1. General Terms
ShipperBee Canada Inc. and its subsidiaries and affiliates (collectively, “ShipperBee”) grants licenses under this agreement (“License”), authorizing and governing access to and use of (amongst other things) ShipperBee websites, ShipperBee Appsand ShipperBee Licensed Technology (collectively called the “ShipperBeeSystem”). The ShipperBee System facilitates delivery of parcels contracted by shipping customers (“Shippers”) to be executed by independently contracted Carriers (“Carriers”). Both Carriers and Shippers constitute “Users” of theShipperBee system and the Terms outlined in this agreement apply to all Users.Users variously communicate, contract for, and facilitate parcel deliveries through the authorized use of their own Internet-enabled smartphones, tablets,computers or the like that have been registered in connection with their License (the “Services”).
2. ShipperBee License
- In consideration of the provision of the Services by ShipperBee and the rights granted to Users under this Agreement,Users shall pay the License fees (as defined below) set forth herein.
- ShipperBee does not currently charge Users a specific License Fee for access to, or use of, the ShipperBee System. ShipperBee,however, reserves the right in the future to charge other or additional License Fees, including License Fees for (i) new or extended opportunities or modalities, (ii) new or modified Apps, or (iii) your continued access to and use of all or certain features or functionalities of ShipperBee System.
- ShipperBee currently collects its License Fee asa component of the charges levied in association with parcel delivery transaction costs paid by Shipper Licensees (“Shipper License Fees”). All Shipper License Fees are payable in the currency invoiced. The User shall be responsible for any and all taxes,including without limitation harmonized sales tax (HST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes,duties and charges of any kind imposed by any federal, provincial, state,municipal, territorial or local government entity on any amounts payable by users hereunder.
- ShipperBee reserves the right to implement a Suspension of your License, account and access to and use of ShipperBee System without any notice to you.
- In the event of such a suspension, you may request ShipperBee to end such Suspension by contacting ShipperBee and if required resolving any issues with remedies as specified by ShipperBee.
3. Legal Disclaimers
- Use of the ShipperBee System components, Apps (the “Apps”), Technology and Website (the “Site”) (collectively the ShipperBee System) is subject to acceptance of the terms and conditions of this and other agreements.Please read these agreements carefully before using any components of theShipperBee System. By accessing and using any of the ShipperBee System components you indicate your acknowledgment and legally binding acceptance of these terms and conditions
- SHIPPERBEE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SHIPPERBEE PRODUCTS OR SERVICES TO WHICH YOUR PROVISION OF THE SERVICES RELATES. THE SHIPPERBEESERVICES AND SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SHIPPERBEE IS NOT RESPONSIBLE FOR ANY DELAYS,DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS
- By entering into this agreement, you agree that you shall defend,indemnify and hold ShipperBee, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, members,employees, attorneys and agents harmless from and against any and all claims,costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this agreement or any applicable law or regulation, including any local laws or ordinances, whether or not referenced herein, or (b) your ownership, use or operation of a motor vehicle, via the ShipperBee's Software or Services made available from time to time.
4. ShipperBee System, Apps and Data
- You acknowledge and agree as follows
- ShipperBee System may automatically download and install in or on ShipperBee System certain updates for the Web Interfaces,ShipperBee Apps, Device Code or other Software of ShipperBee System, onto your registered device, and you hereby consent to such downloading and installation without any separate notice thereof from ShipperBee. You also agree to receive and install such downloads, and understand that this is a condition of your ongoing license.
- If you or ShipperBee terminates the License orif you allow the License to expire or remain subject to any ongoing Suspension,your data (including any of your data stored on or in connection with ShipperBee System) might not be preserved by ShipperBee.
- ShipperBee may change the ShipperBee System at any time without providing you notice and without having any liability to you or any other person or entity. ShipperBee may post descriptions of changes toShipperBee System on a Site. If you do not agree with any such changes, your sole and exclusive remedy is to not use ShipperBee System. Your continued use of ShipperBee System indicates your acceptance of, and agreement to, such changes as part of your ongoing License.
- Furthermore, You will
- accurately furnish all contact and other information requested by ShipperBee and notify ShipperBee immediately of any change in such information, including a change in ownership of any registered User device;
- properly maintain your registered device;
- not use ShipperBee System in violation of any laws, regulation or court order, or for any unlawful or abusive purpose;
- not use ShipperBee System in any manner otherthan as intended by ShipperBee and expressly permitted by these Terms;
- not use ShipperBee System, in any manner that could harm ShipperBee, its affiliates, or any other person;
- strictly comply with these Terms and any other requirements or restrictions requested or imposed by ShipperBee from time to time.
- ShipperBee Apps
- ShipperBee may make available ShipperBee Apps that permit ShipperBee System to be accessed and operated through smart phones or other mobile devices. Without limiting any restrictions set forth else wherein these Terms, the License granted to you for any ShipperBee App is limited to a non-transferable License to use ShipperBee App only on an account registered mobile device that you own or control. Users shall not assign any of their rights or delegate any of their obligations under this agreement without the prior written consent of ShipperBee. Any purported assignment or delegation inviolation of this Section is null and void. No assignment or delegation relieves Users of any of its obligations under this agreement.
- ShipperBee Apps are licensed, not sold, to you for use only under these Terms. This license does not allow you to useShipperBee Apps on any mobile device that you do not own or control which is not a registered device on your account, and you may not distribute or makeShipperBee Apps available over a network, or where it could be used by multiple devices at the same time. Without limiting any of the other restrictions set forth in these Terms, you may not rent, lease, lend, sell, redistribute or sublicense ShipperBee Apps, and you will not copy, decompile, reverse engineer,disassemble, attempt to derive the source code of, modify, or create derivative works of any ShipperBee Apps, any updates, or any part thereof (except as andonly to the extent any foregoing restriction is prohibited by applicable law orto the extent as may be permitted by the licensing terms governing use of any open sourced components included with any ShipperBee Apps). Any attempt to doso is a violation of the rights of ShipperBee and its licensors. If you breach this restriction or any other terms or conditions of this License, you may be subject to prosecution and damages.
- These Terms will govern any upgrades provided byShipperBee that replace and/or supplement the original ShipperBee App, unless such upgrade is accompanied by a separate license designated by ShipperBee, in which case the terms of that separate license will govern.
- ShipperBee does not guarantee that ShipperBee Apps will be available for, or function in connection with, all smartphones or other mobile devices. The additional content and services associated with a ShipperBee App may also change at any time in ShipperBee’s sole discretion.
- In order to use ShipperBee Apps, in addition to paying any applicable License Fees, you must also have access to an appropriate data plan from your wireless carrier at your sole cost. ShipperBee is not responsible for data overages, data fees or for actions that your wireless carrier may take against you for using data in violation of your wireless carrier’s service terms.
- All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trade-marks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith,derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Users under this agreement or prepared by or on behalf of ShipperBee in the course of providing the Services shall be owned by ShipperBee
- ShipperBee hereby grants the Users a license to use all Intellectual Property Rights free of additional charge and on anon-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up,royalty-free and perpetual basis to the extent necessary to enable the User to make reasonable use of the Services
- Additional Provisions for ShipperBee Apps:
SHIPPERBEE APPS MAY CONTAIN OPEN SOURCE SOFTWARE AND/OR OTHER MODULES OR CODE PROVIDED BY THIRD PARTIES
5. Roles and Relationships
- The parties hereto agree that
- ShipperBee is not in any sense a broker, acarrier, a mover, a freight forwarder nor an agent of or for either the Carrieror the Shipper, nor an employer of the Carrier; and,
- The Carrier is in every way, an independent contract or with respect to both ShipperBee and the Shipper, and not an employee of either.
- Nothing contained in this agreement shall be construed as creating agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between ShipperBee and Users, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
6. Idea Submission
- If you submit to ShipperBee a comment, idea,recommendation, suggestion or any other material (“Feedback”) related toShipperBee Apps, Devices or any other component of ShipperBee System (excluding any illegal content), including through a Site or a ShipperBee Apps, you irrevocably assign to ShipperBee, without further consideration, all of your right, title and interest in and to such Feedback, and all intellectual property rights related thereto, throughout the world. You agree thatShipperBee will be entitled to use and implement, and to authorize others to use and implement, such Feedback without restriction and without any obligation of confidentiality, attribution or compensation to you.
- To the extent that the foregoing is deemedin effective, you will and hereby do grant to ShipperBee (and its successors and assigns) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, paid-up right and license, with the right to grant sublicenses to others,through multiple levels, to use, sell, offer for sale, make or have made,display, perform, reproduce, modify and create derivative works, import,export, and distribute and otherwise freely exploit the Feedback, in whole or in part, in any and all media, whether alone or together or as part of any material of any kind or nature.
- Without limiting any of the foregoing,ShipperBee will have the right to use, copy, display, perform, distribute,modify and re-format Feedback in any manner that ShipperBee may determine. By submitting Feedback, you represent and warrant to ShipperBee that (i) you have all necessary rights in and to such Feedback to do so and to provide the foregoing assignments and grants, (ii) none of the Feedback (or the information contained therein) infringes, misappropriates or violates any proprietary,intellectual property or other rights of any other person or entity, or contains any libelous, tortious, or otherwise illegal content.
- You may terminate the License and your use of ShipperBee System without cause at any time, and ShipperBee may suspend or terminate the License and your use of ShipperBee System without cause at anytime; however, no refund of License Fees, if any, will be issued to you in connection with any termination.
- ShipperBee may also terminate your access to and use of ShipperBee System (as well as the access and use of any person or persons associated with your account) at any time if you fail to pay any applicable License Fees within 15 days after becoming due, or if ShipperBee, in its sole discretion, determines that you have failed to strictly comply with these Terms. Termination will not relieve you of any obligation to pay License Fees or other obligations accrued prior to the effective date of termination.
- ShipperBee reserves the right to modify or discontinue ShipperBee System at any time. You agree ShipperBee may do so without liability.
8. Indemnity and Release
- Limitation of Liability: You will, at your own cost, indemnify, defend and hold ShipperBee, its affiliates, and its and their respective distributors, dealers, resellers, providers, suppliers, licensors,officers, directors, employees, agents, independent Carriers and representatives(collectively, the “Indemnified Parties”) harmless from and against any and all losses, fines, settlements, fees, costs, damages, and expenses (including attorneys’ fees and costs and expenses of investigation) arising or resulting in any manner from your breach of or other failure to strictly comply with these Terms or from any access to or use of (or the inability to access or use)ShipperBee System, or any portion thereof.
- YOU HEREBY RELEASE SHIPPERBEE AND THE OTHER INDEMNIFIED PARTIES FROM ANY AND ALL CLAIMS, LIABILITIES AND LOSSES IN CONNECTION WITH SHIPPERBEE SYSTEM, INCLUDING CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OFSHIPPERBEE SYSTEM, EVEN IF CAUSED BY THE FAULT OR NEGLIGENCE OF SHIPPERBEE OR ANY OTHER INDEMNIFIED PARTY, OR THE MALFUNCTION OF SHIPPERBEE SYSTEM.
- ShipperBee is not assuming responsibility or liability to Users or any third party for any losses or damages (including any direct, indirect, special, reliance, incidental or exemplary damages and consequential damages or loss of anticipated profits, attorneys’ fees or economic loss), irrespective of the cause, that may occur even if due toShipperBee’s negligent performance or failure to perform any obligation under these Terms or any other basis. In the event of any breach of these Terms byShipperBee, your sole and exclusive remedy, and ShipperBee’s sole and exclusive obligation, will be the refund the applicable License Fee (if any) paid by you for the portion of ShipperBee System that is the subject of such breach byShipperBee.
- This agreement is for the sole benefit of ShipperBee, the Users and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- In the event that, notwithstanding these Terms,ShipperBee is held to be liable to you, or any invitees, agents, employees or other person or entity, regardless of the legal theory asserted, whether arising out of contract, extra-contractually or in tort (including actions based on negligence, gross negligence, strict liability, and willful and/or intentional conduct), warranty, indemnity, or other theory of liability and whether related to the design, performance, use, defect or failure of a product or service,then to the maximum extent permitted by Applicable law, the limitation of ShipperBee’s liability for any and all harm, damages, injury or loss will not exceed, in the aggregate, the greater of $100 or the amount of License Fees (ifany) actually paid by you to ShipperBee during the twelve (12) month period preceding the last event giving rise to such liability.
- YOU HEREBY RELEASE SHIPPERBEE AND THE OTHER INDEMNIFIED PARTIES FROM, AND WAIVE ALL CLAIMS FOR DAMAGES EXCEEDING THE LIMITS SET FORTH HEREIN FOR ALL HARM, DAMAGES, INJURY OR LOSS INCURRED, INCLUDING ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, COLLATERAL, EXEMPLARY,PUNITIVE, RELIANCE OR SPECIAL DAMAGES (INCLUDING BUSINESS INTERRUPTION OR LOSS OF DATA (DIRECT OR INDIRECT), GOODWILL, PROPERTY DAMAGE, PERSONAL INJURY,DEATH, ATTORNEYS FEES, REPUTATION, REVENUE, OR PROFITS), EVEN IF FORESEEABLE ORTHEY WERE ADVISED OR MADE AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES AND REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT,EXTRA-CONTRACTUAL LIABILITY, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE,STRICT LIABILITY, AND WILLFUL AND/OR INTENTIONAL CONDUCT), WARRANTY, INDEMNITY,OR OTHER THEORY OF LIABILITY. This limitation is a material inducement forShipperBee to furnish ShipperBee System to you. Some states or other jurisdictions do not allow limitations of liability, so the above limitations may not apply to you, and you may have other legal rights that vary by jurisdiction.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT NO LAWSUIT OR ANY OTHER LEGAL PROCEEDING CONNECTED WITH THESE TERMS,OR SHIPPERBEE SYSTEM WILL BE BROUGHT OR FILED BY YOU MORE THAN ONE (1) YEAR AFTER THE INCIDENT GIVING RISE TO THE CLAIM OCCURRED.
- You understand and agree that these Terms will (i) apply to and protect the employees, officers, shareholders, parent companies, directors, agents, licensors, representatives, Carriers, affiliates and assignees of ShipperBee and other Indemnified Parties, and (ii) be binding on you, your heirs, administrators, custodians, trustees, agents and successors.
- You understand and acknowledge that (i) the Software and Devices that make up ShipperBee System are not impenetrable and may be the subject of efforts by others to compromise the security or operation of such ShipperBee System or to intercept data passing from, to or between components of ShipperBee System; and (ii) bad actors may attempt to use or hijack your Device(s) and portions of the Software as a part of an Internet of Things botnet or for other harmful or illegal purposes. Should any such acts,compromise or other incident occur, ShipperBee’s liability will be limited as provided herein, and ShipperBee will have no responsibility or obligation to investigate, remediate, or remedy such acts, compromise, or incident.ShipperBee will notify you of an incident to the extent required by applicable law.
- No waiver by ShipperBee of any of the provisions of this agreement is effective unless explicitly set forth in writing and signed by ShipperBee. No failure to exercise, or delay in exercising, any rights remedy, power or privilege arising from this agreement operates or maybe construed as a waiver thereof. No single or partial exercise of any right,remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
9. Agreement and Amendment
- These Terms are effective upon acceptance by you, supersede all prior agreements, understandings, negotiations,representations and warranties, and communications relating to ShipperBeeSystem, any Site and/or ShipperBee Apps, and constitute the entire agreement between you and ShipperBee with respect to the subject matter hereof. There are no written or oral understandings that are not fully expressed in these Terms relating to such subject matter.
- License Fees are subject to change (including the imposition of new License Fees) by ShipperBee and You will be deemed to receive notice if sent by ShipperBee by electronic mail or by posting on theSite.
- ShipperBee may update, amend and change these Terms and your continued use of ShipperBee system indicates your agreement to such changes.
10. Enforcement and Jurisdiction
- All matters arising out of or relating to this agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provisions or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
- You agree that if any Dispute (as defined below)arises hereunder, either you or ShipperBee may demand in writing that the Dispute (be it any dispute, controversy or claim arising out of or relating to this contract including any question regarding its existence, interpretation,validity, breach or termination or the business relationship created by it)shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules.
- The place of the arbitration shall be Guelph, Ontario, Canada.
- There shall be three arbitrators. Each party may nominate an arbitrator of its own choosing and the third arbitrator will be selected by mutual agreement between the parties’ selected arbitrators.
- The language of the arbitration shall be English.
- The Arbitral Tribunal must select its award from one of the final offers made by each of the Parties, in its entirety and without modification. The Arbitral Tribunal need not provide detailed reasons for its award. An oral hearing need not be held. There will be no appeal from the decision of the Arbitral Tribunal on questions of fact, law, or mixed fact and law.
- Whether or not any Dispute (or part of a Dispute) is subject to arbitration, YOU AGREE THAT ANY CLAIM WILL BE BROUGHT ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, THEREBY WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION relating in any way to a Dispute, WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY and agree to have such matter tried by a court without a jury.
- Each party will continue to have the following rights: (a) right to file for bankruptcy in court; (b) right to take legal action to enforce the arbitrator’s decision; and (c) right to request that a court of law review whether the arbitrator exceeded its authority.
- A “Dispute” is any controversy or claim that relates in any way to the ShipperBee System, the Site, and any ShipperBee App or otherwise related to these Terms and conditions, and/or any question regarding whether a matter is subject to arbitration under these provisions.The arbitrator’s award will be final and binding on all parties to the arbitration.
- Either party may enter judgment on the award in any court. If ShipperBee is required to enforce these Terms in court,ShipperBee will be entitled to its legal fees, including but not limited to attorneys fees, and costs incurred in doing so.
- Nothing in these Terms will give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from the provisions of these Terms.
- The words “include,” “includes” and “including” will be deemed to be followed by the phrase “without limitation”.
- With respect to any judicial action taken, the parties hereby agree to submit to the exclusive personal jurisdiction of the Province of Ontario and Canadian federal courts situated in Ontario.
- If any provision of these Terms or the application of any such provision to any person, entity or circumstance shall be held invalid, illegal, or unenforceable in any respect, such invalidity,illegality, or unenforceability will not affect any other provision of these Terms, which will remain in full force and effect, and will be binding upon the parties hereto and their respective heirs, executors, representatives,employees, affiliates, successors, and assigns.
- The parties intend that all disclaimers of warranties, limitations of liability, and exclusions of damages in these Terms will be upheld and applied to the maximum extent permitted by law.
- Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this agreement.