This EPISHIP (Online) Agreement (the “Agreement”) is entered into between EPISHIP and the party which agrees to these terms (“Customer”). “EPISHIP” means
(i) EPISHIP, with offices at EPISHIP, with respect to all other EPISHIP services. This Agreement is effective as of the date you click the “I Accept” button below or, if applicable, the date the Agreement is countersigned (the “Effective Date”).
(i) you have full legal authority to bind your employer or the applicable entity to these terms;
(ii) you have read and understand this Agreement; and
(iii) you agree on behalf of the party that you represent to this Agreement. If you do not have the legal authority to bind your employer or the applicable entity please do not accept these terms (or, if applicable, do not sign this Agreement). This Agreement governs Customer’s access to and use of the Services as ordered in the applicable Order Form.
EPISHIP will provide the Services ordered in the applicable Order Form in accordance with the applicable SLA. Customer may use the Services ordered in the applicable Order Form in accordance with this Agreement.
As necessary to provide the Services, EPISHIP may transfer, process, and store Customer Data in the United States or any other country in which EPISHIP or its agents maintain facilities. Through use of EPISHIP Services, Customer consents to this transfer and storage of Customer Data.
EPISHIP will not use Customer Data for Advertisement purposes.
EPISHIP may make new applications or features for the Services available occasionally, the use of which may be conditional upon Customer’s agreement to additional terms.
Customer must verify an Email Address to use the Services. If Customer does not have valid permission to use the Email Address or does not own or control the Email Address, then EPISHIP will have no obligation to provide Customer with the Services and may delete the Account without notice.
The Service Specific Terms are incorporated by this reference into the Agreement.
EPISHIP will notify Customer at least 12 months before a Significant Deprecation unless EPISHIP reasonably determines that:
(i) EPISHIP is not permitted to do so by law or by contract (which includes a change in applicable law or contract), or
(ii) to continue to provide the Service that is subject to the Significant Deprecation could create a
(A) security risk or
(B) substantial economic or technical burden.
Subject to Section 2.1
(a) (Deprecation Policy), EPISHIP may make changes to the Services, which may include to add, update, or discontinue any Services or feature(s) of the Services. EPISHIP will notify Customer of any material change to the Core Services.
EPISHIP may change the URL Terms, subject to Section 2.2(d) (Objection to Changes).
EPISHIP will notify Customer of any material change to the URL Terms.
Material changes to the URL Terms will become effective 30 days after the notice is given, except that
(i) materially adverse SLA changes will become effective 90 days after notice is given; and
(ii) changes applicable to new Services or functionality will be effective immediately.
Unless a(n) EPISHIP change to the URL Terms is required by a court, judicial or administrative order issued by the competent authority or by applicable law, or applies to new Services or Functionality, then the below will apply:
(i) If a change to the URL Terms has a material adverse impact on Customer, then Customer may object to the change by notification to EPISHIP within 30 days after EPISHIP provides notice.
(ii) If Customer so notifies EPISHIP, then Customer will remain governed by the URL Terms in effect immediately before the change until the earlier of: (A) the end of the then-current Order Term or (B) 12 months after the notice was given.
Customer will
(a) ensure that Customer and its End Users’ use of the Services, which includes all access to and use of Customer Data by Customer and its End Users, complies with this Agreement and with any of its applicable contract terms or policies, which include any employment contracts or employer’s policies in regard to technology usage, security, or confidentiality;
(b) use reasonable efforts to prevent unauthorized access or use of the Services; and
(c) promptly notify EPISHIP of any unauthorized use of, or access to, the Services of which Customer becomes aware.
EPISHIP makes optional Additional Products available to the Customer. Use of Additional Products is subject to the Additional Product Terms.
EPISHIP will provide Customer access to the Admin Console for the Administrator to manage Customer use of the Services (and use of the Services by Customer End Users, if applicable). Customer may use the Admin Console to specify one or more Administrators who will have the rights to access Admin Account(s). Customer is responsible for:
(a) maintain the confidentiality and security of the End User Accounts and associated passwords; and
(b) any use of the End User Accounts. Customer agrees that EPISHIP’s responsibilities do not extend to the internal management or administration of the Services for Customer or any End Users.
An Administrator will have the ability to access, monitor, use, modify, withhold, or disclose Customer Data associated with any End User Accounts and control End User’s access to the Services. An Administrator may also have the ability to:
(i) control account settings for End User Accounts (includes changes to End User Account passwords) and
(ii) remove or disable any Services or Additional Products or other services/products enabled or installed through use of the End User Account. Use of Additional Products or other services/products with the End User Accounts is at Customer’s own risk.
If Customer orders Services via Merchant, at Customer’s discretion, Merchant may have access to Customer’s Account and Customer’s End User Accounts. As between EPISHIP and Customer, Customer is solely responsible for: (i) any access by Merchant to Customer’s Account or Customer’s End User Accounts; and (ii) definition of within the Merchant Agreement any rights or obligations as between Merchant and Customer with respect to the Services.
Customer will obtain and maintain all required consents to permit:
(i) Customer’s, and its End Users’ if applicable, use of the Services; and
(ii) access to, storage of, and the process of Customer Data under this Agreement.
Customer will not, and will not allow End Users or third parties under its control to:
(a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law);
(b) sublicense, transfer or distribute any Services;
(c) sell, resell, or otherwise make the Services available to a third party as part of a commercial offer that does not have material value independent of the Services; or
(d) access or use the Services:
(i) for High Risk Activities;
(ii) in a manner intended to avoid incurred Fees;
(iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State;
(iv) in a manner that breaches, or facilitates the breach of, Export Control Laws; or
(v) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA. Unless otherwise permitted in the Service Specific Terms, Customer will not use, and will not allow End Users to use, the Services to place or receive emergency service calls.
Customer is solely responsible to monitor, respond to and otherwise process emails sent to the “abuse” and “postmaster” aliases for any Domain Name(s) verified for use with the Services, but EPISHIP may monitor emails sent to these aliases for Domain Names to allow EPISHIP to identify Services abuse.
Customer may purchase additional End User Accounts within an Order Term by:
(a) execution of an additional Order Form with EPISHIP or Merchant, as applicable, or
(b) via the Admin Console. Such additional End User Accounts will have a pro-rated term that ends on the last day of the applicable Order Term.
If Customer orders the Services from Merchant, then:
(a) fees for the Services will be set between Customer and Merchant, and any payments will be made directly to Merchant under the Merchant Agreement;
(b) the provisions which remain in this Section 4 (Payment) will not apply to the Services;
(c) Customer will receive applicable Service Credits (if any) from Merchant;
(d) Customer may request additional End User Accounts within the duration of the Order Term by contact of Merchant; and
(e) EPISHIP may share Customer Confidential Information with Merchant as a Delegate subject to Section 7.1 (Confidentiality Obligations) of this Agreement.
Customer will pay all Fees for the Services. EPISHIP will invoice Customer all Fees for the Services. EPISHIP’s measurement tools will be used to determine Customer’s usage of the Services. Customer may elect one of the listed bill options, or from among other options offered by EPISHIP, in conjunction with placement of Customer’s order for the Services. EPISHIP may change its offer of bill options, which includes limitation of or cease to offer any bill option, upon thirty days’ written notice to Customer (which may be by email). Bill options may not be available to all customers. Customer may pay for the Services by use of the payment options listed next in Section
If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. EPISHIP will bill Customer: (i)-r for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage within that month. Any partial day of Services usages will be rounded up to a full day of Services usages to calculate Fees.
If Customer selects this option, Customer will be committed to purchase the Services from EPISHIP for an annual term. EPISHIP will bill Customer in accordance to the terms associated with Customer’s elections on the Order Form.
Fees for orders where Customer is to pay with a credit card, debit card or other non-invoice form of payment, are due at the end of the period in which Customer received the Services. For credit cards, or debit cards, as applicable: (i) EPISHIP will charge Customer for all applicable Fees when due and (ii) these Fees are considered overdue thirty days after the end of the month in which Customer received the Services.
Payments for invoices are due thirty days after the invoice date, unless otherwise specified on the Order Form, and are considered overdue after such date.
Customer may change the payment method to those available within the Admin Console. EPISHIP may enable other forms of payment through availability of such other payment forms within the Admin Console. Other forms of payment may be subject to additional terms which Customer may have to accept prior to use of the additional forms of payment.
a) Customer’s payment of Fees is overdue if EPISHIP has not received payment by the due date. If Customer’s payment is overdue, EPISHIP may (i) charge interest on the overdue amount at 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full, and (ii) Suspend or terminate the Services.
(b) Customer will reimburse EPISHIP for all reasonable expenses (attorneys’ fees included) incurred by EPISHIP in collection of overdue payments, except where such payments are due to EPISHIP’s bill inaccuracies.
If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then: (a) EPISHIP will invoice Customer without a purchase order number; and (b) Customer will pay invoices without a purchase order number. Any terms on a purchase order are void.
Taxes are not included in the Fees. Customer will pay Taxes for the Services. If legally required, Customer will withhold Taxes from its payments to EPISHIP and provide a withholding Tax certificate. Unless Customer provides a timely and valid tax exemption certificate, Customer will pay any invoiced Taxes for the Services. Without limitation of Customer’s obligation to pay Fees, Customer will withhold Taxes if legally required.
EPISHIP may modify its Prices at any time unless otherwise expressly agreed in an addendum or Order Form. EPISHIP will notify Customer at least 30 days in advance of any Price increases.
EPISHIP will provide TSS to Customer through course of the Order Term in accordance with the TSS Guidelines subject to payment of support Fees, if applicable. If Customer orders the Services from Merchant, then Customer acknowledges and agrees that Merchant may disclose Customer Data to EPISHIP as reasonably required in order for Merchant to handle any support issues that Customer escalates to or via Merchant.
EPISHIP may Suspend Services as described in Sections 6.2 (AUP Breaches) and 6.3 (Emergency Suspension). Any Suspension under those Sections will be to the minimum extent and for the shortest duration required to:
(a) prevent or terminate the offensive use,
(b) prevent or resolve the Emergency Security Issue, or
(c) comply with applicable law.
If EPISHIP becomes aware that Customer’s or any Customer End User’s use of the Services breaches the AUP, EPISHIP will request that Customer correct the breach. If Customer fails to correct such breach within 24 hours of such request, or if EPISHIP is otherwise required by law to take action, then EPISHIP may Suspend Services.
EPISHIP may immediately Suspend Customer’s or any Customer End User’s use of the Services or a Customer End User Account if:
(a) there is an Emergency Security Issue, or
(b) EPISHIP is required to Suspend such use to comply with applicable law. At Customer’s request, unless prohibited by law, EPISHIP will notify Customer of the basis for the Suspension as soon as is reasonably possible. For Suspensions of End User Accounts, EPISHIP will provide Customer’s Administrator the ability to restore End User Accounts in certain circumstances.
Subject to Section 7.2 (Disclosure of Confidential Information) the recipient will use the other party’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. The recipient will use reasonable care to protect against disclosure of the other party’s Confidential Information to other parties other than the recipient’s employees, Affiliates, agents, or professional advisors (“Delegates”) who require knowledge of the Confidential Information and who have a legal obligation to keep the information confidential. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
Regardless of any other provision in the Agreement, the recipient or its Affiliates may disclose the other party’s Confidential Information
(i) in accordance with a Legal Process, subject to Section 7.2(b) (Legal Process Notification) or
(ii) with the other party’s written consent.
The recipient will use commercially reasonable efforts to notify the other party before disclosure of that party’s Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is informed that
(i) the recipient is legally prohibited to give notice or
(ii) the Legal Process relates to exceptional circumstances which involve danger of death or serious physical injury.
The recipient and its Affiliates will comply with the other party’s reasonable requests to oppose disclosure of its Confidential Information.
Except as expressly stated in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data, and EPISHIP retains all Intellectual Property Rights in the Services.
EPISHIP will display only those Customer Brand Features that Customer authorizes EPISHIP to display by the placement of such features into the Services. EPISHIP will display those Customer Brand Features within designated areas of the web pages that display the Services to Customer or its End Users. EPISHIP may also display EPISHIP Brand Features on such web pages to indicate that the Services are provided by EPISHIP.
At its option, Customer may provide Feedback about the Services to EPISHIP. If Customer provides Feedback, then Customer assigns to EPISHIP all right, title, and interest in that Feedback.
Each party may use the other party’s Brand Features in connection with this Agreement only as permitted in the Agreement. Customer may state publicly that it is a EPISHIP customer and display EPISHIP Brand Features in accordance with the Trademark Guidelines. EPISHIP may
(a) orally state that Customer is a EPISHIP customer and
(b) include Customer’s name or Customer Brand Features in a list of EPISHIP customers in EPISHIP’s promotional materials. Any use of a party’s Brand Features will insure to the benefit of the party which holds Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features with written notice to the other party and a reasonable period to stop use.
Each party represents that it:
(a) has full power and authority to enter into the Agreement; and
(b) will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
EPISHIP will display only those Customer Brand Features that Customer authorizes EPISHIP to display by the placement of such features into the Services. EPISHIP will display those Customer Brand Features within designated areas of the web pages that display the Services to Customer or its End Users. EPISHIP may also display EPISHIP Brand Features on such web pages to indicate that the Services are provided by EPISHIP.
This Agreement will remain in effect for the Term unless it expires or is terminated in accordance with the Agreement.
With a Monthly or Weekly Plan Customer is not committed to purchase the Services for a pre-defined term. As a result, there is no renewal event for the Monthly Plan. Rather, EPISHIP will continue to bill Customer fees consistent with Section 4.1(a) above.
At the end of each Order Term, the Services will renew consistent with Customer’s elections on the Order Form or Admin Console.
Customer may alter the number of End User Accounts to be renewed via the Admin Console. Customer will continue to pay EPISHIP the then-current Fees for each renewed End User Account unless Customer and EPISHIP mutually agree otherwise. If one party does not want the Services to renew, then it will provide the other party written notice to this effect at least fifteen days before the end of the then current Order Term. This notice of non renewal will be effective upon the conclusion of the then current Order Term.
Either party may terminate the Agreement if the other party:
(a) is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; or
(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
EPISHIP reserves the right to terminate the Agreement and the provision of the Services upon 30 days advance notice if, for a period of 60 consecutive days, Customer, inclusive of any End Users,:
(a) has not accessed the Admin Console or
(b) has not used the Services.
If the Agreement terminates or expires, then all Order Forms also terminate or expire, as applicable. If the Agreement terminates or expires, then:
(a) all rights and access to the Services under the Agreement will terminate (which includes access to Customer Data); and
(b) EPISHIP will send to Customer a final invoice.
The Sections to follow will survive expiration or termination of this Agreement: Section 4 (Payment), 7 (Confidentiality), 8 (Intellectual Property), 10.2 (Disclaimer), 11.5 (Effects of Termination), 12 (Indemnification), 13 (Liability), 15 (Miscellaneous) and 16 (Definitions).
EPISHIP will defend Customer and its Affiliates who participate under this Agreement (“Customer Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent that arises from an allegation that Customer Indemnified Parties’ use in accordance with this Agreement if any of EPISHIP Indemnified Materials infringes the third party’s Intellectual Property Rights.
Unless prohibited by applicable law, Customer will defend EPISHIP and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent that arises from:
(a) any Customer Indemnified Materials; or
(b) Customer’s or an End User’s use of the Services in violation of the Acceptable Use Policy or the Use Restrictions.
Sections 12.1 (EPISHIP Indemnification Obligations) and 12.2 (Customer Indemnification Obligations) will not apply to the extent of the fundamental allegation if the allegation arises from:
(a) the indemnified party’s breach of the Agreement; or
(b) a combination of EPISHIP Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.
Sections 12.1 (EPISHIP Indemnification Obligations) and 12.2 (Customer’s Indemnification Obligations) are conditioned on the subsequent:
(a) The indemnified party must promptly notify the indemnifying party in written form of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 12.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Sections 12.1 (EPISHIP Indemnification Obligations) or 12.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
(b) The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the subsequent:
(i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and
(ii) any settlement which requires the indemnified party to admit liability, pay money, or take (or to not take) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
(a) If EPISHIP reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then EPISHIP may, at its sole option and expense:
(i) obtain the right for Customer to continue to use the Services;
(ii) modify the Services, without material reduction of their functionality, to make them to no longer infringe; or
(iii) replace the Services with a functionally equivalent alternative which does not infringe.
(b) If EPISHIP does not believe the remedies in Section 12.5
(a) are commercially reasonable, then EPISHIP may Suspend or terminate the impacted Services.
Without effect to either party’s termination rights, this Section 12 (Indemnification) states the parties’ sole and exclusive remedy under this Agreement for any third party allegations of Intellectual Property Rights Infringement covered by this Section 12 (Indemnification).
(a) To the extent permitted by applicable law and subject to Section 13.2 (Unlimited Liabilities), neither party will have any Liability which arises out of or relates to the Agreement for any:
(i) lost revenues, profits, savings or goodwill; or
(ii) indirect, special, incidental, consequential, or punitive damages.
(b) Each party’s total Liability for damages which arises out of or relates to the Agreement is limited to the Fees paid by Customer under the Agreement through the 12 month period before the event which gives rise to liability.
Nothing in the Agreement excludes or limits either party’s Liability for:
(a) death, personal injury or tangible personal property damage which results from its negligence or the negligence of its employees or agents;
(b) its fraud or fraudulent misrepresentation;
(c) obligations under Section 12 (Indemnification);
(d) its infringement of the other party’s Intellectual Property Rights;
(e) its payment obligations under the Agreement; or
(f) matters for which liability cannot be excluded or limited under applicable law.
EPISHIP may provide any notice to Customer by:
(a) delivery of an email to Notification Email Address or by
(b) post of a notice in the Admin Console. Customer may provide notice to EPISHIP by delivery of an email to service@epiship.com. Notice will be treated as received when (x) the email is sent, whether or not the other party has received the email or (y) notice is posted in the Admin Console. Customer is responsible to keep its Notification Email Address current throughout the Term.
Under this Agreement, the parties may use emails to satisfy written approval and consent requirements.
Neither party may assign the Agreement without the written consent of the other party, except to an Affiliate where:
(a) the assignee agrees in written form to be bound by the terms of the Agreement;
(b) the party who assigns remains liable for obligations incurred under the Agreement if the assignee defaults on them; and
(c) the party who assigns has notified the other party of the assignment. Any other attempt to assign is void.
If a party experiences a change of Control other than an internal restructure or reorganization:
(a) that party will give written notice to the other party within 30 days after the change of Control; and
(b) the other party may immediately terminate the Agreement any time within 30 days after it receives that written notice.
Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its control, which includes acts of God, natural disaster, terrorism, riots, or war.
EPISHIP may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
Neither party’s rights will be treated as waived through lack of exercise of (or the delay of the exercise of) any rights under the Agreement.
If any Section (or part of a Section) of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
The Agreement does not create any agency, partnership or joint venture between the parties.
This Agreement does not confer any benefits on any third party unless it expressly states that it does.
Nothing in this Agreement will limit either party’s ability to seek equitable relief.
All claims that arise out of or relate to this Agreement or the Services will be governed by Delaware law, with the exclusion of that state’s conflict of laws rules, and will be litigated exclusively in the federal or state courts of the origin country; the parties consent to personal jurisdiction in those courts.
Except as specifically stated otherwise in the Agreement, any amendment to the Agreement must be in written form, expressly state that it is to amend the Agreement, and must be signed by both parties.
Nothing in this Agreement will be construed to limit or restrict either party from the independent development of, provision of, or acquisition of any materials, services, products, programs, or technology that are similar to the subject of the Agreement; provided, that the party does not breach its obligations under the Agreement through these actions.
The Agreement states all terms agreed between the parties supersedes any prior or contemporaneous agreements between the parties which relate to the subject matter of this Agreement. By entrance into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in the Agreement. The Agreement includes URL links to other terms (which includes the URL Terms), which are incorporated by reference into the Agreement.
The parties may execute this Agreement in counterparts, inclusive of facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
The parties consent to electronic signatures.
Headers and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.
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