ShipHawk Terms & Conditions
In consideration of the mutual promises and agreements set forth in this Agreement, including the Service Order Form and Exhibits attached hereto, Hawk Applications Corp. dba ShipHawk (“ShipHawk”) and Licensee agree as follows:
- 1. PROPRIETARY RIGHTS
- a. License to Service. Subject to the terms and conditions of this Agreement, ShipHawk grants to Licensee during the Term a non-exclusive, non-transferable, non-sublicensable, limited license: (i) to access and use the software-as-a-service platform (Service) and located at either ShipHawk.com (the “Platform”) or hosted within Licensee’s own self hosted or managed cloud platform for the sole purpose of facilitating the Licensee’s shipping or warehouse management needs on their own behalf or the behalves of the Licensee’s customers; and (ii) to access the documentation provided by ShipHawk (the “Documentation”) (the Platform and Documentation together, the “Service”), at the Licensee’s designated tier level (the “Tier Level”) as specified in the Service Order Form.
- b. Restrictions on Use of Service. The Service is licensed to Licensee only. In conjunction with Licensee’s use of the Service, Licensee shall comply with all applicable laws, rules and regulations. Licensee shall not, and shall not permit any third party to: (i) copy, modify, translate, or create derivative works of the Service; (ii) create derivative works from, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service, (iii) sell, lease, license, sublicense, transfer, assign, distribute, timeshare, offer in a service bureau, or otherwise make the Service available to or for the benefit of any third party without the express written consent of ShipHawk; (iv) attempt to circumvent any license, timing or use restrictions that are built into the Service; (v) interfere with or disrupt the integrity or performance of the Service or any third-party data contained on the Service, including, as applicable, the third-party data of Licensee’s employees, or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
- c. ShipHawk Ownership of Service. Except for express licenses granted in Section 1(a) of this Agreement, ShipHawk is not granting or assigning to Licensee any right, title, or interest, express or implied, in or to ShipHawk’s intellectual property, including without limitation, the Service. ShipHawk reserves all rights in such intellectual property. ShipHawk represents and warrants that it owns the Service and Platform, and that it has the right to grant the license granted in Section 1(a).
- d. Licensee Data. Licensee grants to ShipHawk a limited, non-transferable (except pursuant to Section 10(a) below) license to use the data entered into the Service by, on behalf, or for the benefit of Licensee or Licensee’s business (such data collectively, “Data”) in order for ShipHawk to perform its obligations under this Agreement, and to prevent or address issues with the Service, or for the purposes of operating or enhancing Service. Licensee represents and warrants that: (i) it owns the Data or otherwise has the right to grant the license set forth in this Section 1(d); (ii) the posting and use of Data in anonymized form as contemplated herein does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of Data does not result in a breach of contract between Licensee and any third party. ShipHawk owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number and types of transactions, configurations, and reports processed through the Service and the performance results for the Service (the “Aggregated Data”). Licensee hereby grants ShipHawk the right to use and disclose Data solely (i) as anonymized, aggregate Service statistics, which cannot directly be associated with Licensee (ii) to provide, operate, manage, maintain, and enhance the Service (iii) to subcontractors and other third-party service providers (e.g., auditors and counsel) of ShipHawk on an as-needed and confidential basis, subject to the terms and conditions hereof; (iv) to enforce its rights under this Agreement; (v) if and as required by any court order, law, or governmental or regulatory agency (after, if permitted, giving reasonable notice to Licensee and using commercially reasonable efforts to provide Licensee with the opportunity to seek a protective order or the equivalent (at Licensee’s expense)); and (vi) as may otherwise be elected by Licensee within the Service.
- e. Protection of Licensee Data. ShipHawk will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Licensee Data by ShipHawk personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 4(c) (Compelled Disclosure) below, or (c) as Licensee expressly permit in writing.
- 2. USE OF THE SERVICE
- a. ShipHawk’s Responsibilities. ShipHawk shall use commercially reasonable efforts to make the Service available at all times, except for planned downtime and any unavailability caused by force majeure circumstances (e.g., fires, floods, acts of God, acts of government, civil unrest, Internet service provider failures or delays, denial of service attacks, etc.). ShipHawk will maintain appropriate industry standard administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Data. Due to the press of business or circumstances beyond its control, ShipHawk implementation times may be delayed more than 60 days. In that event, ShipHawk will notify customers and at its sole discretion may suspend any payment obligations. Under no circumstances shall ShipHawk be liable for a breach of this Agreement unless the Service has not been implemented by the initial contract term. ShipHawk will be responsible for the performance of ShipHawk personnel (including ShipHawk employees and contractors) and their compliance with ShipHawk obligations under this Agreement, except as otherwise specified herein.
- b. Licensee Responsibilities. Licensee shall:
- I. Be responsible for allocating Licensee resources and completing assigned deliverables to support a successful implementation per the agreed Implementation Statement of Work (ISOW). ShipHawk resources shall be made available to the Licensee as outlined and agreed in the ISOW. Should Licensee require additional weeks of implementation support beyond the scope of what was agreed in the ISOW, Licensee will be billed weekly at the agreed rate listed in their ISOW;
- ii. Be responsible for providing ShipHawk all of Licensee’s credentials, rate cards, technical contacts, web service, API or otherwise required technical documentation to successfully set up Licensee’s transportation providers on the ShipHawk platform within 5 business days of the request;
- iii. Be responsible for setting up a USPS account with ShipHawk using this account sign-up link https://www.pbshippingmerchant.pitneybowes.com/home?developerID=52572665 Licensee does not need an account if Licensee has an existing relationship or Negotiated Service Agreement with USPS, or if Licensee has an alternative legacy account in place with ShipHawk’s Warehouse Management features of the Platform. Creating a new USPS account with ShipHawk allows you to benchmark success with ShipHawk while accessing commercial rates;
- iv. For its, and all users of the Service accessing the Service via Licensee’s account, compliance with this Agreement;
- v. For using commercially reasonable efforts to prevent unauthorized access to or use of the Service, and to notify ShipHawk immediately of any such unauthorized access and/or use of which Licensee becomes aware;
- vi. Use the Service only in accordance with this Agreement, the Documentation, and in compliance with applicable laws and regulations;
- vii. Not remove or alter any legends, restrictions, product identification, copyright, trademark or other notices from ShipHawk. Licensee will be responsible for the performance of Licensee personnel (including Licensee employees and contractors) and their compliance with Licensee obligations under this Agreement, except as otherwise specified herein.
- viii. Licensee acknowledges that, notwithstanding anything to the contrary, to the extent Licensee’s use of the Service involves any hazardous materials, customs issues, or materials or conduct otherwise prohibited by law, the terms of Exhibit E hereto (the “Prohibited Materials Addendum”) shall apply
- 3. FEES AND PAYMENT
- a. Fees. In consideration of the license grant set forth above in Section 1(a), Licensee shall pay ShipHawk the fees (the “Fees”) as specified in the Service Order Form.
- i. License Subscription Fee: The License Subscription Fee includes access to the Service for the Term of License specified in the Service Order Form
- ii. Connector Fees: Connector Fees apply when Licensee desires to add connectors not specified in your Service Order Form or decides to reimplement a connector after implementation is completed and signed off. Should Licensee decide connectors not explicitly listed in their Service Order Form are required, ShipHawk and Licensee will create a Statement of Work to add the connectors to this Agreement along with any professional services necessary to support their successful implementation. Licensee will be subject to additional subscription and one-time fees.
- iii. Parcel Transaction Fees: The Parcel Transaction Fees apply when Licensee creates a new parcel shipment via the Service. The Licensee may purchase a recurring monthly allotment of a specified number of transactions. If Licensee exceeds this monthly allotment, Licensee shall be charged a pre-negotiated fee per each additional parcel transaction. Parcel Transaction Fees are due monthly for all transactions booked within the previous calendar month.
- iv. Freight Transaction Fees: The Freight Transaction Fees apply when Licensee creates a new freight shipment via the Service. The Licensee may purchase a recurring monthly allotment of a specified number of transactions. If Licensee exceeds this monthly allotment, Licensee shall be charged a pre-negotiated fee per each additional freight transaction. Freight Transaction Fees are due monthly for all transactions booked within the previous calendar month.
- v. Rating Fees: Rating Fees apply when Licensee’s Rate-to-Shipment Ratio exceeds seven (7) rates to one (1) shipment. In the event that Licensee requires more substantial use of the rates Service, including but not limited to testing purposes, in-cart rates, shopping-cart rates, matrix-based rates, or other external-facing rates, Licensee shall be charged $0.005 per rate request on a monthly basis.
- vi. Address Validation (optional service): Address Validation Fees apply when Licensee validates an address via the Service. Licensee shall be charged a fee of $0.01 per each domestic address validation and $0.20 per each international address validation. Address validation fees are due monthly for all transactions booked within the previous calendar month.
- vii. Sandbox Account (optional service): the Service includes sandbox account access during implementation and 30 days post-launch at no additional charge to Licensee. If Licensee requires Sandbox access beyond this period, Licensee will need to purchase a subscription for a Sandbox Account. Licensees who are hosting their own cloud computing Warehouse Management Platform are granted a Sandbox account at no additional charge. Should a customer opt for an Enterprise Plan, Enterprise SLA’s are to be defined in the Service Order Form, superseding corresponding standard SLA’s in the terms and conditions.
- viii. Professional Services or Custom Development not explicitly covered in the SOW or Support SLA, is subject to be billed at an hourly rate of $225.
- b. Payment Terms. Licensee agrees to provide payment for all Fees contemplated by this Agreement on or after the dates contemplated by this Agreement via ACH or wire transfer, according to the due dates defined in the Service Order Form. In cases where Licensee is unwilling or unable to pay via ACH debit initiated by ShipHawk, Licensee agrees to supply ShipHawk with valid credit card information to be utilized by ShipHawk in instances where Licensee’s payment is greater than 30 days overdue. Licensee agrees that electronic invoices sent via Email will represent the official delivery of the invoice (the “Invoice Date”), regardless of when the invoice was first viewed, received or accessed by the Client. Licensee authorizes ShipHawk to pass through interchange and conversion rate costs related to credit card processing and international transfers, if applicable. Licensee is solely responsible for providing ShipHawk accurate and complete billing and contact information and for notifying ShipHawk of any changes to such information within three (3) business days of such change by email to firstname.lastname@example.org. Payment obligations are non-cancelable and fees paid are non-refundable. Licensee’s failure to make any payment due hereunder by the due date shall give ShipHawk the right to terminate this Agreement, provided that ShipHawk gives Licensee notice of non-payment and ten (10) business days opportunity to cure. See Exhibit D for ACH authorization and bank account information.
- c. Price Increases. ShipHawk may make a determination during the Term to increase unit prices. Price increases will be applicable upon the next renewal date should your contract auto-renew. Please refer to the Term & Termination section regarding notice of non-renewal.
- d. Overdue Charges. Late Fee payments shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- e. Taxes. Licensee shall be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes except for taxes based solely on ShipHawk’s net income. If ShipHawk is required to pay any such taxes based on the licenses granted in this Agreement or on Licensee’s use of the Service, then such taxes shall be billed to and paid by Licensee within ten (10) business days.
- f. Sales Taxes. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the License Subscription Fee and performance of Implementation and Professional Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
- g. Withholding Tax. If you are required to deduct or withhold tax from payment of your ShipHawk invoice, you may deduct this amount from the applicable License Subscription Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”).
You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.
- h. Travel. On-site visits by ShipHawk personnel to Customer’s office, warehouse, or other location can be arranged, provided Customer and ShipHawk pre-authorize said visit(s). Should the services provided or requested during the on-site visit be beyond the scope of work defined in the ISOW (Implementation Statement of Work), Customer will be requested to pay a Professional Services Fee of $1,500 per day, per ShipHawk representative. For any visit, Customer will reimburse Shiphawk for its actual, reasonable, out-of-pocket expenses for travel reasonably necessary in connection with work under this Agreement (e.g. visits to Customer’s facilities). ShipHawk shall submit accurate and complete support documents for reimbursement of such expenses and shall follow any reasonable policies, requirements, or directions imposted by Customer in connection with such expenses. The customer will pay the amount properly due and payable under each of ShipHawk’s invoices issued in accordance with applicable law, within seven (7) days after receiving an invoice.
- a. Fees. In consideration of the license grant set forth above in Section 1(a), Licensee shall pay ShipHawk the fees (the “Fees”) as specified in the Service Order Form.
- 4. CONFIDENTIAL INFORMATION
- a. 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. Licensee’s Confidential Information includes, but is not limited to its Data. ShipHawk Confidential Information includes, but is not limited to the Service and the terms of this Agreement. Confidential Information of each Party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party and any other trade secrets and confidential or proprietary information of such Party. Confidential Information does 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.
- b. Protection of Confidential Information. 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ 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. Neither Party shall disclose the terms of this Agreement or any Service Order Form to any third party other than its affiliates and their legal counsel and accountants without the other Party’s prior written consent.
- c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and 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 Party’s 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. Disclosure of Confidential Information in accordance with this provision does not affect the Receiving Party’s obligations of confidentiality with respect the Confidential Information disclosed.
- 5. REPRESENTATIONS AND WARRANTIES
- a. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
- b. ShipHawk Warranties. ShipHawk warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the Party. We warrant that during an applicable subscription term (i) this Agreement, the Service Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data, (ii) ShipHawk will not materially decrease the overall security of the Services, (iii) the Services will perform materially in accordance with the applicable Documentation, and, ShipHawk will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Licensee’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
- c. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
- 6. MUTUAL INDEMNIFICATION.
- a. Indemnification by ShipHawk. We will defend Licensee against any claim, demand, suit or proceeding made or brought against Licensee by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Licensee”), and will indemnify Licensee from any damages, attorney fees and costs finally awarded against Licensee as a result of, or for amounts paid by Licensee under a settlement approved by ShipHawk in writing of, a Claim Against Licensee provided Licensee (a) promptly give ShipHawk written notice of the Claim Against Licensee (b) give ShipHawk sole control of the defense and settlement of the Claim Against Licensee (except that ShipHawk may not settle any Claim Against Licensee unless it unconditionally releases Licensee of all liability), and (c) give ShipHawk all reasonable assistance, at ShipHawk’s expense. If ShipHawk receives information about an infringement or misappropriation claim related to a Service, ShipHawk may in our discretion and at no cost to Licensee (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching our warranties, (ii) obtain a license for Licensee’s continued use of that Service in accordance with this Agreement, or (iii) terminate Licensee subscriptions for that Service upon 30 days’ written notice and refund Licensee any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Licensee arises from a Non-ShipHawk Application or Licensee use of the Services in violation of this Agreement, the Documentation or applicable Service Order Forms.
- b. Indemnification by Licensee. Licensee will defend ShipHawk against any claim, demand, suit or proceeding made or brought against ShipHawk by a third party alleging that any of Licensee Data infringes or misappropriates such third party’s intellectual property rights, or arising from Licensee use of the Services in violation of the Agreement, the Documentation, Service Order Form or applicable law (each a “Claim Against ShipHawk”), and Licensee will indemnify ShipHawk from any damages, attorney fees and costs finally awarded against ShipHawk as a result of, or for any amounts paid by ShipHawk under a settlement approved by Licensee in writing of, a Claim Against ShipHawk, provided ShipHawk (a) promptly give Licensee written notice of the Claim Against ShipHawk, (b) give Licensee sole control of the defense and settlement of the Claim Against ShipHawk (except that Licensee may not settle any Claim Against ShipHawk unless it unconditionally releases ShipHawk of all liability), and (c) give Licensee all reasonable assistance, at Licensee expense.
- c. Exclusive Remedy. This Section 6 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 6.
- 7. LIMITATION OF LIABILITY.
- a. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
- b. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- 8. TERM AND TERMINATION
- a. Term of Agreement. The Term (“Term”) of the Agreement shall begin on the Effective Date and continue for the Term of License specified in the Service Order Form.
- b. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Service Order Form. Except as otherwise specified in a Service Order Form, subscriptions will 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 non-renewal at least 30 days before the end of the relevant subscription term. The per- unit pricing during any renewal term is subject to change. Except as expressly provided in the applicable Service Order Form, renewal of promotional or one-time priced subscriptions will be at ShipHawk’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
- c. Termination. 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.
- d. Refund of Payment upon Termination. If this Agreement is terminated by Licensee in accordance with 8(c), ShipHawk will refund you any prepaid fees covering the remainder of the term of all Service Order Forms after the effective date of termination. If this Agreement is terminated by ShipHawk in accordance with 8(c), Licensee will pay any unpaid fees covering the remainder of the term of all Service Order Forms. In no event will termination relieve Licensee of Licensee’s obligation to pay any fees payable to ShipHawk for the period prior to the effective date of termination.
- e. Licensee Data. Upon request by Licensee made within 30 days after the effective date of termination or expiration of this Agreement, ShipHawk will make Licensee Data available for export. After such 30-day period, ShipHawk will have no obligation to maintain or provide any Licensee Data.
- f. Survival. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, shall so survive.
- g. Website Terms of Service. Use of the Service by Licensee and its customers is subject to ShipHawk’s Terms & Conditions listed at https://shiphawk.com/terms-and-conditions/, incorporated herein by reference, which may be updated from time to time in accordance with the terms thereof without notice.
- 9. NOTICES, GOVERNING LAW AND JURISDICTION
- a. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Licensee will be addressed to the relevant billing contact designated by Licensee. All other notices to Licensee will be addressed to the relevant Services primary contact designated by Licensee on Service Order Form.
- b. Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, and the Parties agree and submit to the exclusive jurisdiction and venue of these courts.
- c. No Agency. For the avoidance of doubt, ShipHawk is entering into this Agreement as principal and not as agent for any other Hawk Applications Corp. company. The obligations owed by ShipHawk under this Agreement shall be owed to Licensee solely by ShipHawk and the obligations owed by Licensee under this Agreement shall be owed solely to ShipHawk.
- 10. GENERAL PROVISIONS
- a. Export Regulations. Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Licensee covenants that it shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from ShipHawk under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Licensee agrees to indemnify, to the fullest extent permitted by law, ShipHawk from and against any fines or penalties that may arise as a result of Licensee’s breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
- b. Anti-Corruption. Licensee agrees that Licensee has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Company employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Licensee learns of any violation of the above restriction, Licensee will use reasonable efforts to promptly notify ShipHawk Legal Department at email@example.com.
- c. Entire Agreement. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Service Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Service Order Form, (2) this Agreement, and (3) the Documentation.
- d. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Service Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, ShipHawk will refund to Licensee any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- e. Professional Services. Each deliverable and/or milestone separately set forth as such in the applicable Statement of Work will be subject to acceptance testing by Licensee to verify that the deliverable and/or milestone satisfies the acceptance criteria in each Statement of Work. If no specific acceptance criteria are set forth in the applicable Statement of Work, the acceptance criteria will be Licensee’s commercially reasonable determination that the deliverables and/or milestones conform to and function in accordance with the proposals, descriptions and specifications set forth in the applicable Statement of Work and are free from defects in materials, workmanship, performance and functionality. If there is no time frame specified in the applicable Statement of Work, Licensee will have fifteen (15) business days after delivery of the relevant deliverable and/or milestone to notify ShipHawk of its acceptance or rejection of the deliverable in writing. If Licensee has not issued such written notification to ShipHawk within the applicable time frame, the affected deliverable and/or milestone will be deemed accepted. If Licensee rejects the deliverable and/or milestone in writing during the testing period, ShipHawk will attempt to remedy the specified defects and resubmit the affected deliverable and/or milestone to Licensee within ten (10) business days of the date of initial rejection or such other time period as agreed in writing by the parties, at which time the acceptance testing procedure will be repeated. If the deliverable fails acceptance testing this second time, Licensee may provide Company with a subsequent opportunity to remedy the defects and resubmit the deliverable for Acceptance Testing or finally reject the deliverable and pursue any rights or remedies as set forth in the Agreement, at law or in equity. Should a customer opt for an Enterprise Plan, Enterprise SLA’s are to be defined in the Service Order Form, superseding corresponding standard SLA’s in the terms and conditions. Notwithstanding the foregoing, any such deliverable shall be considered ShipHawk intellectual property. Deliverables are thereby part of the Services licensed by Licensee and retain all rights herein.
- f. Marketing and Advertising. Licensee agrees that ShipHawk may reference Licensee as a customer and use Licensee’s logo for that purpose on the ShipHawk website and other collateral. Licensee must approve all other advertising, sales, promotional, or other publicly available materials or collateral used by ShipHawk as it pertains to the nature of this Agreement. ShipHawk must approve all advertising, sales, promotional, or other publicly available materials or collateral used by Licensee as it pertains to the nature of this Agreement.
- g. 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.
- h. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
- i. Transportation Broker Authority. ShipHawk enters into this contract in its capacity as a broker for the transportation of property, pursuant to the authority set forth in 49 U.S.C. Section 13901 (a) & (b)(1)-(2) and 49 U.S.C. Section 13904 (DOT 2404410, MC 821571).
- j. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
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Technical Support Services
ShipHawk Technical Support Program provides technical assistance for the ShipHawk Platform, access to ShipHawk’s ticketing system, platform documentation and release notes for the Platform. Should a customer opt for an Enterprise Plan, Enterprise SLA’s are to be defined in the Service Order Form, superseding corresponding standard SLA’s in the terms and conditions.
- Technical Support
Operational Assistance. ShipHawk’s Technical support staff provides system expertise to support the Customer’s ongoing use of ShipHawk Platform services.
Remote Training. ShipHawk’s Professional Services staff provides training on ShipHawk Platform functionality. All training is conducted remotely and covers use of Platform only.
Technical Support. ShipHawk’s Technical Support staff provides technical assistance to support the administration of the ShipHawk Platform.
Language of Success. Unless specific arrangements are made in writing in advance, all Technical Support will be provided by ShipHawk in English.
Scope of Support. ShipHawk is not obligated to provide technical assistance if (a) the Platform has not been used in a manner consistent with its documentation; (b) a non-ShipHawk system on which Platform is installed is not functioning properly or doesn’t meet ShipHawk’s published specifications; (c) Platform has been altered or modified by any party other than ShipHawk; (d) ShipHawk is not able, after commercially reasonable efforts, to replicate any error or problem in the Platform within the ShipHawk laboratory environment. ShipHawk does not provide support for third-party software or hardware such as, but not limited to, CPUs, servers, browser software, operating systems, application servers, database software, cloud services, or third-party plug-ins required for operational use of the software. ShipHawk will assist Licensee as necessary to identify what third party software, licenses, hardware and services are required, but the sole responsibility for obtaining such third-party software, licenses, hardware and services shall be with Licensee.
- Issue Reporting
Issue Prioritization. ShipHawk may classify the priority level upward or downward and modify the order, classifications and method of responding to and/or addressing such issues, if any, at any time based on the following classifications:
- Urgent: Complete loss of application functionality causing a critical impact on business operations: inability to rate, ship, print labels, generate quotes, or print end of day manifests. For warehouse management functionality, complete loss of receiving, stocking, picking, packing or shipping ability.
- High: Platform is operative but performance is seriously degraded or restricted with a significant impact on business operation.
- Medium: Platform is usable but non-critical functionality or system components are affected while most operation is unaffected.
- Low: Includes questions, requests for information, documentation inquiries, or other non-critical system related issues. Operations are not affected.
Responses. Technical Support hours 5:00 AM – 5:00 PM PT Monday – Friday (excluding United States public holidays). ShipHawk will respond to Urgent – 30 minutes, High – 2 hours, Normal(medium) – 3 hours, Low – 4 hours. Urgent cases are also responded to on weekends. Response time to Urgent cases on weekends – 2 hours. The ShipHawk response consists of either (A) ShipHawk remediation of the support issue or (B) confirmation that ShipHawk has received the support issue reported and indication of active remediation efforts.
- STATUS PAGE
Customers who utilize a ShipHawk-hosted option may opt-in for updates on the ShipHawk Platform at any time using ShipHawk’s current status page. The current status page is readily available at: https://status.shiphawk.com .
ShipHawk API Service Level Agreement (SLA)
At ShipHawk, we recognize that dependencies on third party integrations may seem risky when your site and customer experience are at stake. We know that the availability of our service is of utmost importance to your ongoing success and entrusting ShipHawk API as the backbone for your shipping solution is something that we take seriously. That’s why we have built this comprehensive ShipHawk API Service Level Agreement (“SLA”) to cover the various components that keep your services with ShipHawk up and running.
The SLA is an agreement between Licensee (“you” or “your”) and ShipHawk (“we,” “us” or “our”) that defines the terms of our responsibility under this SLA and the guarantees if our responsibilities are not met. We want our clients to feel at ease with their decision to work with ShipHawk and knowing that ShipHawk takes your service uptime as seriously as you do.
Service Level Agreement (“SLA”). ShipHawk shall use all reasonable commercial efforts to ensure that ShipHawk API is operating and available to Licensee 99.5% of the time in any calendar month, excluding Scheduled Downtime. In the event that a Client experiences any of the service performance issues defined below due to ShipHawk’s failure to provide Service, Client will be eligible to receive the Service Credits described below. Should a customer opt for an Enterprise Plan, Enterprise SLAs are to be defined in the Service Order Form, superseding corresponding standard SLAs in the terms and conditions.
Definitions. The following definitions shall apply to the ShipHawk API SLA.
- “Client” means Licensee Inc. (Delaware) and its subsidiaries.
- “Customer” means any individual or business that may interact with ShipHawk API by using a service provided by the Client.
- “Downtime” means, for a domain, if average latency is greater than 15 seconds. Downtime is measured based on server side monitoring.
- “Downtime period” means, for a domain, a period of ten consecutive minutes of Downtime. Intermittent Downtime for a period less than ten minutes will not be counted towards Downtime periods except as specified under Short Downtime periods.
- “Short Downtime period” means, for a domain, a period of one minute of Downtime. If there are more than five Short Downtime periods per calendar month, then Short Downtime periods will be counted equivalent to a Downtime period.
- “Monthly uptime percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in a calendar month, divided by the total number of minutes in a calendar month
- “Scheduled Downtime” means those times where ShipHawk notifies Clients of periods of Downtime. In order to help Licensee plan for scheduled downtime, we plan for Scheduled Downtime to be conducted on Tuesday evenings beginning at 2100 Pacific, usually scheduled for up to six (6) hours at a time. Scheduled Downtime is not considered Downtime for the purposes of this SLA and will not be counted towards any Downtime Periods. We are using these windows only in cases where the tasks we are performing have a higher than normal level of risk of impacting the site.
- “Service” means the ShipHawk API item, rates, shipment and tracking functions provided by ShipHawk to Client under the ShipHawk License Agreement.
- “Service Credit” means 5% of Client monthly subscription fee as specified from their ShipHawk License Agreement will be credited to the Client’s next invoice per hour of Downtime, up to 100% of the monthly subscription fee.
Client Must Request Service Credit. To receive any of the Service Credits described above, Client must notify ShipHawk in writing for any and all Downtime Periods that occur in a single calendar month and request the service credit. Failure to request such credits within 30 days of the beginning of the Downtime will forfeit Client’s right to receive a Service Credit. You are not entitled to a credit if you are in breach of your services agreement with ShipHawk (including your payment obligations to ShipHawk) until you have cured the breach. You are not entitled to a credit if Downtime would not have occurred but for your breach of your agreement with ShipHawk or your misuse of the Services. You are not entitled to a credit for Downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within ShipHawk’s control.
SLA Exclusions. ShipHawk shall use commercially reasonable efforts to make the Service available at all times, except for planned downtime and any unavailability caused by force majeure circumstances (e.g., fires, floods, acts of God, acts of government, civil unrest, Internet service provider failures or delays, and denial of service attacks), and to provide the Service only in accordance with applicable laws and government regulations. ShipHawk will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Data. The SLA does not apply to any performance issues: (i) caused by factors outside of ShipHawk’s reasonable control; (ii) that resulted from any actions or inactions of Client, Customers or any third parties under their control; or (iii) that resulted from equipment used by Client, Customers and/or third parties under their control (not within the primary control of ShipHawk).
Exhibit E: Prohibited Materials Addendum
1. ShipHawk shall under no circumstances have any responsibility or liability for, and Licensee shall indemnify, defend, and hold harmless ShipHawk for and against, any claims, demands, suits, proceedings, damages, harms, or losses arising out of or related to (a) the shipping of any hazardous materials; (b) any customs issues; or (c) the shipment of any materials prohibited by law; in each case in connection with this Agreement.
2. ShipHawk shall (a) promptly give Licensee written notice of any such claim for indemnification under Section 1 of this Exhibit, (b) give Licensee sole control of the defense and settlement of such claim (except that Licensee may not settle any such claim unless it unconditionally releases ShipHawk of all liability), and (c) give Licensee all reasonable assistance, at Licensee’s expense.
This Prohibited Materials Addendum is signed by duly authorized representatives of the Licensee and is effective as of the date last signed below.