Shipware Terms & Conditions
PLEASE READ THIS INFORMATION CAREFULLY. BY COMPLETING THIS ENROLLEMENT FORM YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS ON BEHALF OF YOURSELF AND THE ENTITY, IF ANY, WITH WHOM YOU ARE EMPLOYED OR REPRESENT. SERVICE PROVIDER MAY REJECT ANY ENROLLMENT FORM SUBMISSION FOR ANY OR NO REASON IN ITS SOLE AND ABSOLUTE DISCRETION. ONCE AN ENROLLMENT FORM IS SUBMITTED BY CLIENT AND ACCEPTED BY SERVICE PROVIDER, THIS DOCUMENT WILL CONSTITUTE A LEGAL AGREEMENT BETWEEN SHIPWARE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“Service Provider”) AND THE REGISTERING ENTITY (“Client”). PLEASE RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
- Service Provider agrees to provide the following services to Client: (i) Provide Client with full access to Service Provider’s online portal and monthly reporting to include Address Corrections, Distribution Analysis, Invoice Summary, Performance Report, Shipping Profile. In the event that Client elects to opt in to Service Provider’s Invoice Monitoring and Recovery service, then Service Provider agrees to: (i) Track and monitor shipping data to determine which shipments are eligible and/or qualify for a full/partial refund (of the shipping cost) according to the “service guarantee” policies of the Client’s courier; (ii) Apply for and submit all refund/credit requests with client’s courier; and (iii) Provide Client with refund summary data and assist with refund verification.
- Limited Agency. The parties recognize and agree that Service Provider will be performing certain consulting services for Client as a limited agent of Client. These situations include those in which Client may be subject to non-delegable contractual obligations, or contractual confidentiality provisions which prohibit the disclosure of confidential information to third parties. In such situations, Service Provider, as a limited agent of Client, shall be subject the same provisions and restrictions regarding the use and disclosure of third party confidential information as is Client. Client will communicate any such limitation or restriction to Service Provider. Any breach of such provisions and restrictions by Service Provider shall be a breach of this agreement. The limited agency relationship shall extend only to the performance of certain services on behalf of Client, including, but not limited to, compiling Client’s shipping data, analysis of shipping data, and evaluation of parcel contract and rates. The limited agency granted by Client does not allow Service Provider to enter into, terminate, or modify any contractual or other legal relationship on behalf of Client. Exceeding the scope of the limited agency shall be a breach of this agreement.
- “Confidential Information” means any nonpublic information disclosed by either party (the “Disclosing Party”) to the other party (“Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant, and equipment), and designates such information as being confidential or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. Confidential Information shall include, without limitation, any documentation related to the services under this Agreement and any information obtained by Service Provider through observations or examination. Each party agrees to use the Confidential Information solely and exclusively to perform the services under this Agreement. Disclosing Party expressly understands their internal business practices and policies, therefore information transmitted to Receiving Party may or may not be information that the Disclosing Party is obligated to treat as confidential. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Client agrees to maintain strict confidentiality regarding all aspects of this Agreement, including non-disclosure that Client has a relationship with Service Provider, especially amongst the parcel carriers whose margins and commissions may be affected by Service Provider’s efforts, unless specifically agreed to in writing by Service Provider, or as mandated by law, regulation or court order. In the event that Receiving Party is required by law, regulation, or court order to disclose any Confidential Information, Receiving Party agrees to promptly notify Disclosing Party of such demand prior to such disclosure and to give Disclosing Party a reasonable opportunity to contest such disclosure. Such disclosed information shall remain Confidential Information. Unless earlier requested from time to time during the term, each party agrees to promptly return to the Disclosing Party all tangible items containing and/or relating to the Confidential Information, including all written materials, photographs, models, and the like and all copies thereof, upon the expiration or any earlier termination of this Agreement.
- Non-use and Non-disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees and consultants, except to those employees and consultants of the Receiving Party who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship.
- Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall sell, lease, utilize or make any copies of the Confidential Information of the other party unless previously approved in writing by the Disclosing Party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
- Data Privacy Clause. Client hereby grants to Service Provider, during the term of this Agreement, the non-exclusive right to view shipping, invoice and tracking data made available to Service Provider through www.fedex.com, www.ups.com, EDI, flatfile, E-invoice and other means Client may use to view and/or track shipment data. Service Provider agrees to use the data solely for the purpose of tracking/monitoring to determine if shipments are eligible for a refund and/or credit. Service Provider may not index, present, publish, sell, lease and/or otherwise disseminate the data in any format whatsoever. Client agrees to allow Service Provider to request API credentials on their behalf for invoice audit and recovery services.
- No ownership rights are transferred by this Agreement. Each party retains sole and exclusive rights to all of its intellectual property. Service Provider remains the sole and exclusive owner of all software used for tracking and refund requests. Client hereby designates Service Provider as an authorized agent to apply for, process, and recover payment of any credits/refunds the Client may be entitled to.
- Fees and Payment Schedule. In the event that Client elects to opt-in to Service Provider’s Invoice Monitoring and Recovery service, the Service Provider will charge a service rate of 25% of all funds recovered to the Client resulting from the work/effort and service of the Service Provider. All refunds will be one hundred percent (100%) directly refunded or credited back to the Client from their courier(s). Service Provider will send a monthly service and savings report along with an invoice for payment of rendered services. Invoices will be issued on a monthly cycle. Payment term is net 15 days from invoice date. Payments by credit card, equal to or greater than $1,500, are subject to a 3.5% merchant processing fee.
- Term and Termination. The Initial Term of this agreement commences upon the date that Client submits its enrollment form and ends on the last day of the following month. Upon the expiration of the Initial Term or any Renewal Term, this agreement shall automatically renew for an additional period of one (1) month (each a “Renewal Term”). Either party may Terminate this Agreement and the Services at any time by providing 15 days prior written notice not to renew. In addition, if either party should materially breach this Agreement, the non-breaching party may give the breaching party written notice of the breach and fifteen (15) days in which to cure. If the breaching party fails to cure the breach within such fifteen (15) day notice period, this Agreement shall automatically terminate on the expiration of the fifteen (15) day notice period. The client is liable for the agreed upon service fees of all Services rendered prior to date of effective termination. Upon effective termination of this Agreement client shall pay to Service Provider all fees and amounts owed which have accrued prior to the expiration of the Term.
- Client’s access to Service Provider’s online portal shall, at all times, be subject to Service Provider’s online portal terms and conditions. Client will be prompted to review these terms and conditions upon initial access to the portal and must agree to accept such terms and conditions prior to being granted access to the portal. If Client fails to agree to such terms and conditions, then Service Provider may restrict or deny Client’s access to the portal. The portal terms and conditions can be reviewed here: https://portal.shipware.com/
- Governing Law. The internal laws (and not the law of conflicts) of the State of California shall govern the validity, construction, interpretation, and application of this agreement which shall be deemed to have been entered into solely in the state of California. Any legal action brought to enforce any provision of this agreement must be brought exclusively in the venue of the Superior Court in San Diego County, California and both Parties agree to submit to the personal jurisdiction of such court. The prevailing party in any such legal action shall be entitled to reasonable attorney fees and costs incurred in that action, in addition to any other relief to which the party may be entitled under law or equity including external collections fees.