SHIPBOB WAREHOUSE MANAGEMENT TERMS (THE “WMS TERMS”)
The WMS Terms govern ShipBob Fulfillment Network Providers (“SFN Provider’s”) access to and use of Warehouse Management System (“WMS”), including, without limitation, any and all technology and software made available to SFN Provider by ShipBob, Inc. (“ShipBob”) in connection with WMS (such software, “Software“). In the event of any conflict or inconsistency between the terms and provisions of the WMS Terms and the terms and provisions of the Agreement, the terms and provisions of the WMS Terms will prevail with respect to SFN Provider’s access and use of WMS (as defined below).
- WMS Description. WMS includes, without limitation, (i) Software, and (ii) data, reports, text, images, and other content made available through WMS (collectively referred to as the “WMS Content“). Any new features added to or augmenting WMS are also subject to these WMS Terms.
- License Grant. Subject to the terms and conditions of the Agreement and the WMS Terms, (i) SFN Provider may access and use WMS only for lawful purposes, and (ii) ShipBob hereby grants SFN Provider a non-transferable, non-sublicensable, and non-exclusive right and license (“License“) to use the object code of any Software solely in connection with SFN Provider’s internal use of WMS in connection with the Services. All rights, title, and interest in and to WMS and its components (including any and all Software) will remain with and belong exclusively to ShipBob.
- Restrictions and SFN Provider Obligations.
- SFN Provider shall not, and shall not permit others to: (i) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in any Software, (ii) access WMS by any means other than through the interface that is provided by ShipBob for use in accessing WMS, (iii) resell, distribute, publicly display, or publicly perform the Software or WMS Content, or any copy thereof, by transfer, lease, loan, or any other means, or make it available for use by others in any time-sharing, service bureau, or similar arrangement; (iv) use WMS or the Software in any manner that is inconsistent with the WMS Terms or the Agreement, or to engage in any illegal activity, or (v) modify, translate, adapt, or create derivative works from the Software or WMS Content. Any rights not expressly granted herein are reserved and no license or right to use any trademark of ShipBob or any third party is granted to SFN Provider in connection with WMS. SFN Provider shall notify ShipBob immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of WMS. SFN Provider is responsible for use of WMS by any and all employees, contractors, or other users that it allows to access WMS or any portion thereof.
- SFN Provider is solely responsible for all data, information, feedback, suggestions, text, content and other materials that SFN Provider uploads, posts, delivers, provides or otherwise transmits or stores (hereafter “post(ing)”) in connection with or relating to WMS (“SFN Provider Content“). By posting SFN Provider Content on or through WMS, SFN Provider hereby grants ShipBob a non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish, and perform SFN Provider Content in connection with WMS. SFN Provider further agrees that ShipBob may remove or disable any SFN Provider Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to the SFN Provider Content), or for no reason at all.
- SFN Provider hereby represents and warrants that (i) SFN Provider owns all SFN Provider Content or has obtained all permissions, releases, rights, or licenses required to engage in SFN Provider’s posting and other activities (and allow ShipBob to perform its obligations) in connection with WMS without obtaining any further releases or consents; and (ii) SFN Provider Content and other activities of SFN Provider in connection with WMS, and ShipBob’s exercise of all rights and license granted by SFN Provider herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does SFN Provider Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing.
- SFN Provider acknowledges that SFN Provider bears sole responsibility for adequate security, protection, and backup of SFN Provider Content. Except as otherwise expressly agreed upon between the Parties, ShipBob will have no liability to SFN Provider for any unauthorized access or use of any of SFN Provider Content, or any corruption, deletion, destruction, or loss of any of SFN Provider Content.
- Termination.
- The WMS Terms shall remain in effect during the Term, subject to earlier termination as provided below. ShipBob may terminate the Agreement, License, or SFN Provider’s access to WMS, if SFN Provider breaches any terms or conditions of the WMS Terms. ShipBob reserves the right to modify or discontinue, temporarily or permanently, WMS (or any part thereof).
- Upon termination or expiration of the Agreement or the WMS Terms, (i) all licenses (including the License) granted by ShipBob hereunder and all obligations of ShipBob to provide WMS shall immediately terminate and SFN Provider shall immediately return the Software in its possession or control, and (ii) all of the SFN Provider Content on WMS (if any) may be permanently deleted by ShipBob. All provisions of Sections 3, and 5.2 through 9 of the WMS Terms shall survive the termination or expiration of the Agreement or the WMS Terms.
- DISCLAIMER OF WARRANTIES. WMS may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ShipBob or by third-party providers, or because of other causes beyond our reasonable control. ShipBob shall use reasonable efforts to provide advance notice in writing or by email of any Services disruption. ShipBob shall not be liable for any such unavailability or disruption of Services. WMS, INCLUDING THE SOFTWARE AND WMS CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SHIPBOB EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SFN PROVIDER ACKNOWLEDGES THAT SHIPBOB DOES NOT WARRANT THAT WMS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF WMS, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY SFN PROVIDER FROM SHIPBOB OR THROUGH WMS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE WMS TERMS.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL SHIPBOB BE LIABLE TO SFN PROVIDER OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES, OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES IN EXCESS OF ONE HUNDRED ($100) U.S. DOLLARS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SFN PROVIDER. IN THESE STATES, SHIPBOB’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Indemnification. In addition to, and without limiting, SFN Provider’s indemnification obligations under the Agreement, SFN Provider shall further defend, indemnify, and hold harmless ShipBob from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, arising or resulting from SFN Provider’s breach of the WMS Terms, any SFN Provider Content, or SFN Provider’s other access, contribution to, use, or misuse of WMS. ShipBob shall provide notice to SFN Provider of any such claim, suit, or demand. ShipBob reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, SFN Provider agrees to cooperate with any reasonable requests assisting ShipBob’s defense of such matter.
- U.S. Government Matters. SFN Provider may not remove or export from the United States or allow the export or re-export of the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by ShipBob on SFN Provider’s equipment or premises (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the WMS Terms and will be prohibited except to the extent expressly permitted by the WMS Terms.
