confidential Information, each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees, confidential advisors, or subcontractors who are bound by confidentiality obligations at least as restrictive as herein and who need to know the same to perform such Party’s obligations hereunder or to assist a Party in meeting its legal obligations. The confidentiality obligations set forth in this Section will survive for as long as applicable information meets the definition of Confidential Information and indefinitely in relation to any trade secrets of the Shipsi.
- Required Disclosures. In the event that a Party is required by subpoena, court process or other applicable law to disclose the other Party’s Confidential Information, the Party required to make such disclosure may do so to the extent required by law, but only, where permitted by law, after notifying the other Party and giving said other Party a reasonable opportunity to contest such disclosure.
- Actions Upon Termination. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each Party will, upon the request of the disclosing Party, either: (i) return all of such Confidential Information of the disclosing Party provided during the Term and all copies thereof in the receiving Party’s possession or control to the disclosing Party; or (ii) destroy all Confidential Information provided during the Term and all copies thereof in the receiving Party’s possession or control. Notwithstanding the foregoing, nothing herein shall require a Party to remove or delete the other Party’s Confidential Information from its long-term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement. Further notwithstanding the foregoing, upon any termination or expiration of this Agreement, Shipsi may retain any Confidential Information that consists of Usage Data shared with or provided by Store Owner or Store Owner Users to other users, and may continue to display and provide said Usage Data to such other users.
- Either Party may terminate this Agreement: (i) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
- Store Owner may uninstall the Shipsi Software application at any time, for any reason or no reason, provided, however, that Store Owner shall remain responsible for all unpaid Fees and all Fees remaining in the Term.
- Actions Upon Termination. Upon termination of this Agreement, (i) Shipsi shall cease all work being performed, (ii) Store Owner’s access to the Software and Solution provided thereunder will cease and Store Owner shall permanently delete or return any Software and Documentation to Shipsi, and (iii) Shipsi shall issue Store Owner a final invoice for Fees. Termination of this Agreement shall not eliminate Store Owner’s obligation to pay for time or deliverables incurred or performed prior to termination. In the event that this Agreement includes a fixed fee service or deliverable and is terminated before such services or deliverables are completed but after they have been commenced by Shipsi, such fixed fee service or deliverable shall be converted to a time-and-materials service or deliverable for such incomplete deliverables, and Shipsi shall invoice Store Owner for the time incurred in connection with such incomplete deliverables. Provisions that, by their nature, should survive termination of this Agreement shall survive termination. By way of example, all of the following will survive termination: any obligation to pay or indemnity the other Party, any limitations on liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes.
- Arbitration. Each Party agrees to submit any and all disputes, claims and controversies arising between the Parties hereto to final and binding arbitration, which shall be administered by the American Arbitration Association (“AAA”) in accordance with its rules then in effect. Any arbitration brought hereunder shall be heard by three (3) independent and impartial arbitrators. Two arbitrators shall be selected by the respective Parties, one by the claimant(s) and one by the respondent(s). The third arbitrator shall be appointed by the two Party-appointed arbitrators or by the AAA if such two arbitrators cannot agree. The place of the arbitration shall be New York. Any Party’s refusal to select, or unreasonable delay in selecting, an arbitrator shall be considered a material breach of this Agreement. The arbitrators shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding intended to resolve a dispute. Store Owner agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. The award rendered in an arbitration hereunder shall be final and non-appealable. Judgment on the award rendered may be entered in any court having jurisdiction thereof. Each of the Parties shall keep the proceedings and any and all transcripts, statements, documents, discovery, correspondence and all other non-public information produced or otherwise disclosed in connection with any such arbitration confidential.
- Matters Not Requiring Arbitration. Notwithstanding the foregoing, Shipsi shall be entitled to bring an action seeking injunctive relief or indemnification or contribution in any court of competent jurisdiction.
- Publicity. Store Owner agrees the Shipsi may identify Store Owner as one of its Store Owners on its Website and in its marketing material. Upon reasonable request, Store Owner shall serve as a reference for Shipsi.
- Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favour of or against either Party and in accordance with the laws of the State of New York and applicable US federal law. Except as provided in the arbitration clause, the Parties agree that they may adjudicate any claim between them in state and federal courts located in the city of New York, and the Parties expressly agree to the suitability and convenience of such location, and shall not contest the same.
- Notice. Each Party may give notice by means of electronic mail to the email address on record in Store Owner’s account (if to Store Owner). Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. A Party may, by giving notice, change its applicable address, email, or other contact information. Changes to the Shipsi’s address will be posted on the Website. Shipsi may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed as nearly as possible to reflect the intentions of the invalid or unenforceable provision(s). All other provisions will remain in full force and effect.
- No Agency. No joint venture, partnership, employment, or agency relationship exists between Store Owner and Shipsi as a result of this Agreement or use of the Service. Shipsi shall at all times be considered an independent contractor to Store Owner.
- No Waiver. The failure of Shipsi to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Shipsi in writing.
- Compliance with Export Laws. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software. Without limiting the foregoing, Store Owner warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Store Owner shall not use, export or re-export the Software in violation of any U.S. export embargo, prohibition or restriction. Store Owner shall promptly provide notice to Shipsi if this warranty and representation is no longer accurate.
- Force Majeure. Except for the payment of Fees by Store Owner, if the performance of this Agreement or any Services by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any causes beyond the control of such Party including but not limited to any flood, riot, fire, judicial or governmental action, labor disputes, act of God, pandemic or epidemic, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Assignment. Store Owner may not assign, delegate or transfer these terms or Store Owner’s rights or obligations hereunder, Membership, or Services, in any way (by operation of law or otherwise) without Shipsi’s prior written consent. Shipsi may transfer, assign, or delegate these terms at any time without consent.
- Entire Agreement. This Agreement comprises the entire agreement between Store Owner and Shipsi and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each Party. This Agreement may be executed in counterparts, by electronic, scanned or other signature, which together shall constitute a complete and binding agreement.