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Standard Terms – SHIPSI Services Agreement

This Services Agreement (the “Services Agreement”) is made between Shipsi, Inc. (“Provider”) and the Customer identified on the Primary Terms (each a “Party”,collectively, the “Parties”) and is effective on the date identified on the Primary Terms. Capitalized terms used herein without definition are defined in the Primary Terms. This Services Agreement also incorporates the Provider’s Privacy Policy available at [Link] and any other documents expressly incorporated by reference

1. Definitions.

The following definitions (and additional definitions provided below) will apply to this Agreement:

Anonymous Data means Usage Data that has been anonymized and does not identify Customer or Customer Users as the source of such Usage Data.

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.

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.

Customer means the legal entity or individual that enters into this Agreement with Provider, as indicated in the signature block hereto or in an applicable Purchase Order.

Customer Account means Customer’s account used to access the Software, and all usernames relating thereto, including Customer User accounts.

Customer-Supplied Content means graphics, text, audio, photos, software, music, sounds, video or similar information or material provided or submitted by or on behalf of Customer to Provider or the Software in the course of utilizing the Software or in connection with this Agreement.

Customer User means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to access the Software on Customer’s behalf and have been supplied Customer-specific administrative credentials by Customer (or by Provider at Customer’s request).

Customer Representative means the Customer Users designated by Customer in an applicable Purchase Order as authorized to create Customer User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.

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 Provider.

Fees means the fees set forth in the applicable Primary Terms or Purchase Order for the Services.

Primary Terms means the terms specific to this Agreement as executed by the Provider and the Customer identified thereon.

Professional Services means, other than the Support Services, software consulting and management services, information technology services, integration services, or other stipulated services provided to Customer as identified in a Purchase Order.

Purchase Order means a purchase order for the Services between Provider and Customer that sets forth, among other things, the Services which are to be rendered to Customer on a customized basis, the Fees associated therewith, and certain additional terms applicable to the Services being ordered under said Purchase Order.

Services means, collectively, all services provided or made available to Customer by Provider under this Agreement or any exhibit, the Primary Terms and any Purchase Order hereto, including but not limited to the access to and functionality of the Software, the Support Services and the Professional Services.

Service Levels means the service levels provided by Provider as posted on the Website.

Shipment Requirements means the packaging, labeling and content requirements of Provider as posted on the Website.

Software means Provider’s software platform known as “Shipsi,” including any cloud-based or local extensions or modules thereto, Application Programming Interface (“APIs”) modules, the relevant functionality, content (excluding Customer-Supplied Content), concepts, features, and documentation related thereto, as well as all updates and customizations to any of the foregoing.

Support Services means the support services of Provider as posted on the Website.

Term means the length of this Agreement as defined in the Primary Terms or any Purchase Order.

Usage Data means any information or data provided or submitted by Customer or any Customer User to Provider or the Software in the course of utilizing the Software.

Website means the content of the site available at www.shipsi.com.

2. Provision of Services.

Services. Subject to payment in full of the Fees due to Provider, and compliance with this Agreement, Provider will provide the Services to Customer, including but not limited to access to the Software and certain additional Services, as more fully described in the Primary Terms and one or more Purchase Orders. If agreed upon and executed, each Purchase Order shall form a separate contract governed by this Agreement and the terms of the Purchase Order. All use of the Software shall be solely in accordance with the Documentation.

API Access. Subject to the Purchase Order(s), Provider may supply Customer with its API for accessing certain elements of the Software and Services. All access to and use of the API shall be subject in accordance with the Documentation. Provider may place limits on Customer’s use of the APIs (such as limits on the volume or frequency of API calls) in Provider’s sole discretion.

3. Access and Availability.

Authorized Users. Only Customer Users may access and use the Software on behalf of Customer. Customer shall ensure that all Customer Users, comply with the terms and conditions of this Agreement and any applicable Purchase Orders, and shall remain responsible for the acts and omissions of such Customer Users. The Customer Representative shall act as the point(s) of contact for Provider under this Agreement and regarding Customer’s Account, with authority to bind Customer regarding the Software and this Agreement, and shall administer Customer and Customer User’s use of the Software and the Customer Account. Customer is responsible for maintaining the security and confidentiality of Customer’s Account. Customer agrees to notify Provider immediately of any unauthorized use of Customer’s Account or any other known or suspected breach of security.

Availability. Unless Customer has elected to subscribe to the Service Levels with Provider, as indicated in a Purchase Order, Provider does not guarantee, represent or warrant that access to the Software or Services will be uninterrupted or error-free, and Provider does not guarantee that Customer will be able to access or use all of the Software or Service features at all times. Provider will make reasonable efforts notify Customer of system outages and scheduled downtime. Customer’s sole remedy for any failure to provide the Software in accordance with the Service Levels shall be the service credits identified in the Service Levels, if any.

Suspension. Provider may suspend or interrupt the Services, including but not limited to access to the Software, in whole or in part, if (i) Customer or Customer Users are using the Software or Services in violation of this Agreement or in violation of the law, (ii) Customer’s or Customer Users’ system or account has been compromised or unlawfully accessed, (iii) suspension of the Software or Services is necessary to protect the infrastructure of Provider or its Affiliates, (iv) suspension is required under the law, or (v) Customer fails to pay the Fees applicable under this Agreement within ten (10) days of when due, provided that Customer has been notified in writing of its failure to pay and given ten (10) days to remedy this failure.

4. Support Services.

Content included is confidential and proprietary, intended only for internal evaluation process by RETAILER

Support. Support services are available through a ticketing system available on the Website.

5. Professional Services.

Services. In the event that Customer requests Professional Services that Provider desires to render, the Parties shall execute a Purchase Order covering such Professional Services.

Estimates. Unless stated otherwise in an applicable Purchase Order, any estimates of time provided in connection with deliverables or Services, are good faith projections, but are not guarantees.

Rates. Unless otherwise agreed to by the Parties in writing, in the event that Provider provides Professional Services on a “time and materials” rate basis, Provider shall charge its standard rates then in effect. If Provider provides Professional Services on a “fixed fee” rate basis, the fixed fee will cover only the specific tasks, expenses, and deliverables that the Purchase Order defines as included within the fixed fee. Items that fall outside scope of the Purchase Order or are otherwise not included within such fixed fee will be provided on a time and materials basis at Provider’s standard rates then in effect. Prices are subject to change if assumptions and responsibilities identified in a Purchase Order are not met by Customer.

6. Ownership

Retention by Provider. Provider retains all right, title and interest in and to the Software. Title to and ownership of any modifications, upgrades, updates or customizations of the Software shall be held exclusively by Provider. In addition, Customer grants Provider the right and license to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit error reports, corrections, feedback and suggestions provided by Customer concerning the Software and modifications based thereon or incorporated therein, which may include new functional features. Customer 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 Provider set forth in this section.

Updates. Customer agrees that Provider 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 Customer by Provider will automatically be considered part of the Software and will be subject to the terms of this Agreement.

Customer-Supplied Content. All Customer-Supplied Content provided in the course of the foregoing and Customer’s use of the Software is and shall remain the property of Customer its applicable licensor. Customer grants to Provider a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Customer-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 Customer-Supplied Materials on the Software at Customer’s direction, facilitating Customer’s communications with other users, for private back-end operations of the Software and for any other purpose that Customer instructs.

7. Limitations and Restrictions; Notices

Content Restrictions. Customer shall ensure that Customer, Customer Users shall not, nor permit any third party, to distribute, upload, transmit, store, make available or otherwise publish or process through the Software any Customer-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 Provider’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 libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Provider reserves the right to edit, modify or remove content being hosted by Provider, including for violations of the above standards. Customer shall ensure that all Customer-Supplied Content is true and accurate at all times, and shall promptly update any such Customer-Supplied Content accordingly.

Use Restrictions. Customer shall ensure that Customer and Customer 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 Provider 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 Provider’s systems; (6) reverse engineer or otherwise conduct research into the internal operations of the Software; or (7) fail to adhere to the Shipment Requirements. All rights in and to the Software not expressly granted herein are retained by Provider.

8. Usage Data.

Ownership. All Usage Data, whether posted by Customer or Customer Users, will remain the sole property of Customer or such Customer Users or their licensors, as applicable. Customer grants to Provider a non-exclusive, sub-licensable license to use, copy, store, transmit and display Usage Data to the extent necessary for Provider and its vendors to provide and maintain the Software and to provide Services to Customer and its Customer Users, and to third parties to the extent instructed Customer’s use of the Software or necessary to accomplish Customer’s instruction to the Software.

Controls. Customer agrees that Provider may monitor Customer’s and Customer 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 Provider and may be used for Provider’s general business purposes. Anonymous Data shall be the property of Provider and may be used for Provider’s general business purposes.

Backup Responsibility. The Software is a productivity tool, not a backup system. Customer understands that it is Customer’s responsibility to back up its Usage Data in the manner and at intervals of its choosing, and that Provider does not have the obligation to maintain copies or backups of Usage Data.

9. Fees.

Fees and Taxes. Fees are due and payable as set forth below, in the Primary Terms or a Purchase Order, as applicable. Fees 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 Customer’s responsibility. If Provider is required to pay Taxes on Customer’s behalf, Provider shall invoice Customer for such Taxes, and Customer shall reimburse Provider for such amounts in accordance with this Agreement.

Payments. Provider will invoice Customer for Fees. Unless otherwise specified in a Purchase Order, Provider will invoice Customer monthly, with payment being no later than thirty (30) days after issuance by Provider. 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-Cancelable and Non-Refundable. Unless otherwise expressly set forth in this Agreement or the applicable Purchase Order all Fees incurred and payments made under this Agreement are non-refundable.
Expenses. Provider shall be entitled to reimbursement from Customer for all documented, reasonable, out-of-pocket expenses incurred in connection with the provision of the Services under this Agreement, including, without limitation, travel, lodging, meals and transportation. Any individual expenses in excess of one hundred dollars ($100) shall require pre-approval by Customer.

10. Indemnification.

By Provider. Provider will defend, indemnify, and hold Customer (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 or made available by Customer by Provider (other than that due to Customer-Supplied Content, third-party content available on the Software, Usage Data or unauthorized use by Customer). In case of such a claim, Provider may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, may replace the Software with non-infringing Software, or if it deems such remedies not practicable, Provider may terminate this Agreement without fault, provided that in case of such termination, Customer 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 CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.

By Customer. Customer will defend, indemnify, and hold Provider (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, Customer-Supplied Content or other data, content or information supplied by Customer or Customer 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 Customer or Customer Users’ use of the Services in violation of the law; (iii) arising out of or related to any breach or alleged breach of this Agreement by Customer or Customer Users, (iv) arising out of or related to any personal injury or property damage caused by products sold by Customer through the use of the Services or deliveries made on sales facilitated by Customer’s use of the Services; (v) arising out of any violation of the Shipment 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 defense of any such claim and will tender the defense 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.

11. 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.




13. Confidentiality.

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.

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, Provider may retain any Confidential Information that consists of Usage Data shared with or provided by Customer or Customer Users to other users, and may continue to display and provide said Usage Data to such other users.

14. Term and Termination.

Term. The initial period of the Term commences on the Effective Date and shall continue for the period provided in the Primary Terms or any Purchase Order(s). The “Initial Term”, and will automatically renew for successive terms of equal length as the original term, or one (1) year (whichever is shorter), unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Either Party may terminate this Agreement and/or any Purchase Orders: (i) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement or a Purchase Order, 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.

Either Party may terminate this Agreement at any time upon ninety (90) days’ notice to the other Party, for any reason or no reason, provided, however, that Customer shall remain responsible for all unpaid Fees and all Fees remaining in the Term.

Termination of this Agreement shall terminate all open Purchase Orders. Termination of a Purchase Order shall not automatically terminate this Agreement or any other open Purchase Orders.

Actions Upon Termination. Upon termination of this Agreement, (i) Provider shall cease all work being performed under any Purchase Order, (ii) Customer’s access to the Software provided thereunder will cease and Customer shall permanently delete or return any Software and Documentation to Provider, and (iii) Provider shall issue Customer a final invoice for Fees.

Termination of a Purchase Order or this Agreement shall not eliminate Customer’s obligation to pay for time or deliverables incurred or performed prior to termination. In the event that a Purchase Order with a fixed fee service or deliverable is terminated before such services or deliverables are completed but after they have been commenced by Provider, such Purchase Order shall be converted to a time-and-materials Purchase Order for such incomplete deliverables, and Provider shall invoice Customer for the time incurred in connection with such incomplete deliverables.

Survival. Sections 1 and 7-17 shall survive any termination or expiration of this Agreement.

15. 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, 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. Licensee 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, Provider shall be entitled to bring an action seeking injunctive relief or indemnification or contribution in any court of competent jurisdiction.

16. Miscellaneous

Publicity. Customer agrees the Provider may identify Customer as one of its customers on Provider’s website and in its marketing material. Upon reasonable request, Customer shall serve as a reference for Provider to potential new customers.

Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor 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 Customer’s account (if to Customer), or as stated on the Primary Terms. 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 Provider’s address will be posted on the Website.

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 Customer and Provider as a result of this Agreement or use of the Service. Provider shall at all times be considered an independent contractor to Customer.

No Waiver. The failure of Provider to enforce any right or provision in this Agreement or any Purchase Order will not constitute a waiver of such right or provision unless acknowledged and agreed to by Provider 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, Customer warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not use, export or re-export the Software in violation of any U.S. export embargo, prohibition or restriction. Customer shall promptly provide notice to Provider if this warranty and representation is no longer accurate.

Force Majeure. Except for the payment of Fees by Customer, if the performance of this Agreement or any Services by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such Party, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.

Assignment. Except for an assignment to an Affiliate, this Agreement and any Purchase Order may not be assigned by either Party without the prior written approval of the non-assigning Party, provided that Provider may assign this Agreement and any Purchase Orders to (i) an acquirer of all or substantially all of Provider’s assets involved in the operations relevant to this Agreement; or (ii) a successor by merger, acquisition or other combination. Any purported assignment in violation of this Section will be void. This Agreement and applicable or any Purchase Orders may be enforced by and are binding on permitted successors and assigns.

Entire Agreement. This Agreement, together with any applicable Exhibit(s) and Purchase Orders, comprises the entire agreement between Customer and Provider 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.