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 feelâ€). 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.
19.
COOKIES: By using the 2Ship Solutions’ Services or websites, Customer agrees to
the use of cookies. Cookies are small text files that contain data and are used
to enhance Customer’s experience. 2Ship Solutions uses cookies to facilitate
the use of the Services and websites. Analytical cookies are used to collect
information to improve how the Services and websites work. Functional cookies
are used to store Customer’s preferences and improve the functionality of the
Services.
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.
Revision: E
Effective Date: January 22, 2018