ShipRec Customer Agreement (“Customer Agreement”)
IMPORTANT: PLEASE READ THIS CUSTOMER AGREEMENT CAREFULLY AND PRINT IT OR BOOKMARK THIS PAGE TO MAINTAIN A COPY FOR YOUR RECORDS.
BY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR OTHERWISE USING SHIPREC OR SHIPREC‐ SUPPLIED SERVICES, OR BY CLICKING THE “ACCEPT” BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, INSTALLATION, UPGRADE OR UPDATE PROCESS, YOU ACCEPT AND AGREE TO BE BOUND BY THIS CUSTOMER AGREEMENT, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE “AGREEMENT”), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT. SHIPREC OFFERS SERVICES ONLY SUBJECT TO THE AGREEMENT AND THEREFORE YOU MUST ACCEPT THE AGREEMENT BEFORE YOU CAN DOWNLOAD, COPY, INSTALL, UPGRADE, UPDATE, ORDER, RECEIVE OR OTHERWISE USE SHIPREC OR
SHIPREC‐SUPPLIED SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN SHIPREC IS UNABLE TO OFFER, LICENSE OR SELL THE SHIPREC OR SHIPREC‐SUPPLIED SERVICES TO YOU AND YOU MAY NOT DOWNLOAD, COPY, INSTALL, ORDER, RECEIVE OR USE THEM.
THE AGREEMENT IS BETWEEN THE SHIPREC ENTITY THAT ACCEPTS THE ORDER FORM FOR THE APPLICABLE SERVICE (“SHIPREC,” “WE,” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR USING SHIPREC OR SHIPREC‐SUPPLIED SERVICES, OR THAT CLICKS THE “ACCEPT” BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, COPY, INSTALLATION, UPGRADE OR UPDATE PROCESS (“CUSTOMER,” “YOU,”
OR “YOUR”). YOU MAY ENTER THE AGREEMENT WITH MULTIPLE SHIPREC ENTITIES WITH RESPECT TO DIFFERENT SERVICES ORDER FORMS AND NO SHIPREC ENTITY HAS THE RIGHT TO ENTER ANY CONTRACT ON BEHALF OF OR AS AGENT FOR ANY OTHER SHIPREC ENTITY. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
Questions or Additional Information:
If you have questions regarding the Agreement or wish to obtain additional information, please send an e‐mail to
Last Updated: September 19, 2022
- RIGHT TO USE SERVICES. The Services are the property of ShipRec or its licensors, and are protected by law, including applicable copyright law. Although ShipRec or its licensors continue to own the Services (including any Devices
provided or made available therewith), after Customer’s acceptance of the Agreement and subject to Customer’s strict compliance therewith, Customer is granted a nonexclusive and nontransferable right to use the Services solely during the applicable Subscription Term for which Customer has paid the required fees consistent with the Order Form.
2. CHARGES AND PAYMENT.
2.1. General Requirement. Customer agrees to pay ShipRec when due the applicable amounts in accordance with the Documentation. Customer agrees to be responsible for paying for all fees for the entire Term, regardless of whether such Services are actively used. All payment obligations are non‐cancelable, and all amounts paid are nonrefundable.
2.2. Late Payments, Taxes, and Invoices. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1.5% of the unpaid amount each month or the maximum rate that is permitted by law. You must pay for all reasonable costs we incur to collect any past due amounts which costs may include reasonable attorneys’ fees and other legal fees and costs.
ShipRec’s fees are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to the Agreement, and you shall be responsible for payment of all such taxes, fees, levies, duties or similar fees, excluding only taxes based solely on ShipRec’s income. YOU MUST TELL US WITHIN NINETY (90) DAYS AFTER AN ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). YOU RELEASE US FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT YOU DO NOT REPORT TO US WITHIN (90) DAYS AFTER THE ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). If you do not tell us within this time, we will not be required to correct the error. We can correct billing errors at any time.
2.3. The above Charges and Payment Sections apply in all cases in which you are invoiced by ShipRec. If you are invoiced by an entity other than ShipRec, then the charges and payment terms for all payments under this Agreement are as stated to you by the other entity.
3. TERM AND TERMINATION.
3.1. Term and Auto‐Renewal. The initial term for each Subscription shall be as set forth in the Order Form. Upon the expiration of the initial term, unless otherwise set forth on the Order Form, each Subscription will automatically renew for successive monthly terms at the same rates. Either party may terminate any Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least five (5) business days prior to the expiration date of the current term. With respect to each Subscription, the current term shall be referred to as the “Term” herein.
3.2. Termination. In addition to the rights otherwise set forth in the Agreement and not in limitation thereof, ShipRec may terminate the Agreement and the rights granted herein in whole or in part with respect to all Services purchased by Customer upon written notice to Customer in the event of a material breach by Customer of the Agreement or any of its obligations to any ShipRec entity, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the Customer’s receipt of such written notice. Customer may terminate any affected Subscription upon written notice to ShipRec in the event of a material breach by ShipRec of the Agreement with respect to such Subscription, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the ShipRec’s receipt of such written notice.
3.3. Refund/Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, ShipRec will refund Customer any prepaid fees covering the remainder of the Term of all Order Forms after the effective date of termination. If this Agreement is terminated by ShipRec in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law as consideration for pricing accommodations and other consideration and as a fair
approximation of damages and not as a penalty. In no event will termination relieve Customer of its obligation to pay any fees payable to ShipRec for the period prior to the effective date of termination.
3.4. Effect of Termination. In the event of termination, cancellation, or expiration: Customer’s rights to the Services shall immediately terminate; Customer shall immediately return all Devices that were not paid for in the same condition in which they were received (reasonable wear and tear accepted) and all sections of the Agreement other than the grant in Section 1 shall survive.
3.5. If you are invoiced by an entity other than ShipRec: (a) ShipRec retains all termination rights stated above and the “Effect of Termination” clause shall apply in all cases; and (b) otherwise, the terms regarding termination under this agreement are as stated to you by the other entity if different than set forth herein.
4. CONFIDENTIALITY. Each party agrees to hold the other party’s Confidential Information in confidence and not to use it for any purpose other than to provide or receive the Services under the Agreement as applicable. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care. Confidential Information may only be disclosed to those Affiliates, employees, contractors and advisors of the ShipRec Entities or the Customer, as applicable, on a need‐
to‐know basis and who agree to be bound by confidentiality restrictions; provided that nothing herein shall prevent or prohibit a party from using or disclosing Confidential Information as may be required by law, rule, regulation or legal process. Confidential Information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information.
5. PRIVACY & SECURITY; CUSTOMER CONTENT; SERVICE SUSPENSION.
5.1. ShipRec complies with all international data and privacy laws and Customer agrees that Customer Content may be stored, transferred and processed outside of Customer’s country.
5.2. Customer Content. You retain all right, title, and interest in and to the Customer Content. You hereby grant to ShipRec a nonexclusive, worldwide, royalty‐free, fully paid, transferable license to host, cache, record, copy, and display Customer Content solely for the purpose of providing the Services.
5.3. Responsibility for Use of Services. You are responsible for any networks or equipment used by you, maintenance of the secrecy and security of your passwords and acknowledge you are fully responsible for all activities that occur on your accounts including any loss or theft of Customer Content. You further agree not to use the Services for or in connection with any illegal or improper purpose, activities or in violation of this Agreement or in violation of any third‐party rights. Customer agrees to properly clean and maintain all Devices. The Services require Updates to run properly; these Updates may occur automatically and without notice and may cause disruption in Services. You are responsible to inspect unit and accessories upon arrival; if items are missing or unit is defective you must contact ShipRec immediately.
5.4. Downtime and Service Suspensions. We shall be entitled, to suspend access to any portion or all of the Services:
(a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons; (d) if you engage in any conduct or activities that is in excess of average customer usage parameters including but not limited to your bandwidth, CPU or disk space usage and such usage by you is or may adversely affect the performance or availability of the Services, ShipRec’s infrastructure or resources, or ShipRec’s other customers; or (e) if you engage in any conduct or activities that ShipRec in good faith believes to be in violation of any of the terms and conditions in the Agreement.
5.5. Submissions. You may submit questions or comments to ShipRec from time to time. ShipRec reserves the right to edit and post such questions or comments along with answers, if any. All such communications and any comments, feedback, suggestions, scripts, ideas, and other submissions related to the Services submitted to ShipRec (collectively, “Submissions”) will be and remain ShipRec’s property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are hereby assigned (and in the future deemed to be assigned) by you to ShipRec.
6. RESTRICTIONS. Customer agrees to the following:
6.1. Proprietary Rights. You acknowledge that: (a) ShipRec is the exclusive owner of all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know‐how and other proprietary rights relating to the Services; and (b) ShipRec may automatically track and monitor Devices, users and the Services to collect ShipRec Information, and ShipRec is the exclusive owner of the ShipRec Information and may sell, publish or otherwise use the ShipRec Information for any purpose at its sole discretion. You acknowledge that the Services contain trade secrets of ShipRec or its suppliers or licensors. You agree not to disclose, provide, or otherwise make available trade secrets
contained within the Services in any form to any third party and you further agree to implement reasonable security measures to protect such trade secrets. You agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Services. Unless expressly set forth in the Agreement, you may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer,
directly or indirectly any rights in the Services. You may not remove from the Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. IF YOU ARE NOT AN EMPLOYEE, INDEPENDENT CONTRACTOR, OR INVITEE OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SERVICES.
7. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES; INTERNET DELAYS.
7.1. Limited Service Warranty. ShipRec warrants that during an applicable Subscription Term the Services will perform materially in accordance with the applicable Documentation. For any breach of this warranty, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.2. Limited Device Warranty. ShipRec warrants that during an applicable Subscription Term the Devices when used in accordance with the Agreement will perform materially in accordance with the applicable Documentation. For any breach of this warranty, Customer’s exclusive remedy is replacement of the Device by ShipRec, in each case subject to the condition that any error or defect constituting a breach of this limited warranty is reported to ShipRec and the defective Device is returned to ShipRec. This warranty does not apply if the Devices, or any other equipment upon which the Devices is authorized to be used: (a) has been altered, except by ShipRec or its authorized representative, (b) has not
been installed, operated, repaired, or maintained in accordance with instructions supplied by ShipRec, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing or demonstration purposes; or (e) any Devices for which ShipRec does not receive a license fee or are Trial Services.
7.3. Disclaimer Of Warranties. EXCEPT AS SET FORTH IN THE PRECEDING SECTION, ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. EACH OF THE SHIPREC ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF NON–NEGLIGENT PERFORMANCE. THE FOREGOING
DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR‐FREE, VIRUS‐FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SERVICES WILL BE
FREE OF HARMFUL ASPECTS. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE’S ENJOYMENT OF THE SERVICES OR AGAINST INFRINGEMENT.
7.4. Networks and Fault Tolerance. SERVICES MAY BE SUBJECT TO LIMITATIONS, SECURITY RISKS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, NETWORKS AND ELECTRONIC COMMUNICATIONS. SHIPREC ENTITIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, SECURITY BREACHES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE SERVICES CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE
SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
8. EXCLUSION OF DAMAGES; LIMITATION ON LIABILITY.
8.1. Exclusion Of Certain Damages. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR
NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN “DIRECT DAMAGES” AS DESCRIBED BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR BREACH OF CONTRACT OF SHIPREC OR ANY OF THE OTHER SHIPREC ENTITIES, AND EVEN IF SHIPREC OR ANY OF THE SHIPREC ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION
ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.2. Limitation On Liability. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU UP TO THE AMOUNT PAID FOR THE APPLICABLE SERVICES DURING THE SERVICES TERM IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY).
8.3. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Services. Customer acknowledges and agrees that ShipRec has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. The limitations
and exclusions provided for by this section reflect an informed and voluntary allocation of risks between the parties and applies to risks both known and unknown that may exist in connection with the Agreement.
9. THIRD PARTY CLAIMS.
9.1. ShipRec’s Obligations Re Third‐Party Infringement Claims. ShipRec will defend, at ShipRec’s expense, any lawsuit brought against you in any court located within the United States, insofar (but only insofar) as the suit is based on a claim that the Services, as provided by ShipRec to you, directly infringes any third party patent or copyright, provided that: (A) ShipRec is notified in writing of the lawsuit within thirty (30) days after you obtain actual knowledge of it, (B) ShipRec is given full control over the defense of such claims, and (C) you give ShipRec reasonable assistance and cooperation in its defense of the claim. If your use of the Services is determined in a final, enforceable judgment to infringe
a third‐party patent or copyright, ShipRec, at its own expense, shall either (1) procure for you the right to continue using the Services, or (2) modify the Services so that they become non‐infringing while giving acceptable performance, or (3) in the event that neither of the foregoing options (1) and (2) are reasonably available to ShipRec, terminate the Agreement with respect to the Subscription(s) for the infringing Services without compensation or other liability other than refunding amounts prepaid, if any, by Customer for a terminated Subscription for time period after the termination. Notwithstanding
anything to the contrary in the Agreement, ShipRec will have no obligation to you on account of any third‐party claim of infringement that results from (V) any use by you of the Services in violation of the Agreement, (W) any damage to, or misapplication or misuse of the Services by you; (X) your combination of all or any portion of the Services with items not supplied by ShipRec; or (Y) your use of any superseded, altered, or allegedly infringing version or release of all or any portion of the Services if such alleged infringement could be avoided by the use of a different version or Update made
available to you by ShipRec; or (Z) any information, design, specification, instruction, data, or material not furnished by ShipRec. You agree to defend, indemnify and hold harmless the ShipRec Entities against any claims of infringement by third parties resulting from any of the circumstances listed in the immediately preceding sentence. The foregoing states ShipRec’s entire responsibility with respect to intellectual property claims and Customers sole and exclusive remedy.
10.1. Assignment. No party may assign the Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except: (A) in the case of ShipRec, ShipRec may assign the Agreement without your prior consent to: (1) one or more of the ShipRec Entities, (2) an acquirer of assets, or (3) a successor by merger. Any purported assignment in violation of this section shall be void.
10.2. Choice of Law. The Agreement shall be governed by the laws of the jurisdiction of the ShipRec Entity that accepts the Order Form which jurisdiction shall be set forth on your invoice and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Services shall be subject to the exclusive jurisdiction of the courts located in the city or county (or similar municipal scope of jurisdiction) where the ShipRec Entity that accepts you Order Form is located which jurisdiction shall be set forth on your invoice. If either party commences litigation in connection
with the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
10.3. Waiver and Severability. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of its any of obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance in the future of any of the other party’s obligations under the Agreement. If any of the provisions of the Agreement shall be held by a court of competent jurisdiction for any reason to be unenforceable by reason of being excessively broad, or excessively narrow or limited, in
its scope or duration, the offending provision(s) automatically shall be deemed amended so as to be as broad as is permissible (if the unenforceability is due to excessive breadth) or as narrow or limited (if the unenforceability is due to excessive narrowness or limitation) as is permitted by applicable law. The unenforceability or invalidity of any one provision shall not affect the remainder of the Agreement, which shall continue in full force and effect.
10.4. Compliance With Law. You shall abide by all applicable local, state, national and foreign laws, rules, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data.
10.5. Force Majeure. ShipRec’s performance of the Agreement (including the Privacy Statement) is subject to existing laws and legal process, and you agree that ShipRec may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of the Agreement. Each party’s obligation to perform its obligations hereunder (other than your obligation to pay fees when due) shall be suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of
God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party.
10.6. Agreement Priority. The terms of this Agreement govern access and use of the Services, provided that to the extent there is an applicable separate non‐electronic agreement manually signed by authorized representatives of the parties, the order of precedence shall be the manually signed agreement and then the Agreement.
10.7. Entire Agreement. The Agreement constitutes the entire agreement between ShipRec and you with respect to the Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non‐electronic, between ShipRec and you regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to ShipRec, will have no effect and that the Agreement is the only contract between ShipRec and you regarding the Services and may only be amended as set forth herein.
10.8. Amendments. ShipRec may, at any time, amend the provisions of the Agreement, and you may accept the amended provisions in the manner indicated in the amendment notice as communicated by ShipRec. Any amendment proposed by you may only be accepted by ShipRec in a non‐electronic writing manually signed by authorized representatives of the parties. Therefore, you agree to periodically visit the Website to examine the then‐current Agreement.
11. DEFINITIONS: All capitalized terms defined in the Agreement have the meanings as defined herein. In addition, as used in the Agreement the following terms shall be defined as set forth below:
11.1. “Affiliates” means any legal entity that a party owns, which owns the party, or which is under common ownership with the party. “Ownership” means, for the purposes of this definition, more than 50% ownership.
11.2. “Confidential Information” means the proprietary and non‐public: technical, financial, marketing, staffing and business information; business strategies, marketing plans, industry and competitive information; technology and pricing information; employee and personal information; and the trade secrets of the ShipRec Entities on the one hand or the Customer and its third party clients on the other hand. Confidential Information does not include information that: (a) was or becomes publicly available or in a party’s possession without breach of the Agreement; (b) is developed by a party
independently of and without reference to the other’s Confidential Information; or (c) is rightfully obtained by a party from third parties authorized to make such disclosure.
11.3. “Customer Content” means all Customer Content, information and materials that are uploaded by or for you or that is accessed by ShipRec in connection with your use or ShipRec’s provision of the Services including without limitation personal information, photographs, caricatures, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips but does not include Submissions or ShipRec Information.
11.4. “Devices” means ShipRec or ShipRec‐distributed hardware.
11.5. “Documentation” means written information (whether contained in catalogs, maintenance policies, user or technical manuals, training materials, support policies, specifications, copyright attributions or otherwise) pertaining to the Services and made available by ShipRec with the Services in any manner (including via email, on the Website or other on‐line format) as updated or amended by ShipRec from time to time and includes the Customer Agreement and Order Form(s) and SOW(s).
11.6. “Order Form” means the ShipRec form evidencing the Customer order, and which may specify, among other things, the number of Devices or Service licenses and other services purchased, the applicable fees, the billing period, Term and other items, each such Order Form to be incorporated into and to become a part of the Agreement; and depending on the Services ordered, the Order Form may be completed online, may be the ShipRec invoice or billing statement, or may be an SOW.
11.7. “ShipRec Entities” means ShipRec and any licensors and suppliers providing any part of the Services; and all subsidiaries, Affiliates, officers, employees, consultants, and agents of any of the foregoing.
11.8. “ShipRec Information” means any non‐personally identifying information relating to or arising from the capabilities, problems, successes, statistics, diagnostics, inventory, composition, configuration, performance (or lack thereof) of: (a) the Services or (b) any machines or hardware comprising, or used in connection with or otherwise related to any of the foregoing.
11.9. “Service(s)” means the ShipRec services set forth in the applicable Documentation and includes such Documentation and any Devices provided with the Service.
11.10. “SOW(s)” means a statement of work, work order, or other similar document executed by ShipRec and Customer which sets forth Services to be performed by ShipRec.
11.11. “Subscription” means, subject to the terms and conditions of the Agreement, the Customer has the right to access and use the applicable Services only for the Term as set forth in the Order Form.
11.12. “Territory” means the geographic region where Services may be deployed and used for which Customer has paid the applicable fees and unless otherwise agreed to by ShipRec in writing is the country where Customer is invoiced for the applicable Service.
11.13. “Updates” mean changes that ShipRec makes from time to time to the applicable Service.
11.14. “Website” means http://www.ShipRec.io and related ShipRec micro‐site(s), or regional or in country websites applicable to Customer or the applicable Services.