Date of Last Revision: November 2, 2022
This Shipping Services and Logistics Services Agreement and all documents incorporated by reference (collectively, this “Agreement”) is a legal contract between you (“you” or “Customer”) and ParcelCast, LLC dba Maergo or any of its affiliates (the “Company”) which governs your access to and use of the Services (as defined below). By using the Services, you agree to the terms of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Services. 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 that entity to this Agreement. This Agreement is effective as of the date of your acceptance of these terms and conditions by signing a Shipping and Logistics Services Order (“Order”) or by using the Services (“Effective Date”). Customer and Company are referred to collectively in this Agreement as the “Parties” and each individually as a “Party.”
For mutual consideration, receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The terms of this Agreement will apply to your use of the Services, unless there is a separate signed Order or other agreement between Customer and Company, in which event that Order or separate agreement will apply and govern, to the extent that the terms of the separate agreement contradict those in this Agreement. No terms or conditions inserted by Customer on any Company purchase order or other business form relating to use of the Services will modify or otherwise affect the terms of this Agreement, regardless of any failure of Company to object to Customer’s variant terms. The same shall be true for any documents created or used by Customer that are not signed by an authorized representative of Company prior to transport. Subcontracted service provider signatures are not sufficient to bind Company.
Company reserves the right, in its discretion, to modify portions of the terms and conditions of this Agreement (“Changes”) at any time. The date that any Changes were last made to this Agreement are indicated at the top of the page, and such Changes are effective as of that “Date of Last Revision.” Company will notify Customer of Changes by posting a revised version of this Agreement incorporating the Changes to Company’s website. Customer’s continued purchase or use of the Services after any Changes to this Agreement on the Company website will mean that Customer accepts and agrees to those Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Company’s website.
Capitalized terms used in this Agreement have the meanings given to them in the Definitions.
The following terms, when used in this Agreement, including any Order and all Schedules to that may be incorporated into this Agreement, shall have the following meanings:
“Company API(s)” means any proprietary application programming interface of Company or any of its affiliates and any other related software and documentation owned, developed, or licensed by Company or any of its affiliates (including any updates or upgrades thereto) andprovided or made available to Customer by Company under this Agreement to enable or support Customer’s use of the Services.
“Customer Data” means any data, data sets, or other information made available to Company by Customer in connection with the Services, including End User data, when applicable.
“End User” mean the individuals authorized by Customer to access and use the Services at any one time through the Customer account under this Agreement, and for whom Customer has issued or approved access credentials. Subject to the specific Services, Customer may identify certain End Users who will have specific roles or administrative, security, and supervisory capacities with respect to the Services.
“Hazardous Materials” means a substance or material that the U.S. Secretary of Transportation has designated as hazardous pursuant to 49 U.S.C. § 5103. The term includes, but is not limited to, hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 C.F.R. 172.101), and materials that meet the defining criteria for hazard classes and divisions in 49 C.F.R. Parts 173 and 174.
“Includes” and “including” mean “including without limitation.”
“Prohibited Items” means antiques, biological substances, bagged goods such as cement, stocks or bonds, dangerous goods (except shipments with batteries or cosmetic items in excepted quantities or as otherwise mutually agreed upon by the parties in writing), illegal goods (such as ivory), deeds, documents, manuscripts, plans, securities, stamps, treasury notes, bullion, cash, jewelry, precious metals and stones, cement, cigars, cigarettes (as defined at 15 U.S.C. § 375), smokeless tobacco (as defined at 15 U.S.C. § 375), loose tobacco, vape and vape-related items to include ENDS, firearms and weapons, fragile articles, furs, animals, livestock perishable foodstuffs, pharmaceuticals, plasma screens, scrap metals, television sets, unprotected goods, video recorders, secondhand goods, counterfeit goods, white goods (i.e., stoves, ovens, refrigerators, washing machines, microwaves and dishwashers, including parts, spares, and ancillary equipment), one-of-a-kind articles or models, prototypes, valuable rugs (i.e., Oriental rugs and Persian rugs), guitars and other musical instruments that are more than 20 years old, customized or personalized musical instruments, plants, prints or lithographs, or household goods and/or personal effects when the total declared value of the shipment exceeds $500.00, or when the declared value exceeds $0.50 per pound, per piece, or items that weigh greater than 50 pounds.
“Representative” means any employee, agent, representative, contractor, or subcontractor of a Party or any of such Party’s contractors or subcontractors. “Services” means the domestic freight and shipping services arranged by Company for Customer pursuant to this Agreement, including arranging transportation of accepted parcels via third-party carriers and other providers.
1. SERVICES; USAGE RIGHTS AND RESTRICTIONS
1. Services. Subject to the terms and conditions of this Agreement, Company agrees to provide the Services to Customer. Company reserves the right to refuse to transport any packages that it determines, in its sole discretion, do not comply with the terms and conditions of this Agreement or applicable laws.
2. Changes to Services. Company may, at its sole discretion, modify the Services available under this Agreement from time to time; provided, however, that Company will continue to offer Services to Customer to the same extent that it provides Services directly to its general customer base. Without limiting the foregoing, Company may add or discontinue service to designated geographical areas, expand or narrow the features of a service offering, cease a particular service offering, or add an additional service offering.
3. License Grant. Subject to the terms and conditions of this Agreement, Company grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to use the Company API solely for the Services and only: (a) during the relevant Order Term (if applicable), (b) for Customer’s own internal business purposes and not for resale or license to third parties except as set forth in this Agreement or an attachment hereto (if applicable), (c) up to the authorized number of Users, if specified, (d) subject to any applicable Usage Allowances, and (e) in accordance with any additional rights and limitations specified in the Order (if applicable). In the event that a Company API is subject to a third-party end user license agreement, that agreement shall apply to Customer’s use of the Company API. Features and functions of the Company API are provided “as is” and may be modified, supplemented, or removed by Company from time to time in its sole discretion. Modifications may include optional new features, which Customer may use subject to the Agreement.
4. No Other Rights. Except as expressly set forth in the Agreement, no additional rights are granted to Customer. Company hereby reserves all rights not expressly granted to Customer under the Agreement.
5. Restrictions. Customer will not undertake, directly or indirectly, nor authorize any of its Representatives or any third party, to: (a) copy, modify, or create derivative works of the Company API, (b) publish, sublicense, sell, resell, rent, lease, market, or distribute the Company API, or otherwise make the Company API available to anyone other than authorized End Users; (c) reverse engineer, decompile, disassemble, or otherwise attempt to gain access to the source code form of the Company API; (d) use the Company API in violation of any applicable law, including export, intellectual property, libel, and privacy laws; (e) remove any proprietary notices from the Company API or any other materials made available by Company; (f) use or access the Services in order to build a competitive product or service; (g) interfere with or disrupt the integrity or performance of the Services; (h) attempt to gain unauthorized access to the Company API or its related data, systems, or networks; or (i) publish or disclose to third parties any evaluation of the Services or data or information on Customer’s results from using the Services, without Company’s prior written consent. Customer is responsible for each End User’s use of the Services and compliance with the terms of this Agreement.
2. PAYMENT OF FEES
1. Services Fees. For Customers who have executed an Order, Customer will pay the applicable Services Fees and any additional fees or expenses as specified in the Order. Initial rates for Services Fees are stated in Schedule B to the Order. For Customers who use Services without executing an Order, Customer will pay the Company’s then-current rates for Services Fees as returned by the Company’s API. Customer understands that quotations based on the fees listed on Schedule B or through the Company’s API are provided in reliance on the information furnished by Customer to Company at the time the quotation is provided, and are subject to change based on actual weights, package dimensions, commodity, contents, mode of transportation, and volumes tendered by Customer, as well as due to unforeseen or unanticipated costs, occurrences, or events which are beyond the control of Company. Each year as of January 1 Company updates the Services Fees in Schedule B or through its API upon 30 days’ notice to Customer.
2. Invoicing. Customer will be invoiced each week for the prior week’s shipment. Customer agrees to remit payment for each invoice by ACH within 14 days of the invoice date. If, after 14 days, Customer has failed to pay an invoice, interest will accrue and be payable at the lesser of the maximum rate permitted under applicable law, or 1.5% per month, from the date due until paid in full. If any amount owed by Customer under the Agreement is 10 days or more overdue, Company may, without limiting Company’s other rights and remedies, (a) suspend the Services to Customer until such amounts are paid in full; (b) exercise all rights available under the law, including those set forth in the applicable version of the Uniform Commercial Code; and (c) revoke any discounts. Once an invoice is more than 21 days past due, a late payment fee of 6% shall apply.
3. Taxes. All Service Fees are exclusive of applicable federal, state, or local taxes and all use, sales, value added, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, and surcharges (collectively, “Taxes”), whether charged to or against Company. All such Taxes will be the sole responsibility of and payable by Customer. Customer will pay to Company an amount equal to any Taxes arising from or relating to the Agreement, which are paid by or are payable by Company. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due, then the sum payable to Company will be increased by the amount necessary for the Company to receive an amount equal to the sum it would have received had Customer made no withholdings or deductions.
4. Notice of Fee Disputes. Customer will notify Company in writing if it disputes any portion of any Service Fees, Taxes, or other amounts paid or payable by Customer under this Agreement. Customer will provide such notice to Company within 30 days of the applicable charge, and the parties will work together to resolve the dispute promptly. Upon expiration of the 30-day period, Customer will not be entitled (and hereby waives any right) to dispute any Service Fees, Taxes, or other amounts paid or payable by Customer.
3. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY
1. Company Ownership. As between the parties and except for the limited express license granted to Customer under the Agreement, Company retains ownership of all right, title, and interest, including all related Intellectual Property Rights, in and to the Services.
2. Customer Ownership. As between the parties and except for the limited express license granted to Company under the Agreement, Customer retains ownership of all right, title, and interest, including all related Intellectual Property Rights, in and to all Customer Data.
3. Confidentiality. Each Party acknowledges that in connection with the formation and performance of this Agreement, it may disclose to the other Party certain non-public confidential information, the disclosure of which to third parties would be damaging (“Confidential Information”). Such Confidential Information includes Company’s and Customer’s rates, charges, customers and Customer Data, business plans and processes, financial information and data, sales data, technical data, Company API, correspondences and communications between Company and Customer, and any other documents marked “Confidential” and/or “Proprietary.” Both parties agree to (a) use this Confidential Information only in the performance of this Agreement, (b) not disclose this Confidential Information to any other Party (except Representatives with a need to know such information solely for purposes related to this Agreement), and (c) treat this Confidential Information with the same degree of care with which they treat their own Confidential Information of like importance. This section will not apply to (i) information which a Party can prove was previously known to it, (ii) information lawfully received from a third party without an obligation of confidentiality, (iii) information which becomes known to the public, (iv) information which is independently developed by a Party, and (v) information required by law to be disclosed; provided, however, that the other Party will be given written notice of such required disclosure. Notwithstanding the foregoing, Company reserves the right to collect and analyze data and other information concerning the provision, use, and performance of the Services and related systems and technologies, in aggregate or anonymized form, to improve the Services and for related diagnostic and corrective purposes.
4. TERM AND TERMINATION
1.Term. The term of this Agreement begins on the Effective Date and will remain in effect for the Initial Service Term and any renewal terms, unless terminated earlier pursuant to this Agreement. This Agreement will automatically renew for additional one-year terms unless either Party provides written notice of non-renewal no less than 30 days prior to the end of the Initial Service Term or any renewal term.
2. Termination. Either Party may terminate this Agreement if the other Party breaches any provision of the Agreement and fails to cure such breach within 30 days (or 10 days in the case of non-payment) after written notice thereof. In addition, Company may also suspend or terminate the Services immediately upon notice for cause (a) if Company determines, in its sole discretion, that its provision of the Services may be prohibited by applicable law, or has become impractical or unfeasible for any legal, regulatory, or business reason; or (b) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, cessation of business, change of control, disposal of Customer’s assets, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding.
3. Continuing Obligations. Upon termination or expiration of this Agreement, allrights and licenses granted to Customer shall immediately terminate. The termination or expiration of the Agreement for any reason will not affect either Party’s rights or obligations that expressly or by their nature continue and survive (including the payment terms and the provisions concerning ownership, confidentiality, limitation of liability, indemnity, and warranty disclaimers), and Customer will promptly pay to Company all unpaid amounts due under the Agreement.
5. WARRANTIES AND DISCLAIMER
1. Customer Warranty. Customer represents and warrants that it and any applicable End Users are in compliance with all applicable laws and hold all authorizations, permits, licenses, permissions, and consents required to tender cargo provided to Company pursuant to this Agreement for transportation, and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rule, or regulations. If Customer is not the owner of the cargo tendered for transportation, Customer nevertheless represents and warrants that it is authorized to arrange transportation of the cargo on behalf of the owner in accordance with the terms and conditions of this Agreement, and has any required license or registration required to do the same. Customer further represents and warrants that its use of the Services shall not include shipments that contain any items that either are (a) prohibited by law from being shipped by a carrier or (b) otherwise prohibited from shipment pursuant to an applicable carrier’s policies and published terms and conditions (“Prohibited Items,” as further defined in the “Definitions” section of this Agreement). For the avoidance of doubt, Customer’s failure to notify Company that Prohibited Items have been included in cargo tendered to Company shall constitute a breach of this Agreement by Customer. Company shall not be liable for any loss, damage, delay, liabilities, fees, penalties, or fines resulting from the transportation of any Prohibited Items. If Company discovers, after accepting a shipment, that it a contains a Prohibited Item, Company reserves the right to refuse to deliver the Prohibited Shipment to the consignee. Customer agrees to pay all charges, expenses, fines, and penalties for such Shipment, and further agrees to indemnify and hold harmless Company and Company Group (as defined below) from any and all loss, damage, delay, liabilities, penalties, or fines of any nature arising out of or related in any way to such a Shipment.
2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.
6. INDEMNIFICATION; LIMITATION ON LIABILITY
1. Customer Indemnification. Customer shall defend, indemnify, and hold harmless Company and its affiliates and their officers, directors, and employees (collectively, “Company Group”) from and against any and all third-party claims, demands, causes of action, losses,liabilities, damages, judgments, costs and expenses (including reasonable attorneys’ fees and court costs) against Company Group arising out of or in connection with any act or omission of Customer, End User, or their related companies in connection with this Agreement and any failure to comply with applicable law.
2. Company Indemnification. Except for loss, damage, delay, mis-delivery, or non-delivery of shipments, Company shall defend, indemnify, and hold harmless Customer and its officers, directors and employees (“Customer Group”) from and against any and all third-party claims, demands, causes of action, losses, liabilities, damages, judgments, costs and expenses (including reasonable attorneys’ fees and court costs) against Customer Group arising out of or in connection with (a) gross negligence or willful misconduct by Company in the performance of its obligations under this Agreement; (b) Company’s material breach of any provision of this Agreement; or (c) Company’s failure to comply with applicable law.
3. Indemnity Process. The indemnified Party must (a) notify the indemnifying Party promptly in writing of the Claim, setting forth in reasonable detail the facts and circumstances surrounding the Claim; (b) give the indemnifying Party sole control of the defense of the Claim and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying Party to defend the Claim; and (c) cooperating and, at the indemnifying Party’s request and expense, assisting in such defense. However, the indemnifying Party shall not settle any Claim without the indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified Party of all liability, and imposes no obligations or restrictions on the indemnified Party. The indemnified Party may engage counsel of its choice at its own expense.
4. Cargo Liability. Company will use reasonable efforts to pick up, transport, and deliver cargo tendered to Company for shipping pursuant to this Agreement in accordance with Company’s regular practices and procedures. HOWEVER, COMPANY SHALL IN NO CASE BE LIABLE FOR ANY LOSS, DAMAGE, DELAY, MISDELIVERY, OR NONDELIVERY. Notwithstanding the foregoing, Company has, at Customer’s request, assisted Customer in securing shipper’s interest insurance coverage via UPIC, or other insurance provider, which covers Customer’s shipments for (a) actual value of the lost or damaged cargo as set forth in an invoice to the consignee; or (b) $100 per lost or damaged parcel; or (c) $50,000 per truckload, whichever is less.
5. Claims for Loss or Damage to Cargo. All claims, to the extent covered under this Agreement, must be submitted in writing to UPIC, or replacement shipper’s interest insurance provider, by Customer within ninety (90) days from the date that Company accepted the shipment, except that lost items require a 21-day waiting period following the ship date before a claim may be filed (45-day waiting period on claims for allegedly lost international shipments). Company shall have no liability whatsoever for untimely claims, and no liability outside the insurance program identified herein. Claims shall be reported to the insurer via https://u-pic.com/xdelivery and are limited to one claim per shipment. Payment, denial, or other resolution by insurer shall fully and finally resolve all claims against insurer or Company.
6. Limitation on Liability. In no event will the aggregate liability of Company or any of its Released Parties (defined below) arising out of or related to this agreement, whether in contract, tort (including negligence) or under any other theory of liability, exceed the amount paid or payable by Customer pursuant to the applicable order in the 12 months preceding the date on which the event giving rise to such liability occurred. The limitations contained in this section apply in spite of any failure of the essential purpose of the agreement or any limited remedy hereunder. This is an aggregate limitation and multiple claims will not expand it. Pursuant to 49 U.S.C. §14101(b), the parties hereby waive any and all rights and remedies provided by Part B to Subtitle IV of Title 49 to the U.S. code, including, but not limited to those set forth in 49 U.S.C. § 14706, to the extent such rights and remedies conflict with the provisions of this agreement. Customer acknowledges that third-party transporting carriers used by company in connection with the services may limit their liability for cargo loss, damage, or delay. Customer shall be responsible to insure product in-transit. Except as expressly set forth in this agreement, Company will have no liability for any act or omission of any third-party carrier, including with respect to cargo loss, damage or delay, or such carrier’s refusal to accept full value liability or otherwise limiting its liability for cargo loss and damage. Company shall be under no obligation to arrange, and carrier shall be under no obligation to provide, service according to any set pick-up or delivery schedule. Company shall have no liability for cargo loss, damage, or shortage except to the extent such claims are directly caused by Company’s gross negligence or willful misconduct, in which case, Company’s liability shall be limited to the charges assessed by company and paid by customer with respect to the goods at issue. Customer is responsible for filing a claim with Company alleging Company’s liability for cargo loss and damage within sixty (60) days of the date of delivery of the cargo in question (or, if none, within sixty (60) days of the date cargo should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve Company of any and all liability with respect thereto. Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim. Customer acknowledges and agrees that the sole liability of Company with respect to loss, damage, or delay to cargo shall be as set forth in this agreement and Customer warrants and represents that, if it is not the owner of such cargo, Customer holds authority from such owner to bind the owner to the provisions of this paragraph.
7. Exclusion of Consequential Damages. In no event will Company or any of its suppliers (including but not limited to all equipment and technology suppliers and transporting carriers), affiliates, managers, members, officers, representatives, contractors, or employees (collectively, the “Released Parties”) be liable for any indirect, special, incidental, consequential, or punitive damages of any kind, nor any lost profits (whether direct or indirect), however caused, whether in contract, tort (including negligence), or under any other theory of liability, regardless of whether Company has been advised of the possibility of such damages, and in spite of any failure of the essential purpose of the agreement or any limited remedy hereunder.
7. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the State of Texas, without regard to principles of choice of law or conflicts of law. The parties irrevocably (a) submit to the exclusive jurisdiction of and venue in the state and federal courts located in Travis County, Texas, regarding any dispute arising out of or related to the Agreement or any transactions contemplatedherein, and waive any arguments objecting to jurisdiction or venue in those courts; (b) agree that all claims, lawsuits, or other proceedings regarding any such dispute shall be heard and determined in such courts; and (c) agree that any judgment relating to such dispute may be enforced in any court of appropriate jurisdiction or in any other manner provided by law.
1. Inspection; Consent to Screen for Air Transport. Company has the right to open and inspect a shipment without notice for safety, security, customs or other regulatory reasons. The Transportation Security Administration (“TSA”) considers all cargo tendered for air transportation subject to screening/search by the forwarder, air carrier or the TSA; and requires that Company and its affiliates refuse to offer air transportation of any cargo where the shipper/customer does not consent to screening of the cargo. Company, its affiliates, and their hired carriers and the TSA may conduct screening of cargo tendered under this Agreement. By tendering shipments to Company or any of its affiliates, Customer is deemed to consent to any such screening or search. No member of Company Group shall be liable for, and Customer shall indemnify and hold Company Group harmless for any claim arising out of, any loss, damage or delay due to opening of Customer’s cargo, resulting physical inspection or repackaging arising out of any such screening.
2. Known Shipper Information and Privacy Act. Section 114 of United States Code Title 49 authorizes the collection of certain information pertaining to Customer to qualify Customer as or to verify Customer’s status as a possible “known shipper.” Although providing this information is voluntary, failure to provide the information will prevent you from qualifying as a “known shipper.” This information will be disclosed to TSA personnel and contractors or other agents including Indirect Air Carriers (“IACs”) in the maintenance and operation of the known shipper program. TSA may share the information with airport operators, foreign air carriers, IACs, law enforcement agencies, and others in accordance with the Privacy Act, 5 U.S.C section 552a. For additional details, see the system of records notice for Transportation Security Threat Assessment System (DHS/TSA 002) published in the Federal Register. Any fraudulent or intentionally false statements or certificate made by Customer may be subject to both civil and criminal penalties under 49 C.F.R. parts 1540 and 1548 and 18 U.S.C. § 1001, in addition to any other penalties that may be imposed by applicable laws.
3. Hazardous Materials. Customer is responsible to inform Company any time a Shipment contains Hazardous Materials or dangerous goods, in writing and at least 48 hours prior to transport. Additionally, Customer shall ensure the Shipment complies with all laws, rules, ordinances, and regulations, including, but not limited to, the United States Department of Transportation regulations applicable to a shipper of goods.
4. Specific Limitation of Liability and Indemnification. If Customer fails to comply with any provision set forth in section 8(1)-8(3), Company shall have no liability for any resulting loss or damage, regardless of the cause of such loss or damage and Customer shall be responsible to indemnify, defend, and hold Company harmless, including legal fees, environmental clean-up costs, fines, and penalties.
5. Assignment. Customer shall not assign or transfer the Agreement, in whole or in part, whether by merger, operation of law, or otherwise, without Company’s prior written consent, such consent not to be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. Company may assign or transfer its rights and delegate its obligations under the Agreement, without Customer’s consent, to an affiliate or pursuant to a corporate reorganization, merger, acquisition, or sale of all or substantially all of its assets to which the Agreement relates. Company may also subcontract parts of the Services to third parties as determined in its sole discretion. Any attempted assignment or delegation in violation of the foregoing is void. The Agreement is binding upon the parties and their successors and permitted assigns.
6. Independent Contractors. The parties are independent contractors. Nothing in this Agreement or and no action taken by a Party pursuant to the Agreement will constitute a joint venture, partnership, or agency relationship with the other Party for any purpose, and neither Party will have the right to make any warranty or representation to such effect.
7. Marketing. Company may include and use Customer’s name, trademarks, logos, and designs on a list of customers and may refer to Customer as a user of the Services in its advertising, marketing, promotional, and investor materials.
8. Remedies. The Parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (Services; Usage Rights and Restrictions) and Section 3 (Intellectual Property Rights; Confidentiality) or any other provisions of the Agreement which may cause either Party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each Party is entitled to seek specific performance, injunctive, or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond, and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
9. No Third-Party Beneficiaries. With the exception of the Released Parties, each of which is an intended third-party beneficiary of this Agreement, this Agreement is not intended nor will be interpreted to provide or create any third-party beneficiary rights or other rights of any kind in any third party, affiliate, or subsidiary. All provisions in this Agreement are solely between Company and Customer unless otherwise provided for in the Agreement.
10. Notices. Unless otherwise provided in this Agreement, any notice, request, or other communication relating to the Agreement will be provided in writing and will be deemed to have been given by either Party to the other Party (a) upon the date of receipt, if hand delivered, (b) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other Party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (c) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery (three business days for international addresses), or (d) upon the date of electronic confirmation of receipt of a facsimile or email transmission. Notices to (i) Company will be sent to ParcelCast, LLC, 500 East 4th Street #492, Austin, Texas 78701, to the attention of: LegalDepartment, and (ii) Customer will be sent to Customer’s primary address and contact provided to Company in the Order, or at such other address as given by either Party to the other in writing.
11. Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, governmental act, or failure or degradation of the Internet. The delayed Party shall give the other Party notice of the force majeure, the anticipated impact of the force majeure on the affected Party’s performance, and use commercially reasonable efforts to correct its failures or delays in performance.
12. Entire Agreement; Modification and Waiver. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter set forth herein and supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning that subject matter, whether written or oral. The Agreement may be modified solely by a writing signed by both Parties. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection the Services will modify or have any effect on the rights, duties, or obligations of the parties under the Agreement, regardless of any failure by Company to object to such terms, provisions, or conditions. A waiver of any breach of the Agreement shall not be deemed a waiver of any other breach. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
13. Counterparts. For Orders or other written contracts, this Agreement may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the Parties. Each signed counterpart, including one reproduced by reliable means (such as facsimile and electronic signatures that comply with applicable law), will be considered as legally effective as an original signature in ink.