Latest Version: November 18th, 2021
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms shall have the following meanings:
Account means any and all ShipAware accounts created or on behalf of by User.
Affiliates means any and all Entities wherever incorporated which is a parent company, a subsidiary and/or an associated company.
ShipAware means Market Math, LLC d/b/a ShipAware and its Affiliates.
Confidential Information means all information disclosed by User to ShipAware or by ShipAware to User which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party's Confidential Information.
Data means all electronic data, text, messages or other materials submitted to the Service by You in connection with Your use of the Service.
Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by ShipAware to You through the Site or otherwise.
Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction
Service(s) means any and all services provided by ShipAware to User including but not limited to the use and access to the Site and tools such as Software and any Documentation. Any new or modified features added to the Service are also subject to these Terms.
Site means any and all websites operated or owned by ShipAware including namely but not exclusively shipaware.com and app.shipaware.com.
Software means any and all software(s) provided by ShipAware to Users.
User, You, Your means any individual or Entity using the Site and/or the Services.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE
2.1 Subject to the agreement and the compliance by User with these Terms, User has the right to access and use the portion of the Service provided by ShipAware for free and with no subscription, as detailed on the Site.
2.2 An Internet connection is required for proper transmission of the Service. User is responsible for procuring and maintaining the network connections that connect the network to the Service, including, but not limited to, "browser" software that supports protocols used by ShipAware, including Secure Socket Layer (SSL) protocol or other protocols accepted by ShipAware. ShipAware is not responsible for any modification or compromise of data, including Your Data, caused by the transmission across computer networks or telecommunications facilities which are not owned, operated or controlled by ShipAware. ShipAware assumes no responsibility for the reliability or performance of any connections described in this section.
2.3 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service to process data on behalf of any third party; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any association or partnership with ShipAware; (e) use the Service in any unlawful manner, including but not limited to violation of any person's privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person's intellectual property rights and any privacy rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Software, the Site or the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); (l) try to use, or use the Service in violation of these Terms; (m) obtain or attempt to obtain any materials, documents or information, including namely but not exclusively personal identification, password and other information of any other User through any means not purposely made available through the Service; (n) probe, scan, or test the vulnerability of any system or network of ShipAware or breach any security or authentication measures, avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by ShipAware to protect the Service, Site or Software (o) misrepresent yourself, your age or impersonate any other individual or entity.
2.4 The Service is not available to individuals who are younger than 18 years old. You may not use the Site if you are not of a legal age to form a binding contract and otherwise capable of entering into these Terms. ShipAware does not knowingly collect personally identifiable information from users under the age of 18. Such users are expressly prohibited from submitting their personally identifiable information to ShipAware; any information submitted by such users will not knowingly be used, posted, or retained by ShipAware.
2.5 User is responsible for compliance with the provisions of these Terms and for any and all activities that occur under the Account, as well as for Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations including namely but not exclusively all applicable privacy laws and regulations. You are solely responsible for ensuring that the use of the Service and the transmission, collection and use of Your Data does not infringe any third party's intellectual property and privacy rights. User also maintains all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for its purposes. Access to and use of portions of the Service may be restricted to a specified number of individuals permitted under the applicable Subscription Plan. User agrees and acknowledges that each individual will be identified by a unique username and password ("Login") and that an individual Login may only be used by one (1) individual. Users are responsible for maintaining the confidentiality of all Login information related to the Account.
2.6 ShipAware reserves the right, in ShipAware's discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance; (b) during any unavailability of the Service caused by Force Majeure events or circumstances; (c) if ShipAware suspects or detects any malicious software or file connected to Your Account or use of the Service by You; (d) for any other reason which ShipAware deems reasonable. ShipAware will use commercially reasonable efforts to schedule planned downtime for weekends (Eastern time zone) and other off-peak hours. See section 2.8 regarding exceptions during the starting phase.
2.8 During ShipAware’s starting phase beginning November 2021 and ending June 2022, information may be wiped intermittently to account for ongoing database development. Downtime may be at random, or during business hours, but ShipAware will strive to reduce these occurrences.
3. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
3.1 Subject to the express permissions of these Terms, You and ShipAware will protect each other's Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, ShipAware and User may only use the other party's Confidential Information solely to exercise their respective rights and perform their respective obligations under these Terms and shall disclose such Confidential Information solely to those of their respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
3.2 You agree that ShipAware and the service providers ShipAware uses to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any Third Party Service providers ShipAware utilizes will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service.
ShipAware may also access or disclose information about the Account, Your Data, Users in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect ShipAware's or its customers' or partners' rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
3.4 ShipAware will process, use, modify, collect and store Personal Data within the meaning of applicable data protection laws and regulations.
3.5 As part of the provision of the Services, ShipAware may process Personal Data, as processor, on behalf of User, the controller.
ShipAware will process Personal Data for the entire duration of the performance of the Services for User, and longer as may be required by law or to meet necessary retention periods.
4. INTELLECTUAL PROPERTY RIGHTS
4.2 The trademarks including the mark ShipAware™ as shown on the Site, the Software or the Documentation are trademarks owned by ShipAware (collectively, "ShipAware Trademarks"). Unless otherwise provided by applicable laws or regulations, ShipAware Trademarks may not be used in any manner other than expressly authorized in a written agreement.
4.3 ShipAware shall maintain all rights, title and interest in and to ShipAware patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights. ShipAware shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback ShipAware receives from You. ShipAware reserves all rights not expressly granted to You.
5. THIRD PARTY SERVICES
5.1 If You decide to enable, access or use Third Party Services, be advised that Your access and use of such Third Party Services is governed by the terms and conditions of such Third Party Services, and ShipAware does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, the accuracy, completeness or authenticity of the information contained or the manner in which the service providers of such Third Party Services handle data, including Your Data, or any interaction between You and the service provider. You irrevocably waive any claim against ShipAware with respect to such Third Party Services. ShipAware is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Third Party Services, or Your reliance on the privacy practices, data security processes or other policies of such Third Party Services. You may be required to register for or log into such Third Party Services on their respective websites. By enabling any Third Party Services, You are expressly permitting ShipAware to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.
5.2 The Service may contain features and functionalities that may link You or provide You with access to third party content which is completely independent of ShipAware, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet in general. Your interactions with organizations or individuals found on or through the Service are solely between you and such organizations or individuals. You should make whatever investigation You feel necessary or appropriate before proceeding with any interaction with any of the third parties providing Third Party Services. You agree that ShipAware is not responsible or liable for any loss or damage of any kind or nature incurred as the result of any such dealings.
5.3 If there is a dispute between Users, or between Users and any third party, You understand and agree that ShipAware is under no obligation to become involved. In the event that You have a dispute with any other User, You hereby release the Released Parties from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes.
5.4 ShipAware may obtain information, including Personal Data, from third parties and combine that with information ShipAware collects through the Service such as in the case where You use a Third Party Service or where we may have access to certain information from a third party social media or authentication service if You log into Our Services through such service or otherwise provide Us with access to information from such service. Any access that We may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service.
7. WARRANTY DISCLAIMER
YOU AGREE THAT USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES DISCLAIM ANY WARRANTIES FOR THIRD PARTY SERVICES OR GOODS RECEIVED THROUGH THE SERVICE OR ANY LINKS ON THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES DISCLAIM ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SERVICE.
THE RELEASED PARTIES WILL HAVE NO LIABILITY FOR NAMELY BUT NOT EXCLUSIVELY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF SHIPAWARE SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICE; (e) ANY COMPUTER VIRUSES OR MALICIOUS CODE THAT MAY BE TRANSMITTED ON OR THROUGH THE SERVICE; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY FUNCTIONALITY OR CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SERVICE.
THE RELEASED PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT OR SERVICE RECOMMENDED, ADVERTISED, OR OFFERED ON OR THROUGH THE SERVICE OR ANY LINKED WEBSITE.
As some jurisdictions do not allow disclaimer of certain warranties, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
8. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL THE RELEASED PARTIES BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF SHIPAWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF THE SERVICE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SERVICE, FROM INABILITY TO USE THE SERVICE, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED ARISING OUT OF OR IN CONNECTION WITH THIRD PARTY SERVICES RECEIVED THROUGH THE SERVICE OR ANY LINKS ON THE SERVICE, AND WITH RESPECT TO DAMAGES IN CONNECTION WITH INFORMATION RECEIVED THROUGH THE SERVICE OR ANY LINKS ON THE SERVICE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL SHIPAWARE’S ENTIRE LIABILITY TO YOU EXCEED THE PRICE PAID BY YOU FOR THE SERVICE.
In some jurisdictions, some of the foregoing limitations may not apply.
9. INDEMNITY OF SHIPAWARE
10. FORCE MAJEURE
ShipAware will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond ShipAware's reasonable control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
11. GOVERNING LAW AND JURISDICTION; LIMIT ON COMMENCING ACTIONS
This Agreement is governed by the laws of the State of Pennsylvania, U.S.A. without regard to the conflicts of laws principles thereof. You consent to the exclusive jurisdiction and venue of the state and federal courts in Scranton, Pennsylvania in all disputes arising out of or relating to the use of the Services.
12. OTHER PROVISIONS