This Master Services Agreement (“Agreement”) is between ShipScience LLC, with offices at 268 N Santa Cruz Ave, Los Gatos, CA 95030 (“ShipScience”) and the entity entering into an SOW with ShipScience, pursuant to this Agreement, for the purposes of purchasing Services (defined below) (“Client”), and is effective as of the effective date of the SOW (“Effective Date”). Each of ShipScience and Client is a “Party”, and together, the “Parties”. The Parties agree as follows:
Subject to the terms and conditions of this Agreement, ShipScience shall perform certain professional services with respect to Client’s shipping carrier (“Carrier”) invoices, accounts, and contracts (“Professional Services”), as further described in a statement of work(s) mutually executed by the Parties (each, an “SOW”). Professional Services may include without limitation ShipScience negotiating Client’s contracts with Carriers (“Carrier Contracts”), billing error correction, lost parcel claims, and refund applications. In performing the Professional Services, Client may provide ShipScience with access to its Carrier accounts (“Carrier Accounts”). ShipScience will use commercially reasonable efforts to protect the login credentials to Client’s Carrier Accounts from unauthorized access. ShipScience shall have sole discretion in staffing the Professional Services. In addition, ShipScience may make available its proprietary software-as-a-service application identified in an SOW, that allows Client’s authorized users (“Users”) to access and use certain features and functionality through a web interface accessible on ShipScience’s website (the “Platform”, and together with the Professional Services, the “Services”). Client acknowledges and agrees that the Platform is not required in order for ShipScience to provide the Professional Services. Therefore, ShipScience reserves the right to modify the Platform at any time, provided such modification does not materially adversely impact the overall Services.
2. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
- As between ShipScience and Client, ShipScience owns all rights, title, and interest in and to the Platform and any user guides or other material provided by ShipScience to assist Client in accessing and using the Services (“Documentation”). ShipScience grants Client a limited, revocable, non-exclusive, worldwide right and license, during the Term, to access and use the Platform by Client’s Users, and to use the Documentation solely as necessary to properly access and use the Platform. Client shall not make copies of the Documentation or otherwise disclose the Documentation to third parties without ShipScience’s prior written consent.
- As between ShipScience and Client, Client owns all rights, title, and interest in and to any content or data, whether or not provided directly through the Platform, accessible by ShipScience from within Client’s Carrier Accounts or Carrier Contracts, or that Client otherwise makes available to ShipScience (“Content”). Client grants ShipScience, during the Term, a limited, non-exclusive, worldwide right and license to use the Content solely as necessary to provide the Services and to fulfill ShipScience’s obligations under this Agreement. Notwithstanding the foregoing, Client grants ShipScience a perpetual, irrevocable, worldwide, royalty-free license to use aggregated and de-identified Content for any lawful purposes, provided such use is reasonably incapable of identifying Client, a User, or any other individual or entity.
Client shall (a) be responsible for its Users’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and promptly notify ShipScience upon discovery of any such unauthorized access or use, and (c) use the Platform only in accordance with any use the Documentation and with all applicable laws, rules, and regulations (“Applicable Laws”). Additionally, Client shall not, and shall not permit any third parties to, (i) make the Platform available to anyone other than Users, (ii) sell, resell, rent or lease the Platform, (iii) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Platform to store or transmit viruses or malicious code, (v) interfere with or disrupt the integrity or performance of the Platform, (vi) attempt to gain unauthorized access to the Platform or any related systems, software or networks (vii) or de-compile, decrypt, reverse engineer, disassemble, or otherwise reduce the Platform to human-readable form or attempt to access the source code of the Platform, or (viii) use or view the Platform to create a product or service that is competitive with the Platform (The preceding (i) – (viii) collectively, the “Restrictions”). ShipScience shall have the right (but not the obligation) to monitor Client’s and Users’ use of the Platform to confirm Client’s Users’ compliance with the terms of this Agreement, it being understood that such monitoring shall not require any additional information or efforts by Client and shall not interfere with Client’s use of the Platform.
Client shall pay ShipScience for the Services in accordance with each SOW (“Fees”). Unless otherwise agreed to in a SOW, (a) all Fees are due 30 days from receipt of invoice, (b) Fees are quoted and payable in United States dollars, (c) payment obligations are non-cancelable and all Fees are nonrefundable in all respects except as otherwise provided for in this Agreement, and (d) Client shall reimburse ShipScience for all reasonable expenses incurred in accordance with any SOW, so long as such expenses are pre-approved by Client in writing. The Fees exclude, and Client will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on ShipScience’s income). If any Fees not subject to a good faith dispute are ten (10) days or more overdue, ShipScience may, without limiting its other rights and remedies, suspend the Services until all amounts owing are paid in full.
5. TERM AND TERMINATION
The term of this Agreement will commence on the Effective Date and continue for as long as there is at least one active SOW, unless earlier terminated as provided herein (“Term”). Either Party may terminate this Agreement if the other Party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days following written notice to the breaching Party. Upon termination of this Agreement: (a) Client shall promptly pay ShipScience for all Services rendered prior to termination in accordance with the payment terms set forth herein, (b) Client must immediately cease to access the Platform, and (c) each Party shall, within thirty (30) days, return or destroy all of the other Party’s Confidential Information then in its possession.
6. CLIENT RESPONSIBILITIES; OTHER SERVICE PROVIDERS
Client shall (a) designate at least one (1) employee with knowledge of Client’s business as its primary contact to be available for communication with ShipScience in providing the Services, (b) provide ShipScience with accurate and complete information and timely decisions and approvals, upon which ShipScience will be entitled to rely, and (c) provide ShipScience with such assistance and access as ShipScience may reasonably request, including by making available to ShipScience, at no charge, all personnel, information, and services reasonably required by ShipScience for the performance of the Services.
Client hereby designates ShipScience as its exclusive vendor for purposes of negotiating Client’s Carrier Contracts. Client authorizes ShipScience to utilize whatever efforts are necessary to negotiate Carrier Contracts as if Client were undertaking the negotiation itself, and to utilize any means to obtain existing contracts, invoices and other details from the Carriers without further authorization from Client. Client acknowledges that, notwithstanding the foregoing, the Client, not ShipScience, shall be solely responsible for executing any new Carrier Contracts.
8. REPRESENTATIONS AND WARRANTIES
- Each Party represents and warrants to the other Party that: (a) it has the full authority to enter into this Agreement and is not a Party to any other agreement that would prohibit it from entering into this Agreement; and (b) it will at all times comply with all Applicable Laws.
- ShipScience further represents and warrants to Client that it will perform the Professional Services in a professional and workmanlike manner consistent with industry standards.
EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND SHIPSCIENCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE.
- During the Term, a Party (“Discloser”) may disclose or otherwise make available to the other Party (“Recipient”) certain confidential and/or proprietary information that is marked “confidential” and/or “proprietary” or that is reasonably understood to be confidential and/or proprietary based on the nature of the information and the circumstances of the disclosure. Confidential Information includes without limitation business plans, financial information, customer lists, and product development details.
- Recipient shall maintain the confidential nature of the Confidential Information at all times, only disclose such Confidential Information to those employees, agents, consultants, contractors, and representatives (collectively, “Representatives”) who have a need to know such information in order for Recipient to perform its obligations under this Agreement, and ensure that such Representatives are bound by confidentiality obligations at least as stringent as those contained herein. Recipient shall at all times be liable for the acts and omissions of its Representatives with respect to the Confidential Information. Other than disclosing to Representatives as provided for in this Section 9, Recipient shall not disclose Confidential Information to any third parties without Discloser’s prior written consent in each instance. Recipient shall safeguard the Confidential Information using the same degree of care that it employs to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Recipient shall promptly notify Discloser if it becomes aware of any actual or suspected breach of this Section 9.
- Notwithstanding anything to the contrary, Confidential Information shall not include information that: (a) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, (b) is, or becomes, publicly available through no fault of Recipient, or (c) is made available to Recipient by a third party not subject to confidentiality obligations to Discloser. For clarity, the Platform and its components,. Functionality, and features, are the Confidential Information of ShipScience.
- In the event Recipient is legally compelled to disclose Confidential Information pursuant to a valid court order, Recipient shall first notify Discloser (unless such notification is prohibited at law) and provide Discloser with a reasonable opportunity to contest the compelled disclosure. In any event, Recipient shall only disclose the minimum amount of Confidential Information necessary to comply with the legal order.
- ShipScience shall indemnify, defend, and hold harmless Client, its Affiliates, and its and their respective officers, directors, and employees, from and against any claims, damages, liabilities, costs, and expenses (including reasonable attorneys fees) (“Losses”) arising out of any third party claim, suit, demand, or cause of action (“Claim”) allegedly that the Platform, when used by Client as permitted hereunder, infringes any third party intellectual property right. In the event the Platform is enjoined, or in ShipScience’s reasonable opinion likely to be enjoined, ShipScience shall do one of the following at its discretion: (a) procure for Client the right to continue using the Platform, (b) modify or replace the Platform with something that is non-infringing but functionally equivalent, or (c) terminate the applicable portion of the SOW and provide a pro-rata refund of any prepaid Fees for the terminated Services. The foregoing states ShipScience’s sole liability and Client’s exclusive remedy with respect to any Claim described herein.
- Client shall indemnify, defend, and hold harmless ShipScience, its Affiliates, and its and their respective officers, directors, and employees, from and against any Losses arising out of any Claim alleging that the Content violates any third party intellectual property right or Applicable Laws.
- The indemnification obligations contained herein are contingent upon the Party seeking indemnity (“Indemnified Party”): (a) providing prompt written notice of the Claim to the other Party (“Indemnifying Party”), (b) granting sole control over the defense and settlement of the Claim to the Indemnifying Party (including without limitation the selection of legal counsel), provided that the Indemnifying Party shall not settle any Claim that imposes any liability on, or constitutes an admission by, the Indemnified Party without the Indemnified Party’s prior written consent, and (c) reasonable cooperation with the Indemnifying Party at the Indemnifying Party’s request. The Indemnified Party may, at its own expense, retain its own counsel to assist in the defense and settlement of the Claim.
All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the addresses set forth in the opening paragraph or to such other address as one Party may have furnished to the other in writing. Notwithstanding the foregoing, any notices to ShipScience shall be copied by email to email@example.com.
12. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, OR ITS INDEMNIFICATION OBLIGATIONS, OR CLIENT’S BREACH OF THE RESTRICTIONS: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, AND (B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATION SHALL NOT APPLY TO FEES DUE UNDER THIS AGREEMENT.
Neither Party shall assign this Agreement without the prior written consent of the other Party, provided that either Party may assign this Agreement upon notice to, but without the requirement of obtaining the prior consent of, the other Party: (a) to an Affiliate, or (b) in connection with a merger, sale, or reorganization of all or substantially all of such Party’s assets. Any purported assignment in contravention of this section will be void. This Agreement shall bind and inure to the benefit of, an assigning Party’s successors and assigns.
14. PUBLICITY AND LOGO RIGHTS
Client agrees to permit the use of its name and logo in a roster of ShipScience customers, which may appear on the ShipScience website and in its marketing materials. ShipScience will remove the Client if provided written notice.
15. GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law principles. Any demand, suit, cause of action, or controversy arising out of or relating to this Agreement may only be brought in the state or federal courts located in Santa Clara County, California, and the Parties agree to the exclusive jurisdiction of such courts.
ShipScience is an independent contractor and the Parties acknowledge that this Agreement does not create a partnership or joint venture between them. This Agreement represents the entire agreement and understanding of the Parties with respect to the subject matter contained herein. This Agreement may only be modified in writing signed by both Parties. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement. No provision of this Agreement shall be construed against or interpreted to the disadvantage of a Party hereto by reason of such Party having or being deemed to have structured or drafted such provision. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.