Sendflex Support Services Agreement
THIS SENDFLEX SUPPORT SERVICES AGREEMENT (“AGREEMENT”) GOVERNS THE PROVISION OF SUPPORT SERVICES BY SENDFLEX (“SERVICES”) AS DEFINED HEREIN. BY YOUR ENGAGEMENT OF SERVICES 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 THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THE SUPPORT SERVICES ARE FOR THE BENEFIT OF BUSINESS OR GOVERNMENT ENTITIES AND NOT FOR USE BY INDIVIDUAL PERSONS OR CONSUMERS IN THEIR PRIVATE CAPACITY.
By engaging Services and by submission of any Sendflex Agreement to Purchase Form, You agree to be bound by the terms of this Agreement.
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 to Purchase Form” means the order form that is used to confirm Your order for Services, including attachments, addenda and supplements thereto. By submitting an Agreement to Purchase Form, You agree to be bound by the terms of this Agreement. Agreement to Purchase Forms will be deemed incorporated herein by reference.
“Effective Date” means the effective date contained within the Agreement to Purchase Form.
“Fees” means the amounts in the Agreement to Purchase form that are payable by You in return for the Services.
"Malicious Code" means viruses, worms, robots, spiders, bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs.
"Pierbridge EULA" means the end user license agreement governing use of Pierbridge software, by You or their resellers, and services found https://www.pierbridge.com/tsa.html
"Purchased Services" means Services that You or Your Affiliates purchase under a Agreement to Purchase Form.
“Term” means the number of months specified in the Agreement to Purchase.
“Third Party Services” means software, web services, applications, or other services provided by a third party carrier, service bureau, portal or other third party that are connected to, accessed and used through the Services.
"Users" means individuals who are authorized by You to engage Services.
"We", "Our" or "Us" means Sendflex Technology, Inc. with its principal place of business 1900 West Park Drive, Suite 280, Westborough, MA 01581.
"You" or "Your" means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all data or information provided by You to Us.
2. PURCHASED SERVICES
2.1. Provision of Services. Subject to Your compliance with Clause 5, We will make the Services available to You during the Term.
2.2. Usage. Unless otherwise specified in the applicable Agreement to Purchase Form, Services to not include usage of Third Party Services.
Services are provided to Your only and not any other person.
3. USE OF THE SERVICES
3.1. Our Responsibilities. We agree to
(i) provide Our basic call center support to You at no additional charge during Monday through Friday, 8 a.m. to 5 p.m., (Eastern Time) excluding these holidays:
· New Year's Day (January 1)
· Good Friday (Friday before Easter Sunday)
· Memorial Day (Last Monday of May)
· Independence Day (July 4)
· Labor Day (First Monday of September)
· Thanksgiving (Fourth Thursday of November)
· Day after Thanksgiving (Fourth Friday of November)
· Christmas Day (December 25)
(ii) use commercially reasonable efforts to make the Services available on a 24 hour, 7 days a week basis, except: (a) during Schedule Maintenance as set out in the SLA for Services which will, to the extent practicable, be schedule during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday (Eastern Standard Time), or (b) where this 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, and
(iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
(iv) Technical Support is provided by e-mail at help@Sendflex.com.
· Contact support via email
· 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.
· Escalation to other resources within Sendflex may happen based on escalation rules or in the event that the Support Technician determines that the issue is such that it requires escalation.
We will not be responsible for defects in, or the quality of, Third Party Services.
3.2. Our Protection of Your Data. We will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data except to anonymize it, (b) disclose Your Data except as provided in Sections 6.4 (Your Data) and 7.3 (Compelled Disclosure), unless expressly permitted in writing by You, or (c) access Your Data except to provide the Services 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 providing us with reasonable and timely authorized access to Your Data, Third Party Services, and other systems which will enable Us to provide Services,
(ii) be responsible for Users’ compliance with this Agreement and all aspects of Your use of the Services, and
(iii) be responsible for the accuracy, quality and legality of Your Data, Your authorization to use Your Data with the Services, the means by which You acquired Your Data, and the accuracy of Third Party Services.
3.4. Use of Service.
You will not:
(i) make the Services available to anyone other than Users,
(ii) sell, resell, rent or lease the Services,
(iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,
(iv) use the Services to store or transmit Malicious Code,
(v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein,
(vi) breach this Agreement or terms of use provided by Third Party Service providers, or
(vii) interfere with the proper provision of the Services.
3.5 Hardware and Software Requirements.
In order to provide the Services, You must have at a minimum:
(i) An Internet Browser which supports HTML and SSL-encryption, such as Microsoft Internet Explorer or Apple Safari,
(ii) A means to print or store notices and information through Your browser software, and
(iii) A personal computer or equivalent device capable of connecting to the Internet via DSL, Cable Modem, Network (e.g., Wireless Access Protocol), dial up modem, or equivalent, and that supports the foregoing requirements.
Without limiting anything else in this Agreement, We will not be liable for any delay or disruption to the Services if such delay or disruption is caused by Your failure to comply with this section 3.6.
4. THIRD PARTY SERVICES AND PRODUCT PROVIDERS
4.1. Third Party Services. Services may require us to inspect or use Third Party Services from time to time. Any acquisition by You of such Third Party Services and any exchange of data between You and any Third Party Service provider, is solely between You and the applicable Third Party Services provider. We do not warrant or take any responsibility for Third Party Services, whether or not they are designated by Us as “certified” or otherwise. You are responsible for verifying the accuracy, suitability, continuous operation, and security measures related to Third Party Services. If You are subject to using FedEx EULA, UPS EULA, or Pierbridge EULA and services in conjunction with Our Services, You are subject to their respective end-user license terms, as applicable.
4.2. Third Party Services and Your Data. You authorize Us to access to and use Third Party Services for the purposes of providing Services. To use such features, You may be required to enter into a Third Party Service provider license to obtain permission to access to such Third Party Services. If the provider of any such Third Party Services ceases to make the Third Party Services available for any reason, We may cease providing such Service features or any Third Party Services at any time without entitling You to any refund, credit, or other compensation from Us. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from Third Party Services defects.
5. USAGE FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Usage Fees. You must pay all usage Fees specified by the due date and on the terms specified on an Agreement to Purchase Form. Except as otherwise notified by Us in writing:
(i) Usage Fees are based on actual provision of Services in accordance with the terms specified on the Agreement to Purchased Form, and
(ii) Usage Fees paid are non-refundable.
5.2. Invoicing and Payment. You agree to provide Us with: (i) valid and updated credit card information, (ii) a valid purchase order, or (iii) an alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Agreement to Purchase Form for the initial Term and any renewal Term(s) as set forth in Section 11.2 (Agreement Term). Such charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Agreement to Purchase Form. If the Agreement to Purchase Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Agreement to Purchase Form.
5.3. Overdue Charges. If any charges are not received from You by the due date specified on an Agreement to Purchase Form, then at Our discretion, (a) such 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, from the date such payment was due until the date paid, and/or (b) We may condition future renewal periods, if any, and Agreement to Purchase Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is 30 or more days overdue (or 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 Fees obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to You.
5.5. Taxes. Unless otherwise stated, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with the Services. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount will be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We, or Our licensors, reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Your Data. By providing access to Your Data, You hereby license Us to:
(i) use Your Data in providing the Services to You and any Third Party Services You may select and
(ii) transmit Your Data to Third Party Service providers.
6.3. 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 our software to incorporate such suggestions.
7. CONFIDENTIALITY AND DATA PROTECTION
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information will include the Services; and Confidential Information of each party will include the terms and conditions of this Agreement and all Agreement to Purchase Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
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, or
(v) is necessary for the Receiving Party to perform its obligations for the Disclosing Party.
7.2. 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party 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.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law, regulation or the rules of a recognized stock exchange 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.
7.4 Data Protection. The Parties must at all times comply with applicable data protection laws and regulations, including the requirements of the Australian Privacy Act 1988 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 services under this Agreement, and shall oblige their personnel to observe those data secrecy requirements pursuant to the relevant regulations. Legitimate data protection obligations of the parties pertaining to possible commissioned data processing (especially relating to maintenance and/or support services or defect remedy) are set forth in Exhibit G to this Agreement and which forms an integral part of this Agreement.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that:
(i) we have validly entered into this Agreement with You and have the legal power to do so,
(ii) we will make reasonable efforts to ensure Your access to Our Services will not be materially decreased during a Term, and
(iii) We will use all reasonable endeavours 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 Services and You later download that file containing Malicious Code. For any breach of a warranty above, Your sole and exclusive remedy will be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8.1 (OUR WARRANTIES) AND 8.2 (YOUR WARRANTIES) HEREIN, THE SERVICES 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 SERVICES ARE PROVIDED ONLY WITH SUCH WARRANTIES AS THE THIRD PARTY MAY MAKE AVAILABLE TO YOU, IF ANY.
9. INDEMNIFICATION
9.1. Indemnification by Us. We will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services 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 may 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 Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your Use of such Services upon 30 days’ written notice and refund to You any prepaid Fees covering the remainder of the Term.
9.2. 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 Services 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 may 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.
9.3. Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. WITH THE EXCEPTION OF SECTION 9 (INDEMNIFICATION) 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 UNDER SECTION 5 (PAYMENT FOR PURCHASED SERVICES). IN NO EVENT SHALL WE BE RESPONSIBLE FOR DAMAGES ARISING FROM THIRD PARTY SERVICES, INCLUDING BUT NOT LIMITED TO INACCURATE THIRD PARTY DATA, CARRIER RATE MISCALCULATIONS, INCORRECT CARRIER BILLINGS, REGULATORY NON-COMPLIANCE, AND SECURITY BREACHES. ANY CAUSE OF ACTION OR CLAIM YOU HAVE ARISING OUT OR RELATING TO THE SERVICES 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.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3 Force majeure. No failure or omission by the parties to perform any of their obligations under this Agreement or any Order 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).
11. AGREEMENT TERM AND TERMINATION
11.1. Agreement Term. The Agreement to Purchase Form will specify the start date and duration of the Term for Services provided under this Agreement. Except as otherwise specified in the applicable Agreement to Purchase Form, the Term will automatically renew for additional periods equal to the expiring Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Term. The pricing during any such renewal term will be the same as that during the prior term unless We have given You written notice of a pricing increase at least ninety (90) days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed the percentage increase in the Consumer Price Index (CPI) for the relevant Services in the immediately prior Term, unless the pricing in such prior term was designated in the relevant Agreement to Purchase Form as promotional or one-time. CPI as used herein means the U.S. Consumer Price Index for all Urban Consumers.
11.2. 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 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.
11.3. 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 of all Agreement to Purchase Forms 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.
11.4. Return of Your Data. We make reasonable efforts to maintain data for a rolling twelve (12) month period. Upon request by You made within 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.
11.5. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), Section 6 (Proprietary Rights), Section 7 (Confidentiality), Section 8.3 (Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11.4 (Refund or Payment upon Termination), Section 11.5 (Return of Your Data), Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and Section 14 (General Provisions) will survive any termination or expiration of this Agreement.
12. 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 (generically, “Agreement”) 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 Services; and
(iv) Other disclosures, notices and communications in connection with the application for, the opening, maintenance, or collection of Fees for Purchased Services.
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 Drive | Suite 280 |
Westborough, MA 01581
Email: info@sendflex.com
Telephone: 508.983.1453
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1. 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 Drive | Suite 280 |
Westborough, MA 01581
Email: info@sendflex.com
Telephone: 508.983.1453
13.2. 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 Services system administrator designated by You.
13.3. 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 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 Services 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 Services or content thereon are appropriate or lawful for any other jurisdiction; if You access the Services from outside the United States, You do so on Your own initiative and are responsible for compliance with all applicable laws.
13.4. 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.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, 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 Services 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.
14.2. 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.
14.3. 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.
14.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.6. 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.
14.7. Attorney Fees. You will pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).
14.8. 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 of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this 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.
14.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Agreement to Purchase Forms, 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.