SendSuite® Tracking Online Subscription Agreement
SendSuite® Tracking Online Subscription Agreement
(August 2016)
IMPORTANT: DO NOT USE THIS SERVICE UNTIL YOU HAVE READ AND AGREED TO THIS LICENSE AGREEMENT. This is an agreement between you (“You” or “Client”) and Pitney Bowes of Canada Ltd. (“PBC”). By clicking next to “I ACCEPT” prior to accessing the Service or by executing an Order, you are agreeing to the terms of this SendSuite Tracking Online Subscription Agreement (the “Agreement”). IF YOU ARE NOT WILLING TO BE BOUND BY THE AGREEMENT, click next to “I DO NOT ACCEPT” and terminate your access to the Service. The terms of this Agreement will only apply to the extent You and PBC have not executed a separate agreement for the same Service.
1. Definitions. For the purposes of this Agreement, the following terms will have the corresponding definitions:
“Allotment” means the number of Transactions, Users, or Sites You have purchased for use during a given Term;
“Available Hours of Operation” will be twenty-four (24) hours per day, seven (7) days per week, except for Scheduled Downtime as defined in Section 9, below;
“Client Data” means any data, such as contact lists (including personally identifiable data such as phone numbers, email addresses, physical addresses, etc.), package tracking data and reports, or other material submitted by a User to the Service or provided by You to PBC for the performance of the Service;
“Documentation” means the current technical and user documentation for the Service provided via the “Help” file within the Service;
“Order” means the document pursuant to which You acquire a license to access the Service;
“Service” means the SendSuite Tracking Online subscription service offered by PBC as a hosted, on demand application;
“Transaction” means each completed and/or recorded record of a parcel’s receipt and/or delivery;
“Term” means the term of the Agreement or the Order, as applicable, set out in Section 3, below; and
“User” means an individual authorized by Client to use the Service in accordance with the Agreement.
2. Grant of Rights. PBC hereby grants Client a non-exclusive, non-transferable license to access and use the Service for its internal business purposes in accordance with the terms of this Agreement. PBC reserves all rights to the Service not expressly granted by this Agreement.
3. Term; Termination.
a) This Agreement is effective as of the Effective Date set forth in the Order and will remain in effect for an initial Term of twelve (12) months (the “Initial Term”). Thereafter, this Agreement will continue in effect until all Orders have expired or been terminated unless otherwise terminated by a party hereunder.
b) Each Order will be effective on the date set out therein and will remain in effect during the Initial Term identified in the Order. Upon expiration of the Initial Term, each Order will automatically renew on a month to month basis (the “Monthly Term”) unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the current Monthly Term, (the Initial Term and Monthly Term, as applicable, referred to as the “Term”).
c) Either party may terminate this Agreement or any Order by written notice if the other party commits a material breach of this Agreement or the applicable Order and fails to cure such breach within fifteen (15) days after receipt of such notice, or an additional period of time as agreed to by the parties.
d) Upon termination of this Agreement or expiration or termination of an Order for any reason, Client will immediately cease use of the Service and PBC and Client will promptly return all Confidential Information of the other party. Termination of this Agreement or an Order does not affect Client’s obligation to pay any amounts due to PBC.
e) Sections 4 (Fees, Payment Terms), 6 (Privacy Statement), 7 (Proprietary Rights; Suggestions), 8 (Non-infringement; Indemnification), 11 (Warranties; Disclaimers), 12 (Limitation of Liability), 16 (Applicable Law), and 17 (Audit Rights) will survive termination of this Agreement indefinitely or to the extent set out therein.
4. Fees; Payment Terms.
a) Client will pay to PBC, or PBC’s authorized designee or agent, the fees set out in each Order for the Allotment set forth therein for the Initial Term. Client will be billed monthly or quarterly in advance as set forth in the Order for the Allotment for the next billing period. PB reserves the right to bill for monthly overages. Unless otherwise identified in the Order, all fees are stated in and will be paid in Canadian currency. If Client fails to pay any invoices by the due date, PBC may suspend performance of the Services upon five (5) days written notice to Client. Except as otherwise provided in the Order, PBC may change the monthly or other usage fees upon thirty (30) days’ notice to Client. Any increase in fees will not be effective until the commencement of the subsequent Term.
b) Method of Payment. Client may elect to pay the fees due an existing PitneyWorks® account. Please refer to your current PitneyWorks® terms and conditions for more information. Alternative payment methods must be agreed upon in writing by PBC.
c) The fees do not include any amount for taxes. Client will pay all local sales, use, property, excise, privilege, ad valorem, Internet-related, and other taxes imposed on or with respect to this Agreement or an Order for the Services provided hereunder. If any sales, use, excise or other taxes (except for taxes based on PBC’s net income) are assessed against or required to be collected in connection with this Agreement or an Order, PBC will itemize such taxes on invoices issued in connection with the Order.
d) Allotments purchased may be used at any time during the Initial Term of the Order. Unused Transactions may not be carried over into subsequent Monthly Terms.
5. Client Responsibilities.
a) Except as otherwise provided in an Order, You will use the Service solely for your internal business purposes and will not use the Service on behalf of or make the Service available to any third party. All Client Data submitted to the Service must be submitted in PBC’s submission format in accordance with the Documentation or any other format agreed to by the parties. Client is required to set up and configure the Service prior to its use.
b) You will comply with applicable laws governing use of the Services, including, without limitation, any data protection or privacy laws or laws applicable to shipping packages or import/export requirements. You will be solely responsible for the content of all Client Data submitted to the Service and will comply with all laws, rules and regulations relating to the use, disclosure and transmission of such Client Data.
c) Restrictions. You are not permitted to use the Service: (i) in the promotion or commitment of any illegal activities: (ii) to send or store infringing, obscene, threatening or unlawful or tortious material, or (iii) to disrupt other users of the Service, network services or network equipment. Disruptions include, but are not limited to, denial of service attempts, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, or use of the Service to make unauthorized entry to any other device accessible via the network or Service. In addition, You will not reverse engineer, decompile or disassemble the Service. The occurrence of any of the foregoing will be deemed a material breach and PBC may immediately terminate this Agreement upon notice to You.
d) You hereby represent and warrant that You have obtained and will maintain any and all certifications, licenses or other authorizations necessary or proper in furtherance of Your use of the Service, including without limitation, federal certification pursuant to United States Department of Transportation regulations regarding the identification, processing and transportation of hazardous materials, if applicable.
6. Privacy Statement. PBC will hold Client Data in confidence in accordance with the Privacy Statement applicable to use of PBC’s hosted services located at http://www.pitneybowes.com/ca/en/our-business/what-we-do/privacy-policy.html.
7. Proprietary Rights; Suggestions. Client will retain all right, title and interest in and to all Client Data. Client grants PBC a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Service. PBC reserves the right to use, without limitation, any anonymized or aggregated data that does not identify Client or any User relating to use of the Service.
8. Non-infringement; Indemnification.
a) PBC will indemnify, defend and hold Client harmless from any claim by a third party that the Service provided by PBC hereunder, when used in accordance with this Agreement and the Documentation, infringes or misappropriates any copyright, patent, trademark or trade secret of such third party. PBC will have control of the defense and will defend, at its own expense, any claim or litigation to which this indemnity relates, including the right to settle any such claim. Client must notify PBC promptly of any such claim and will provide reasonable cooperation to PBC, upon PBC’s request and at PBC’s cost, to defend such claim. PBC will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of an indemnified party not otherwise covered by this indemnification without indemnified party’s prior consent. Client may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
b) If the Service is subject to a claim of infringement or misappropriation, or if PBC reasonably believes that the Service may be subject to such a claim, PBC reserves the right to: (i) offer a non-infringing replacement Service, at no cost to Client, which replacement will be functionally equivalent to the Service; (ii) procure, at no cost to Client, the right to continue to use the Service; or (iii) direct Client to terminate use of the Service. If PBC directs Client to terminate use of the Service, Client's remedies, in addition to the indemnification set out herein, will be limited to a refund of any prepaid but unused fees for the Service.
c) PBC will not indemnify Client or be liable for claims arising from the use of the Service with data, hardware or software not provided by PBC or Client's use of the Service other than as permitted in this Agreement and the Documentation.
d) Client will indemnify, defend and hold PBC harmless against any claim arising from: (i) Client’s use of the Service in a manner not permitted under this Agreement; (ii) a claim that the Client Data or any other data, files or other materials provided by Client to PBC infringes any patent, copyright or trademark or misappropriates any trade secret; (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Service; or (iv) acts of gross negligence or willful misconduct. Client will have control of the defense and will defend at its own expense, any claim or litigation to which this indemnity relates. PBC will notify Client promptly of any such claim and will reasonably cooperate with Client, upon Client’s request and at Client’s cost, to defend such claim. PBC may participate in the defense and settlement of the claim at its own expense with counsel of its choosing. Client will not agree to any settlement absent PBC’s prior written consent.
9. PBC Responsibilities; Support.
a) PBC will use best efforts to make the Services available during the Available Hours of Operation in accordance with this section. Support for the Service will be available in accordance with the Support Terms located at http://www.pitneybowes.com/us/license-terms-of-use/shipping-and-mailing-maintenance-services-terms.html.
b) The Service may be inaccessible or inoperable during certain periods to permit PBC to perform routine maintenance support services (“Scheduled Downtime”). Scheduled Downtime will be scheduled outside normal business hours, such as nights and weekends. PBC will use reasonable commercial efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with Scheduled Downtime or other disruption of Service.
10. Services. Consulting and other professional services such as integration, customized training, etc. will be performed by PBC under the terms of a separate services agreement agreed to by the parties.
11. Warranties; Disclaimers.
a) PBC represents and warrants to Client that the Service will materially conform to the Documentation. PBC does not warrant the operability or accuracy of any Client Data processed by PBC.
b) PBC DOES NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE OR THAT PBC WILL CORRECT ALL ERRORS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND PBC AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. PBC WILL NOT BE LIABLE FOR: (i) ANY LOSS OF CLIENT DATA; OR (ii) LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE SERVICE.
c) THE SERVICE MAY CONTAIN A DISABLING DEVICE OR DEVICE REQUIRING ENABLEMENT: (i) TO COMPLY WITH REQUIREMENTS OF REGULATORY AUTHORITIES; (ii) TO PREVENT USE OF THE SERVICE BEYOND THE TERM OF AN ORDER; AND/OR (iii) TO PREVENT USE OF THE SERVICE IN EXCESS OF THE ALLOTMENT SET OUT IN AN ORDER.
12. Limitation of Liability.
A) DISCLAIMER. NEITHER PARTY NOR PBC’S THIRD PARTY SUPPLIERS WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
B) MAXIMUM LIABILITY. IN ANY EVENT, PBC AND ITS THIRD PARTY SUPPLIER’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER (IN TORT, CONTRACT OR OTHERWISE) WILL NOT EXCEED THE AMOUNT OF FEES PAID TO UNDER THE APPLICABLE ORDER.
C) EXCLUSIONS. THE FOREGOING DISCLAIMER SET FORTH IN SECTION 12(A) AND MAXIMUM LIABILITY SET FORTH IN SECTION 12(B) DO NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.
13. Force Majeure. Except for Client’s payment obligations, neither party is responsible from any delay or failure to perform resulting from causes beyond its reasonable control.
14. Assignment. Client will not assign any of its rights or obligations under this Agreement without the prior written consent of PBC, which consent will not be unreasonably withheld, delayed or denied.
15. Publicity. Neither party will use the name of the other party in any press release or other marketing collateral without the written consent and prior approval of the other party; provided, however, PBC may include Client's name in any client list.
16. Applicable Law. These Terms will be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Any dispute between us arising out of or in any way relating to these Terms (whether in contract or otherwise) will be resolved exclusively in the General Division of the Ontario Court of Justice
17. Audit Rights. PBC will have the right, upon five (5) business days’ notice to Client, one (1) time per each twelve (12) month period and at PBC’s sole cost and expense during regular business hours, to audit Client’s records to determine compliance by Client with the terms of this Agreement. Client will provide all reasonable assistance to PBC during such audit.
18. General.
a) No waiver of or failure to act regarding any breach of this Agreement or an Order by either party or the failure of either party to insist on the exact performance of any provision of this Agreement or an Order will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing.
b) Any notice alleging a breach of this Agreement will be in writing and will be sent by overnight courier or delivered in person to the Client’s address set forth in the Order, and to PBC at Pitney Bowes of Canada Ltd., 5500 Explorer Drive, Mississauga, ON L4W 5C7, along with a copy to our legal counsel: Attn. Chief Legal Officer and Corporate Secretary, Pitney Bowes Inc., 3001 Summer Street, Stamford, CT 06926Any other notice required to be provided by PBC under this Agreement may be sent by Canada Post mail or e-mail to the individual designated by Client in the applicable Order.
c) If any provision of this Agreement or Order, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement or Order will remain in full force and effect.
d) Each party will act as an independent contractor and employees of each party will not be considered to be employees of the other party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.
19. Entire Agreement. This Agreement (including each Order) and all appendices, exhibits, schedules and attachments thereto constitutes the entire agreement between the parties with regard to the subject matter, may not be modified or amended except by a writing signed by both parties hereto except as otherwise indicated herein, and supersedes all proposals, purchase orders, understandings, representations, prior agreements or communications relevant to Client’s use of the Service. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Client and any such terms will have no force or effect. Client has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents, y compris tous avis, s’y rattachant, soient rédigés en langue anglaise seulement.