TERMS AND CONDITIONS
1. AGREEMENTS: Under the terms and conditions of this agreement, the Customer agrees to purchase Services from 2Ship. This Agreement may be executed and delivered by email, online service or facsimile transmission and each of Customer and 2Ship may rely on such email, online service or facsimile signature as though such transmitted signature was an original signature.
2. DEFINITIONS: In this Agreement, the following words and expressions have the following meanings: (a) "2Ship Platform": the online platform hosted by 2Ship through which Customer accesses and uses 2Ship Services; (b) "2Ship Services" or "Services": the hosted software services available through the 2Ship Platform provided by 2Ship and licensed to Customer under this Agreement; (c) "2Ship Solutions" or "2Ship" means 2Ship Solutions Inc.; (d) "Client Identifier": a unique identifier and password provided by 2Ship to Customer to enable access to the 2Ship Services; (e) "Customer" means the CUSTOMER identified on the front of this page; (f) "Documentation": 2Ship's current, standard documentation regarding the 2Ship Platform and 2Ship Services; (g) "End User": an individual who is authorized by Customer to use the 2Ship Services; (h) "Error": a reproducible defect in the 2Ship Platform or 2Ship Services, when accessed and used from equipment meeting the System Requirements, that causes the 2Ship Platform or 2Ship Services not to perform substantially in accordance with the Documentation; (i) "Fees" means the license, label generation and other fees described in this Agreement; (j) "Harmful Component": any virus, Trojan horse, worm, time bombs, back doors or any similar device, mechanism, code or routine that manifests harmful, contaminating, destructive or disabling properties; (k) "Intellectual Property Rights": all intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) copyrights, patents, trademarks, service marks, database rights, trade secret rights, trade names, design rights and any applications for the protection and registration of these rights and all renewals and extensions thereof throughout the world; (l) "System Requirements": the minimum requirements for ancillary software, computers, internet connections and other hardware and equipment needed to access and use the 2Ship Platform and 2Ship Services, as set out in the Documentation from time to time; and (m) "User Identifier": a unique identifier and password issued to an End User and associated with the Customer, issued by the Customer.
3. CUSTOMER ACCESS AND USE: Customer acknowledges and agrees that in order to access and use the 2Ship Services and 2Ship Platform it must agree to the Terms of Service located on 2Ship's website ("2Ship Terms of Service"). Customer acknowledges that it has been given an opportunity to read the 2Ship Terms of Service, and Customer agrees to be bound by the 2Ship Terms of Service. Customer shall use the 2Ship Services through the 2Ship Platform in accordance with this Agreement and the 2Ship Terms of Service, solely for Customer's own business operations and not for any further distribution or resale. During the term of this Agreement (which shall be deemed to include any renewal terms), and upon payment of all applicable Fees, Customer may access and use the 2Ship Services and 2Ship Platform pursuant to and in accordance with the provisions of this Agreement and the 2Ship Terms of Service. 2Ship will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by this Agreement and the 2Ship Terms of Service. Thereafter, Customer shall be solely
responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services. Customer may reassign Named Authorized Users without incurring additional fees.
4. FEES: Customer shall pay Fees by check to the address indicated on 2Ship's invoices and/or statements or via check, ACH or credit card payment. Any amounts owing by Customer to 2Ship hereunder that are not paid when due shall bear interest at the rate of 2% per month calculated monthly (being 26.82% per annum), from the date any such amount is due until paid. Customer agrees to pay 2Ship the current fee charged by its financial institution for checks returned unpaid. All payments under this Agreement, shall be made without any set-off or abatement whatsoever. 2Ship may increase Fees at any time effective upon 60 days written notice to Customer.
5. TAXES: Customer shall pay to 2Ship all GST, HST and other taxes and charges imposed on use of the Services and the payment of Fees.
6. ASSIGNABILITY: Customer shall not assign, transfer, pledge, hypothecate or otherwise dispose of this Agreement or any interest herein or sublet, lend or otherwise
permit the 2Ship Services or 2Ship Platform to be used by anyone other than the Customer without 2Ship's prior written consent. 2Ship may assign its interests in this Agreement in whole or in part without notice to Customer.
7. RESTRICTIONS: The Customer shall not and will not permit its End Users to: (a) access and use, or rent, resell, lease, lend, license, sub-license, publish, transfer rights to, distribute or provide service bureau facilities or commercial time-sharing services relating to the 2Ship Platform or 2Ship Services, except as may be expressly set out in this Agreement or otherwise consented to by 2Ship in writing; (b) modify, translate or create derivative works based on the 2Ship Platform or 2Ship Services; (c) reverse-engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the 2Ship Platform or 2Ship Services; (d) remove any proprietary notices or disclaimers contained in the 2Ship Platform or 2Ship Services; (e) use the 2Ship Platform or 2Ship Services in any manner contrary to applicable law; (f) upload to or transmit from or through the 2Ship Platform or 2Ship Services anything that, if reproduced, published, transmitted or used, may be defamatory, threatening, abusive, obscene, harmful or invasive of anyone’s privacy, may violate any law (including copyright, trade-mark or privacy laws), or may give rise to civil or other liability; (g) upload or transmit, or permit anything to be uploaded or transmitted, to the 2Ship Platform or 2Ship Services any data file or software that contains any Harmful Component; (h) use the 2Ship Platform or 2Ship Services for spamming, other advertising, other bulk message transmission, or other similar activity objectionable to 2Ship in its sole discretion; (i) attempt to access any of 2Ship’s systems, programs or data that are not licensed under this Agreement; (j) interfere with or attempt to interfere with the proper operation of the 2Ship Platform and 2Ship Services; (k) access and/or engage in any use of the Services (i) in a manner that abuses or materially disrupts the networks, security systems, Services and/or websites of 2Ship Solutions and/or (ii) to communicate any message or material that is deemed harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful and/or(iii) use the Services for fraudulent or illegal purposes.
8. NEW FEATURES: Customer acknowledges and agrees that from time to time 2Ship may in its sole discretion add new features to the 2Ship Platform or 2Ship Services or otherwise modify the 2Ship Platform or 2Ship Services (including their functionality, visual design and “look and feel”). Customer further acknowledges and agrees that 2Ship may, from time to time in its sole discretion, create and upload patches, fixes, upgrades and improvements to the 2Ship Platform and 2Ship Services.
9. WARRANTY: 2Ship warrants that the 2Ship Platform and 2Ship Services will perform with minimal Errors, provided that: : (a) the 2Ship Platform and 2Ship Services have not been modified by anyone other than 2Ship or as 2Ship authorizes in writing; (b) Customer is using equipment, software and connections that comply with the System Requirements to access and use the 2Ship Platform and 2Ship Services; (d) the Error is not caused by Customer or its End Users, or their respective contractors or agents; and (e) Customer notifies 2Ship of the Error as soon as practicable after it is discovered. Customer acknowledges and agrees that its sole and exclusive remedies, and 2Ship’s only obligations, under the warranty set out in this paragraph is to cause the 2Ship Platform and 2Ship Services to perform substantially in accordance with 2Ship’s then-current Documentation by correcting Errors.
10. WARRANTY AND LIMITATIONS: EXCEPT AS MAY BE EXPRESSLY STATED IN THIS AGREEMENT: (A) THE 2SHIP PLATFORM AND 2SHIP SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) 2SHIP DOES NOT WARRANT THAT ACCESS TO OR USE OF THE 2SHIP PLATFORM AND 2SHIP SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, THAT ALL ERRORS IN THE 2SHIP PLATFORM AND 2SHIP SERVICES WILL BE IDENTIFIED AND CORRECTED, THAT THE 2SHIP PLATFORM AND 2SHIP SERVICES WILL MEET CUSTOMER'S
REQUIREMENTS OR THAT THE 2SHIP PLATFORM AND 2SHIP SERVICES WILL OPERATE IN CONJUNCTION WITH EQUIPMENT, THIRD-PARTY SOFTWARE OR SERVICES THAT CUSTOMER MAY OBTAIN OUTSIDE OF THIS AGREEMENT; AND (C) ACCESS TO AND USE OF THE 2SHIP PLATFORM AND 2SHIP SERVICES MAY AFFECT THE USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR SERVICES.
11. TERM AND TERMINATION: The term of service shall be as specified in the 2Ship Services Plan on the initial page of this agreement. Except as otherwise specified in the 2Ship Services Plan, subscriptions will automatically renew for additional periods equal to 30 days, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant billing period. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless 2Ship has given Customer written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 7% of the pricing for the applicable Purchased Service or Content in the immediately prior subscription term, unless the pricing in the prior term was designated as promotional or one-time. 2Ship may terminate this Agreement at any time effective immediately upon notice in writing to Customer if Customer breaches any provision of this Agreement or the 2Ship Solutions Terms of Service. This Agreement may not be cancelled or terminated by Customer except as set forth in this paragraph.
12. USE OF INTERNET: Without limiting the previous paragraph, Customer acknowledges that security risks cannot be eliminated and that the internet is not a completely secure medium. 2Ship does not represent or warrant that the data or files stored on the 2Ship Platform, or messages sent or received through the 2Ship Platform or 2Ship Services by the Customer and its End Users are free of Harmful Components and does not represent or warrant that any data or electronic messages transmitted to, from or through the 2Ship Platform or 2Ship Services will be received in a timely way or at all.
13. NO OTHER WARRANTIES: Customer acknowledges that 2Ship will not be bound by any representations, warranties, conditions or guarantees, whether express or implied by law or custom, other than those explicitly set out in this Agreement and the 2Ship Terms of Service.
14. CUSTOMER'S EQUIPMENT: 2Ship Solutions is in no way responsible for the working or maintenance of Customer's computer and telecommunications equipment and networks, any other computer equipment or software Customer uses, or Customer's internet access. Customer acknowledges and agrees that the operation
and availability of equipment and systems used for accessing and interacting with the 2Ship Platform and 2Ship Services, including public telecommunication networks, computer networks and the internet (whether supplied by 2Ship, Customer or a third party) can be unpredictable and may from time to time interfere with or prevent access to or use of the 2Ship Platform and 2Ship Services. 2Ship is not in any way responsible for any such interference with or prevention of access to or use of the 2Ship Platform and 2Ship Services.
15. NO REPRESENTATIONS BY CUSTOMER. Neither Customer nor any of its End Users, customers, employees or representatives shall make any representations with respect to 2Ship Solutions, the 2Ship Services, the 2Ship Platform or this Agreement (including, without limitation, that 2Ship Solutions is a warrantor or co-seller of any of Customer’s products and/or services).
16. LIMITED GRANT OF RIGHTS: No other rights are granted hereunder to Customer except as expressly set forth in this Agreement. Customer acknowledges that as between the parties all right, title and interest (including all Intellectual Property Rights) in and to all aspects of the 2Ship Platform and 2Ship Services (including the software code and architecture, the graphical design and “look and feel” of the user interface, and code libraries (including classes and functions) shall be owned exclusively by 2Ship.
17. REGISTRATION. To subscribe to Services, Customer must (a) duly complete the 2Ship online registration process, including Customer’s electronic acceptance of the 2Ship Terms of Service or (b) duly complete the 2Ship Customer Profile Document which is to be submitted along with this Agreement. In the event the Customer’s
registration is rejected by 2Ship Solutions, the Customer may submit a new registration for re-evaluation by 2Ship Solutions.
18. ACCOUNT/PASSWORD SECURITY: Customer is entirely responsible for maintaining the confidentiality of its Client Identifier and account, and Customer is solely responsible for any and all activities that occur under its Client Identifier and account. Customer agrees to notify 2Ship Solutions immediately of any unauthorized use of its account or any other breach of security. 2Ship Solutions shall not be liable for any loss that Customer may incur as a result of a third party using its Client Identifier or account, either with or without its knowledge. Customer may be held liable for losses incurred by 2Ship Solutions due to a third party using Customer’s account or Client Identifier.
20. TRIAL AND PROMOTIONAL OFFERS: From time to time, 2Ship Solutions may offer certain trial and/or promotional offers. 2Ship Solutions reserves the right to discontinue or modify coupons, credits, trials and promotional offers at their discretion and without notice. Any such trial or promotional offers may not be combined with other coupons, credits, trials, promotions or any other discounts, and are limited to one (1) per Customer.
21. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF 2SHIP WITH RESPECT TO ANY LOSSES OR DAMAGES SUFFERED BY THE CUSTOMER AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED FIFTY DOLLARS ($50.00) WHETHER THAT LIABILITY IS ASSERTED ON THE BASIS OF INDEMNITY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE. IN NO EVENT SHALL 2SHIP, ITS AFFILIATES, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES BE LIABLE TO THE CUSTOMER, FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE 2SHIP PLATFORM, 2SHIP SERVICES OR ANY OTHER MATERIALS OR SERVICES FURNISHED UNDER THIS AGREEMENT FOR ANY REASON WHATSOEVER INCLUDING A BREACH OF THIS AGREEMENT OR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE 2SHIP PLATFORM OR 2SHIP SERVICES, WHETHER THAT LIABILITY IS ASSERTED ON THE BASIS OF INDEMNITY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND EVEN IF 2SHIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22. INDEMNITY: Customer will indemnify, defend, protect and hold harmless 2Ship and its agents, and employees from all claims, demands, expenses, losses, or damages arising out of (a) Customer's breach of this Agreement, and (b) Customer's use of the 2Ship Services or 2Ship Platform except to the extent arising out of the negligence or fault of 2Ship. This paragraph shall survive expiration or termination of this Agreement.
23. FORCE MAJEURE: Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. Notwithstanding the foregoing,
the occurrence of a force majeure event shall not relieve either party from its obligation to pay the other any amounts then due and owing to the other pursuant to the terms of this Agreement.
24. MISCELLANEOUS: This Agreement will be governed by the laws of the Province of Ontario. Each of the parties hereby attorns to the non-exclusive jurisdiction of the Courts of the Province of Ontario. Time shall be of the essence of this Agreement. All written communication under this Agreement may be sent by facsimile, postage paid mail or pre-paid delivery addressed to the address of the relevant party on the first page of this Agreement. Such communications which are so faxed or delivered shall be deemed to have been given and received on the date of transmission or delivery and such communications which are so mailed shall be deemed to have been given and received three days following the date of mailing. 2Ship may also give notice by way of e-mail which shall be deemed to have been given and received when it is sent. No right or remedy of 2Ship under this Agreement shall be deemed to be exclusive of any other right or remedy hereunder or at law or in equity, and 2Ship shall be entitled to exercise such rights and remedies, separately or cumulatively. Any waiver by any party of the performance of any of the provisions of this Agreement will be effective only if in writing and signed by a duly authorized representative of such party. All provisions of this Agreement which expressly or by implication are intended to survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement. Any provision of this Agreement which is prohibited, void or unenforceable in any jurisdiction shall as to such jurisdiction, be severable and be ineffective to the extent of such prohibition, avoidance or enenforceability without invalidating the remaining provisions hereof and such prohibition, voidance or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. This Agreement represents the entire agreement of the parties relating to the subject matter and supersedes all prior negotiations, statements, commitments, conditions, quotations, purchase orders, conditions, representations and warranties, whether oral or written.
25. MODIFICATION: THIS AGREEMENT MAY NOT BE MODIFIED OR ALTERED IN ANY MANNER EXCEPT IN WRITING SIGNED BY A 2SHIP CORPORATE REPRESENTATIVE/OFFICER AND CUSTOMER.
26. LANGUAGE: The parties hereby confirm their express agreement that this Agreement and all documents directly or indirectly related thereto be drawn up in English. LES PARTIES RECONNAISSENT LEUR VOLANTE EXPRESSE QUE LA PRESENTE CONVENTION AINSI QUE TOUS LES DOCUMENTS QUI S'Y RATTACHENT
DIRECTEMENT OU INDIRECTEMENT SOIENT REDIGES EN LANGUAGE ANGLAISE.
Effective Date: January 22, 2018