We have updated our uShip Master Services Agreement (“MSA”). If You are a new Client, this MSA is effective as of June 2, 2023, and applies to agreements signed on or after said date. If You are an existing Client, We are providing you with prior notice of these changes which will be effective as of July 1, 2023.

THIS AGREEMENT IS A BINDING CONTRACT AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH PAID SERVICES OR FREE PILOT AND/OR TRIAL FOR THE SERVICES.

By accepting this Agreement, either by accessing or using any Services, or authorizing or permitting any Agent or End-User to access or use any Services, You agree to be bound by this Agreement as of the date of such access or use of the Services (the “Effective Date”). 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 uShip that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Client,” “You,” or “Your” herein refers to such Entity and its Affiliates (hereinafter “Client”). If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services. Client and uShip shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.

Client acknowledges this MSA is subject to the terms and conditions of the uShip User Agreement ("User Agreement"), located at https://help.uship.com/hc/en-us/articles/360008771433-user-agreement, and the uShip Privacy Policy ("Privacy Policy"), located at https://help.uship.com/hc/en-us/articles/360009056894-Privacy-Policy-, which are incorporated in full by this reference. Client acknowledges having read and understood the terms and conditions of the User Agreement and Privacy Policy. Capitalized terms used herein but not defined shall have the definition provided to it in the User Agreement.

This MSA, the User Agreement, and the Privacy Policy shall collectively be referred to as the "Agreement”. In the event of any conflict among the various portions of the Agreement, the following order of precedence shall prevail: (i) MSA; (ii) User Agreement; and (iii) Privacy Policy. Non-English translations of this Agreement may be provided for convenience only. In the event of any ambiguity or conflict between translations, the English version shall control. It is anticipated that the Client and uShip may enter into subsequent agreements for add-on Services or programs. Unless each subsequent agreement indicates a different order of precedence on its face, this Agreement shall prevail in the order of precedence indicated herein. The purpose of this Agreement is to establish the terms and conditions under which Client obtains uShip’s Services and Professional Services as described in a contract/statement of work (“SOW”), or other document signed or agreed to by Client.

Background

uShip is a technology company that operates a neutral online transportation marketplace for shippers and transportation service providers (“TSP”) to connect for the shipment of items. Client is a business that utilizes the uShip marketplace to transport goods.

The Parties agree as follows:

1.           Scope of Services.

1.1.         uShip's Obligations. uShip shall assist Client in the facilitation of shipping services via the uShip technology shipping marketplace platform and/or uShip APIs, as further defined herein, in a manner mutually agreed upon by the Parties (“Services”). uShip shall provide Client with instructions on use of the uShip APIs, uShip Applications, and required tools. uShip agrees to use reasonable efforts to integrate Client's tools and content into uShip's online processes in such a manner as mutually agreed upon by the Parties.

1.2.        Not a Transportation Broker. For the avoidance of doubt, uShip is not acting as a broker for Client, or Client's customers, by providing its Services.

1.3.        Client's Obligations. Client shall be responsible for providing to uShip, in an accurate and timely manner, the Client information that is reasonably necessary for uShip to perform the Services hereunder. Client shall be solely responsible for the content of the Client information. In addition, Client shall provide at least one Client-designated representative for uShip to use for questions and issues related to uShip's duties hereunder. During the Term (as defined below), Client shall not circumvent the uShip platform to solicit contracts directly with carriers first introduced to Client via the uShip platform.

2.           Term.

2.1.         Term.  The term of this MSA begins on the Effective Date and will remain in effect as long as the Client has a valid contract/SOW or until this MSA is otherwise terminated in accordance with the terms hereof, whichever occurs first. The Service Term will be defined in each individual contract/SOW. Unless an Account and participation in any Services are terminated in accordance with this Agreement or the applicable contract/SOW, or unless otherwise stated in the applicable contract/SOW, and Client’s contract to any Services (including any and all deployed associated Services) will renew for a Service Term equivalent in length to the then-expiring Service Term.

3.           Price and Payment.

3.1.         Fees. Client agrees to pay all fees and other charges in accordance with this Agreement. Client agrees to pay for the total transaction value displayed at the time of checkout for each shipment booked on uShip.com under the terms of this Agreement, and any additional up-sell, including protection plan or other additional services or charges, for each delivered shipment transaction (“uShip Fees”). uShip reserves the right to waive or modify the uShip Fees, penalties, interests, and to introduce new uShip Fees, penalties, or interests at any time. For ongoing transactions, uShip reserves the right to waive or modify the fees and charges, penalties, or interests upon at least 30 days prior notice to Client. All pricing terms are confidential, and you agree not to disclose them to any third party. uShip’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities.

3.2.         Invoicing. Where any uShip Fees are not payable and/or paid at the time of checkout, Client agrees to be invoiced. uShip will issue any post-checkout invoices to Client on a monthly basis, unless otherwise specified in a subsequent agreement. All invoices are payable on receipt. Client shall submit full payment in United States dollars (“USD”) within net thirty (30) days from the invoice date, unless otherwise specified in a subsequent agreement. For the avoidance of doubt, completed or delivered shipments are those shipments that are delivered to a final destination, regardless of damages. Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.

3.3.        Shipping Protection. Client agrees to obtain shipping protection on each shipment that is booked using uShip, via self-insurance, its own insurers, or by purchasing the uShip Protection Plan (“UPP”). Client shall be responsible for the payment of all protection costs, including processing fees. Client shall be responsible for reading and understanding the terms and conditions of the uShip Protection Plan, including restrictions, exclusions, and reimbursement maximums. Client acknowledges that the uShip Protection Plan, if purchased, is non-refundable except in the case of the plan's cancellation pursuant to the UPP TOS Section 7 (Term & Termination) prior to the Service Provider taking possession of Client's items. Client shall be solely responsible for any and all damages that may occur to any unprotected shipments.

3.4.         Misrepresentations and Accessorial or Additional Fees. Any misrepresentations, whether intentional or not, about items to be shipped could result in an additional fee over and above the quoted price displayed at the time of checkout. If the dimensions or weight of the shipment vary from the original quote or additional equipment and/or services are required to complete delivery of a shipment, the Transportation Service Provider may charge additional amounts above the quoted price and the Client shall be responsible for all reasonable additional costs incurred, including, but not limited to, extra labor fees, storage charges, stair fees (per flight) for other than ground floor delivery, missed appointments and redelivery fees, and ferry costs, or in the case of LTL, liftgate, residential, delivery, inside delivery, and appointment /call before delivery, to name a few.

3.5.        Payment Method. Unless otherwise specified, Client agrees to pay for all transactions on the uShip marketplace via credit card or the uShip-specified Credit portal, as indicated in the applicable program agreement.

3.6.        Taxes. Client shall be responsible for all applicable taxes, however designated, incurred in connection with the Agreement, including but not limited to federal, state, or local sales or use taxes, value-added taxes (VAT), excises, and other taxes or duties which may now or hereafter be levied on the Services provided hereunder or on payments made under the Agreement (the “Taxes”).

4.           Provider of Services.

4.1.         Identification of Provider of Services. Client will not attribute the Services provided to Client by uShip during the Term to any other online shipping marketplace or direct competitor of uShip, except as expressly permitted in writing.

5.           Publicity.

5.1.         Marketing. Except as expressly stated herein, neither Party shall (a) create, publish, distribute, or permit any written material (including any material on any website) referencing the other Party or its products or services without such Party’s written consent, or (b) make any representations, warranties or product claims regarding the other Party or its products or services without the other Party’s prior written consent.

5.2.         Use of Logo. Client hereby grants to uShip the express right to use Client’s company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Client as a uShip customer. uShip hereby grants to Client the express right to use uShip’s logo solely to identify uShip as a provider of the Services to Client. Other than as expressly stated herein, neither Party shall use the other Party’s marks, codes, drawings, or specifications without the prior written consent of the other Party.

6.           Support.

6.1.         User Support. Each Party shall be responsible for supporting their individual products and services.

6.2.         Support Services. uShip shall provide support services to Client, during uShip's normal hours of operations of Monday through Friday from 8 am to 5 pm Central time (“CT”), excluding major United States holidays. Promptly after the Effective Date, uShip shall provide an escalation path for important issues and emergencies. uShip's platform shall be available at least 99.5% of the time each month, excluding: (a) normal maintenance of up to 8 hours per month provided that Client is provided at least one (1) day advance notice of such maintenance; (b) errors or unavailability attributable to Client's actions, omissions or hardware; and (c) events outside of uShip's reasonable control. Any additional support provided by uShip must be mutually agreed upon by both Parties, in writing, prior to implementation.

7.           Licenses.

7.1.        License and Use. Subject to the terms and conditions of the Agreement, and uShip’s prior written approval of each usage, uShip grants to Client a non-exclusive, non-transferable, revocable, royalty-free license and right to use, reproduce, electronically distribute, publicly display, and publicly perform uShip marks, logos, hypertext links and graphic icon buttons (collectively, the “uShip Content”) only as reasonably necessary under the Agreement and solely to refer to uShip or its products and services. uShip also grants to Client a non-exclusive non-transferable, worldwide limited license to make use of the uShip tools, uShip pricing service, online transportation marketplace and related application programming interfaces (“uShip APIs”), including any updates or enhancements thereto (collectively, the “uShip Applications”) as necessary to use the Services and otherwise exercise Client’s rights under the Agreement. Subject to the terms and conditions of the Agreement and Client’s prior written approval of each usage, Client grants to uShip a non-exclusive, non-transferable, revocable, royalty-free license and right to use, reproduce, electronically distribute, publicly display and publicly perform Client’s marks, logos, hypertext links, graphic icon buttons and other proprietary content (collectively, the “Client Content”) only as reasonably necessary under the Agreement and solely to refer to Client or its products and services. uShip shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the uShip Applications or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from Client for Services provided under the terms of the Agreement.

7.2.        Limitations. uShip owns all right, title and interest in uShip Applications and all uShip Content. Client will not alter, reverse engineer, decompile, disassemble, or rent the uShip Content or uShip Applications. Client will not use uShip Content in a manner that tarnishes, blurs or dilutes its quality or the associated goodwill. Client owns all right, title and interest in Client Content. uShip will not alter, reverse engineer, decompile, disassemble, or rent the Client Content. uShip will not use Client Content in a manner that tarnishes, blurs or dilutes its quality or the associated goodwill.

7.3.         Restrictions. Client further agrees it will not: (A) access uShip APIs or documentation in violation of any law or regulation; (B) access uShip APIs in any manner that (i) compromises, breaks or circumvents any of uShip’s technical processes or security measures associated with the uShip platform, (ii) poses a security vulnerability to customers or users of the uShip platform, or (iii) tests the vulnerability of uShip’s systems or networks; (C) access uShip APIs or documentation in order to replicate or compete with the Services; (D) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of uShip APIs or Services; or (E) attempt to use uShip APIs in a manner that exceeds rate limits, or constitutes excessive or abusive usage.

7.4.         Audit. uShip reserves the right to audit Client’s use of the uShip APIs to ensure it does not violate the Agreement and to ensure proper implementation. Client agrees it will cooperate with inquiries related to such an audit and provide proof of compliance to uShip upon request.

8.           Confidential Information.

8.1.        Confidential Information. Confidential Information means all information provided by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which the Disclosing Party has not released publicly and has designated as “confidential,” “proprietary,” or some similar designation, including but not limited to: uShip’s pricing service, any available and applicable uShip App Installation Link, the Disclosing Party’s know-how, all information regarding the Disclosing Party not known to the general public, and confidential information disclosed to the Disclosing Party by third parties and conveyed to the Receiving Party as such. The Parties further agree that the terms of the Agreement shall be considered Confidential Information.

8.2.         Return of Confidential Information. Upon written request, the Receiving Party will return all Confidential Information received from the Disclosing Party no later than ten (10) days after termination of the Agreement. Alternatively, the Receiving Party may destroy such Confidential Information with the Disclosing Party’s prior written consent, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. This Section 8.2 (Return of Confidential Information) shall not apply to the Parties’ signed Agreement.

8.3.         Nondisclosure. Each Party shall hold in confidence any Confidential Information received by it from the Disclosing Party under the Agreement, or any agreement supplemental to the Agreement which is entered into by the Parties, and shall protect the confidentiality of such with the same degree of care that it exercises with respect to its own Confidential Information, but in no event less than reasonable care for a period of three (3) years from receipt thereof. Access to one Party’s Confidential Information shall be restricted to the other Party’s employees and independent contractors with a need to have access, and who are bound by an appropriate written agreement to protect the Disclosing Party’s Confidential Information consistent with the Receiving Party’s confidentiality obligations hereunder.

8.4.         Exceptions. Notwithstanding any provision herein concerning the obligations of Confidential Information, Confidential Information does not include information which: (i) is public knowledge at the time of disclosure; (ii) becomes public knowledge through no act or omission of the Receiving Party; (iii) has been rightfully furnished to the Receiving Party by a third party without any restriction on disclosure or any obligation of confidentiality prior to obtaining the Confidential Information from the Disclosing Party; (v) was independently developed by the Receiving Party, without access to or uses of the Disclosing Party’s Confidential Information, (vi) is approved for release or use by written authorization of an officer of the Disclosing Party, or (vii) personal information.

8.5.         Required Disclosure. If a Receiving Party is required by any governmental entity or legal process to disclose Confidential Information, the Receiving Party shall provide reasonable notice to the Disclosing Party so that the Disclosing Party may seek appropriate relief.

8.6.        Remedies. The Parties agree their obligations hereunder are necessary and reasonable in order to protect Confidential Information shared under the Agreement. The Parties further agree that monetary damages would be inadequate compensation for any breach of this Section 8 (Confidential Information). Accordingly, each Party agrees and acknowledges that any breach or threatened breach of its confidentiality obligations hereunder will cause irreparable injury to the other Party and that, in addition to any other remedies that may be available, in law, equity or otherwise, the non-breaching Party shall be entitled to obtain injunctive relief against the breach or threatened breach of the confidentiality obligations, without the necessity of proving actual damages.

9.           Privacy.

9.1.         Obligations. Each Party agrees to use the other Party’s customer information, that may be obtained as a result of the Agreement, in compliance with all applicable privacy laws, rules, and regulations. The Parties each agree to adequately display their Privacy Policy on their website at all times. uShip's Privacy Policy can be located here https://help.uship.com/hc/en-us/articles/360009056894-Privacy-Policy-. The Parties further agree their respective Privacy Policies will meet industry standards.

10.          Circumvention.

10.1.        Penalty. If during the Term, or in the six (6) months immediately succeeding expiration or termination, Client directly contracts for shipping services with a Transportation Service Provider first introduced to Client via the uShip platform, then Client shall pay uShip a monthly fee in the amount of $5,000 per Transportation Service Provider for a period of six (6) months. For the avoidance of doubt, the foregoing penalty shall not apply if Client (i) contracted directly or indirectly with such Transportation Service Provider at any time during the one (1) year period immediately prior to the Effective Date, or (ii) brought such Transportation Service Provider to uShip’s marketplace; however, these exclusions shall not apply to transportation load boards or those Transportation Service Providers that Client contracted with after the date of its account creation on the uShip platform.

11.          Termination.

11.1.        Termination for Convenience. Either Party may elect to terminate an Account and participation in any Services at the end of the then-current Service Term by providing notice in accordance with Section 15.4 (Notices) of this Agreement no less than ninety (90) days prior to the end of such Service Term.

11.2.       Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach by the other Party if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (b) 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. However, uShip may immediately terminate this Agreement for cause without notice if Client violates any part of this Agreement or if provision of the Services violates applicable law, regulation, or court order.

uShip will refund any prepaid fees covering the remainder of the Service Term as of the effective date of termination if this Agreement is terminated by Client in accordance with this Section for uShip’s uncured material breach.

Client must pay any unpaid fees covering the remainder of the Service Term pursuant to any applicable Contract/SOW if uShip terminates this Agreement for Client’s material breach in accordance with this Section. In no event will uShip’s termination for cause relieve Client of its obligation to pay any fees payable to uShip for the effective period prior to termination.

11.3.        Payment Upon Termination. Except for Client’s termination under Section 11.2 (Termination for Cause), if Client terminates its participation in any Services or cancels its Account prior to the end of the then-effective Service Term, or if uShip terminates or cancels Client’s Account pursuant to Section 11.2 (Termination for Cause), in addition to any other amounts Client may owe uShip, Client must immediately pay any and all unpaid charges for Services associated with the remainder of such Service Term.

11.4.        No Refunds. Except for Client’s termination rights under Section 11.2 (Termination for Cause), no refunds or credits for any charges or other fees or payments for Services will be provided if Client terminates participation in any Services or cancels its Account prior to the end of a Service Term.

11.5.         Discontinuation of Services. uShip reserves the right to suspend or terminate this Agreement and Client’s access to the Services, without notice, if (a) Client fails to pay any amount when due, or Client’s account otherwise becomes delinquent, or (b) Client violates any term of this Agreement. Client will continue to be charged for delinquent amounts during any period of suspension.

11.6.         Survival. If this agreement is terminated, Sections 3 and 8-14 of the Agreement shall survive any Termination or expiration.

12.            Representations and Warranties.

12.1.         Mutual Representations and Warranties. Each party represents and warrants that it has full power and authority to carry out all its obligations expressed in this Agreement.

12.2.        uShip Representations and Warranties. uShip represents and warrants that any integration services provided under the Agreement shall be performed by qualified and experienced personnel, and, that such services will be of kind and quality and will meet the specifications and schedules mutually agreed to by the Parties. uShip further represents and warrants that to its knowledge its Services do not and will not infringe upon or otherwise violate any third party’s intellectual property rights.

12.3.        Client Representation and Warranties. Client represents and warrants that its services are suitable for integration with the uShip online marketplace. If entering into the Agreement on behalf of a company or other legal entity, Client represents that it has the authority to bind such entity to the Agreement. Client further represents and warrants that it will not use the Services to infringe upon or otherwise violate any third party’s intellectual property rights.

12.4.        Disclaimer of Other Warranties. OTHER THAN AS SPECIFICALLY SET FORTH IN THE AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USHIP WILL NOT BE LIABLE DUE TO (I) OUTAGES CAUSED BY THE FAILURE OF PUBLIC NETWORK, THIRD-PARTY SERVICES, OR COMMUNICATIONS COMPONENTS OR (II) UNKNOWN ERRORS IN ANY ELECTRONIC FILES PROVIDED BY USHIP OR ANY THIRD PARTIES. USHIP MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF USHIP’S SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND USHIP WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, REGARDLESS OF THEIR CAUSE. USHIP SHALL HAVE NO LIABILITY OF ANY KIND TO CLIENT WITH RESPECT TO ANY MODIFICATIONS TO THE USHIP APIS OR ANY ADVERSE EFFECTS RESULTING FROM ANY MODIFICATIONS. ADDITIONALLY, USHIP SHALL NOT BE LIABLE FOR ANY UNINTENDED USE OF THE USHIP APIS BY CLIENT OR INCORRECT IMPLEMENTATION OF THE USHIP APIS BY CLIENT. CLIENT UNDERSTANDS THAT USHIP DOES NOT WARRANT THE PERFORMANCE OR RESULTS OF ANY TRANSPORTATION SERVICE PROVIDER OR BROKER. CLIENT WILL NOT BE LIABLE DUE TO (I) OUTAGES CAUSED BY THE FAILURE OF PUBLIC NETWORK OR COMMUNICATIONS COMPONENTS OR (II) UNKNOWN ERRORS IN ANY ELECTRONIC FILES PROVIDED BY CLIENT. CLIENT MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF CLIENT’S SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND CLIENT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

13.           Indemnification.

13.1.        Indemnity. Each Party shall, at its own expense, indemnify, defend, and hold harmless the other Party, and such party’s employees, directors, officers, members, managers, representatives, agents, successors and assigns (collectively referred to as the “Indemnified Parties”) against any claim, suit, action, liabilities, costs, expenses, damages and fees (including reasonable attorney’s fees), awarded or paid in settlement of any claim, suit, action, or proceeding brought by an unaffiliated third-party against the Indemnified Parties (collectively referred to as “Claims”), arising from or relating to the Indemnifying Party’s (i) failure to comply with applicable laws and regulations; (ii) gross negligence or willful misconduct; or (iii) misrepresentation or breach of any warranty, provided, however, that (a) the Indemnified Party shall provide the Indemnifying Party with prompt notice of any Claim; (b) such claim is promptly turned over to the Indemnifying Party or its counsel for defense (with the Indemnified Party’s reasonable cooperation at the Indemnifying Party’s expense); and (c) to the extent such Claim does not result directly from the Indemnified Party’s negligence, willful misconduct, or breach of any provision of the Agreement.

14.      Limitation of Liability.

EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA, IN CONNECTION WITH OR ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. IN NO EVENT, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN THE TOTAL SERVICE FEES PAID TO USHIP IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE OTHER PARTY’S CLAIM FOR ANY DAMAGES. THIS LIMITATION OF EACH PARTY’S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THE AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.

NOTWITHSTANDING THE FOREGOING, NEITHER PARTY EXCLUDES OR LIMITS LIABILITY TO THE OTHER PARTY FOR: (I) FRAUD OR FRAUDULENT MISREPRESENTATION; (II) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (III) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE; AND/OR (IV) IF SUCH EXCLUSION OR LIMITATION WOULD BE IN BREACH OF ANY APPLICABLE LAW.

15.          Miscellaneous.

15.1.        Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such Section.

15.2.        No Dependence on Future Functionality. Client agrees that it is not entering into the Agreement contingent on the provision of any future functionality or features, or on any oral or written public comments made by uShip regarding future functionality or features. No statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in the Agreement.

15.3.        Assignment. Client shall not assign its rights nor delegate its duties under the Agreement without the prior written consent of uShip, which shall not be unreasonably withheld. uShip may assign its rights and obligations under the Agreement to an entity that acquires all or substantially all of uShip’s business or assets, a merger partner, or a successor in business without the consent of Client. The Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

15.4.        Notices. All notices provided under the Agreement shall be made in writing by mail, return receipt requested, or e-mail. Notice given by mail shall be sent to Client at the postal address and/or email set forth on any contract/SOW, or other agreement signed by Client, and to uShip at the postal address and/or email set forth in the User Agreement. Notice given by mail will be deemed given by the earlier of actual receipt or two (2) business days after the date sent. Notice given by e-mail will be deemed given one (1) business day following the date sent if properly addressed and the sender receives delivery confirmation.

15.5.        Force Majeure. Neither Party will be liable if any performance under the Agreement is interfered with by any condition beyond its reasonable control, including but not limited to strikes, lockouts, or other labor disputes, riots, governmental authorities, pandemics, epidemics, outbreaks of disease, war, embargoes, fire, earthquakes, Internet outages, failures of Internet hosting providers, power outages, or acts of God. The affected Party will be excused from such performance to the extent of such condition so long as prompt written notice of the condition is provided to the other Party.

15.6.        Modifications and Waivers. No addition or modification to the Agreement is valid unless made in writing and signed by the Parties. No waiver will be implied from conduct or failure to enforce rights, nor be effective, unless in writing signed on behalf of the Party against whom the waiver is asserted. uShip’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

15.7.        Non-Solicitation. Both uShip and Client agree that, during the Term and for a period of one (1) year thereafter, neither Party will, directly or indirectly, induce or solicit for hire any individual who has been directly involved with the performance or supervision of Services provided under the Agreement as an employee of the other Party, without the express written consent of the other Party; and will not seek to interfere with the working relationship between any such individual and such Party. For clarity, the foregoing shall not restrict either Party from advertising employment opportunities in any manner that does not directly target the other Party’s employees.

15.8.        Independent Contractors. The Agreement does not create, and nothing contained in the Agreement will be deemed to establish a joint venture between the parties, or the relationship of employer-employee, partners, principal-agent or the like. Further, neither Party has the power to bind the other without first obtaining the other Party’s prior written consent, nor make any representation that it has any such power.

15.9.        Governing Law; Venue. The Agreement will be construed in accordance with and governed by the laws of the State of Texas without reference to its conflicts of laws rules. All parties consent to exclusive and personal jurisdiction in Travis County, Texas.

15.10.       Attorneys’ Fees. The prevailing Party in any litigation in connection with the Agreement will be entitled to recover from the other Party its costs and reasonable attorneys’ fees and other expenses.

15.11.       Dispute Resolution, Arbitration and Waiver of Class Actions. In the event that any dispute or disagreement arises between the Parties with respect to (i) the interpretation of any provision of this Agreement, (ii) the performance of either Party under this Agreement, or (iii) any other matter related to this Agreement, upon thirty (30) days’ written request of either party, the parties will meet for the purpose of informally resolving such dispute. The parties agree to discuss the problem and negotiate in good faith without the necessity of any formal proceedings related thereto. No formal proceedings for the resolution of such dispute may be commenced until either party concludes in good faith that the applicable resolution through continued negotiation of the matter in issue does not appear likely. The parties further agree that all disputes or legal claims hereunder which cannot be settled via informal dispute resolution (any such dispute is referred to here as a "Dispute") will be settled by final and binding arbitration conducted in Austin, Texas. Any such Dispute arising out of or relating to the Agreement or uShip’s Services, (excluding legal action taken by uShip to collect our fees or recover damages for, or obtain an injunction relating to, the uShip operations, intellectual property, or Our Information), shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, including, if necessary, the Optional Rules for Emergency Measures of Protection. The judgment on the arbitration award may be entered into any court having jurisdiction thereof. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 15.11 (DISPUTE RESOLUTION AND ARBITRATION) MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT OR USER.

15.12.       Amendment. uShip may amend this MSA from time to time, in which case the new MSA will supersede prior versions. uShip will notify Client not less than thirty (30) days prior to the effective date of any such amendment and Client's continued use of the Services following the effective date of any such amendment may be relied upon by uShip as Client's consent to any such amendment.

15.13.        Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.

15.14.        Entire Agreement. The Agreement, comprised of the MSA, the User Agreement, and the Privacy Policy, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, and agreements.

 

Last Revised Date: June 2, 2023