Terms of Service

TERMS OF SERVICE

Last updated on: May 7, 2025

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY. THIS IS A CONTRACT BETWEEN YOU (THE CUSTOMER) AND SHIPHERO TECHNOLOGY, LLC. IT DESCRIBES THE SUBSCRIPTION SERVICES AND OTHER SERVICES AS APPLICABLE WHICH WE PROVIDE, HOW THE PARTIES WILL WORK TOGETHER, AND OTHER ASPECTS OF OUR BUSINESS RELATIONSHIP. IT IS A LEGAL DOCUMENT SO SOME OF THE LANGUAGE IS NECESSARILY “LEGALESE” BUT WE HAVE TRIED TO MAKE IT AS READABLE AS POSSIBLE. THESE TERMS ARE SO IMPORTANT THOUGH THAT WE CANNOT PROVIDE THESE SERVICES UNLESS YOU AGREE TO THESE TERMS OF SERVICE. BY USING THE SERVICES, YOU ARE AGREEING TO THESE TERMS OF SERVICE.

1.     DEFINITIONS

(a)               “Account” shall have the meaning set forth in Section 5(b).

(b)               “Account Owner” shall have the meaning set forth in Section 3(o).

(c)               “Action” shall have the meaning set forth in Section 17.

(d)               “Actively Shipping” means a continued relationship or arrangement between a Brand Client or Qualified Merchant and ShipHero which results in a minimum of fifty (50) orders being shipped per month with ShipHero’s Subscription Services serving as the primary subscription services platform for processing orders for the Brand Client or Qualified Merchant as applicable.

(e)               “Agreement” means the Terms of Service, all materials referred or linked to within the Terms of Service and the applicable SaaS Subscription Agreement entered into by ShipHero and each Customer.

(f)                 “APIs” shall have the meaning set forth in Section 18(a).

(g)               “AUP”, “Acceptable Use Policy” means ShipHero’s Acceptable Use Policy as set forth at https://shiphero.com/acceptable-use/.

(h)               “Authorized Card” shall have the meaning set forth in Section 9(d).

(i)                  “Billing Period” means the period for which You agree to prepay Fees under a SaaS Subscription Agreement or Order Form, which will be the same as or shorter than the Subscription Term. For example, if You subscribe to the Services for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

(j)                  “Brand Account” shall have the meaning set forth in Section 19.

(k)               “Brand Client” means any User or Qualified Merchant who engages directly with a 3PL Customer and opens a Brand Account.

(l)                  “Confidential Information” means all information provided by You or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.

(m)           “Consulting Services” means the professional services provided to You by ShipHero, which may include training services, installation, integration or other consulting services.

(n)               “Consumer” means any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes. The definition of Consumer shall also have the same meaning as set forth in N.Y. Gen. Bus. Law § 527.

(o)               “CUEC” shall have the meaning set forth in Section 38.

(p)               “Customer Data” means all information that You submit or collect via the Subscription Service or in connection with the Services.

(q)               “Customer Reseller Fee” shall have the meaning set forth in Section 20.

(r)                 “Data Controller” means You or the Customer.

(s)               “Data Processor” means ShipHero Technology, LLC.

(t)                 “Data Protection Addendum”, “DPA”  means the following as applicable: (i) ShipHero’s U.S. Data Protection Addendum; or (ii) ShipHero’s U.S. + Canada Data Protection Addendum. ShipHero shall provide a copy of the applicable DPA to any Customer upon ShipHero’s receipt of the Customer’s request. Customer request must be submitted here: https://trust-center.shiphero.com/.

(u)               “EEA” or “European Economic Area” means a political and economic region that includes the European Union (EU) the UK and four non-EU countries: Iceland, Liechtenstein, Norway and Switzerland.

(v)                “General Data Protection Regulation” means the legal framework that sets guidelines for the collection and processing of personal information from individuals who live in and outside of the European Union (EU) or EEA

(w)             “Initial Subscription Term” shall have the meaning set forth in Section 10(a).

(x)                “Materials” all activity and content, information, or data uploaded (including photos, images, videos, graphics, written content, audio files, and/or code), collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Your Account.

(y)                “Maximum Units” means the maximum number of units available to Customer for the calendar year as further set forth in the applicable SaaS Subscription Agreement entered into by ShipHero and Customer.

(z)                “MFA” shall have the meaning set forth in Section 38.

(aa)         “Order Form” or “Order” means the ShipHero-approved form by which You agree to subscribe to the Services. Most Orders are completed through Your Account. The Order Form may be referred to as a “Statement of Work” if You are purchasing only Consulting Services.

(bb)        “Privacy Policy” means ShipHero’s Privacy Policy as set forth at https://shiphero.com/privacy-data-policy/.

(cc)         “Qualified Merchant” means a Brand Client with a ShipHero connected store who also: (i) has shipped at least 10,000 orders via the Subscription Services on the Brand Client’s respective Brand Account, or (ii) has started shipping as a Brand Client with a ShipHero connected store and is Actively Shipping

(dd)        “Renewal Subscription Term” shall have the meaning set forth in Section 10(b).

(ee)         “Resellers” shall have the meaning set forth in Section 21.

(ff)              “SaaS Subscription Agreement” means that certain SaaS Subscription Agreement entered into by and between Customer and ShipHero setting forth additional terms, conditions and obligations in connection with the Services and shall also include any Order Form, as applicable.

(gg)          “Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.

(hh)        “Services” means the Consulting Services, the Subscription Services, and any other services provided by ShipHero to Customer as set forth in the Agreement, as applicable.

(ii)               “ship” shall have the meaning set forth in Section 21.

(jj)               “ShipHero”, “We”, “us” or “our” means ShipHero Technology, LLC.

(kk)         “ShipHero Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that We incorporate into the Subscription Service or in connection with the Services.

(ll)               “ShipHero Solution” shall have the meaning set forth in Section 15(h).

(mm) “ShipHero’s Website” means ShipHero’s main website as set forth at https://shiphero.com/.

(nn)        “Software FAQ’s” means ShipHero’s software frequently asked questions webpage as set forth at https://shiphero.com/software-faqs/

(oo)        “Software Support” means ShipHero’s software support webpage as set forth at https://software-help.shiphero.com/hc/en-us.

(pp)        “Subscription Fees” or “Fees” means the amounts and fees You incur in connection with the Services as further set forth on the SaaS Subscription Agreement entered into by You and ShipHero. 

(qq)        “Subscription Service” means our web-based inbound marketing and sales applications, tools and platform that You have subscribed to by an Order Form, and developed, operated, and maintained by us, accessible via ShipHero’s Website or another URL designated by ShipHero, and any ancillary products and services, including website hosting, that We provide to You.

(rr)             “Subscription Term” means the Initial Subscription Term and any Renewal Subscription Terms, as applicable

(ss)          “Terms of Service” shall mean these Terms of Service as amended from time to time and shall also include the AUP, the DPA, the Privacy Policy, the Software FAQ’s and Software Support. Except for the DPA which is available upon ShipHero’s receipt of a Customer’s request, the Terms of Service shall be made available on ShipHero’s Website.

(tt)             “Third Party Provider” shall have the meaning set forth in Section 16.

(uu)        “Third Party Services” shall have the meaning set forth in Section 16. These products and services include non-ShipHero apps available from, for example, the following: our integrations products page, partner directory, links made available through the Subscription Service and non-ShipHero services listed on ShipHero’s Website.

(vv)          “Users” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Services for Your benefit and have unique user identifications and passwords for the Services.

(ww)    “You”, “Your” or “Customer” means the person or entity using the Services and identified in the applicable SaaS Subscription Agreement or Order Form as the Customer, including without limitation, any 3PL Customer who provides logistic services and engages ShipHero directly and causes any Brand Client to open a Brand Account.

(xx) “3PL Customer” means a Customer of ShipHero, who provides third party logistic services and engages ShipHero directly and causes any Brand Client to open a Brand Account.

2.     TERMS OF SERVICE

(a)  Please note that as further described in the Terms of Service, the Customer hereby acknowledges that: (i) ShipHero periodically updates the terms in the Terms of Service and ShipHero will let You know through Your Account used to access Your Services; (ii) ShipHero reserves the right to update and change these Terms of Service by posting updates and changes to the ShipHero Website; and (iii) Customer is advised to check these Terms of Service from time to time for any updates or changes that may impact Customer.

(b) You acknowledge and agree that ShipHero may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on ShipHero’s Website and such amended Terms of Service shall become effective thirty (30) days after posting to ShipHero’s Website.

(c)  Your continued use of the Services following the thirty (30) day period described above, constitutes Your agreement to, and acceptance of, the amended Terms of Services.

(d) As applicable, certain existing Customers which utilized or received the Services prior to the adoption of these Terms of Service, may be subject to versions of the terms of service which were previously adopted by ShipHero. ShipHero and each applicable Customer agree that except as provided in these Terms of Service, the terms of service in effect at the time the applicable Customer created an Account shall control. If no Account was created, then the terms of service on the date which the Customer began to receive the Services shall control. However, in the event an applicable Customer requests additional Services or requests changes to the existing Services, then these Terms of Service shall control and will replace any other prior terms of service agreed to by ShipHero and the applicable Customer. For the avoidance of confusion, this section is only applicable to certain Customers who utilized or received the Services prior to January 1, 2025.

3.     GENERAL CONDITIONS

(a)  Each Customer must read, agree with and accept all of the terms and conditions contained in the Terms of Service, including ShipHero’s Privacy Policy and, if applicable, the Data Protection Addendum before You may open an Account and utilize the Services. For the avoidance of confusion, by accepting to be bound by these Terms of Service, each Customer acknowledges and covenants to ShipHero that the Customer’s respective Users hereby also agree and accept to be bound by the Terms of Service, as amended.

(b) These Terms of Service are governed by and are to be interpreted in accordance with the laws of the State of New York and the federal laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the state and federal courts located in the State and County of New York with respect to any dispute or claim arising out of or in connection with these Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods shall not to apply to these Terms of Service and is hereby expressly excluded.

(c)  You may not use the Services for any illegal or unauthorized purpose nor may You, in the use of the Services, violate any laws in the United States, in Your jurisdiction (if different from the United States), the laws applicable to You in Your customer’s jurisdiction, or any other applicable laws. You shall comply with all applicable laws, rules and regulations in Your use of the Services and in connection with Your provision of Your Services.

(d) You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without the express written permission by ShipHero.

(e) Technical support is only provided to paying Customers and is only available via email with the Account Owner.

(f)    You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use ShipHero or ShipHero trademarks and/or variations and misspellings thereof.

(g)  You shall not by implication or otherwise associate Your Services with ShipHero, except in a manner that expressly approved in advance and in writing by an authorized representative of ShipHero.

(h) Questions about these Terms of Service should be sent to [email protected].

(i)     You understand that Your Materials (not including Sensitive Information), may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

(j)     Any credit card information that is shared by You with ShipHero is encrypted by ShipHero’s respective third party payment processors.

(k)  You acknowledge and agree that Your use of the Services, including Sensitive Information transmitted to or stored by ShipHero, is governed by its Privacy Policy

(l)    The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and ShipHero’s Terms of Service available in another language, the most current English version of these Terms of Service shall control and prevail.

(m)  You are responsible for all Materials collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Your Account.

(n) A breach or violation of any term in these Terms of Service, including the AUP, as determined in the sole discretion of ShipHero may result in an immediate termination of Your Services.

(o) Except as set forth in Section 19 and subject to Section 3(p), the person signing up for the Services on behalf of the Customer (“Account Owner”) will be the person who is authorized to use any corresponding Account We may provide to the Customer in connection with the Services

(p) Account Owners who are signing up for the Services on behalf of Your employer (i.e., the Customer), Your employer shall control the Account Owner designation hereunder as the contracting party. If You are signing up for the Services on behalf of Your employer, then You represent and warrant that You have the authority to bind Your employer and all of its Users of the Services to these Terms of Service.

(q) “Consumers” as defined in Section 1(n) of these Terms of Service, shall not be permitted to use the Services or create an Account without obtaining the prior written consent from ShipHero, and such consent may be withheld, conditioned or delayed in ShipHero’s sole discretion. Any current or future Customer who under New York law is currently or becomes classified as a “Consumer”, shall immediately provide written notice to ShipHero. 

(r)    You agree not to: (i) use any automated systems, including “robots,” “spiders,” or “offline readers,” that exceed human-level request rates to our servers; (ii) engage in any activities that damage, disable, or overburden our websites and Services; (iii) attempt unauthorized access or use the Services unlawfully; (iv) access the Services other than through our interface; or (v) use the Services for any purpose or in any manner that is unlawful or prohibited by the Agreement. Furthermore, the use of AI tools for scraping or data mining is strictly prohibited, as it can overwhelm server resources and violate fair access principles, potentially compromising functionality and data security. 

(s)  You will notify us right away of any unauthorized use of Your Users’ identifications and passwords or Your Account by following the instructions at https://shiphero.com/help.

4.     SHIPHERO’S RIGHTS

(a)  We reserve the right to modify or terminate (in accordance with the Terms of Service) the Services for any reason, without notice at any time.

(b) We reserve the right to refuse service to anyone for any legally permitted reason at any time.

(c)  We may, but have no obligation to, remove Materials and suspend or terminate Accounts if We determine in our sole discretion that Your Services, or the Materials, violate our AUP or these Terms of Service.

(d) Verbal or written abuse of any kind (including threats of abuse or retribution) of any person in connection with the Services, including any ShipHero customer, ShipHero employee, member or officer, may result in immediate Account and Services termination.

(e) ShipHero does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Services at any time. 

(f)    We reserve the right to provide the Services to Your competitors and make no promise of exclusivity in any particular market segment.

(g)  ShipHero itself, ShipHero former employees and ShipHero current or former contractors may compete with You, although they may not use Your Confidential Information in doing so. 

(h) In the event of a dispute regarding Account ownership or the Account Owner, We reserve the right to request documentation to determine or confirm the Account Owner. Documentation may include, but is not limited to, a scanned copy of Your business license, government issued photo ID, the last four digits of the credit card on file, etc.

(i)     ShipHero retains the right to determine, in its sole judgment, rightful Account ownership and transfer an Account to the rightful Account Owner. If We are unable to reasonably determine the rightful Account Owner, ShipHero reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.

5.     ACCOUNT TERMS

(a)  You must be 18 years or older or at least the age of majority in the jurisdiction where You reside or from which You use the Services.

(b) To access and use the Services, You must register a ShipHero Account (“Account”) by providing Your full legal name, current address, phone number, a valid email address, and any other information indicated as required. ShipHero may reject Your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.

(c)  You acknowledge that ShipHero will use the email address You provide as the primary method for communication.

(d) You are responsible for keeping Your password secure. ShipHero cannot and will not be liable for any loss or damage from Your failure to maintain the security of Your Account and password.

(e) ShipHero offers MFA. ShipHero strongly advises that MFA be enabled for all Users on Your Account.

(f)    Further ShipHero may charge for, as-needed, any engineering time (estimated at $500 per hour) to fix any repercussions / issues that resulted from You not protecting Your Account password.

6.     THE SUBSCRIPTION SERVICE

(a)  Access
During the Subscription Term, We will provide You access to use the Subscription Service and other applicable Services as described in the Agreement.

(b) Limits
Limits may apply to the number of “ units” You can have. Any limits will be specified in Your Order Form and the SaaS Subscription Agreement, including Your Maximum Units. You will be charged fees if You exceed the Maximum Units allocated to You as set forth in the Order Form or SaaS Subscription Agreement.

(c)  Modifications
We modify the Subscription Service and any other applicable Services from time to time, including by adding or deleting features and functions, in an effort to improve Your experience. But We will not make changes to the Subscription Service or any other applicable Service that materially reduces the functionality of the Subscription Service provided to You during the Subscription Term. We might provide some or all elements of the Subscription Service through an applicable Third Party Provider.

(d) Additional Features

You may subscribe to additional features of the Subscription Service and any other Services by agreeing to a new Order Form.

7.     CUSTOMER SUPPORT

(a)  Support
Support is included in Your Subscription Fee set forth on Your SaaS Subscription Agreement. General support for the Services is available 9AM to 9PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. We accept support questions 24 Hours per Day x 7 Days per Week at [email protected]. We attempt to respond to support questions within one business day; in practice, our responses are generally faster. We do not promise or guarantee any specific response time.

(b)        Security Support

Security Support vulnerabilities will be acknowledged within 24 hours of notification. 

(C) Availability
We try to make the Subscription Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

8.     CONSULTING SERVICES

You may purchase Consulting Services through an Order Form or Statement of Work. Fees for these Consulting Services are in addition to Your Subscription Fee. Unless otherwise agreed, all Consulting Services are performed remotely. For Consulting Services performed on-site, You will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of receipt of the invoice. Hours purchased as part of a consulting package expire as set forth in the Order Form, but in any case no later than one hundred and eighty (180) days from purchase. We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable, and all Fees for Consulting Services are non-refundable.

9.     FEES AND PAYMENTS

(a)  Subscription Fees

The Subscription Fee will remain fixed during the Subscription Term unless You: (i) exceed Your Maximum Units, or (ii) change products or base packages. Where a price change applies to You, We will charge or invoice You under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below in Section 9(b). In order to avoid additional charges, You should purchase the appropriate tier of Subscription Service for Your anticipated needs. We will monitor or audit remotely the number of Users in the Subscription Service. This information is also available to You on Your Account.

(b) Fee Adjustments in Next Billing Period

If You exceed Your Maximum Units in a Billing Period, then Your Subscription Fee will be adjusted at the beginning of the next Billing Period up to the current base package and tier price which corresponds with the Maximum Units from the prior Billing Period. This process will continue for each Billing Period during the Subscription Term. Our pricing and limits will be as set forth on ShipHero’s Website and the Customer’s applicable SaaS Subscription Agreement. We determine the number of units in the Subscription Service. At Your request, We will provide You with the detail We used to reach our conclusion. 

(c)  Fee Adjustments During a Billing Period

The Subscription Fee will increase during the course of a Billing Period if You exceed Your Maximum Units in a Billing Period. The Subscription Fee will be adjusted up to the tier price which corresponds with Your Maximum Units from the current Billing Period. The Subscription Fee will also increase during a Billing Period if You increase Your Maximum Units, change products or subscribe to additional features for use during the Billing Period. 

(d) Payment by credit card

Customers may pay for the Subscription Fees via credit card as described herein. If You are paying by credit card, You authorize us to charge Your credit card or bank account for all Fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods, including upgrades during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of Your payment information to such third party.

In addition, all Customers must keep a valid credit card on file with us to pay for any unpaid or past due Subscription Fees. ShipHero will charge applicable Fees to the credit card account that You authorize (“Authorized Card”), and ShipHero will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees in respect of  and other charges are in U.S. dollars, and all payments shall be in U.S. currency. If We are not able to process payment of Your Fees using the Authorized Card, We will make a second attempt to process payment using the Authorized Card 3 days later. If the second attempt is not successful, We will make a final attempt 3 days following the second attempt. If our final attempt is not successful, We may suspend and revoke access to Your Account. Your Account will be reactivated upon Your payment of any outstanding Fees. You will not be able to access Your Account during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, ShipHero reserves the right to terminate Your Account. 

(e) Payment by Invoice

If You are paying by invoice, We will invoice You at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.

(f)    Other Payment Methods

If You are paying by ACH, direct deposit, wire transfer, Stripe, or any other payment methods accepted by ShipHero, You acknowledge that all amounts charged or requested by ShipHero are due and payable within thirty (30) days from ShipHero’s request, unless otherwise specified in the Order Form. ShipHero will continue to charge the applicable payment method for applicable Fees until the Services are terminated, and any and all outstanding Fees in respect of Fees have been paid in full. Unless otherwise indicated, all Fees in respect of  and other charges are in U.S. dollars, and all payments shall be in U.S. currency. If We are not able to process payment of Your Fees using the applicable payment methods described herein, ShipHero will make a second attempt to process payment using the Authorized Card 3 days later.

(g)  Payment Information

You will keep Your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on Your Account within Your ShipHero portal. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in the Agreement. All Fees are due and payable in advance throughout the Subscription Term.

(h) Taxes

All Subscription Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). You are responsible for all applicable Taxes that arise from or as a result of Your use of the Services. These Taxes are based on the rates applicable to the billing address You provide to us. Such amounts are in addition to the Fees for such products and Services and will be billed to Your Authorized Card. If You are exempt from payment of such Taxes, You must provide us with evidence of Your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date We receive evidence satisfactory to ShipHero of Your exemption. If You are not charged Taxes by ShipHero, You are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in Your jurisdiction. You shall have no liability for any taxes based upon our gross revenues or net income. If You are located in the European Union, all Subscription Fees are exclusive of any VAT and You represent that You are registered for VAT purposes in Your member state. At our request, You will provide us with the VAT registration number under which You are registered in Your member state. If You are subject to GST, all Subscription Fees are exclusive of GST. If You are required to deduct or withhold any tax, You must pay the amount deducted or withheld as required by law and pay us an additional amount so that We receive payment in full as if there were no deduction or withholding.

10.   TERM AND RENEWAL

(a)  Initial Subscription Term

The Initial Subscription Term shall begin on the date Services begin and shall expire at the end of the period selected during the sign up process as set forth on Your Account or as otherwise set forth on the SaaS Subscription Agreement, as applicable (“Initial Subscription Term”).

(b) Renewal Subscription Term

Except as otherwise set forth in the SaaS Subscription Agreement or unless ShipHero or Customer gives the other written notice that the applicable party does not intend to renew the term for Services, the Agreement will automatically renew for one (1) year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than thirty (30) days in advance of the end of the Initial Subscription Term or Renewal Subscription Term, as applicable. The Renewal Subscription Term will be on the current terms and conditions of the Agreement, and subject to the renewal pricing provided for in Your Order Form or, if not specified in the Order Form, on our standard pricing available on ShipHero’s Website. In addition, during any Renewal Subscription Term, the current product usage limits set forth on ShipHero’s Website shall apply to Your Services, unless otherwise agreed to by You and ShipHero in a SaaS Subscription Agreement. Should You decide not to renew, You may send the notice of non-renewal by email to [email protected] or the address set forth in the applicable SaaS Subscription Agreement.

(c)  CUSTOMER AND SHIPHERO HEREBY ACKNOWLEDGE AND AGREE THAT THE AGREEMENT SHALL AUTOMATICALLY RENEW, AT THE END OF THE INITIAL SUBSCRIPTION TERM OR ANY RENEWAL SUBSCRIPTION TERM, FOR AN ADDITIONAL ONE (1) YEAR PERIOD AND SHALL CONTINUE UNLESS TERMINATED BY EITHER PARTY AS SET FORTH IN THE AGREEMENT.

11.   SHIPHERO’S PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY

This is an agreement for access to and use of the Subscription Service and the Services, and You are not granted a license to any software by this Terms of Service. The Subscription Service and other applicable Services are protected by intellectual property laws. The Subscription Service and other Services belong to and are the property of ShipHero Technology, LLC, and/or our licensors (if any). We retain all ownership rights in the Subscription Service and other applicable Services. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the ShipHero Content, the Subscription Service, the Consulting Services or any other Services in whole or in part, by any means, except as expressly authorized in writing by ShipHero. ShipHero, the ShipHero logos, and other marks that We use from time to time are our trademarks and You may not use them without our prior written permission.

We encourage all customers to comment on the Subscription Service or other Services, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that ShipHero owns all rights to use and incorporate them into the Subscription Service or other Services, without payment to You.

12.   CUSTOMER’S PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY

You represent and warrant that You own, or otherwise have all necessary rights to use all Materials and Customer Data; and by uploading the same You agree to allow Your customers to view and use Your Materials.  You are responsible for compliance of Your Materials with any applicable laws or regulations. The Agreement does not grant us any ownership rights to the Materials or Customer Data. You grant permission to us and our licensors to use the Materials and Customer Data only as necessary to provide the Subscription Service and other Services to You. If You are using the Subscription Service or receiving Consulting Services on behalf of another party, then You represent and warrant that You have all sufficient and necessary rights and permissions to do so.

By using the Services, You hereby agree to grant ShipHero the right to add Your name and company logo to our customer list and ShipHero’s Website.

Subject to Your representation and warranty above being accurate and complete, ShipHero does not claim any intellectual property rights over the Materials You provide to ShipHero in connection with the Services, and all Materials You upload remains Yours.

13.   CONFIDENTIALITY

The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own Confidential Information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of the Agreement, (iii) not disclose Confidential Information to any third party, and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

14.   CUSTOMER RESPONSIBILITIES

To realize the full value of the Subscription Service and other applicable Services, Your participation and effort are needed.

15.   CUSTOMER DATA AND PRIVACY

(a)  Generally

ShipHero is firmly committed to protecting the privacy of Your personal information and the personal information of Your customers. By using the Services, You acknowledge and agree that ShipHero’s collection, usage and disclosure of this personal information is governed by our Privacy Policy.

With regard to ShipHero’s Privacy Policy, explicitly referencing the retention period, We reserve the right to keep payment information on hand for up to 90 days post-termination in the event of a chargeback or merchandise returns for shipping and transfer fees; this ensures We are aligned with our Privacy Policy to help resolve any possible disputes.

Additionally, if: (a) You are established in the European Economic Area (“EEA”); (b) You provide goods or services to customers in the EEA; or (c) You are otherwise subject to the requirements of the General Data Protection Regulation, ShipHero’s collection and use of personal information of any European residents is also subject to our Data Protection Addendum which is available upon request.

(b) Limits on ShipHero

We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as You direct. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to You and only as permitted by applicable law, the Agreement, and our Privacy Policy.

(c)  Aggregate Data

We may monitor use of the Subscription Service by all of our Customers and use the Customer Data gathered in an aggregate and anonymous manner. You agree that We may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify You.

(d) Safeguards

We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.

(e) No Sensitive Information

YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE OR ANY OTHER SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

(f)    Personal Data Regulations

The Services that the Customer has requested include a platform for automating shipping processes for the customer and as a natural part of this, ShipHero processes various personal data on the customer’s behalf. The relationship between the Customer as the “Data Controller” and ShipHero as the “Data Processor” is governed by the Terms of Service and the Privacy Policy.

(g)  Processed Personal Data

The Data Processor, as part of the Services, has access, on behalf of the Data Controller, to process:

–          Name and address of the persons receiving the consignments.

–          Information about the individual type of item sent and the value/price of the item.

–          The purpose and scope of the personal data processing.

As a natural part of the Data Processor’s status as the provider of subscription-based solutions for handling the Data Controller’s freight processes, the Data Processor stores the information, and similarly the Data Controller exchanges information with relevant third parties in the form of freight companies that the Data Controller uses, and possibly customs authorities (if the consignments are cross-border). The purpose of the personal data processing is to manage the Data Controller’s freight processes. It is emphasized that the Data Processor may only process personal data to the extent necessary for the operation of the Data Controller’s subscription for Services with the Data Processor, and/or if the Data Processor is required by law to process the data otherwise. It is emphasized that the freight companies to which personal data is disclosed as part of the Agreement are the Data Controller’s (the Customers) Data Processors, not ShipHero’s Data Processors.

(h) The Data Processor’s Obligations

The Data Processor may only process the personal data in question in accordance with the instructions of the Data Controller, i.e. the instructions under which the Data Processor shall manage freight processes for the Data Controller (“ShipHero Solution”).

The Data Processor is required to comply with the currently applicable personal data legislation and shall notify the Data Controller immediately if an instruction from the Data Controller is, in the Data Processor’s opinion, contrary to the General Data Protection Regulation.

The Data Processor shall use appropriate technical and organizational security measures to ensure that personal data is not destroyed, lost, degraded or disclosed to unauthorized bodies, misused or otherwise processed in breach of personal data legislation, whereby the Data Processor shall implement the measures necessary pursuant to Article 32 of the General Data Protection Regulation.

The Data Processor is obliged to inform the Data Controller without undue delay of any data breach. In this regard, the Data Processor shall inform the Data Controller of:

–          The nature of the data breach.

–          If possible, the type and number of affected data subjects, as well as the type of personal data concerned and the number of records of personal data concerned.

–          The measures that the Data Processor has taken or proposes should be taken to deal with the data breach, including, where appropriate, measures to limit its potential adverse effects.

–          The probable consequences of the data breach.

–          The Data Processor shall, at the Data Controller’s request, provide the Data Controller with sufficient information to ensure that the Data Processor has taken the necessary technical and organizational security measures.

The Data Processor shall provide all the information necessary to demonstrate that the Data Processor complies with the General Data Protection Regulation’s Article 28, whereby the Data Processor shall allow and contribute to audits, including inspections carried out by the Data Controller or another auditor authorized by the Data Controller. It is emphasized that inspections/audits in every respect take place at the Data Controller’s expense.

The Data Processor shall secure/ensure that the persons who are authorized by the Data Processor to process personal data have committed themselves to confidentiality or are bound by an appropriate statutory professional secrecy obligation.

If a data subject asks the Data Processor (usually such requests will be made to the Data Controller) for access to and insight into that person’s personal data, the Data Processor shall immediately forward the request to the Data Controller.

The Data Processor shall assist the Data Controller with appropriate technical tools to enable the Data Controller to fulfill the Data Controller’s obligations to respond to requests for the exercise of the rights of the data subjects as specified in chapter III of the General Data Protection Regulation.

As a natural part of ShipHero Solution, the Data Processor is entitled to disclose personal data to the Data Controller’s other data processors (freight companies), and the Data Processor is also entitled to exchange personal data with the customs authorities.

In all other cases the Data Processor may only disclose or transfer personal data to third parties or sub-processors with the prior agreement with the Data Controller. However, the Data Processor may disclose or transfer personal data without the Data Controller’s instructions, if permitted by law.

If the Data Processor hands over personal data to another data processor (sub-processor), the Data Processor is obliged to conclude a sub-processor agreement with the sub-processor, whereby the Data Processor’s sub-processor is subject to at least the same conditions as stated in this section.

The Data Processor shall notify the Data Controller if the Data Processor has plans to extend the circle of sub-processors and/or to replace existing sub-processors with others.

The Data Processor must not transfer personal data to third countries that the European Union Commission has not assessed as safe third countries.

If the data or information is transferred to foreign sub-processors, it must be stated in the data processing agreement, that sub-processors shall comply with the applicable provisions of the General Data Protection Regulation and any other current personal data law in effect. Sub-processors in European countries with specific regulatory requirements regarding data processing must also comply with these requirements.

(i)     Duration of Data Processing

The processing of Customer Data and personal data pursuant to the Agreement shall continue until such time as the Services are concluded between the parties or otherwise terminated. However, in the event of the termination of the Services, the Data Processor is bound by the Agreement for as long as the Data Processor has access to Customer Data and personal data originating from the Data Controller. In the event of termination of the Customer’s Services, the Data Processor is required to delete any backups and other copies of the personal data.

16.   THIRD PARTY SITES AND PRODUCTS

In addition to these Terms of Service, You also agree to be bound by the additional service-specific terms applicable to services You purchase from, or that are provided by, ShipHero’s partners or other third parties.

ShipHero may from time to time recommend, provide You with access to, or enable third party software, applications, products, services or website links (collectively, “Third Party Services”) for Your consideration or use. Such Third Party Services are made available only as a convenience, and Your purchase, access or use of any such Third Party Services is solely between You and the applicable third party services provider, which includes but is not limited to certain approved carriers (e.g. shipping companies), integrators (e.g. “Shippo” and “Make.com”), e-commerce platforms (e.g. “Shopify”), payment processors (e.g. “Stripe”) and other carriers, integrators, e-commerce platforms and payment processors approved by ShipHero (“Third Party Provider”). Any use by You of Third Party Services offered through the Services is entirely at Your own risk and discretion, and it is Your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, ShipHero may receive a revenue share from the applicable Third Party Provider.

We do not provide any warranties with respect to Third Party Services. You acknowledge that ShipHero has no control over Third Party Services and is not responsible or liable to anyone for such Third Party Services. The availability of Third Party Services via the Services, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with ShipHero.

ShipHero does not guarantee the availability of Third Party Services, and You acknowledge that ShipHero may disable access to any Third Party Services at any time in its sole discretion and without notice to You. ShipHero is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. ShipHero strongly recommends that You seek specialist advice before using or relying on Third Party Services, to ensure they will meet Your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates You should charge to Your customers.

If You install or enable any Third Party Services for use with the Services, You grant us permission to allow the applicable Third Party Provider to access Your Customer Data and to take any other actions as required for the interoperation of the Third Party Services with the Services, and any exchange of Customer Data or other interaction between You and the Third Party Provider is solely between You and such Third Party Provider. ShipHero is not responsible for any disclosure, modification or deletion of Your  Customer Data or other Materials, or for any corresponding losses or damages You may suffer, as a result of access by Third Party Services or a Third Party Provider to Your Customer Data or other Materials.

(For example, if Google Maps provided Third Party Services that were used within the Services, then Your use of such Third Party Services would be subject to Your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.)

Under no circumstances shall ShipHero be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or Your contractual relationship with any Third Party Provider. These limitations shall apply even if ShipHero has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

You agree to defend, indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, ShipHero partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of Your use of Third Party Services or Your relationship with a Third Party Provider.

17.   INDEMNIFICATION

You will indemnify, defend and hold ShipHero harmless, at Your expense, against any third party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, our parent and affiliates) by a third party not affiliated with ShipHero to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Services by You; (b) Your noncompliance with or breach of the Terms of Service or SaaS Subscription Agreement, (c) Your use of Third Party Services, or (d) the unauthorized use of the Services by any other person using Your User information. ShipHero will: (i) notify You in writing within thirty (30) days of our becoming aware of any such Claim; (ii) give You sole control of the defense or settlement of such a Claim; and (iii) provide You (at Your expense) with any and all information and assistance reasonably requested by You to handle the defense or settlement of the Claim. You shall not accept any settlement that (i) imposes an obligation on ShipHero; (ii) requires ShipHero to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on ShipHero without our prior written consent.

18.   DISCLAIMERS

(a)  Disclaimer of Warranties

SHIPHERO AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICES OR SHIPHERO CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (ALSO KNOWN AS “APIs”) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

(b) Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT SHIPHERO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DIRECT OR INDIRECT DAMAGES RELATED TO LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR ANY OTHER TANGIBLE OR INTANGIBLE LOSSES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES.

IN NO EVENT SHALL SHIPHERO OR ITS SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS OF SERVICE (HOWEVER ARISING, INCLUDING NEGLIGENCE).EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THE AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL AMOUNTS ACTUALLY PAID FOR THE SERVICES IN THE ONE (1) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. SHIPHERO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SHIPHERO DOES NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

(c)  Third Party Services

WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD PARTY SERVICES THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THE AGREEMENT. YOU UNDERSTAND THAT ANY THIRD PARTY SERVICES, PRODUCTS AND INTEGRATIONS, INCLUDING BUT NOT LIMITED TO THE MAKE.COM, ETSY, LOOP RETURNS AND OTHER LIKE APPLICATIONS, SHALL HAVE NO LIABILITY OF ANY KIND UNDER THE AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.

19.   3PL CUSTOMERS AND BRAND CLIENTS.

Each Brand Client (as defined above) and each 3PL Customer (as defined above) who provides third party logistic services and engages directly with or causes any Brand Client to open a Brand Account (as defined below) shall also be subject to these Terms of Service, as applicable. Each 3PL Customer shall disclose these Terms of Service to their applicable Brand Clients and hereby represents to ShipHero that each Brand Client has received, acknowledged and consented to these Terms of Service.  For the avoidance of confusion, the agreement to be bound by these Terms of Service shall not establish a contractual relationship between the Brand Client and ShipHero, and for the purposes of these Terms of Service each Brand Client shall be considered the customer of the 3PL Customer. ShipHero reserves the right in its sole and absolute discretion to limit, decrease, increase, restrict, edit or remove any Account created by or on behalf of any Brand Client (“Brand Account”). Notwithstanding anything to the contrary contained in these Terms of Service, the Account Owner for all Brand Accounts shall be the Brand Clients applicable 3PL Customer designated representative. Brand Clients who request any Customer Data, Sensitive Information or Materials relating to their respective Brand Account should contact the Brand Client’s specific 3PL Customer. However, in the event the applicable 3PL Customer fails to respond or provide such information, documents or materials to the Brand Client within fourteen (14) days after receipt of the Brand Clients or ShipHero’s request, then the applicable 3PL Customer hereby agrees that ShipHero shall have the right but not the obligation to provide any Customer Data, Sensitive Information or Materials relating to the respective Services and/or Brand Account to the applicable Brand Client. In addition to the foregoing, in the event the applicable 3PL Customer fails to respond or provide such information, documents or materials to the Brand Client within thirty (30) days after receipt of the Brand Clients or ShipHero’s request as described in this section, then the applicable 3PL Customer hereby agrees that ShipHero shall have the right but not the obligation to assist the applicable Brand Client in finding and engaging a new 3PL Customer and ShipHero may provide any Customer Data, Sensitive Information or Materials relating to the respective Services and/or Brand Account to the applicable Brand Client and/or new 3PL Customer. In connection with ShipHero’s rights as described in this section, each 3PL Customer acknowledges and agrees that ShipHero shall have no liability in connection with or arising from any applicable Brand Client’s engagement of a new 3PL Customer and the disclosure of any Customer Data, Sensitive Information or Materials and other information relating to the applicable Brand Account to the applicable Brand Client and/or new 3PL Customer.

20.   TERMINATION, SUSPENSION AND EXPIRATION

(a)  Termination for Cause

Either party may terminate the Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.

(b) Suspension for Prohibited Acts

We may suspend any Customer’s access to the Services for use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of the Agreement.

(c)  Suspension for Non-Payment

We may suspend Your access to all or any part of the Services upon ten (10) days’ notice to You of non-payment of any Fees or amounts past due. We will not suspend the Subscription Service while You are disputing the applicable Fees or charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Services are suspended for non-payment, We may charge a re-activation fee to reinstate the Services.

(d) Effect of Termination or Expiration

Upon termination or expiration of the Agreement, You will stop all use of the Services and ShipHero Content. Furthermore, ShipHero will cease providing You with the Services and You will no longer be able to access Your Account. If You terminate the Agreement for cause, We will promptly refund any prepaid but unused Fees covering use of the Services after termination. If We terminate the Agreement for cause, You will promptly pay all unpaid Fees due through the end of the Initial Subscription Term. Fees are otherwise non-refundable. These Terms of Services survive the cancellation of Your Account and the Services for three (3) years from the date of the cancellation.

(e) Retrieval of Customer Data

Provided that Customer has paid all Fees owed to ShipHero and Customer makes the request within thirty (30) days after termination or expiration of Your Services, ShipHero agrees to provide You with temporary access to the Services to retrieve, or We will provide You with copies of, all Customer Data and Materials then in ShipHero’s possession or control. ShipHero may withhold access to the Customer Data and Materials until You pay any Fees owed to us. Thirty (30) days after termination or expiration of Your Services, ShipHero will have no obligation to maintain or provide You the Customer Data or  Materials and may, unless legally prohibited, delete all Customer Data and Materials in our systems or otherwise in our control.

21.   RESELLING OF LABELS.

As a ShipHero Customer, You expressly understand and agree that ShipHero reserves the right to limit Your usage and/or charge You additional fees if You leverage freight/carrier Resellers. Customer Reselling Fees include, but are not limited to carrier rates and/or services provided by carriers, aggregators, transportation providers, and/or any other Reseller of carrier/freight/transportation rates (“Resellers”). You expressly understand and agree that You will be charged a ShipHero Customer Reseller Fee (“Customer Reseller Fee”) when You create a label (“ship”) using any Resellers’ carrier account(s), rate cards and/or services in the event the applicable Reseller is: (i) not approved as an authorized Reseller by ShipHero, or (ii) not approved as an authorized integrated carrier or Reseller by ShipHero. You agree and will remit payment to ShipHero for any Customer Reseller Fees that are processed through the ShipHero platform and/or APIs/webhooks. The minimum Customer Reseller Fee that You agree to and will incur is $0.35 per label – Customer Reseller Fees can be greater depending on the carrier. For clarity, if You, a ShipHero Customer, use any Reseller rates, You then agree to remit payment to ShipHero a minimum of $0.35 per label. ShipHero will produce a monthly invoice and charge Your payment method on file. Customer Reseller Fees do not apply to ShipHero Approved Resellers.

22.   NON-SOLICITATION.

For the avoidance of confusion, ShipHero will not, and We will cause our affiliates to not use Your or Your respective Qualified Merchant’s Customer Data or Confidential Information including Your Qualified Merchant’s pricing information, which is disclosed to ShipHero, to solicit Your Qualified Merchants.  Notwithstanding the foregoing, nothing herein shall prohibit or otherwise limit ShipHero or our affiliates from engaging in general advertising and/or marketing activities in the normal course of business and without use of or reliance on any of Your or Your respective Qualified Merchant’s Customer Data or Confidential Information. Notwithstanding the foregoing, the solicitation restriction set forth in this Section 22 shall not be applicable or enforceable in the event any one of the following occurs:

(a)  the Qualified Merchant desires fulfillment in a location that the applicable 3PL Customer cannot service;

(b) the applicable 3PL Customer approves “LVK” (ShipHero Fulfillment, LLC d/b/a LVK) to work in conjunction with the 3PL Customer to meet the Qualified Merchant’s needs; or

(c)  The applicable 3PL Customer gives approval to LVK to work directly with the Qualified Merchant.

23.   GENERAL AMENDMENT; NO WAIVER

Except where unilateral changes or modifications are expressly permitted under the Agreement or the Terms of Service, the parties agree that the Agreement cannot be altered, amended or modified without written authorization of each party. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

24.   CONTRACTING ENTITY AND APPLICABLE LAW

The Agreement is governed by the laws of the State of New York, U.S.A. without reference to conflicts of law principles. Both parties consent to the exclusive jurisdiction and venue of courts in New York, NY, U.S.A. for all disputes arising out of or relating to the use of the  Services or the Agreement.

25.   FORCE MAJEURE

Neither You or ShipHero will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party to the Agreement will use reasonable efforts to mitigate the effect of a force majeure event.

26.   ACTIONS PERMITTED

Except for actions for nonpayment or breach of Customer’s or ShipHero’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

27.   RELATIONSHIP OF THE PARTIES

You and ShipHero agree that no joint venture, partnership, employment, or agency relationship exists between us.

28.   COMPLIANCE WITH LAWS

We will comply with all U.S. state and federal laws in our provision of the Services and our processing of Customer Data, Sensitive Information, Materials and personal data. ShipHero reserves the right at all times to disclose any Confidential Information or Sensitive Information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in Your use of the Services, including any applicable export laws. You will comply with the sanction’s programs administered by the Office of Foreign Assets Control of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals or permit use of the Services by prohibited countries or individuals, as determined by ShipHero.

29.   SEVERABILITY

If any part of the Terms of Service or Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement will continue in effect.

30.   NOTICES

Notices to ShipHero will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.

To ShipHero Technology, LLC, PO BOX 307, Garnerville NY 10923, U.S.A., Attention: General Counsel.

Notices to Customer will be sent to the contact address set forth on the Customer’s Account or in the applicable SaaS Subscription Agreement and will be deemed delivered as of the date of actual receipt.

ShipHero may give electronic notices by general notice via the Services and may give electronic notices specific to You by email to Your e-mail address(es) on record in our Account information for You or through the notifications center of the Services. We may give notice to You by telephone calls to the telephone numbers on record in our Account information for You.

31.   ENTIRE AGREEMENT

The Agreement (including each Order Form as applicable) is the entire agreement between You and ShipHero and supersedes all other proposals and agreements, whether electronic, oral or written, between You and ShipHero, except as provided herein. We object to and reject any additional or different terms proposed by You, including those contained in Your Order Form, acceptance or website. ShipHero’s obligations are not contingent on the delivery of any future functionality or features of the Services or dependent on any oral or written public comments made by us regarding future functionality or features of the Services.

32.   ASSIGNMENT

You will not assign or transfer the Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign the Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

33.   THIRD PARTY BENEFICIARIES

Nothing in the Terms of Service, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of the Terms of Service.

34.   CONTRACT FOR SERVICES

The Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to the Agreement. If You are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern the Agreement or the rights and obligations of the parties under the Agreement.

35.   AUTHORITY

Each party represents and warrants to the other that it has full power and authority to enter into the Agreement and that it is binding upon such party and enforceable in accordance with the terms set forth in the Terms of Service and the Agreement.

36.   SURVIVAL

The following sections shall survive the expiration or termination of the Agreement: (i) General Conditions – Section 3; (ii) ShipHero’s Rights – Section 4; (iii) Fees and Payments – Section 9; (iv) Term and Renewal – Section 10; (v) ShipHero’s Proprietary Rights and Intellectual Property – Section 11; (vi) Customer’s Proprietary Rights and Intellectual Property – Section 12; (vii) Confidentiality – Section 13; (viii) Customer Data and Privacy – Section 15; (ix) Indemnification – Section 17; (x) Disclaimers – Section 18; (xi) Termination, Suspension and Expiration – Section 20; (xii) Compliance with Laws – Section 28.

37.   PRECEDENCE

In the event of a conflict between the terms of the Terms of Service and the SaaS Subscription Agreement, the Terms of Service shall control.

38.   END-USER AGREEMENT CONTROLS

As part of ShipHero’s commitment to security, privacy, and data protection, We have provided Complimentary User Entity Controls (“CUEC”) that are part of our security framework.

CUECs are the user entity controls that ShipHero provides for You to have in place with Your customers so that You and Your customers can adequately and securely use the Services.

As part of our CUEC security control, ShipHero enables multifactor authentication (“MFA”) by default on all Accounts and highly recommends mandatory MFA for all Users who access the Services including employees, contractors, vendors of Your customers.

Any failure to implement prescribed CUECs properly results in gaps that counteract ShipHero’s internal controls and may cause compliance nonconformities that increase cyber risk exposure to our systems. 

Should a security incident or breach occur that We determine was caused by non-conformance with implementing any of the CUECs. ShipHero has the right to charge the Customer for engineering service fees to investigate and resolve the issue. 

The CUEC’s subsequently presented should not be regarded as a comprehensive list of all controls that User entities should employ. User entities of ShipHero’s system should maintain controls for:

1. Notifying ShipHero’s management immediately regarding any employee termination that would require a revocation of logical access to their Account.
2. Designating individuals for authorizing access to the Account.
3. Periodically reviewing their Customer access lists to the Account and informing ShipHero of any access change requests.
4. Implementing systems to protect against security and availability threats from sources outside the boundaries of the system.
5. Applying logical access security controls, data encryption controls, and related procedures to their network-connected equipment.
6. Protecting their equipment against infection by computer viruses, malicious codes, and unauthorized software.
7. Complying with their contractual obligations.
8. Ensuring the supervision, management, and control of the use of Services by their personnel.
9. Ensuring that procedures are in place for developing, maintaining, and testing their own business continuity plans. 
10. Utilizing encrypted email to send data to ShipHero via the User entity’s encrypted email system or within ShipHero’s encrypted email system.
11. Ensuring appropriate encryption protocols protect data files transmitted to ShipHero.
12. Notifying ShipHero to change passwords for its Accounts in the event the Accounts have been compromised.
13. Changing passwords to its Accounts on a periodic basis.
14. Implementing MFA on their User Accounts.