THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SHIPWELL, INC (“SHIPWELL”) SERVICES BY YOU, WHETHER IN CONNECTION WITH A PAID, FREE TRIAL OR UNPAID SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, executing an Order Form or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Shipwell that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
You may not access the Shipwell Platform if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Platform for purposes of monitoring the Shipwell Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account” means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Customer” means the company or other legal entity for which Customer is accepting this Agreement, and Affiliates of that company or entity.
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between Customer and Shipwell.
“Services” means the online, Web-based applications and platform provided by Shipwell via shipwell.com and/or other designated websites, that are ordered by Customer as part of a free trial or under an Order Form, including associated offline components.
“Shipwell” means Shipwell, Inc., located at 205 W 9th St., 3rd Floor, Austin, TX 78701.
“User” means an individual (including those of Your Affiliates) authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
Provision of Purchased Services. Shipwell shall make the Purchased Services available to Customer pursuant to this Agreement and the relevant Order Forms during a subscription term. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Shipwell regarding future functionality or features.
User and Site Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as subscriptions to the Shipwell Platform and are usable only by Customer and Customer’s Users for Customer’s internal business purposes and solely for Customer’s benefit.
USE OF THE SERVICES
Shipwell Responsibilities. Shipwell shall: (i) provide to Customer support for the Purchased Services at no additional charge, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Shipwell’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Shipwell employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
Customer Responsibilities. Customer shall (i) be responsible for Usersʼ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Shipwell promptly of any such unauthorized access or use, and (iii) use the Services only in accordance with applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services 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, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
THIRD PARTY PROVIDERS
Project44 Services. The Services interoperate with project44 APIs and depend on the continuing availability of the project44 APIs for use with the Services. If project44 ceases to make the API available on reasonable terms for the Services, Shipwell may cease to provide such Services features without entitling Customer to any refund or other compensation.
Google Services. The Services interoperate with Google APIs and depend on the continuing availability of the Google APIs for use with the Services. If Google ceases to make the APIs available on reasonable terms for the Services, Shipwell may cease to provide such Services features without entitling Customer to any refund or other compensation.
FEES AND PAYMENT FOR PURCHASED SERVICES
Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are nonrefundable.
Invoicing and Payment. Customer shall pay all fees or charges to Customer’s account in accordance with fees, charges and billing terms in effect at the time a fee or charge is due and payable.
Overdue Charges. If payment for any charges are not received from Customer by the due date, then at Shipwell’s discretion, such charges are subject to 2% per month, or partial month, or as may be permitted by applicable law. Overpayments by you do not accrue interest and may be refunded or credited to future charges against your account in our sole discretion.
Suspension of Service and Acceleration. If any amount owed by Customer under this or any other agreement for Shipwell’s services is overdue, Shipwell may, without limiting Shipwell’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Shipwell’s services to Customer until such amounts are paid in full.
Payment Disputes. Shipwell shall not exercise Shipwell’s rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the dispute.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Shipwell reserves all of Our rights title and interest in and to the Services and Content, including related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Restrictions. Customer shall not permit any third party to access the Services except as permitted herein or in an Order Form, create derivative works based on the Services, copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own internal documentation or otherwise for Customer’s own internal business purposes, reverse engineer the Services, or access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Ownership of Customer’s Data. As between Shipwell and Customer, Customer exclusively owns all rights, title and interest in and to all of Customer’s Data.
License to Use Feedback. Customer grants to Shipwell, perpetual, irrevocable, royalty-free license to use and incorporate into Our services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the services.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer’s Data; Shipwell’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer’s Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if compelled by law to do so, provided the Receiving Party gives the Disclosing Party reasonable prior notice of such compelled disclosure (to the extent legally permitted) and upon request by the Disclosing party reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Partyʼs Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
WARRANTIES AND DISCLAIMERS
Shipwell’s Warranties. Shipwell warrants that (i) the Services shall perform materially, and (ii) subject to Section 4, the functionality of the Services will not be materially decreased during a subscription term and (iii) the Service will provided in accordance with the Service Level Agreement. For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
Mutual Warranties. Each party represents and warrants that it has legal power to enter into this Agreement.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification by Customer. Customer shall defend Shipwell against any Claim made or brought against Shipwell by a third party alleging that the Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Shipwell for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Shipwell in connection with any such Claim; provided that Shipwell (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Shipwell of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost.
LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $5,000 OR THE AMOUNT PAID BY CUSTOMER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT THE CUSTOMER’S PAYMENT OBLIGATION UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES)
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date Customer accepts it and continues until all Subscriptions and User subscriptions granted in accordance with this Agreement have expired or been terminated. If Customer elects to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
Term of Purchased Subscriptions and User Subscriptions. Subscriptions and User subscriptions purchased by Customer commences on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of nonrenewal at least 30 days before the end of the relevant subscription term. Order forms are noncancelable by Customer after acceptance by Shipwell, and the subscription fee specified in an accepted Order Form cannot be decreased, prior to the end of the term of the Order Form, regardless of any termination, nonpayment, nonuse or other conduct or inaction on the part of either Party.
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. Upon any termination for cause by Customer, Shipwell shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Shipwell, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Shipwell for the period prior to the effective date of termination.
Surviving Provisions. The sections titled “Third Party Providers”, “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Indemnification,” “Limitation of Liability,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices to Shipwell shall be addressed to the attention of its CEO and COO. All notices to Customer shall be addressed to the relevant Service system administrator designated by Customer. Legal Notices to Customer shall also be addressed to Customer’s signatory of this Agreement or any person designated beneath the signature area below.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Attorney Fees. Customer shall pay on demand all of Shipwell’s reasonable attorney fees and other costs incurred by Shipwell to collect any fees or charges due Shipwell under this Agreement following Customer’s breach of Section 5.2 (Invoicing and Payment).
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Governing Law. Any dispute between Customer and Shipwell is subject to the laws of the State of Texas, without regard to Texas choice of law rules; and any action brought against Shipwell shall be brought in either the Superior Court of Texas, in and for the County of Austin, or the U.S. District Court for the District of Texas, Austin vicinage.
Mediation. Before suit may be commenced, however, the parties to the dispute must submit the dispute to mediation by JAMS, and must fully and materially participate in a good faith effort to resolve the dispute. This is a condition precedent to any suit and must be accomplished before suit commences.
Entire Agreement. This Agreement constitutes the entire agreement between Shipwell and Customer and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter between Shipwell and Customer. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.