THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN CUSTOMER AND 2SHIP SOLUTIONS INC. BY ACCESSING AND/OR USING THE SERVICE(S), YOU ARE AGREEING, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE(S).
3. Online Registration. To subscribe to Services via the various 2Ship Solutions product websites, Customer must duly complete the online registration process, including Customer’s electronic acceptance of this Agreement, and 2Ship Solutions must then accept such online registration. 2Ship Solutions may reject an online registration by a potential Customer in its sole discretion and is not obligated to provide a reason for its rejection. In the event a potential Customer’s online registration is rejected by 2Ship Solutions, such potential Customer may submit a new online registration for re-evaluation by 2Ship Solutions.
4. Term and Termination 4.1 Term The term of this Agreement shall be the same as the term of the License Agreement and this Agreement shall terminate automatically upon termination of the License Agreement. 4.2 Termination for Cause. 2Ship Solutions reserves the right to terminate this Agreement immediately if Customer breaches any of its material obligations under this Agreement. 4.3 Effect of Termination. Upon expiration or termination of this Agreement: 1) Customer will immediately discontinue all access to and use of the Services and cease to represent in any form that it is a user of the Services, and 2) 2Ship Solutions may disable Customer’s account. Neither Party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 4.2; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination.
5. Fees and Charges 5.1 Fees Customer shall pay fees to 2Ship in accordance with the License Agreement.
6. Confidentiality Unless expressly authorized in writing by the other Party, neither Party shall disclose to any third party any Confidential Information of the other Party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is publicly disclosed through no fault of the receiving Party, (ii) is already lawfully in the receiving Party’s possession and not subject to a confidentiality obligation to the disclosing Party, (iii) becomes known to the receiving Party from a third party having an apparent bona fide right to disclose the information, or (iv) is Confidential Information that the receiving Party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving Party supplies disclosing Party with timely notice of such court order or subpoena. Furthermore, Customer will keep in confidence all passwords and/or other access information related to the Services. Customer acknowledges that 2Ship Solutions, and its licensors, retain all intellectual property rights and title, in and to, all of their Confidential Information and/or other proprietary information. This shall include, but not be limited to: products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the Services provided by 2Ship Solutions hereunder.
7. Warranty 2Ship warrants that the Services will perform with minimal Errors, provided that: : (a) the 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 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 Services to perform substantially in accordance with 2Ship’s then-current Documentation by correcting Errors.
8. WARRANTY AND LIMITATIONS: EXCEPT AS MAY BE EXPRESSLY STATED IN THIS AGREEMENT: (A) THE 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 SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, THAT ALL ERRORS IN THE SERVICES WILL BE IDENTIFIED AND CORRECTED, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE 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 SERVICES MAY AFFECT THE USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR SERVICES.
9. LIMITATION ON LIABILITY. IN NO EVENT SHALL 2SHIP SOLUTIONS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT 2SHIP SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 2SHIP SOLUTIONS’S LIABILITY HEREUNDER IS LIMITED TO $50.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. [Note to Draft: This limitation is based upon the limitation in the Reseller Agreement – 2Ship may amend it as it sees fit.]
10. Governing Law This Agreement shall be governed by and construed in accordance with the laws of Ontario without giving effect to any choice or conflict of law provision or rule (whether of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than Ontario.
11. Additional Terms 11.1 Relationship of the Parties. Customer and 2Ship Solutions are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. 11.2 Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part, and any such attempted assignment or delegation shall be void. 11.3 Force Majeure. Neither Party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a Party. 11.4 Notice. Ship Solutions may provide Customer with notice via telephone, email, regular mail and/or postings on the 2Ship Solutions website. 11.5 Compliance with Laws. Both Parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. Notwithstanding the preceding sentence 2Ship Solutions does not guarantee that the Services shall be appropriate and/or available for use in any particular location and Customer is responsible for compliance with local laws to the extent applicable. 2Ship Solutions reserves the right to modify the Services for any reason, without notice and without liability to Customer or any end user. Customer shall comply with all legal duties applicable to the Customer including obligations as data controller by virtue of Customer’s role as meeting organizer and/or Named Authorized User. Customer must provide the relevant persons and/or participants with all information Customer is required by law to provide and, if necessary, must obtain the consent of these persons and/or participants. Notwithstanding any other provision in this Agreement, 2Ship Solutions shall have the right to terminate this Agreement immediately upon the determination by 2Ship Solutions that Customer is not in compliance with export laws or violates any government privacy and/or data protection laws. 11.6 No Waiver. The failure of either Customer or 2Ship Solutions in any one or more instance(s) to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s). 11.7 Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect and the Parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement. 11.8 No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. 11.9 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either Party unless agreed to in writing by both Parties. 11.10 Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. 11.11 References. Pronouns contained in this Agreement shall apply equally to the feminine, neuter and masculine genders. The singular shall include the plural, and the plural shall include the singular. 11.12 Beta version. The terms of this subsection 11.12 shall only apply to Customer with respect to any “Beta’ version of any of the Services (the “Beta Services”) made available to Customer for purposes of evaluation and feedback. Customer acknowledges that the Beta Service(s) Customer is evaluating may contain bugs, errors and other problems and is provided to Customer “as-is.” Therefore, to the extent permitted by applicable law, 2Ship Solutions disclaims any warranty, condition and/or liability obligations to Customer of any kind with respect to the Beta Services. Customer further acknowledges the importance of communication between 2Ship Solutions and Customer during Customer’s use of the Beta Services and participation in 2Ship Solutions’ Beta program and hereby agrees to receive related correspondence and updates from 2Ship Solutions. In the event Customer requests to opt-out from such communications, Customer’s participation in the 2Ship Solutions Beta program will be canceled. Customer also hereby acknowledges that 2Ship Solutions has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that 2Ship Solutions has no express or implied obligation to Customer to announce or introduce the Beta Services. During the 2Ship Solutions Beta program, Customer will be asked to provide feedback regarding Customer’s use of the Beta Service(s) and Customer hereby grants to 2Ship Solutions a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any 2Ship Solutions product or service (including the Beta Services) at any time at the sole discretion of 2Ship Solutions. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict. 11.13 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 LANGUE ANGLAISE.