Sendflex License and Master Services Agreement

 

THIS SENDFLEX LICENSE AND MASTER SERVICES AGREEMENT (“AGREEMENT”) IS MADE AS OF THE EFFECTIVE DATE BY AND BETWEEN YOU AND SENDFLEX. THIS AGREEMENT GOVERNS YOUR ACQUISITION AND RIGHTS TO USE OF THE SOFTWARE PROVIDED BY SENDFLEX, SENDFLEX’S PROVISION OF THE SOFTWARE, AND YOUR PURCHASE OF OUR PROFESSIONAL SERVICES AS DESCRIBED IN AN AGREEMENT TO PURCHASE OR SOW DOCUMENT.  BY YOUR USE OF THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU SHOULD READ THE TERMS OF THIS AGREEMENT CAREFULLY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH OR UNDERSTAND THE AGREEMENT TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR SOFTWARE OR RECEIVE OUR PROFESSIONAL SERVICES. THE SOFTWARE IS FOR BUSINESS OR GOVERNMENT ENTITIES AND NOT FOR USE BY INDIVIDUAL PERSONS OR CONSUMERS IN THEIR PRIVATE CAPACITY.

  1. DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means, collectively, this Sendflex License and Master Services Agreement, any applicable Agreement to Purchase Form, SOW Document, and any exhibits, schedules, and addenda attached by reference hereto.

“Agreement to Purchase Form” means the order form that is used to confirm Your order for Software, including attachments, addenda, references, and supplements thereto, including Pricing Workbook estimates. By executing an Agreement to Purchase Form, You agree to be bound by the terms of this Agreement.  The terms and conditions of this Agreement will be deemed to be incorporated into the Agreement to Purchase Form.

“Change Order” means any change to a SOW Document, as applicable, as described in the “Change Orders” provisions below.

“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. Your Confidential Information includes Your Data; Our Confidential Information will include the Software and related documentation. Confidential Information of each party will include the terms and conditions of this Agreement, as well as business and marketing plans, Software documentation, pricing, product plans and designs, and business processes disclosed by Disclosing party.

“Deliverable” means a deliverable specified by a SOW Document.

“Effective Date” means the date this Agreement is executed by both parties.

“Fees” means the amounts that are payable by You in return for Your use of Software or our provision or Professional Services.

“Initial Term” means the initial term of the Agreement as specified in the Agreement to Purchase Form.

“Intellectual Property” means all intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trademarks, designs, patents, inventions, circuit layouts, copyright and analogous rights, confidential information, know-how and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organization of 14 July 1967 as amended from time to time.

“Online Services” means any online, web-based services and associated offline components made available by Us (or one or more of Our Affiliates) to You under a separate agreement.

"Malicious Code" means viruses, worms, robots, spiders, bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents, or programs.

“Pricing Workbook” means the document describing estimated Software usage pricing based on the scope of use requirements provided by You.

“Project Change Request” (“PCR”) means a written request by You for a change in the scope of any Professional Services engagement.

“Professional Services” means work performed by Us as specified in SOW Documents and Agreement to Purchase Forms.

“Purchased Software” means Software purchased by You as specified in an Agreement to Purchase Form. Purchased Software does not include Software used by You during a free trial.

“Renewal Term” means any applicable renewal period of the Initial Term of the Agreement.

"Sendflex" means Sendflex Technology, Inc. with its principal place of business at 1900 West Park Drive, Suite 280, Westborough, MA 01581.

"Software" means Our software ordered by You under an Agreement to Purchase Form and made available to You by Us, including associated offline components, as described in the User Documentation, including any modifications or enhancements thereto. “Software” does not include Third-Party Software.

“SOW Document(s)” means any project document(s) referenced in a SOW, including project schedules, and artifacts.

“Statement of Work” (“SOW”) means a statement of work describing Professional Services to be provided by Us, which is incorporated into an Agreement to Purchase Form that is entered into between You and Us.

“SLA” means the service level agreement contained in Schedule 1.

“Term” means, collectively, the Initial Term, or any applicable Renewal Term pursuant to the Agreement.

“Third-Party Software” means software, web services, applications, or other services provided by a carrier, logistics service provider, or other third party provide designated by You.

"Third-Party Software EULA" means the end user license agreement terms and conditions governing use of Third-Party Software.

“Transaction" means an event or request processed by Software, described further in the Agreement to Purchase or Pricing Workbook.

"User Documentation" means the documentation provided for Your use with the Software, as updated from time to time.

"Users" means individuals who are authorized by You to use the Software and who have been supplied user identifications and login credential by You (or by Us at Your request). Users will not include Our competitors.

"We", "Our" or "Us" means Sendflex Technology, Inc. with its principal place of business at 1900 West Park Drive, Suite 280, Westborough, MA, 01581.

"You" or "Your" means the company or other legal entity accepting this Agreement, including Affiliates of that company or entity.

"Your Data" means all electronic data or information owned and provided by You for the purposes described in this Agreement.

  1. PURCHASE SOFTWARE

2.1. Purchase of Software. We will make the Software available to You during the Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. Software is for Your internal use only and cannot be shared, sublicensed, or used by any other person.

2.2. Usage. Fees paid by You for usage of Software are based on the terms set forth in the applicable Agreement to Purchase Form.

  1. USE OF THE SOFTWARE

3.1. Our Responsibilities. We agree to

(i) provide Our standard call center support for Software to You at no additional charge during Monday through Friday, 8 a.m. to 5 p.m., (Eastern Time) excluding national holidays,

(ii) use commercially reasonable efforts to make the Software available on a 24 hour, 7 days a week basis, except: (a) during Scheduled Maintenance as set forth in the SLA which will, to the extent practicable, be scheduled during weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday (Eastern Standard Time), or (b) where there is any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks,

(iii) update the Software to fix defects, provide enhancements, and features which You will accept as part of the Software, and

(iv) provide the Software only in accordance with applicable laws and government regulations.

3.2. Our Protection of Your Data. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data, and use commercially reasonable efforts to prevent unauthorized access to or use of Your Data. We will comply with all applicable data protection laws and regulations with respect to Your Data. We will not (a) modify Your Data except to anonymize it, (b) disclose Your Data except as provided in the Your Data and Compelled Disclosure provisions of this Agreement, unless expressly permitted in writing by You, or (c) access Your Data except to provide the Software or prevent or address service or technical problems, or at Your request in connection with customer support matters.

3.3. Your Responsibilities. You will:

(i) be responsible for Users’ compliance with this Agreement and all aspects of Your use of the Software,

(ii) be responsible for the accuracy, quality and legality of Your Data, and Your authorization to use Your Data in conjunction with the Software, how You acquired Your Data, and the accuracy of Third-Party Software,

(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and notify Us promptly of any such unauthorized access or use, and

(iv) use the Software only in accordance with the User Documentation and applicable laws and government regulations.

3.4. Software Usage Limitations.

You will not:

(i) make the Software available to anyone other than Users,

(ii) sell, resell, rent, or lease the Software,

(iii) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,

(iv) use the Software to store or transmit Malicious Code,

(v) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein,

(vi) attempt to gain unauthorized access to the Software or their related systems or networks,

(vii) breach this Agreement or terms of use provided by Third-Party Service EULAs, if any,

(viii) use the Software in any unlawful manner or activity, or in any manner that could disable, damage, overburden, or impair the Software or their availability,

(ix) use the Software if You are one of Our competitors, except with Our prior written consent. In addition, You may not access the Software for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes,

(x) create derivative works based on the Software, or create applications or program code using the Software except as authorized by Us in writing,

(xi) reverse engineer the Software,

(xii) access the Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Software in any way,

(xiii) interfere with the proper operation of the Software, attack the Software via a denial-of-service or other attack, or

(xiv) interfere with any other user of the Software.

3.5. Usage Limitations. Software may be subject to other limitations, such as, for example, limits on disk storage space, number of ship-from locations, number of carriers, tracking or rate calculation requests processed. Any such limitations are specified in the Agreement to Purchase Form or Pricing Workbook. The Software provide real-time information to enable You to monitor Your compliance with such limitations.

  1. PROFESSIONAL SERVICES

4.1. Scope of Professional Services. We will provide to You the Professional Services specified in each SOW Document (as applicable), subject to the terms of this Agreement.

4.2. Relationship to Online Services. This Agreement is limited to Professional Services and does not convey any right to use Online Services. Any use of Online Services by You will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Online Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW Document, or on any oral or written public comments by Us regarding future Online Service functionality or features.

  1. DELIVERY, ACCEPTANCE AND CHANGE ORDERS

5.1. Delivery of Services. We will provide the Professional Services, including any Deliverables, in accordance with the Agreement and the applicable SOW Documents.

5.2. Acceptance. Upon completion of each Deliverable under a SOW Document, We will, as applicable:

(i) submit a complete copy to You; and

(ii) at Your request, demonstrate its functionality to You. You are responsible for reviewing and testing all Deliverables in accordance with such SOW Document pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the parties for such Deliverable. You will provide Us with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance. If You, in Your reasonable and good faith judgment, determine that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the parties for such Deliverable, You must so notify Us in writing within 10 business days after Your receipt of the Deliverable, specifying the deficiencies in detail. We will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to You as soon as practicable. You will again review and test the Deliverable against the agreed-upon acceptance criteria and detail any deficiencies to Us in writing within 10 business days after resubmission of the Deliverable. If a Deliverable fails to meet the functional requirements specified in the applicable SOW Document after its second resubmission to You, You may either, as Your sole and exclusive remedy: (i) again reject the Deliverable and return it to Us for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to Your executive sponsor for the project associated with the SOW Document and Our engagement manager) or (ii) terminate the relevant SOW Document immediately upon written notice and recover all Professional Services Fees paid under such SOW Document for such deficient Deliverable. If the parties mutually determine that a Deliverable’s functional requirements specified in a SOW Document require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.

5.3. No Effect on Warranty Remedies. Acceptance of Professional Services, including a Deliverable, will not affect Your rights or remedies under the “Warranty” section below.

5.4. Change Orders. Changes to the scope of a SOW Document or Agreement to Purchase Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.

5.6 Hardware and Software Requirements.

To access the Software and receive Communications, You must provide at least the minimum hardware and software requirements specified by Us.

Without limiting anything else in this Agreement, We will not be liable for any delay or disruption to the Software to the extent such delay or disruption is caused by Your failure to comply with the provisions within this section.

  1. THIRD-PARTY SOFTWARE AND PRODUCT PROVIDERS

6.1. Use of Third-Party Software. We may integrate with Third-Party Software specified by you in SOW Documents for use in conjunction with Software. Any acquisition by You of such Third-Party Software and any exchange of data between You and any Third-Party Service provider, is solely between You and the applicable Third-Party Software provider. We do not warrant or take any responsibility for Third-Party Software. You are responsible for verifying the accuracy, suitability, continuous operation, and security measures related to Third-Party Software. If You are using Third-Party Software in conjunction with Our Software, You are subject to their Third-Party Software EULAs, as applicable.

6.2. Third-Party Software and Your Data. If You use or authorize Us to enable Third-Party Software for use with Software, You acknowledge and license such providers of Third-Party Software, and license Us to allow the providers of those Third-Party Software to access Your Data as required for the interoperation of such Third-Party Software with the Software. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from interoperation with Third-Party Software.

6.3. Termination of Third-Party Software Usage. If the provider of any such Third-Party Software ceases to make the Third-Party Software available for interoperation with Software, We may cease providing such Software features or any Third-Party Software at any time without entitling You to any refund, credit, or other compensation from Us.

  1. FEES, INVOICING AND TAXES

7.1. Fees. You will pay Fees at the rates and on the terms set forth in the applicable Agreement to Purchase. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an Agreement to Purchase Form. Any professional service fee amounts set forth in a Agreement to Purchase Form is solely a good-faith estimate based on the project requirement scope described by you for Your budgeting purposes and is not a guarantee that the time and material work hours will equal those amounts. Invoiced Fees professional service hours may be higher or lower. We will periodically update You on the status of Software usage and Professional Services Fees accrued under SOW Documents, including any overages.

7.2. Incidental Expenses. You will reimburse Us for reasonable, pre-approved travel and out-of-pocket expenses incurred in connection with the provision of the Professional Services. If an estimate of incidental expenses is provided in the applicable Agreement to Purchase Form, We will not exceed such estimate without Your written consent.

7.3. Overdue Charges. Subject to the Payment Disputes section herein, if any invoiced amount is not received by Us by the due date (unless such charges are being disputed in good faith by You), then without limiting Our rights or remedies, (a) those charges may 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, and/or (b) We may condition future purchases of Subscriptions or Professional Services on payment terms shorter than those specified in Invoicing and Payment provisions herein.

7.4. Suspension of Services and Acceleration. Subject to the terms in the Payment Disputes section, if any undisputed amount owing by You under this Agreement is thirty (30) days or more overdue (or ten (10) or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Our performance of Professional Services or Your access to Software until such amounts are paid in full. We will give You at least thirty (30) days’ prior written notice that undisputed amounts are owed by You, in accordance with the Manner of Giving Notice section herein, before suspending Professional Services to You or access to Software, provided no overdue amounts are being disputed by You in good faith.

7.5. Payment Disputes. We will not exercise Our rights set forth within the Overdue Charges or Suspension of Professional Services section herein above if You are disputing the applicable charges reasonably in good faith and are cooperating diligently to resolve the dispute.

7.6. Taxes. Our Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount upon Our delivery of written evidence of such tax payment due, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.

  1. INTELLECTUAL PROPERTY RIGHTS

8.1. Each party retains all right, title, and interest in its respective Intellectual Property.

8.2. Our Intellectual Property. Subject to the limited rights expressly granted hereunder, We, or Our licensors, reserve all rights, title, and interest in and to the Software, including all related Intellectual Property rights. No rights are granted to You hereunder other than as expressly set forth herein.

8.3. Your Intellectual Property. You do not grant to Us any rights in or to Your Intellectual Property except such licenses as may be required for Us to perform Our obligations hereunder.

8.4. Deliverables. During the Term, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use, and run (as applicable) solely for Your internal business purposes any Deliverables developed by Us for You under this Agreement. We retain all ownership rights in the Deliverables including any modifications and improvements to the Software.

8.5. Confidential Information. Each party retains all ownership and Intellectual Property rights in and to its Confidential Information.

8.6. Your Applications. If You, a User, or Third-Party acting on Your behalf creates applications or programs to be used in conjunction with Software, You authorize Us to host, copy, transmit, display, and adapt such applications and programs, as necessary for Us to provide the Software in accordance with this Agreement. Subject to the above, We acquire no ownership right, title or interest from You or Your licensors under this Agreement in or to such applications or programs, including any intellectual property rights therein.

8.7. Your Data. By submitting Your Data to the Software, You hereby license Us to:

(i) use Your Data as necessary to operate with the Software and any Third-Party Software You may select in accordance with this Agreement,

(ii) transmit Your Data to Third-Party Service providers to the extent necessary for Us to perform the obligations set forth in this Agreement, and

(iii) collect, use, and share Your Data and related information with third parties, if it is grouped with other user data, presented in an aggregate and anonymized form, and does not personally identify You or a User or include any of your Confidential Information.

8.8. Suggestions. If You provide Us with any unsolicited suggestions, You acquire no ownership, intellectual property rights or the right to receive royalties in the event We modify Software to incorporate such suggestions.

  1. CONFIDENTIALITY

9.1. Confidentiality Scope. Confidential Information (other than Your Data) 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,

(iv) was independently developed by the Receiving Party without the use of Disclosing Party’s Confidential Information, or

(v) is necessary for the Receiving Party to perform its obligations for the Disclosing Party.

9.2. Protection of Confidential Information. The Receiving Party will 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). The Receiving Party (i) will not 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, will 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 of performing in accordance with this Agreement and who are bound by the confidentiality obligations with the Receiving Party no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Agreement to Purchase Form to any Third-Party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

9.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or regulation 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.

9.4 Data Protection. The Parties must at all times comply with applicable data protection laws and regulations, including the requirements of applicable U.S. state consumer privacy laws and the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), in the collection, storage, use and disclosure of any personal or sensitive information and data they collect, use or otherwise access in connection with the Software under this Agreement, and shall oblige their personnel to observe those data secrecy requirements pursuant to the relevant regulations. In the event Your customer requires removal of their personal information data (“PI Data”) from Our Software, You may submit a request for removal of such PI Data from Our Software in the manner set forth in Section 15. Upon receipt of such request, We will make commercially reasonable efforts to remove such PI Data as soon as practicable and will send You confirmation of the removal in writing.

  1. WARRANTIES AND DISCLAIMERS

10.1. Our Warranties. We warrant that:

(i)  we have validly entered into this Agreement with You and have the legal power to do so,

(ii)  the Software and Deliverables will perform materially in accordance with the SOW Documents,

(iii) we will make reasonable efforts to ensure the functionality of the Software will not materially decrease during the Term, and

(iv)  We will use all commercially reasonable efforts to not transmit Malicious Code to You, but We will not be liable if You, or any User, upload a file containing Malicious Code into the Software and You later download that file containing Malicious Code. For any breach of a warranty herein Your sole and exclusive remedy will be as provided in this Agreement.

10.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

10.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN OUR WARRANTIES AND YOUR WARRANTIES SECTIONS HEREIN, THE SOFTWARE AND DELIVERABLES ARE PROVIDED AS IS AND AS AVAILABLE, AND NEITHER PARTY MAKES ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY THIRD-PARTY SOFTWARE ARE PROVIDED ONLY WITH SUCH WARRANTIES AS THE THIRD-PARTY MAY MAKE AVAILABLE TO YOU, IF ANY.

10.4. Non-GA Software. From time to time We may invite You to try, at no charge, certain of Our products or services that are not generally available to Our customers ("Non-GA Software"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Software will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Software are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SOFTWARE ARE NOT CONSIDERED "SOFTWARE" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Software at any time in Our sole discretion and may never make them generally available.

  1. INDEMNIFICATION

11.1. Indemnification by Us. We will defend You against any claim, demand, suit, or proceeding arising from Our breach of this Agreement made or brought against You by a Third-Party alleging that the use of the Software as permitted hereunder infringes or misappropriates the intellectual property rights of a Third-Party (a "Claim Against You"), and will indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We will not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Software may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Software so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Software in accordance with this Agreement, or (iii) terminate Your Use of such Software upon 30 days’ written notice and refund to You any prepaid Fees covering the remainder of the Term.

11.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a Third-Party alleging that Your Data infringes or misappropriates the intellectual property rights of any Third-Party, or Your use of the Software harms or violates the rights of a Third-Party or violates applicable law (a "Claim Against Us"), and will indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You will not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

11.3. Exclusive Remedy. This Indemnification section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this section.

  1. LIMITATION OF LIABILITY

12.1. Limitation of Liability. WITH THE EXCEPTION OF THE INDEMNIFICATION SECTION, EITHER PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD, OR DAMAGES ARISING OUT OF A PARTY’S BREACH OF ITS DATA PRIVACY, DATA SECURITY, OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU HEREUNDER FOR THE THEN CURRENT TERM OF THE AGREEMENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU TO US AS PROVIDED HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS SET FORTH IN THE PAYMENT FOR SOFTWARE SECTION HEREIN. IN NO EVENT SHALL WE BE RESPONSIBLE FOR DAMAGES ARISING FROM, BUT NOT LIMITED TO, THIRD-PARTY SOFTWARE, INACCURATE THIRD-PARTY DATA, OPTIMIZATION INSTRUCTION CONFIGURATIONS, ERRORS, MISCALCULATIONS, INCORRECT CARRIER BILLINGS, REGULATORY NON-COMPLIANCE, AND SECURITY BREACHES CAUSED BY YOU OR A THIRD PARTY. ANY CAUSE OF ACTION OR CLAIM YOU HAVE ARISING OUT OR RELATING TO THE SOFTWARE OR THIS AGREEMENT MUST BE COMMENCED WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

12.2. Exclusion of Consequential and Related Damages. WITH THE EXCEPTION OF THE INDEMNIFICATION SECTION, EITHER PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD, OR DAMAGES ARISING OUT OF A PARTY’S BREACH OF ITS DATA PRIVACY, DATA SECURITY, OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12.3 Force majeure. No failure or omission by the parties to perform any of their obligations under this Agreement or any Agreement to Purchase Form, other than an obligation to pay money will be a breach of this Agreement or create any liability if such failure or omission arises from any cause or causes beyond the control of the relevant party (including but not limited to natural disasters, terrorism, war, rebellion, insurrection, riot, invasion, strikes and lockouts).

  1. AGREEMENT TERM AND TERMINATION

13.1. Term Renewal. The Initial Term begins on the Effective Date specified in the Agreement to Purchase Form and will continue until terminated as set forth herein. Except as otherwise specified in the applicable Agreement to Purchase Form, Renewal Terms will be equal to the Initial Term or one (1) year, whichever is shorter, unless either party gives the other advanced notice of non-renewal sixty (60) days before the end of the Initial Term or the then current Renewal Term.  Pricing will remain unchanged for Initial Term. Unless otherwise agreed in writing, We may increase the pricing after the Initial Term, or any Renewal Term, with thirty (30) days notice on an annual basis, in which case such increased prices will be effective for the subsequent Renewal Term. Any such pricing increase will not exceed the percentage increase in the Consumer Price Index (CPI) during the year prior to the effective date. CPI as used herein means the U.S. Consumer Price Index for all Urban Consumers.

13.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such material 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.

13.3. Refund or Payment upon Termination. Upon any termination for cause by You, We will refund You any prepaid Fees covering the remainder of the Term after the effective date of termination. Upon any termination for cause by Us, You will pay any unpaid Fees or service fees covering the remainder of the Term after the effective date of termination. In no event will any termination relieve You of the obligation to pay any Fees or service fees payable to Us for the period prior to the effective date of termination.

13.4. Return of Your Data. We use commercially reasonable efforts to maintain data for a rolling twelve (12) month period. No later than thirty (30) days after the effective date of termination, We will make available to You a file of Your Data for the twelve (12) months prior to the date of termination in comma separated value (.csv) format along with attachments in their native format. After such thirty (30) day period, We will have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data Our systems or otherwise in Our possession or under Our control. We will not be required to store transactions any longer than twelve (12) months, unless otherwise agreed in writing by both parties.

13.5. Surviving Provisions. The provisions of this Agreement, which by their nature extend beyond the expiration or earlier termination of the Agreement will survive and remain in effect until all obligations are satisfied. Specifically, confidentiality obligations and indemnification provisions shall survive this Agreement.

  1. PRIVACY

You agree that We may electronically provide You with information about Your account, including disclosures that may be required by applicable federal or state law (collectively, “Communications”), which may include, but are not limited to, the following:

(i)  An initial disclosure statement, agreement, or other agreement documents governing the Agreement or account terms and conditions,

(ii) Letters or notices regarding the Agreement or account, including customer service responses or announcements,

(iii)  Any privacy policy (“Privacy Policy”) or changes to the Privacy Policy that pertain to the Software, provided that We shall not make any changes to the Privacy Policy that substantially alter or diminish any services provided to You pursuant to this Agreement, and

(iv)  Other disclosures, notices, and communications in connection with the application for, the opening, maintenance, or collection of Fees for Software.

You may withdraw Your Consent to Us sending You electronic communications by contacting Us, subject to any applicable Agreement provisions for termination:

Attention: Director of Finance and Administration
Sendflex Technology, Inc.
1900 West Park Dr | Suite 280 |Westborough, MA 01581

Email: info@sendflex.com
Telephone: 508.983.1453

  1. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW, AND JURISDICTION

15.1. General. You are contracting with Us under this Agreement. You should direct notices to:

Attention: Director of Finance and Administration
Sendflex Technology, Inc.
1900 West Park Dr | Suite 280 |Westborough, MA 01581

Email: info@sendflex.com
Telephone: 508.983.1453

15.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder will be in writing and will be deemed to have been given upon:

(i) personal delivery,

(ii) the second business day after mailing, or

(iii) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnifiable claim).

Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Software system administrator designated by You.

15.3. Agreement to Governing Law and Jurisdiction. This Agreement will be governed by the laws of the state of Delaware, and all matters arising out of or related to this Agreement, and the parties hereby agree to, and irrevocably waive contest to, jurisdiction and venue within the state courts of the state of Delaware. The parties agree that this Agreement is not subject to and will not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. No action arising out of this Agreement, regardless of form, may be brought more than four (4) years after the claiming party knew or should have known of the cause of action. The Software are offered from within the United States and are not intended for use by those outside the United States, and We make no representation or claim as to whether the Software or content thereon are appropriate or lawful for any other jurisdiction; if You access the Software from outside the United States, You do so on Your own initiative and are responsible for compliance with all applicable laws.

15.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

  1. GENERAL PROVISIONS

16.1. Export Compliance. The Software, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You will not permit Users to access or use Software in a U.S.-embargoed country (e.g., Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.

16.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.

16.3. 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.

16.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

16.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

16.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

16.7. Attorney Fees. Either party will pay on demand reasonable attorney fees and other costs incurred by the other party’s to enforce the terms and conditions of this Agreement against the other party, including but not limited to Our right to collect any fees or charges due to Us under this Agreement following Your breach of Invoicing and Payment section herein.

16.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Agreement to Purchase Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We will refund to You any prepaid Fees covering the remainder of the Term after the effective date of termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

16.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Agreement to Purchase Form, the terms of such exhibit, addendum, or Agreement to Purchase Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Agreement to Purchase Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.

 

SCHEDULE 1

TECHNICAL SUPPORT

This Technical Support schedule is incorporated into the Agreement and applies to You.

Technical Support is available during normal business hours, 9am - 6pm EST/EDT for all business days except for:

  • New Year's Day (January 1)
  • Memorial Day (Last Monday of May)
  • Independence Day (July 4)
  • Labor Day (First Monday of September)
  • Thanksgiving (Fourth Thursday of November)
  • Christmas Day (December 25)

Technical Support is provided by e-mail at support@Sendflex.com.  Support Technician will respond/escalate as necessary.

All correspondence and notes will be logged in the support case by the Support Technician.

The case will be handled by the person who logged the case until resolution, or a workaround is provided.

The following are standards for prioritization and escalations:

  • Priority Level 1: A support issue is classified as Priority Level 1 when an error in Our Software (“Error”) causes an impairment of Our Software to the nature and extent that Our Software is unusable and no acceptable alternative solution or work-around is available. A Priority Level 1 support issue will be treated with the highest urgency and priority.    You will be contacted at regular intervals with status reports. When available, a workaround within the Software code base will be provided if the issue is caused by an Error and not because of circumstances beyond Our responsibility or control. The goal is to respond to Priority Level 1 support requests in 15 minutes and resolve issues within two (2) hours. Escalations:
    • Hours 0 to 4: Support management and engineering personnel are notified and actively work on resolution.
    • Hour 5: Development management is notified and involved in the issue resolution.
    • Hour 6: Vice President in charge of operations and engineering are notified and involved in the issue resolution.
    • Hour 8: Executive management team including the CTO is notified and involved in the issue resolution.
  • Priority Level 2: A support issue is classified as Priority Level 2 when the performance of Our Software is seriously degraded by an Error with no currently available workaround. A Priority Level 2 support issue will be treated with urgency. You will be contacted at regular intervals with status reports. When available, a workaround within the Software code base will be provided if the issue is caused by an Error, and not because of circumstances beyond Sendflex’s responsibility or control. The goal is to respond to Priority Level 2 support requests within 30 minutes and resolve issues within four (4) hours. Escalations:
    • Hours 0 to 48: Our Support personnel will work to resolve the issue and will attempt to resolve within 48 hours after problem identification. If problem identification has not occurred within this timeframe, the problem will be considered Priority Level 1 and We will follow the escalation procedures as outlined in Priority Level 1.
  • Priority Level 3: A support issue is classified as Priority Level 3 when the Error causes the impairment of a major feature of Platform without entirely preventing its use. A Priority Level 3 support issue will be treated with medium urgency and you will be contacted as needed with status reports. When available, a workaround within the Software code base will be provided if the issue is caused by an Error and not as a result of circumstances beyond Sendflex’s The goal is to respond to Priority Level 3 support requests within 4 hours and resolve issues within one (1) business day. If problem resolution has not occurred within seven (7) business days, the problem will be considered Priority Level 1 and We will follow the escalation procedures as outlined in Priority Level 1.
  • Priority Level 4: Support issues that fall outside the classifications described above are considered Priority Level 4 support issues. Provided that the issue is caused by an Error, and not as a result of circumstances beyond Our control, the goal is to respond to Priority Level 4 support requests within 8 hours and resolve through scheduled support updates or generally released Software updates.

SCHEDULE 2

SERVICE LEVEL AGREEMENT (“SLA”)

This Service Level Agreement (“SLA”) is incorporated into the Agreement and applies to You. Any capitalized term used in this SLA, which is not defined herein, will have the meaning as defined in the Agreement. Except as expressly set forth in this SLA, nothing in this SLA is intended to expand or otherwise modify the parties’ respective rights and obligations as provided under the Agreement and the terms and conditions of the Agreement will continue in full force and effect. This SLA does not apply to the availability of Software available during trial periods, or of Third-Party Software. The SLA is binding only on Us and does not apply to any third parties.

The issuance of SLA Credits (defined below) is Your sole and exclusive remedy and Our sole and exclusive obligation, for any failure by Us to satisfy the requirements set forth in this SLA.

SLA Credit Claim

To claim a credit, You will follow the Approved Procedure set forth herein. The claim will be reviewed by Us, and any credit for Verified Outages (“SLA Credits”) will be issued as provided below.

  1. DEFINITIONS

Claimed Outage means the period (measured in minutes) during which Customer claims a Loss of Software Access during a Measurement Period as reported using the Approved Procedure.

Excluded Minutes for all users means the periods during which the Software is not available for the following reasons:

(i)   During Our scheduled system upgrades, enhancements and routine maintenance activities which are announced to You via email or through the Software at least two days advance notice or for maintenance determined by Us to be an emergency upon notice provided through the Customer Portal (“Scheduled Maintenance”),

(ii)  Any period of non-availability of a service relating to any Third-Party, including any service provided by a Third-Party unless such Third-Party is within our control and direction,

(iii)  Your use of the Software or any of Your User’s use of the Software is in violation of the Agreement,

(iv)   Issues relating to Your Data,

(v)    Problems with Your access to Internet, or any telecommunication, hosting, or other service provider,

(vi)   Problems related to integration with Your systems,

(vii)   System administration, commands, file transfers performed by Your representatives,

(viii)  Events described in the Force Majeure section herein.

(ix)   Suspension of Your access to the Software as provided in the Agreement,

(x)  Problems caused by Your use of the Software or any of Your User’s use of the Software not in accordance with the User Documentation, or after We advised You or any of Your Users to modify such use, if You or any of Your Users End User did not modify its use as advised,

(xi)  Problems arising from Software made available during trial periods, and

(xii)  Problems arising from Third-Party Software, or any Third-Party’s software, hardware, service, connectivity, or other technology or equipment.

Measurement Period means one (1) month.

Qualifying Outage Minutes mean the aggregate of all minutes of a Verified Outage during a Measurement Period, minus any Excluded Minutes in that Measurement Period.

Loss of Software Access means Your inability to access and use Software. If You can access and use substantially all of the Our Software, there is no Loss of Software Access.

Verified Outage means a Claimed Outage the Software that has been verified by Us using Our monitoring logs of accessibility of the Software.

System Availability (“SA”) This means the period of time (in minutes) during any complete calendar month that the Software are able to respond to requests, excluding periods of Scheduled Maintenance and any Excluded Minutes. SA will terminate upon receipt by personnel of one party of actual notice that the Software is not available to receive or respond to requests and will recommence upon verification by the other party that the Software is available to receive or respond to requests. For clarity, all Excluded Minutes will count for and be included within SA.

“System Availability Percentage” or “SAP” means System Availability expressed as the following percentage: SAP = (SA x 100)/CP; SAP is measured monthly with a “monthly/quarterly/annual” objective.  "CP” is “Calendar Period" which is 1 month = 31 days = 43200 minutes, less any Excluded Minutes.

  1. COMMITMENT

2.1 SLA Commitment

We will use commercially reasonable efforts to ensure that the SAP of Software will be 99.9% (“Uptime Commitment”).

2.2 SLA Credits

For each thirty (30) continuous-minute period of Qualifying Outage Minutes for Software in a Measurement Period, We will provide a SLA Credit of 5% of the monthly Fees for the Software which was subject to the Loss of Software Access during the Measurement Period up to a maximum SLA Credit of 100% of the monthly Fees. Any period of Qualifying Outage Minutes for Software which is less than 30 continuous minutes will not be eligible for an award of SLA Credits.

2.3 Approved Procedure

To be eligible to receive SLA Credit, You must notify us by email of a Claimed Outage Period. Your notice must include Software feature type, dates and times, error messages received (if any), contact information, and full description of the interruption of Software usage including logs, if applicable.

We will review the details of the Claimed Outages against the Verified Outages and our accounting department will communicate the SLA Credits (if any) to You by return email notification. Our determination of SLA Credits is final.

The SLA Credit may not be used to reduce the payments due in a renewal period below zero.  Subject to provisions herein, We will apply the SLA Credits to Your future invoices for the Software subject to Our standard policies.

2.4 Ineligible Customers

You will not be eligible to receive any SLA Credits if:

(i)   You are overdue in the payment of any Fees (including Fees in relation to Software affected by the Claimed Outage) at the time a Claimed Outage is being reviewed or SLA Credit is being determined,

(ii)  You have been overdue more than 3 times in the payment of Fees in the previous 12 calendar months, or

(iii)  You are in breach of this Agreement and the breach remains unremedied to Our reasonable satisfaction at the time the SLA Credit is being determined.

2.5 Use of SLA Credits

Subject to SLA Credits provisions, will be applied to future invoices and cannot be used to reduce payments due in a renewal term below zero. You cannot transfer or sell any SLA Credits. SLA Credits will expire on termination or expiration of the Agreement.