Terms of Service Software 3PL
Last updated on:June 17, 2019
By participating in the Marketplace as a 3PL you are agreeing to be bound by the following terms and conditions (these “Terms of Service”).
As a Customer using the ShipHero Subscription Service or receiving ShipHero Consulting Services the Customer does not have to participate in the Marketplace.
ShipHero provides you under these Terms of Service certain software-as-a-service solutions and other services (together, the “SaaS Services”) to help you sell your 3PL services to your Customers, whether via the Marketplace (“Marketplace Services”), over the phone, via email or in person (together, “Direct Services”), or both (Marketplace Services and Direct Services together, “your Services”).
Any new features or tools that are added to the current SaaS Services are also subject to these Terms of Service.
You can review the current version of these Terms of Service at any time at https://shiphero.com/terms-of-service/.
ShipHero reserves the right to update and change these Terms of Service by posting updates and changes to the ShipHero website. You are advised to check these Terms of Service from time to time for any updates or changes that may impact you.
1. Account TermsYou must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
To access and use the SaaS Services, you must register a ShipHero account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. ShipHero may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
You acknowledge that ShipHero will use the email address you provide as the primary method for communication.
You are responsible for keeping your password secure. ShipHero cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
You are responsible for all activity and content, information, or data uploaded (including photos, images, videos, graphics, written content, audio files, and/or code), collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (together, the “Materials”).
A breach or violation of any term in these Terms of Service, including the AUP, as determined in the sole discretion of ShipHero may result in an immediate termination of your services.
2. Account Activation – ShipHero Account
Subject to section 2.2, the person signing up for the SaaS Services will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the SaaS Services.
If you are signing up for the SaaS Services on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the SaaS Services on behalf of your employer, then you represent and warrant that you have the authority to bind your employer and all of its users of the SaaS Services to these Terms of Service.
You may pay any fees that may be due in respect of the SaaS Services or other Services offered by ShipHero via credit card, debit card or ACH. When making payment via one of these methods, you may be subject to additional terms and conditions.
3. General Conditions
These Terms of Service are governed by and are to be interpreted in accordance with the laws of the State of New York and the federal laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the state and federal courts located in the State and County of New York with respect to any dispute or claim arising out of or in connection with these Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods is not to apply to these Terms of Service and is hereby expressly excluded. The provisions of this Section 3.1 may not be amended except by the express consent of both parties to these Terms of Service.
Except for the provisions of Section 3.1 immediately above, you acknowledge and agree that ShipHero may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on ShipHero’s website, available at https://shiphero.com/terms-of-service/ and such amendments to these Terms of Service are effective as of the date of posting.
Your continued use of the SaaS Services after the amended Terms of Service are posted to ShipHero’s website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to these Terms of Service, do not continue to use the Service.
You may not use the ShipHero service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in the United States, in your jurisdiction (if different from the United States), the laws applicable to you in your customer’s jurisdiction, or any other applicable laws. You shall comply with all applicable laws, rules and regulations in your use of the SaaS Service and in connection with your provision of your Services.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the SaaS Services, use of the SaaS Service, or access to the SaaS Service without the express written permission by ShipHero.
Technical support is only provided to paying Account holders and is only available via email or via the Marketplace itself.
You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use ShipHero or ShipHero trademarks and/or variations and misspellings thereof.
You shall not by implication or otherwise associate your Services with ShipHero, except in a manner that expressly approved in advance and in writing by an authorized representative of ShipHero.
Questions about these Terms of Service should be sent to email@example.com.
You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Any Credit Card information that is shared by you with ShipHero is always encrypted by ShipHero in any transfer or storage that is controlled by ShipHero.
The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and ShipHero’s Terms of Service available in another language, the most current English version of these Terms of Service at https://shiphero.com/terms-of-service/ will prevail.
4. ShipHero Rights
We reserve the right to modify or terminate (in accordance with Section 10 below) the SaaS Service for any reason, without notice at any time.
We reserve the right to refuse service to anyone for any legally permitted reason at any time.
We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that your Services, or the Materials, violate our AUP https://shiphero.com/terms-of-service/ or these Terms of Service.
Verbal or written abuse of any kind (including threats of abuse or retribution) of any person in connection with the SaaS Services, including any ShipHero customer, ShipHero employee, member or officer, may result in immediate Account termination.
ShipHero does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the SaaS Service at any time.
We reserve the right to provide the SaaS Services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that the entire purpose of the Marketplace is to allow your customers to engage you, or your competitors, based on quality of service and price.
ShipHero itself, ShipHero former employees and ShipHero current or former contractors may also be users of the Marketplace, and as such, they may compete with you, although they may not use your confidential information in doing so.
In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
ShipHero retains the right to determine, in its sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, ShipHero reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
5. Limitation of Liability
You expressly understand and agree that ShipHero shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, direct or indirect damages related to loss of profits, loss of goodwill, loss of data or any other tangible or intangible losses resulting from the use of or inability to use the SaaS Service.
In no event shall ShipHero or its suppliers be liable for lost profits or any indirect, special, incidental or consequential damages arising out of or in connection with the SaaS Services or these Terms of Service (however arising, including negligence).
Your use of the SaaS Services is at your sole risk. The SaaS Services are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
ShipHero does not warrant that the SaaS Services will be uninterrupted, timely, secure, or error-free.
ShipHero does not warrant that the results that may be obtained from the use of the SaaS Services will be accurate or reliable.
ShipHero does not warrant that the quality of any products, services, information, or other materials provided by ShipHero in connection with, accessed by, or obtained by you through the SaaS Service will meet your expectations, or that any errors in the SaaS Services will be corrected.
6. Waiver and Complete Agreement
The failure of ShipHero to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and ShipHero and govern your use of the SaaS Service, superseding any prior agreements between you and ShipHero (including, but not limited to, any prior versions of these Terms of Service).
7. Intellectual Property and Customer Content
You represent and warrant that you own, or otherwise have all necessary rights to use, all Materials that you upload to the Marketplace; and by uploading the same you agree to allow your Customers to view and use your Materials. You are responsible for compliance of your Materials with any applicable laws or regulations.
Subject to your representation and warranty above being accurate and complete, we do not claim any intellectual property rights over the Materials you provide to ShipHero in connection with the Marketplace, and all Materials you upload remains yours.
By uploading Materials, you agree: (a) to allow potential customers and your Customers in the Marketplace to view your Materials; (b) to allow ShipHero to store, and in the case of Materials you post publicly, display, your Materials; and (c) that ShipHero can, at any time, review all the Materials submitted to its SaaS Service, although ShipHero is not obligated to do so.
Pricing that you offer to any potential customers or charge to your Customers that is entered appropriately into the correct data fields of the Marketplace (“Your Pricing Information”) will be treated as your confidential information. We agree to properly segregate and maintain the confidentiality of Your Pricing Information in accordance with applicable anti-trust laws and good business practices.
We will not disclose your confidential information (including Your Pricing Information) to third parties, except as required in the course of providing the SaaS Services and operating the Marketplace.
Any portion of the Materials or information that you provide to us (other than Your Pricing Information) that you want treated as your confidential information must first be (a) clearly marked as confidential by you, (b) not directly uploaded to the Marketplace and provided to us outside of the normal operations of the Marketplace, and (c) acknowledged by us in writing upon receipt that such information is to be treated as your confidential information.
Even if your information meets the foregoing criteria, your information will not be considered your Confidential information if it: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
You grant ShipHero the non-exclusive, perpetual, world-wide, royalty free, paid up, right and license to use your Materials (including your names, trademarks, service marks and logos) in connection with the operation of SaaS Services and the Marketplace, and to promote the SaaS Services and the Marketplace.
8. SaaS Services, Revenue Share, Payments
In your connection with your use of the Marketplace customers that are potentially your Customers may (a) become aware of your Services, (b) be reminded that you provide your Services, (c) connect with you in respect of your Services, (d) engage you to provide a certain portion of your Services, or (e) re-engage you to provide a certain portion of your Services ((a) through (e), your “Procured Services”). Your Procured Services include whether your Customer contacts you within or outside of the Marketplace.
For all of your Procured Services you agree that you will only invoice your Customers via the SaaS Services.
You agree to pay ShipHero either (i) 5% of all revenue invoiced to your Customers in respect of your Procured Services less any Shipping Fees (the “Revenue Share”). “Shipping Fees” means shipping fees actually incurred in respect of shipping your Customers’ goods, such as, fees due to the United States Post Office, FedEx, UPS, DHL and others (together, “Carriers”) or (ii) $0.07 per Label from Customers. The parties understand and agree that the Label Transaction Fee shall be due and payable by You to ShipHero for labels actually printed and used.
In the event your Customers pay you for your Procured Services via ShipHero’s Payment Platform, then you agree that ShipHero may retain the Revenue Share and then distribute the balance to you in accordance with your payment instructions.
In the event your Customers pay you for your Procured Services outside of ShipHero’s Payment Platform, then you shall within five (5) business days of your receipt of such payment pay to ShipHero the amount of the Revenue Share in accordance with ShipHero’s payment instructions.
You must keep a valid credit card on file with us to pay for all incurred and unpaid Revenue Share. ShipHero will charge applicable Revenue Share to the credit card account that you authorize (“Authorized Card”), and ShipHero will continue to charge the Authorized Card (or any replacement card) for applicable Revenue Share until the SaaS Services are terminated, and any and all outstanding fees in respect of Revenue Share have been paid in full. Unless otherwise indicated, all fees in respect of Revenue Share and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
If we are not able to process payment of your fees using the Authorized Card, we will make a second attempt to process payment using the Authorized Card 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account. Your Account will be reactivated upon your payment of any outstanding fees. You will not be able to access your Account during any period of suspension. If the outstanding fees remain unpaid for 60 days following the date of suspension, ShipHero reserves the right to terminate your Account.
All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
You are responsible for all applicable Taxes that arise from or as a result of your subscription to or use of the SaaS Services. These Taxes are based on the rates applicable to the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Card. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to ShipHero of your exemption. If you are not charged Taxes by ShipHero, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
You must maintain your current location in the administration menu of your Account and promptly update your location if you move jurisdictions.
ShipHero does not provide refunds.
In addition to the terms applicable to SaaS Services generally, the following terms apply to your access and use of the Payment Platform. The SaaS Services include the ShipHero payment processing software (“Payment Platform”). To use the Payment Platform for processing payments with your Customers (the “Payment Services”), the following apply:
To access and use of the Payment Services, you must have an active and valid Account.
You can terminate your access to the Payment Platform and your right to use the Payment Services without terminating your Account, and in such case, you will continue to be billed, and will pay for, the Services other than the terminated Payment Services.
You agree to use the Payment Services in accordance with all procedures and requirements that may be provided by ShipHero from time to time.
While the Payment Services use encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to your connection to the Payment Services, and we will not be liable for any unauthorized access to or use of data transmitted via the Payment Services.
9. Your Insurance Obligation and ShipHero Shipping Services
You agree that in connection with you providing your Services to your Customers that you will have at all times proper insurance coverage to protect your Customers’ goods from damage, loss, theft, and shipping delays. While the specific amounts and types of coverage are up to you, you agree that such policies will be without material restrictions and will be with adequate amounts of coverage given the nature and volume of your Services. You further agree that such policies will include warehouse legal liability insurance, as well as normal business liability insurance coverages that most companies carry (e.g., commercial general liability (CGL), workers compensation, motor vehicle coverage, umbrella insurance and errors & omissions insurance).
In addition, you agree to always (a) inform your Customers that they are responsible for insuring its goods against other types of losses (e.g., fire, windstorm, etc.) or losses that may occur despite you taking reasonable care; and (b) recommend that your Customers obtain their own insurance.
When the functionality of the Marketplace allows for it, if you are located in the United States, Canada, the European Union, or another jurisdiction where it is permitted, you may purchase shipping labels from within the Marketplace (“ShipHero Shipping”) for the shipping of your Customers’ goods. If you utilize this service, you may be subject to additional terms and conditions.
10. Cancellation and Termination
You or ShipHero may cancel your Account at anytime. You may do so by sending an email to firstname.lastname@example.org and then following the specific instructions indicated to you in ShipHero’s response. ShipHero may do so by sending an email to you at the email address on file for your administrative account and/or by suspending your access to your account. ShipHero will endeavor under the circumstances to give you notice of the cancellation at least thirty (30) days before the date of the cancelation.
Upon the cancellation of your Account by either party for any reason:
ShipHero will cease providing you with the SaaS Services and you will no longer be able to access your Account;
unless otherwise provided in these Terms of Service, you will not be entitled to any refunds of any fees, pro rata or otherwise;
any outstanding balance owed to ShipHero in respect of the Revenue Share for Procured Services that were incurred prior to the cancellation will immediately become due and payable in full without any set off or adjustment.
These Terms of Services survive the cancellation of your Account for three (3) years from the date of the cancellation.
11. Modifications to the Service and Prices
ShipHero may modify the Revenue Share Prices upon 30 days’ advance notice. Such notice may be provided at any time by posting the changes to the Marketplace, the administration menu of the SaaS Services, or by emailing your administrator account.
ShipHero reserves the right at any time, and from time to time, to modify or discontinue, the SaaS Services and the Marketplace (or any part thereof) with or without notice.
ShipHero shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the SaaS Service.
12. Third Party Services
In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, ShipHero’s partners or other third parties.
ShipHero may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the SaaS Services or the Marketplace is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, ShipHero may receive a revenue share from Third Party Providers.
We do not provide any warranties with respect to Third Party Services. You acknowledge that ShipHero has no control over Third Party Services and is not responsible or liable to anyone for such Third Party Services. The availability of Third Party Services via the SaaS Services or the Marketplace, or the integration or enabling of such Third Party Services with the SaaS Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with ShipHero.
ShipHero does not guarantee the availability of Third Party Services and you acknowledge that ShipHero may disable access to any Third Party Services at any time in its sole discretion and without notice to you. ShipHero is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. ShipHero strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
If you install or enable a Third Party Service for use with the SaaS Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the SaaS Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. ShipHero is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
For instance, if Google Maps was a Third Party Service that was used within the SaaS Services, then your use of the such Third Party Service would be subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
Under no circumstances shall ShipHero be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. These limitations shall apply even if ShipHero has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
You agree to defend, indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, ShipHero partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
13. Privacy and Data Protection
Additionally, if: (a) you are established in the European Economic Area (EEA); (b) you provide goods or services to customers in the EEA; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation, ShipHero’s collection and use of personal information of any European residents is also subject to our Data Processing Addendum.
14. Acceptable Use Policy
ShipHero provides logistics software, inventory management technology, and a live marketplace of third-party logistics providers (“3PLs”) that allows manufacturers and shipping companies (“your Customers”) to seamlessly move from one 3PL to another based on quality of service and price (the “Marketplace”).
While we believe the free and open exchange of ideas and products is a key tenet of commerce, there are some activities that are incompatible with ShipHero’s mission to make commerce better for everyone. This Acceptable Use Policy (“AUP”) describes activities that are prohibited in connection with your use of the SaaS Services.
For the purposes of this AUP, “Materials” means any content, information, or data uploaded (including photos, images, videos, graphics, written content, audio files, and/or code), collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account,
The following activities are prohibited:
Child Exploitation: You may not offer goods or services, or post or upload Materials that exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner.
Harassment, Bullying, Defamation and Threats: You may not offer goods or services, or post or upload Materials, that harass, bully, defame or threaten a specific individual.
Hateful Content: You may not offer goods or services, or post or upload Materials, that condone or promote violence against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition or veteran status.
Illegal Activities: You may not offer goods or services, or post or upload Materials, that contravene or that facilitate or promote activities that contravene, the laws of the jurisdictions in which you operate or do business.
Intellectual Property: You may not offer goods or services, or post or upload Materials, that infringe on the copyright or trademarks of others.
Malicious and Deceptive Practices: You may not use the SaaS Services to transmit malware or host phishing pages. You may not perform activities or upload or distribute Materials that harm or disrupt the operation of the SaaS Services or other infrastructure of ShipHero or others, including ShipHero’s third party providers. You may not use the SaaS Services for deceptive commercial practices or any other illegal or deceptive activities.
Personal and Confidential Information: You may not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, confidential national ID numbers, or account passwords unless you have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.
Self-Harm: You may not offer goods or services, or post or upload Materials, that promote self-harm.
Spam: You may not use the SaaS Services to transmit unsolicited commercial electronic messages.
Terrorist Organizations: You may not offer goods or services, or post or upload Materials, that imply or promote support or funding of, or membership in, a terrorist organization.
ShipHero has the right, but not the obligation, to monitor or investigate any Materials and your use of the SaaS Services at any time for compliance with this AUP and the ShipHero Terms of Service, or any other agreement between you and ShipHero governing your use of the SaaS Services (collectively, the “Terms”). Our determination of whether a violation of this AUP has occurred will be final and binding, and any action taken with respect to enforcing this AUP, including taking no action at all, will be at our sole discretion.
ShipHero may modify this AUP at any time by posting a revised version at https://shiphero.com/software/3pl-wms. By continuing to use the SaaS Services or access your Account after a revised version of the AUP has been posted, you agree to comply with the latest version of the AUP. In the event of a conflict between the AUP and the Terms, this AUP will take precedence, but only to the extent required to resolve such conflict. Capitalized terms used but not defined in this AUP shall have the meanings set forth in the Terms.
If you feel that a user of the SaaS Services has violated this AUP, please contact us at email@example.com
For the avoidance of confusion, we will not and we will cause our affiliates not to use your Customer Data or the Confidential Information you disclose to us, including your customer pricing information, to solicit your customers. Notwithstanding the foregoing, nothing herein shall prohibit or otherwise limit us or our affiliates from engaging in general advertising and/or marketing activities in the normal course of business and without use of or reliance on any of your Customer Data or Confidential Information.