- Access to the Services
- Use of the Services
- Term, Cancellation and Termination
- Billing, Plan Modification and Payments
- Confidential Information
- Ownership and Security of Service Data
- Privacy Practices
- Temporary Suspension
- Carrier Services
- Intellectual Property Rights
- Representations, Warranties and Disclaimers
- Limitation of Liability
- Notice of Data Practices
- Assignment, Entire Agreement and Amendment
- Export Compliance and Use Restrictions
- Relationship of the Parties
- Governing Law
Master Subscription Agreement
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, AUTHORIZED USERS AND END USERS SUBSCRIPTION TO THE SERVICES.
By executing an Order Form, accessing or using a Service, or authorizing or permitting any Authorized User or End User to access or use a Service, You acknowledge that You are accepting this Agreement and agree to be bound by this Agreement as of the earlier of Your execution of such Order Form and the date of such first access or use of the Service (the “Effective Date”). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Metapack that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or access, or authorize any use or access, of the Services. You and Metapack may be individually referred to as a “Party” and collectively as the “Parties”.
Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound, or any applicable law or regulation.
The purpose of this Agreement is to establish the terms and conditions under which You may purchase, access and/or use products and/or services from Metapack as set forth in an Order Form.
In the event of any inconsistency or conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control. Non-English translations of this Agreement are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and shall control.
1.1 Service. We will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Order Form and Documentation in accordance with Your Service Plan. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week except (a) during Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); and (b) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, a Force Majeure Event or problems caused by a Carrier API to provide the Carrier Services;
1.2 Support. We will, at no additional charge, provide applicable standard customer support for the Services to You as detailed on the applicable Site and Documentation, and upgraded support, if purchased.
1.3 Modifications. You acknowledge that Metapack may modify the features and functionality of the Services. Metapack shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality.
1.4 Extension of Rights to Affiliates. You may extend Your rights, benefits and protections provided herein to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates’ behalf, provided that You remain responsible for their compliance hereunder.
2.1 Login Management. Access to and use of the Services is restricted to the specified number of individual Authorized Users permitted under Your subscription to the applicable Service. You agree and acknowledge that each Authorized User Login shall only be used by one (1) designated individual Authorized User. You further agree and acknowledge that an Authorized User Login cannot be shared or used by more than one individual, but that Authorized User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and Your Authorized Users are responsible for maintaining the confidentiality of all Authorized User Login information for Your Account. Absent a written license from Metapack expressly stating otherwise, You agree and acknowledge that You may not use the Services, including but not limited to the API, to circumvent the requirement for an individual Authorized User Login for each individual who (a) leverages the Services to interact with End Users; (b) Processes data related to interactions with End Users; or (c) Processes data related to interactions originating from a Non-Metapack Service that provides functionality similar to functionality provided by the Services and which would, pursuant to this Agreement, require an individual Authorized User Login if utilizing the Services for such interaction. Should Metapack discover that Your use of a Metapack Service is not in compliance with this Agreement or the Service Plan features and limitations on Our Site, Metapack reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
2.2 Compliance. As between You and Metapack, You are responsible for compliance with the provisions of this Agreement by Authorized Users and End Users and for any and all activities that occur under Your Account, which Metapack may verify from time to time. You agree that You, Your Authorized Users and Your End Users shall be jointly and severally responsible for compliance with all laws and regulations applicable to Your use of the Services. You are solely responsible for ensuring that the use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Authorized Users or End Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes.
2.3 Content and Conduct. In Your access or use of the Services, You agree not to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Services available to any third party, other than Authorized Users and End Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Authorized Users or End Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Metapack or its Affiliates; (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s Intellectual Property Rights; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (i) use the Services to knowingly post, transmit, upload, link to, send or store any content that is (or directly or indirectly supports activities that are) unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (j) use the Services to store or transmit any “protected health information” as defined in 45 C.F.R. 160.103 provided that You are a “business associate” or “covered entity” as defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Metapack; (k) use the Services to knowingly post, transmit, upload, link to, send or store any Malicious Software; (l) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (m) attempt to use or use the Services in violation of this Agreement.
2.4 System Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, browser software that supports protocols used by Metapack, including the Transport Layer Security (TLS) protocol or other protocols accepted by Metapack, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Authorized Users or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) that are not owned, operated or controlled by Metapack. We assume no responsibility for the reliability or performance of any connections as described in this section 2.4.
2.5 Internal Business Purposes Only. Unless expressly agreed to otherwise in writing by Metapack, You may not use the Services in any manner where You act as a service bureau or to provide any outsourced business process services on behalf of more than one (1) third party (other than Affiliates) through a single Account. For the avoidance of doubt, You may not resell or outsource the Service(s) except as expressly authorized by Metapack. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Metapack from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in accordance with this Agreement.
2.6 No Competitive Access. You may not access the Services if You are a direct competitor of Metapack or its Affiliates. You may not access the Services for competitive purposes.
3.1 Term. Unless Your Account and subscription to a Service is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an Order Form, Your subscription to a Service will renew for an additional 12-month Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be the Subscription Charges for the previous Subscription Year plus a percentage increase in CPI (U.S.) or RPI (E.U.), plus 1%, for the 12 months prior to the date of the subsequent Subscription Year.
3.2 Cancellation. Either Party may terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing written notice no less than thirty (30) days prior to the end of such Subscription Term, unless otherwise provided for in the Order Form.
3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such written notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
If this Agreement is terminated by You in accordance with this section 3.3, We will refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination.
If this Agreement is terminated by Us in accordance with this section 3.3, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your Account pursuant to Section 3.3, in addition to any other amounts You may owe Metapack, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term pursuant to all applicable Order Forms.
3.5 No Refunds. Except for Your termination rights under Section 3.3, if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.
3.7 Effect of Termination or Expiration. Upon termination of Your Account, You will cease to use the Services and the Parties shall reasonably cooperate regarding the return (or destruction) of any Confidential Information held by either Party, including the return (or destruction) by You of the Documentation. You acknowledge that Metapack will block Your access to the Services on the effective date of termination.
4.1 Fees. Customer will pay all Subscription Charges specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) Subscription Charges are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
4.2 Invoicing and Payment. Payments for all Subscription Charges shall be made by direct debit and Customer will provide Metapack with valid and updated bank account information, or alternative document reasonably acceptable to Metapack. Customer authorizes Metapack to charge such bank account for all Subscription Charges listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in this Agreement. Such charges shall be made in advance, either annually or in accordance with any different Payment Frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than direct debit, Metapack will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Metapack and notifying Metapack of any changes to such information.
4.3 Overdue Charges. If any payment or invoiced amount is not received by Metapack by the due date, then without limiting Metapack’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Metapack may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
4.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, Metapack may, without limiting its other rights and remedies, accelerate Customer’s unpaid Subscription Charge obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that Metapack will give Customer at least 10 days’ prior notice that its account is overdue before suspending Services to Customer.
4.5 Payment Disputes. Metapack will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute
4.6 Upgrades. If You choose to upgrade Your Service Plan, increase existing Service quantities, or add new Services, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term, unless otherwise provided in the Order Form. In any future Subscription Term, Your Subscription Charges will reflect any such upgrades.
4.7 Downgrades. You may not downgrade Your Service Plan or reduce any Service quantities during Your Subscription Term. If You desire to downgrade Your Service Plan or reduce any Service quantities under any Service Plan for a subsequent Subscription Term, You must provide Metapack with thirty (30) days written notice prior to the end of Your then current Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Metapack does not accept any liability for such loss.
4.8 Taxes. Unless otherwise stated, Our charges do not include any Taxes. You are responsible for paying Taxes except those assessable against Metapack and its Affiliates measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
4.9 Customer acknowledges and agrees that any reference to a purchase order in an Order Form (or any associated invoice) is solely for Customer’s convenience in record keeping, and no such reference or any delivery of Services to Customer following receipt of any such purchase order shall be deemed an acknowledgement of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement the Agreement. The terms and conditions of the Agreement are the exclusive agreement of the parties with respect to the subject matter hereof and no other terms or conditions shall be binding upon Metapack or otherwise have any force or effect.
Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors, in each case, who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
6.1 Ownership of Service Data. You shall continue to retain Your ownership rights to all Service Data Processed under the terms of this Agreement.
6.2 Safeguards. Metapack will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data.
7.1 Customer as Data Controller. To the extent Service Data constitutes Personal Data, You and Metapack hereby agree that You shall be deemed to be the Data Controller, and the relevant entity in Metapack shall be deemed to be the Data Processor, as those terms are understood under the Applicable Data Protection Law.
7.2 Hosting and Processing. Unless otherwise specifically agreed to by Metapack, Service Data may be hosted by Metapack, or its authorized third-party service providers, in the US, the EEA or other locations around the world. In providing the Services, Metapack will engage entities within Metapack and other authorized service providers to Process Service Data, including and without limitation, any Personal Data within Service Data, pursuant to this Agreement within the EEA, the US and in other countries and territories.
7.3 Transfer of Personal Data. To the extent that Personal Data within Service Data originates from an Authorized User or End User in the EEA, as further described in our Data Processing Agreement, We will ensure that, pursuant to Applicable Data Protection Law, if Personal Data within Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), then such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 46 GDPR (or its equivalent under any successor legislation) is satisfied; or (c) the transfer takes place pursuant to the EU-US or Swiss-US Privacy Shield frameworks. We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission, which have been incorporated into the DPA.
7.4 Data Processing Agreement. Metapack’s Data Processing Agreement is available at https://www.metapack.com/legal/data-processing-agreement/. The DPA is hereby incorporated by reference herein into the terms of this Agreement.
7.5 Sub-Processors. You acknowledge and agree that Metapack may use Sub-Processors, who may access Service Data, to provide, secure and improve the Services. We shall be responsible for the acts and omissions of members of Metapack Personnel and Sub-Processors to the same extent that We would be responsible if Metapack were performing the services of each Metapack Personnel or Sub-Processor directly under the terms of this Agreement. The names and locations of all current Sub-Processors used for the Processing of Personal Data under this Agreement are set forth in the Sub-Processor Policy available on www.metapack.com.
7.6 Carriers. Unless otherwise specified, Carriers are data processors of the Customer and are not Sub-processors of Metapack. Metapack shall transfer Service Data to Carriers only on the instructions of the Customer.
We reserve the right to restrict functionality or suspend the Services (or any part thereof), Your Account or Your and/or Authorized Users’ or End Users’ rights to access and use the Services and remove, disable or quarantine any Service Data if (a) We reasonably believe that You, Authorized Users or End Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Authorized Users or End Users. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Authorized Users, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Authorized Users or End Users may be referred to law enforcement authorities at Our sole discretion.
Your access and use of Carrier Services shall be governed solely by the terms and conditions of such Carriers and their Carrier Services. Metapack does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Carrier Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data), or any interaction between You and the provider of such Carrier Services. We cannot guarantee the continued availability of such Carrier Service, and may cease enabling access to them without entitling You to any refund, credit or other compensation, if, for example and without limitation, the provider of a Carrier Service ceases to make the Carrier Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Metapack with respect to such Carrier Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Carrier Services, or Your reliance on the privacy practices, data security processes or other policies of such Carrier Services. You may be required to register for or log into such Carrier Services on their respective websites. By enabling any Carrier Services, You are expressly permitting Metapack to disclose Your login and Service Data as necessary to facilitate the use or enablement of such Carrier Services.
10.1 Each Party shall retain all rights, title and interest in its Intellectual Property Rights. The rights granted to You, Authorized Users and End Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of Metapack associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Metapack and belong exclusively to Metapack.
Metapack and its Affiliates shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Authorized Users, End Users, or other third parties acting on Your behalf. Metapack and its Affiliates also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, Authorized Users, End Users, or other third parties acting on Your behalf.
10.2 You may only use the Metapack Marks in a manner permitted by Us, provided You do not attempt, now or in the future, to claim any rights in the Metapack Marks, degrade the distinctiveness of the Metapack Marks, or use the Metapack Marks to disparage or misrepresent Metapack, its Affiliates or Our Services.
10.3 You consent to your identification as a customer of Metapack on Metapack and its Affiliates’ websites, and in other marketing materials distributed by Metapack and its Affiliates (which may include emails and other web and print materials) (collectively, “Metapack Marketing Materials”). In connection with such activity, Metapack may also display your trademarks, service marks, and/or logos in Metapack Marketing Materials. The foregoing shall be deemed a worldwide, nonexclusive and (except as set forth below) irrevocable license to the use of your name, trademarks, service marks, and logos for this purpose. The Parties agree that such license and consent shall terminate upon termination of your subscription to all Services.
10.4 Subject to prior approval of Customer, Customer also agrees to be referenced in press releases, case studies, and similar publications prepared by Metapack and/or its affiliates (collectively “Metapack Press Materials”). In connection with such activity, Metapack and/or its affiliates may also use and display Customer’s trademarks, service marks, and/or logos in Metapack Press Materials. The foregoing shall be deemed a worldwide, nonexclusive and (except as set forth below) irrevocable license to the use of Customer’s name, trademarks, service marks, and logos for this purpose. The Parties agree that such license and consent shall terminate upon termination of Customer’s subscription to all Services.
11.1 Authority. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
11.2 Warranties. We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Your exclusive remedies are those described in the Service Level Agreement and section 3.3.
11.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 11.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT METAPACK EXCHANGES CERTAIN INFORMATION FROM THIRD PARTY PARTNERS AND CARRIERS AND DOES NOT GUARANTEE THE ACCURANCY OF INFORMATION OR THE SERVICES FROM THIRD PARTY PARTNERS AND CARRIERS, INCLUDING THE ACCURACY OF RATES, DELIVERY INFORMATION, DELIVERY OF ITEMS, OR BUSINESS REQUIREMENTS OF ANY THIRD PARTY PARTNER OR CARRIER.
12.1 Indemnification by Us. We will indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Metapack for such defense, provided that (a) You promptly notify Metapack of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Metapack in connection therewith. If use of a Service by You, Authorized Users or End Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Metapack, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Metapack for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by (a) compliance with designs, data, instructions or specifications provided by You; (b) modification of the Service(s) by anyone other than Metapack or Metapack Personnel; or (c) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this section 12.1 state the sole, exclusive and entire liability of Metapack to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Authorized Users or End Users.
12.2 Indemnification by You. You will indemnify and hold Metapack harmless against any claim (a) arising from or related to use of a Service by You, Authorized Users or End Users in breach of this Agreement; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We fully cooperate with You in connection therewith.
13.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AUTHORIZED USERS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
13.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, METAPACK AND ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE FEES (INCLUDING ANY SUBSCRIPTION CHARGES AND/OR SERVICE FEES) PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 13.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY TAKING INTO ACCOUNT THE FEES RECEIVED BY US UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO CUSTOMER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
THE LIMITATIONS SET FORTH IN SECTION 13.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM METAPACK’S IP CLAIMS INDEMNITY OBLIGATIONS IN SECTION 12.1 OF THIS AGREEMENT.
13.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, METAPACK AND ITS AFFILIATES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13.4 Any claims or damages that You may have against Metapack shall only be enforceable against Metapack and not any other entity or its officers, directors, representatives or agents.
14.1 In-Product Cookies. Whenever You, Your Authorized Users or End Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. When We collect this information, We only use this data to provide the Services or in aggregate form, and not in a manner that would identify Your Authorized Users or End Users personally.
14.2 Operating the Services. Subject to the confidentiality terms set forth herein, Metapack may receive, collect, store and/or Process Personal Data based on Our legitimate interest under Applicable Data Protection Law to operate the Services. Metapack may also use Service Data in an anonymized manner, such as conversion to numerical value, for the training of the machine learning models to support certain features and functionality within the Service(s).
14.3 Communicating with You. We may communicate with You and Your Authorized Users, send You and Your Authorized Users product announcements and promotional offers or contact You and Your Authorized Users about the Services based on Our legitimate interest under Applicable Data Protection Law to offer information about the Services. If You or an Authorized User does not want to receive communications from Us, please indicate this preference by sending an email to [email protected] and provide us with the name and email address of each Authorized User that no longer wishes to receive these communications. You and Your Authorized Users will continue to receive transactional messages that are required for Metapack to provide the Services to You (such as billing notices and product usage notifications).
14.4 Promoting the Services. We may share aggregated and/or anonymized information regarding Your use of the Services with third parties for marketing purposes based on Our legitimate interest under Applicable Data Protection Law to develop and promote Service(s). We never disclose aggregated and/or anonymized information to a third party in a manner that would identify You as the source of the information or Your Authorized Users or End Users personally.
14.5 Improving the Services. We may collect, and we may engage third-party analytics providers to collect, Usage Data to develop new features, improve existing features or inform sales and marketing strategies based on Our legitimate interest under Applicable Data Protection Law to improve the Services. When Metapack uses Usage Data, any Personal Data that was included in Service Data shall be anonymized and/or aggregated in such a manner that it no longer constitutes Service Data or Personal Data under Applicable Data Protection Law. Any such third-party analytics providers will not share or otherwise disclose Usage Data, although Metapack may make Usage Data publicly available from time to time.
14.6 Connecting the Services. In the event that You decide to use a Carrier Service or You log into Our Services through an authentication service, or otherwise provide Us with access to information from such authentication service, Metapack may obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services based on Our legitimate interest under Applicable Data Protection Law to provide You with functionality to support the Services. Any access that We may have to such information from a third-party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a Carrier Service, You authorize Us to access and store Your username, password, account numbers, and any other Personal Data that the Carrier Service makes available to Us.
14.7 Third-Party Service Providers. You agree that Metapack and its Affiliates, and the third-party service providers that are utilized by Metapack and its Affiliates to assist in providing the Services to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose the Personal Data of Your Authorized Users to the extent necessary to provide, secure or improve the Services. Any third-party service providers utilized by Metapack and its Affiliates will only be given access to Your Account as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 5; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 7.
15.1 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any member of Metapack and its Affiliates or in connection with any merger or change of control of Metapack or Metapack and its Affiliates or the sale of all or substantially all of the assets of Metapack or Metapack and its Affiliates provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
15.2 Entire Agreement. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between You and Metapack with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.
15.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Metapack as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
The Services and other Software or components of the Services that We may provide or make available to You, Authorized Users or End Users are subject to UK and US export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Authorized Users and End Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under UK, US or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any UK or US government list of persons or entities prohibited from receiving exports, or transacting with any UK or US person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Authorized Users or End Users to access or use the Services in violation of any UK or US or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the UK or US and the country in which You, Authorized Users and End Users are located.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
All notices provided by Metapack to You under this Agreement may be delivered in writing (a) by a nationally recognized overnight delivery service (“Courier”) or certified mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner (with acknowledgement of receipt). You must give notice to Metapack in writing by Courier or certified mail to 200 Grays Inn Road, London WC1X 8XZ, UK, Attn: Legal Department, with a copy to 1990 E. Grand Avenue, El Segundo, California 90245, USA, Attn: Legal Department, [email protected] All notices shall be deemed to have been given: (a) if given by electronic mail, immediately upon acknowledgement of receipt; (b) or, if otherwise delivered, upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
If Your legal address is; a) outside of the United States this Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties hereby submit to the exclusive jurisdiction of the courts of England; b) within the United States, this Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute, claim or controversy arising out of or relating to this Agreement, including relating to Services provided hereunder, or related to the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having subject matter jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in Los Angeles, California. The Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
Sections 2.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.4, 5 through 7, 9, 10 through 20, and 24 shall survive any termination of this Agreement with respect to use of the Services by You, Authorized Users or End Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account” means any accounts or instances created by You or on Your behalf or Your Authorized Users within the Services.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“API” means the application programming interfaces developed, made available and enabled by Metapack that permit You to access certain functionality provided by the Services, including, without limitation, the Delivery Manager API.
“Applicable Data Protection Law” means the following data protection law(s): (a) the EU Regulation 2016/679 entitled “On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR)” and any applicable national laws made under it; and (b) the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
“Authorized User” means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account as an agent and/or administrator, each as identified through an individual Authorized User Login.
“Authorized User Login” a unique username and password provisioned on an Authorized User-by-Authorized User basis.
“Carrier” means any shipping or logistics organization, postal or parcel carrier, or pickup location.
“Carrier Service(s)” means any shipping or logistics service offered by a Carrier which You may connect to or enable in conjunction with a Service, including, without limitation, Carrier Services which may be integrated directly into Your Account by You or at Your direction.
“Confidential Business Information” means all Confidential Information that is not Service Data, including, without limitation, Your Authorized Users’ Personal Data and Account information, which Metapack may store in its systems separate from the Service and Our security policies and procedures.
“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, Customer Service Data and Confidential Business Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Metapack to You in the applicable Metapack help center(s), Site, Metapack Delivery Manager developer website (http://dev.metapack.com/devcentre/documentation/), or Metapack Delivery Option developer website (http://docs.ddo.metadev.io/); Metapack Service Capabilities; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
“End User” means any person or entity other than You or Authorized Users with whom Your Authorized Users, or Your End Users interact while using a Service.
“Force Majeure Event” means an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, disease, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Metapack Services, or acts undertaken by third parties, including without limitation, denial of service attack.
“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
“Metapack” means MetaPack Limited, registered in England and Wales with company number 03870530 whose registered office is at 4th Floor, 200 Grays Inn Road, London WC1X 8XZ, acting for and on behalf of its Affiliates.
“Metapack Marks” means any trademarks, service marks, service or trade names, logos or other designations of Metapack, whether registered or unregistered.
“Order Form” means Our generated service order form(s) executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the Service Plan, Quantity, start date, Term, and Charges for the Subscription.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Personnel” means employees and/or non-employee service providers and contractors of Metapack and its Affiliates in connection with performance hereunder.
“Planned Downtime“ is allowed downtime to update and maintain the included Services and is limited to 2 hours per calendar quarter, limited to the hours of 8pm to 4am GMT, is not allowed between November 15 and December 25, and requires notice to You five (5) business days in advance.
“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Service(s)” means the products and/or services that are provided to You by Metapack under this Agreement, including, any Software, updates, API, and Documentation. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent You are given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
“Service Data” means a subset of Confidential Information comprised of electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Authorized Users and End Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed in the Documentation and/or the Order Form applicable to the Service) for the Services.
“Site” means a website operated by Metapack, including www.metapack.com, as well as all other websites that Metapack operates.
“Software” means software provided by Metapack (either by download or access through the internet) that allows Authorized Users or End Users to use any functionality in connection with the applicable Service.
“Sub-Processor” means any third-party data processor engaged by Metapack, including entities from Metapack Affiliates, that receive Service Data from Metapack for Processing on behalf of Customer and in accordance with Customer’s instructions (as communicated by Metapack) and the terms of its written subcontract.
“Subscription Charges” means all charges associated with Your access to and use of an Account.
“Subscription Term” means the period during which You have agreed to subscribe to a Service.
“Subscription Year” means, with respective to each Service, each successive 12-month period within the Subscription Term, commencing with the applicable Start Date stated in the Order Form.
“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
“Usage Charges” means additional Subscription Charges that are incurred by You relating to the use of certain features and functionality that You enable within the Service.
“Usage Data” means metrics and information regarding Your use of the Service, including evaluating how Authorized Users and End Users use the Service.
“We,” “Us” or “Our” means Metapack as defined herein.