THIS USER AGREEMENT (the "Agreement") governs Your use of this Site, including Your use or purchase of any product or service offered on or through the Site.
By accepting this Agreement, either by clicking the box indicating your acceptance or by executing an Order Form that references this Agreement, You agree to be bound by the terms of this Agreement, which is effective between You and Us as of the time you accept it.
You may not use this Site if You are a competitor of Ours and You may not access the Products and Services for purposes of monitoring their availability, performance or functionality or for any other benchmarking or competitive purposes. By accepting this Agreement, you represent and warrant that You are not a competitor of Ours and agree inter alia to indemnify Us against any breach of such representation and warranty.
This Agreement is subject to change without notice and it is Your responsibility to be aware of the latest terms, policies and procedures it contains.
This Agreement was last updated on 11/1/2010.
"Affiliate" means any individual or other entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Claims Guide" means the online claims guide for the Purchased Products and Services, accessible via http://www.onepak.com/docs/OnePak_Customer_Claims_Guide.pdf. You acknowledge that You have had the opportunity to review the Claims Guide prior to accepting this Agreement. Our Claims Guide is subject to change without notice and it is Your responsibility to be aware of the latest policies and procedures outlined in it.
"Confidential Information" means all confidential information disclosed by either of Us ("Disclosing Party") to the other ("Receiving Party"), whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms and information regarding their respective businesses. Our Confidential Information shall include the Products and Services and the information concerning Our intellectual property, specifically including, but not limited to, information concerning discoveries, ideas, concepts, know-how, techniques, designs, specifications, models, samples, data, computer programs, source code, software, equipment specifications, locations and use, implementation of technology in each case in whole or in part, together with analyses, compilations, programs, reports, proposals, or any other documentation, prepared by You, that contain or otherwise reflect or make reference to such information, whether or not specifically marked as confidential by Us.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means any ordering documents, including but not limited to purchase orders or proposals, work authorizations or statements of work accepted by You and transmitted to Us by any means or online forms for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time.
"Products" means any item offered for shipment or download via the Site, including but not limited to shipping supplies, shipping labels and software applications.
"Purchased Products and Services" means Products and Services that You or Your Affiliates purchase under an Order Form.
"Services" means Our online, web-based applications and platform (including services provided by us and accessed or purchased via the Site), Our handheld software application, and shipping kits provided by Us, as well as the offline, onsite asset scanning, asset packing, transportation and delivery services provided by Our contracted third party logistics providers (3PLs).
"Site" means the web site accessible via http://www.returncenter.com, including any subdirectories or customized versions thereof.
"Users" means individuals who are authorized by You to use and order the Products and Services, who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means OnePak, Inc..
"You" or "Your" means you individually and, if you are entering into this Agreement on behalf of a company or other legal entity, such company or other legal entity for which You are accepting this Agreement and Affiliates of you individually and/or that company or other entity, as the case may be. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such company or other legal entity and its Affiliates to this Agreement, in which case the terms "You" or "Your" shall refer to such company or other legal entity and its Affiliates as well as to you individually. If you are entering into this Agreement on behalf of a company or other legal entity and do not have such authority, or if you do not agree with anything contained in or referenced by this Agreement, you must not accept this Agreement and may not use the Products or Services.
2. PURCHASED PRODUCTS AND SERVICES
2.1. Provision of Purchased Products and Services. We shall provide the Purchased Products and Services to You pursuant to this Agreement and any relevant Order Forms. You agree that Your use of the Products and Services and any purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3. USE OF THE PRODUCTS AND SERVICES
3.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Products and Services at no additional charge and (ii) use commercially reasonable efforts to make the Purchased Products and Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give notice when practicable via email and which We shall schedule to the extent practicable during the weekend, or (b) any unavailability caused by circumstances described in Section 10 (Force Majeure).
3.2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for conforming to the restrictions of use of confidential information in Section 6, (iii) be solely responsible for the accuracy, quality and integrity of Data entered via the Site, (iv) be responsible for prompt payment for Purchased Products and Services, as described in Section 4 (Fees and Payment for Purchased Products and Services) , and (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Products and Services and notify Us promptly of any such unauthorized access or use. You shall not (a) make the Products or Services available to anyone other than Users or permit any third party to access the Products or Services, (b) sell, resell, rent or lease the Services, (c) use the Products or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Products or Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Products or Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Products or Services or their related systems or networks, (g) create derivative works based on the Site or the Products or Services, (h) copy, frame or mirror any part or content of the Site or the Products or Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes.
4. FEES AND PAYMENT FOR PURCHASED PRODUCTS AND SERVICES
4.1. Products and Service Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on Products and Services purchased and actually delivered, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Products and Services listed in the Order Form. Such charges shall be made in advance, or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Products and Services.
4.3. Overdue Charges. If any charges are not received from You by the due date, then, at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future purchases and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment). Our acceptance of late or partial payments (even if marked "paid in full" or the like) does not waive Our right to recover unpaid amounts. If, in order to collect payment due under this Agreement, We must take action beyond invoicing You for Products or Services provided, You agree to pay, in addition to the outstanding balance of any invoice, all contractual and statutory interest, as well as the costs and expenses of collection, including, but not limited to, reasonable attorneys' fees and costs.
4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Products and Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Products and Services to You until such amounts are paid in full.
4.5. Payment Disputes. We may choose not to exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
4.6 Taxes. Unless otherwise agreed to in writing, all amounts invoiced shall be exclusive of any applicable sales, use, or similar taxes for which You are obligated to pay Us. You have no liability for any taxes based on Our net assets or income, or for which You have an appropriate exemption.
4.7 Pricing. Pricing for Our Products and Services to be invoiced to You will be based on actual asset count, conditions, mileage, online transactions and any other actual factors affecting all Purchased Products and Services.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Products and Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.1 Nature of Confidential Information. All Confidential Information is deemed proprietary to the Disclosing Party. The Receiving Party hereby agrees, as set forth below, to hold Confidential Information of the Disclosing Party, whether furnished before, on or after the date of this Agreement, in the strictest confidence, and not to use or disclose such information to anyone except as otherwise provided for in this Agreement.
6.2 Non-exhaustive Definition of Confidential Information; non-marking. The Receiving Party hereby agrees that Confidential Information will also include information that is not specifically encompassed in the definition thereof above, but that would reasonably be expected to be considered confidential by the Disclosing Party. Any questions as to the confidentiality expectations of the Disclosing Party regarding particular information should be submitted to the Disclosing Party for determination. In addition, the Parties hereby agree that although Confidential Information is not required to be marked as such under this Agreement, some Confidential Information which is delivered to the Receiving Party hereunder may indeed be so marked.
6.3 Use of Confidential Information. You agree that You will not (a) use Confidential Information to compete with Us or to provide Products or Services competitive with the Products or Services provided by Us, (b) reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody Our Confidential Information and which are provided to You hereunder or (c) solicit business from, or seek to provide Products or Services competitive with those provided by Us to, Our clients or potential clients about whom You receive or learn Confidential Information or to which You have been introduced by Us.
6.4 Ownership of Confidential Information. The Receiving Party acknowledges that the Disclosing Party claims the Confidential Information as its sole and exclusive property (or that the Disclosing Party is a valid licensee of such information) and that the Receiving Party shall not have any right, title, or interest in or to such Confidential Information except as expressly provided in this Agreement.
6.5 Disclosure of Confidential Information. The Receiving Party agrees to hold in the strictest confidence and not to disclose to anyone for any reason Confidential Information of the Disclosing Party; provided, however, that Confidential Information of the Disclosing Party may be disclosed by the Receiving Party upon the prior written consent of the Disclosing Party.
6.6 Unauthorized Access to Confidential Information. If the Receiving Party has reason to believe any Confidential Information under its control has been accessed by unauthorized individuals, it shall immediately report the incident fully to the Disclosing Party.
6.7 Disclaimers. The Disclosing Party provides all Confidential Information hereunder "as is," and shall not be liable for any damages arising out of the Receiving Party's use of such Confidential Information. The Receiving Party shall indemnify and hold the Disclosing Party harmless against any claims arising out of the Receiving Party's use of such Confidential Information.
6.8 Limitations on Confidential Information. The obligations contained herein shall not apply to any information that:(a) Is or becomes generally available to or known by the public (other than as a result of a disclosure directly or indirectly by the Receiving Party);
6.9 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.10 Term. The obligations of confidentiality and non-disclosure hereunder shall be perpetual.
6.11 Injunctive Relief. The Receiving Party acknowledges and agrees that the covenants and obligations contained in this Agreement relate to special, unique, and extraordinary matters, and that a violation of any of the terms of such covenants and obligations will cause the Disclosing Party irreparable injury for which adequate remedies are not available at law. Therefore, the Receiving Party agrees that the Disclosing Party shall be entitled to an injunction, restraining order, and such other equitable relief (without the requirement to post bond) restraining the Receiving Party from committing any violation of the covenants and obligations contained in this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies the Disclosing Party may have at law or in equity.
7.1 Mutual Warranties. Each party to this Agreement represents and warrants that it has the legal authority and power to enter into this Agreement and perform its obligations hereunder.
7.2 Our Warranties. We warrant that all Products and Services provided by Us under this Agreement shall materially conform to the specifications provided by Us in accordance with this Agreement or on any Order Form.
THE EXPRESS WARRANTIES SET FORTH IN SECTION 7 ABOVE ARE THE ONLY WARRANTIES GIVEN BY US WITH RESPECT TO PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. WE MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIM ANY WARRANTIES WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.3 Your Warranties. You represent and warrant that Our performance under this agreement in accordance with the specifications provided by You will not violate or infringe upon any right of privacy, personality or publicity, any trade secret, patent, copyright, trademark, know-how, moral right or any similar rights of any type under the laws of any governmental authority, domestic or foreign, nor violate any contract to which You are a party, nor violate any right of any third party.
8.0 INDEMNIFICATION(a) You agree to defend, indemnify, and hold harmless Us, Our Affiliates and Our and their officers, directors, employees, representatives, and agents ("Our Indemnitees") from and against any and all claims, actions, demands, legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs or expenses, including without limitation reasonable attorneys' fees and costs, incurred or imposed upon Our Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments to the extent they arise out of or relate to (i) any alleged or actual acts or omissions of You or Your employees, agents or contractors and (ii) Your failure to perform or comply with the terms and conditions of this Agreement, specifically including, but not limited to, the warranties contained in Section 7 above.
9.0 LIMITATION OF LIABILITY
9.1 Limitation of Liability. Except for your obligations under Section 8 ("Indemnification") and as elsewhere set forth in this Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
9.2 Cargo Liability. Our cargo liability for any one shipment shall not exceed $0.50 (fifty cents) per pound unless We are notified by You of the increased value prior to shipment pickup and with reasonable advance notice to allow Us and/or Our contracted 3PL or the carrier to procure additional coverage at Your added expense.
9.3 Cargo Coverage. We shall provide that Our contracted 3PL or its carrier shall carry coverage with limits not less than the following and shall provide that the carrier shall be liable for the full actual value of any loss of or damage to the Customers' Assets up to the following limitations:(a) General Liability: $1,000,000 per occurrence
9.4 Claims Process. We shall facilitate claims for cargo damage and loss filing by You and reporting to You in accordance with Our contracted 3PL's or carrier's documented claims process and in accordance with Our Claims Guide, which is available online at http://www.onepak.com/docs/OnePakCustomerClaimsGuide.pdf. Our Claims Guide is subject to change without notice and it is Your responsibility to be aware of the latest policies and procedures outlined in it.
10 Force Majeure.
We will be not liable to You for failure to perform Our obligations under this Agreement due to acts of God, terrorism, floods, fires, storms, strike, or other conditions beyond Our reasonable control; provided, however, We will give prompt notice to You of the delay in Our performance and will commence Our performance promptly upon the cessation of the condition. Nonperformance by Us under this provision shall not be considered as grounds for breach of this Agreement; provided, however, that this Agreement may be terminated by You where such nonperformance exceeds one hundred eighty (180) days in the aggregate.
11.1 Contracting Parties. For self-service Purchased Products and Services, including shipping kits, shipping labels, software application download or handheld device rental, You are contracting with Us. For full-service Purchased Services, including Asset Collection Services, onsite asset scanning, asset packing, transportation and delivery, You will review and confirm your order, estimated pricing, and Our contracted third party logistics provider (3PL). At that time you will enter into a separate service agreement with the selected 3PL.
11.2 Dispute Resolution.(a) Before initiating a lawsuit against the other relating to a dispute or claim arising out of or relating to this Agreement, We and You shall first work in good faith to resolve between Ourselves such dispute or claim. To this end, either party may request that each party designate an officer or other management employee with authority to bind the party to meet and resolve the dispute or claim. This provision shall not apply if: (i) the expiration of the statute of limitations for a cause of action is imminent; or (ii) injunctive or other equitable relief is necessary to mitigate damages.
11.3 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law.
11.4 Relationship of the Parties: The parties are independent entities and neither party is an employee, agent, servant, representative, partner, or joint venturer of the other, or has any authority to assume or create any obligation or liability of any kind on behalf of the other.
11.5 No Assignment. The respective rights and obligations of the parties under this Agreement may not be assigned or transferred by a party to any other person, partnership, firm, limited liability company, corporation or other entity without the prior written consent of the other party.
11.6 Entire Agreement. This Agreement, including any Order Form(s), contains the entire understanding of the parties with respect to the subject matter hereof and applies in addition to (and not in lieu of) any other agreement between the parties relating to the subject matter of this Agreement. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Master Agreement or SOW, the Master Agreement or SOW shall prevail. Any use of pre-printed forms, including, but not limited to purchase orders, acknowledgements, or invoices, is for convenience only and all pre-printed terms and conditions stated thereon, except as specifically set forth in this Agreement, are void and of no effect.
11.7 Waiver. The failure of any party to insist on strict compliance with the terms and conditions of this Agreement in any given instance shall not be considered or construed as a modification of this Agreement or as a waiver of any right the parties have hereunder, including the right to insist on strict compliance at all other times.
11.8 Notices: All notices provided for in this Agreement shall be given in writing and shall be effective upon on the earlier of (a) the third day following placement in the mail or (b) actual physical delivery to the receiver's address by personal delivery, electronic facsimile transmission, express overnight courier service, or by registered or certified mail, return receipt requested, addressed to the parties at the following addresses (or to such other address or addresses as either party may later specify by written notice to the other):
If to OnePak: OnePak, Inc., 56 Main Street, 2nd Floor, Orleans, MA 02653, Attn: Legal Department.
If to Our contracted 3PLs: Specific contact information for notices for claims will be provided during the claims process for the appropriate contracted 3PL as specified in the Claims Guide.
11.9 Severability: Should any one or more of the provisions of this Agreement be determined to be invalid, unlawful or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired by such determination.
11.10 Captions. The captions or headings in this Agreement are made for convenience and general reference only, and shall not be construed to describe, define or limit the scope or intent of the terms and conditions of this Agreement.
11.11 Remedies. Except as may be otherwise provided in this Agreement, the rights or remedies of the parties hereunder are not exclusive, and either party is entitled alternatively or cumulatively, subject to the other provisions of this Agreement, to damages for breach, to an order requiring specific performance, or to any other remedy available at law or in equity.
11.12 SUCCESSORS. The Parties agree that this Agreement shall be binding upon the successors and assigns of such Parties and shall inure to the benefit of, and be enforceable by, such successors and assigns, and any officers or directors thereof.