Batchship and Batchship.com Terms of Service (TOS) Agreement
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These Terms of Service ("Terms") are between you and Batchship.com (6230 Irvine Blvd #206, Irvine CA 92620) ("you" or "your"), as an authorized user of the Service (as defined below), and the providers and developers of this shipping software, 'Provider' or 'Providers' as specified below. Provider is Batchship.com, a California based S-Corp at 6230 Irvine Blvd #206, Irvine, CA 92620.
Batchship Inc., Batchship.com, and Shipper shall be hereinafter referred to collectively as the “Parties” or individually as a “Party” hereto this Agreement.
WHEREAS, Batchship is licensed as a motor carrier (under the Federal Motor Carrier Safety Administration or other appropriate State agencies) and is authorized to conduct operations in interstate and intrastate commerce.
WHEREAS, in certain territories Batchship may: (i) directly provide its transportation, logistics, and/or last mile delivery services (the "Services, " as further enumerated on Exhibit A below); (ii) utilize its fully owned subsidiary Batchship Logistics, Inc. to provide the Services directly; and/or (iii) utilize third-party motor carriers via Batchship Logistics, Inc., which operates as a licensed property broker/freight forwarder arranging for the interstate or intrastate transportation of freight using licensed third-party motor carriers.
Pursuant to the terms of the Transportation Services Agreement above, Shipper is engaging Batchship to perform transportation, logistics, and/or last mile delivery services for Shipper's (and if applicable, its Approved Affiliate's) Shipments (the "Services ").
WHEREAS, Shipper desires to engage Batchship to provide motor carrier and/or broker/freight forwarder services as further enumerated and defined herein this Transportation Services Agreement and the Exhibits attached hereto (together understood to mean the "Agreement" by and between the Parties) through Batchship and/or Batchship Logistics, Inc.
WHEREAS, Batchship agrees to provide (or arrange to provide) the Services to Shipper pursuant to the terms and conditions contained herein.
WHEREAS, in consideration of the terms and conditions contained herein, the sufficiency of which is mutually acknowledged, the Parties intending to be legally bound hereby agree as follows:
- Term. Unless terminated pursuant to the terms of this Agreement, the Term of the Agreement shall commence on the Effective Date listed above and shall continue for a period of three (3) calendar years at which time it shall naturally expire and terminate unless renewed by the Parties in writing (the "Term").
- ermination.
a. Termination for Material Breach. In the event of a Party's material breach of the Agreement which has not been removed, rectified, or cured to the non-breaching Party's reasonable satisfaction within sixty (60) days after written notice is provided by the non-breaching Party to the breaching Party reasonably identifying such breach and/or deficiency, the non-breaching Party may immediately terminate this Agreement.
b. Termination for Convenience. Without limitation of subsection 2(a) above and notwithstanding Section 1 above, either Party may terminate the Agreement at any time for convenience and without any liability by providing no less than ninety (90) days prior written notice to the other Party.
c. Immediate Termination. The non-affected Party shall have the right to immediately terminate this Agreement upon written notice in the event the other Party: (i) becomes insolvent or make a general assignment for the benefit of its creditors; (ii) admits in writing the inability to pay debts as they come due or mature; (iii) has a trustee or receiver appointed by any court or other administrative tribunal with respect to its assets; or (iv) any action is taken by or against the other Party under laws of bankruptcy or insolvency or laws relating to the relief of debtors. In addition, Batchship may immediately terminate this Agreement upon Shipper's non-compliance or violation of any of the conditions stated within subsections 3(d); 3(e); 3(f) and/or 3(g) below. - The Parties' Duties.
a. Upon Batchship's acceptance of a Shipper's tender of goods, shipments, packages, or cargo (hereinafter "Shipments" or "Packages"), Batchship agrees to provide (or arrange to provide) the Services subject to the terms and conditions contained herein.
b. Extension of Services Shipper Affiliates. For purposes of the Agreement, an "Affiliate" means, as to Shipper, any corporation or other entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Shipper, where "control" means an ownership interest or other managing authority or power to direct or cause the direction of the management and policies, whether through the ownership of voting securities, by contract, or otherwise. Affiliates of Shipper (defined below) shall have the right to request in writing Services under this Agreement (hereinafter "Service Request"). Batchship in its sole discretion shall have the option (and reserves the right) to accept or reject any Affiliate Service Request.
i. A written Service Request initiated by a Shipper's Affiliate shall be deemed to give rise to a direct contractual relationship between such Affiliate and Batchship the terms of which are evidenced by this Agreement and such Service Request. In the event of any conflict between this Agreement and a Service Request, the terms and conditions of this Agreement shall control, govern, and apply.
ii. Shipper and its Affiliate(s) shall at all times remain jointly and severally liable for any charges, liabilities, or other obligations incurred under the Agreement.
iii. Batchship shall invoice Shipper and each Affiliate separately. However, upon the Shipper's request (and Batchship's approval of such request), Batchship will combine amounts due by Shipper and its Affiliate(s) under a consolidated weekly invoice to Shipper.
iv. The list of all Affiliates that, as of the Effective Date, have made a Service Request pursuant to this Section and such Service Request was approved by Batchship are as listed on Exhibit A ("Approved Affiliate[s]").
c. Batchship is responsible for and agrees to comply with all applicable laws, including all statutes, rules, and regulations, in the performance of its Services under this Agreement.
d. Batchship will have no liability for missing labels, mislabeled, or otherwise inaccurate labeling of Shipments. Further, Shipper represents and warrants all Shipments tendered to Batchship pursuant to this Agreement are proper, lawful, and prepared only in anticipation of residential and/or commercial building delivery. Shipper agrees to comply with all applicable law(s), rules, and regulations related to the performance of its obligations hereunder this Agreement.
e. Perishable Shipments. Shipper shall provide Batchship with advance written notice of the proposed collection, handling, shipment, transport, and/or delivery of any perishable Shipment(s) and Batchship in its sole discretion shall have the option (and reserves the right) to accept or reject any such perishable Shipment. If Shipper's perishable Shipments are accepted by Batchship, the following terms and conditions shall apply:
i. Instructions. Unless expressly agreed in writing, Batchship does not transport or arrange transport of Shipments which require refrigeration or freezing. Shipper shall have the sole responsibility to ensure that any perishable Shipments tendered to Batchship are properly packaged, labeled, marked, and secured for transportation appropriate for its collection, transport, and delivery (including but not limited the use of cold-packs). Perishable Shipments shall be transported pursuant to the instructions indicated on the bill of lading, rate confirmation sheet, or as otherwise instructed in writing by Shipper. Instructions given on prior Shipments shall not apply to future Shipments. To the extent Batchship receives contradictory and/or instructions not clear to Batchship regarding any Shipment(s), Batchship shall not be liable for any damages resulting from application of any of the instructions provided by Shipper.
ii. Batchship's Obligations under Applicable Law. When applicable statutes or regulations require it, including but not limited to those promulgated under the Food Safety Modernization Act, Batchship will be responsible for:- Ensuring or requiring that all transportation equipment it provides, is clean, odor-free, dry, leak-proof and free of contamination and infestation and otherwise safe to transport the commodities tendered; and
- Complying with Shipper instructions for transporting Shipments safely and confirming the vehicle and transportation equipment is in appropriate physical condition to transport the goods tendered, including but not limited to free from pest infestation and evidence of prior Shipments that could render the Shipment unsafe. If Shipper's instructions require a seal upon the Shipment, the lack of a seal alone shall not be sufficient to consider the Shipment unsafe or damaged.
i. Expressly excluding those classified as "Limited Quantities" as defined under 49 CFR § 172.315 and subject to a contrary classification per the Hazardous Material Safety Data Sheet available at Batchship request, prior to the transportation of any Hazardous Material, Shipper shall provide Batchship with a current Material Safety Data Sheet or any other Hazardous Material document required to be prepared and provided by Shipper or its agent for the Hazardous Material Shipment. Shipper shall be responsible for ensuring that the Hazardous Material is properly packaged, labeled, marked and secured for transportation in accordance with all applicable regulations.
ii. Shipper shall indemnify, defend and hold harmless Batchship, its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out of or related to, exposure to or release of any Hazardous Material, including without limitation, fines or expenses relating to the removal or treatment of Hazardous Material or any other remedial action pertaining to the Hazardous Material under federal, state or foreign law, if:- Shipper fails to provide the notice required by this provision prior to tendering the Hazardous Material to Batchship;
- the contact, exposure or release resulted from the improper packaging, labeling, marking or loading or other acts or omissions of the Shipper, its employees or agents; or
- the contact, exposure or release occurred subsequent to the transport or storage of the Hazardous Material by or through Batchship.
i. Shipper will comply with all applicable federal, state, and local laws, rules, regulations, and ordinances having jurisdiction over the goods contained in the Hemp Shipments and the transportation services to be performed;
ii. Shipper will ensure that Batchship's possession and transportation of the Hemp Shipment is permitted in all jurisdictions through which the Hemp Shipment will be transported. (Batchship will provide the route of transport upon request of Shipper);
iii. Each Hemp Shipment is packaged, marked, and labeled in accordance with applicable law, and that each Hemp Shipment is accompanied by all documentation required in each jurisdiction through which it will be transported. (Batchship will provide the route of transport upon request of Shipper);
iv. The Hemp Shipments will not contain any plants or products with a delta-9 tetrahydrocannabinol ("THC") concentration of more than 0.3 percent on a dry weight basis. Shipper will, upon request, provide Batchship with a copy of the certificate of analytical testing identifying the specific Hemp Shipment (or the lot from which such Hemp Shipment is derived) to evidence compliance with this subsection. Additionally, Shipper will provide an electronic copy of such THC test results to Batchship prior to tender of the Hemp Shipment and a hard copy to the driver upon pickup of the Hemp Shipment;
v. Prior to tender of any Hemp Shipments to Batchship, that the hemp or hemp products contained in any Hemp Shipments were produced in accordance with all applicable laws and regulations, including those of the United States Department of Agriculture (USDA) or the U.S. State in which the hemp in question was cultivated or processed, and that any hemp or hemp products contained in any Hemp Shipment were grown or produced by a lawfully authorized hemp producer holding the requisite valid, current USDA- or state-issued license. With respect to each Hemp Shipment, Shipper will provide an electronic copy of such license to Batchship prior to tender of the Hemp Shipment and a hard copy to the driver upon pickup of the Hemp Shipment; and
vi. Any receiver or consignee to which a Hemp Shipment will be delivered is authorized to receive and possess it pursuant to federal, state, and local laws and regulations.
vii. In the event of Batchship's possession of the Shipper's Hemp Shipments prior to Batchship's receipt of the applicable documentation required hereunder, it shall not in any way constitute a waiver of: (1) Shipper's obligations and requirement contained above; or (2) Batchship's rights or claims against Shipper.
h. Indemnification. Without limitation of any other rights or obligations under this Agreement including without limitation those contained within subsection 6(d) or Section 10 of the Agreement, each Party agrees to indemnify, defend, and hold harmless the other Party (and its successors, assigns, officers, directors and employees) from and against any and all direct or indirect damages, claims, losses, liabilities, deficiencies, costs and other expenses (including, without limitation, reasonable attorneys' fees) which relate to or arise out of a Party's violation, non-compliance, or material breach of subsection(s) 3(c); 3(d); 3(e); 3(f); and/or 3(g). The provisions of this Section 3(h) shall expressly survive the expiration or termination of this Agreement.
A) Software Agreement
The Providers offer certain software that facilitates the creation of shipping labels for various carriers. These Terms set for the terms and conditions of your use of the Service. By setting up a BATCHSHIP Ship account, by using the Service, by using our downloading software, or by creating a label, you agree to these Terms.
B) Terms and Policies Agreement
These Terms include the terms of this Terms of Service together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time.
By clicking on the accept buttons relating to the Terms of Service, Data Processing Agreement and Privacy Policy, you agree to be legally bound by these Terms of Service and the referenced and linked Data Processing Agreement, Privacy Policy, and Cookie Policy and other information links referenced within those document as they may be modified and posted on our Website from time to time. In these Customer Terms, 'you' refers to the entity you represent ('Customer').
If you do not agree with these Terms of Service, Data Processing Agreement, Privacy Policy or Cookie Policy you may not use the Service. You may connect to the Service using an Internet browser supported by the Service. You are responsible for obtaining access to the Internet and any equipment necessary to use the Service.
C) Account Setup
To use the Service, you need to set up an BATCHSHIP Ship account or have one setup for you by a Provider. You confirm that all Users are 18 years old or older.
You shall not upload or enter any personal data, revealing: (i) racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; (ii) data concerning health or sex life or sexual orientation; or (iii) genetic data or biometric data, ('Sensitive Personal Data') into the Service.
Account options and payment requirements made available to you may vary from country to country and from Provider to Provider. However, these Terms govern your use of the Service.
D) Merchant Fees
For the first 90 days following the initial funding of your prepaid shipping account, BATCHSHIP Ship will pay for merchant fees associated with credit/debit card payments for carrier label and associated costs. After this initial 90 days, the customer will be required to pay up to 3.25% for these merchant fees. However, these merchant fees can be avoided by making payments through ACH, which payment method must be pre-approved.
E) Renewals and Cancellations
You can cancel your plan at any time. Cancellation will be effective immediately. Please note that after you cancel your plan, you will not be able to use or access the plan Services. Any outstanding bills and dues are still owed within 14 days of Cancellation. Cancellation must be written correspondence and/or can be mailed to 6230 Irvine Blvd #206, Irvine, CA.
F) Requirements to Use the Service
To use the Service, you will need to have a compatible computer or mobile device with Internet access. If you access the Service using a wireless data plan on your mobile device, you may incur increased charges from your wireless carrier. You are responsible for paying all wireless charges and for all equipment and other third-party services and appropriate carrier accounts to access Service. You must have all necessary rights to grant the licenses to the Providers set forth in these Terms and you represent and warrant that you have such rights and that BATCHSHIP Ship's exercise of the licenses will not violate applicable law or infringe or violate the rights of any party. You understand and agree that the Service may include certain communications, such as service announcements and administrative messages, promotional offers and news about BATCHSHIP Ship or its affiliates and that these communications are considered part of the 'services and you will not be able to opt out of receiving them.
You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into these Terms. You agree to be financially responsible for your use of the Service (as well as for use of your account by others, including, without limitation, minors living with you) and to comply with your responsibilities and obligations as stated in these Terms.
To use this service, you expressly agree that all prices quoted for labels created on this service are subject to Carrier review, modification, and adjustment. The Carrier may determine, in their sole discretion, that the price quoted did not accurately represent the parcel as presented. This could result from a review of the weight, dimensions, remote area locations, address corrections and other attributes you declared or failed to declare when the label was printed verses the actual data as reviewed by the carrier. You expressly agree to accept the adjustment as determined by the Carrier as accurate and correct. You also authorize the difference in fee that results from these discrepancies to be charged per the payment method as defined in the service settings, whether that be credit card, ACH withdrawal or some other method. These charges to your payment method will be in the amount equal to A) your recharge amount as configured in your payment settings, or B) the amount of the additional carrier charges, whichever is greater. You expressly agree to make payment if the authorized payment method is declined.
E) Finance Charges and Fees
Failed ACH, Credit Card and other transactions will incur a $50 fee for each failed transaction. Where credit is provided and the associated transaction fails, the associated funds will be collected using all available means and any uncollected amount shall bear interest at a per-annum rate of twenty five percent (25%) compounded monthly from the date of invoice, or the maximum rate allowable by applicable law.
If any amount owed is not paid within 30 days of invoice date, including without limitation, all amounts due under this agreement, such amounts shall bear interest at a per-annum rate of twenty five percent (25%) compounded monthly from the date of invoice, or the maximum rate allowable by applicable law.
Amounts owed longer than 30 days may be sent to collections and all legal remedies may be pursued to collect such amounts.
Deposited Funds held in Inactive accounts (those accounts with no activity for 6 consecutive months) may be charged a percentage service charge on held funds.
For Pay On Use (POU) returns, you agree to pay a label fee. This fee may be changed at any time at our sole discretion.
We reserve the right to charge service fees and rates for creating labels and handling carrier required adjustments. These fees may be applied to any carrier, service or carrier-imposed fees or adjustments, private accounts, NSA agreements, merchant rates or any other class of service. Fees may be a percentage of the charge or a fixed amount or a combination. These charges may be set or changed at any time at our sole discretion. You can review most service fees on a link in the ship quote screen or the payment history.
Occasionally, you may create a label that does not get used or enter the mail stream. In these cases and for some carriers and classes of service, when the label has not been use for more than 20 days, we may void the label for you. This service saves you the cost of a the label that does not get used. We charge 20% of the label fee for this automatic service. You may manually void the label any time prior and save the cost of the label and the associated automated service fees.
G) Usage Restrictions
General Restrictions. Your account, password, and any specific URL associated with your account are for your individual use only. You may not resell accounts or any account features. Your use of the Service is subject to all applicable local, state, national, and international laws and regulations (including, without limitation, those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities or false advertising). You agree: (i) not to use the Service for any illegal purpose; (ii) not to interfere with or disrupt networks connected to the Service; (iii) to comply with all regulations, policies and procedures of networks connected to the Service; (iv) not to use the Service to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (v) not to attempt to gain unauthorized access to other computer systems; (vi) to not interfere with another customer's use and enjoyment of the Service; and (vii) to keep your account information current, complete, and accurate. You agree that you will not use the Service to disseminate any advertising, promotional materials, spam, chain letters, junk mail, or any activity making use of distribution lists to any person who has not given specific permission to be included in such a process or on such list. You agree that you will not use the Software or Service to create, copy, store, transmit, share or distribute any Files, images, sounds, messages or other material which are obscene (as determined in Providers sole discretion), harassing, abusive, threatening, racist, malicious, fraudulent or libelous, contain nudity, are unlawful, violate or infringe the rights of third parties, or expose the Providers to any actual or potential civil or criminal liability. The Providers reserve the right in their sole discretion to take any action that they deem necessary if you violate these Terms, including suspension or termination of your account. The Providers reserve the right to take any action with respect to the Service that is deemed necessary or appropriate in its sole discretion, if it is believed that you, your Files, or your actions may create liability, compromise or disrupt the Service for you or other customers, or cause the Providers to lose (in whole or in part) the services of and business partners.
H) Email Communication
By logging in and using this Software and Services you opt-in to receive email from us and agree that we may email you with information about the Services, surveys, offers, and other items. You may modify this opt-in authorization and will be given the opportunity to opt-out of future emails.
I) Hazardous Materials and Dangerous Goods
If you ship hazardous materials or dangerous goods, you specifically warrant that (a) you are qualified by all regulations and laws; (b) you are the sole offeror; and (c) you are not relying in any way upon the Provider or Providers or any Provider affiliates as a qualified offeror. You warrant and represent to all parties that you: (i) have the right to provide the data you transfer through the Web Site; and (ii) you have a bona fide interest in the information you receive through the Service and shipments associated with such information. Dangerous goods without the written consent or confirmation by Batchship and it's affiliates will result in a $1000 per shipment/label penalty. By agreeing to these terms, you agree to this clause and agreement.
You shall comply with all carrier specific guidelines including those related to Hazardous Materials and Dangerous Goods as posted by the individual carriers including, USPS, DHL, UPS, FedEx, Amazon and any other carrier for which labels may be created using the Services.
J) Service Limitations
The Provider uses reasonable efforts to make the Service available 7 days a week 24 hours a day. However, we do not guarantee availability of the Service, shall not have any liability to you for any unavailability of the Service, and is under no obligation to provide you with maintenance, technical support or updates for the Software or Service unless provided in conjunction with your plan type and, if provided, in the manner as determined by the Providers from time to time. We reserve the right to suspend access to your account if your use of the Service disrupts, impedes or otherwise negatively impacts the operation of the Service or the use of the Service by other customers.
K) Carrier Included Insurance
Some parcel carrier services include a limited amount of free insurance to cover lost or damaged parcels. For some services we may file and collect the settlement with the carrier directly. You may file a claim with us during the lessor of 90 days or the carrier's claims statute of limitations
We reserve the right to retain the settlement amount if you do not notify us of your loss or damage within 90 days.
L) License to Use the Service and Software
License. Subject to these Terms, you are granted a non-exclusive, non-transferable license when you set up a BATCHSHIP Ship Plan, to: (i) access the Software on devices within your possession and control are subject to device limitations as required from time to time; and (ii) use the Software to access and use the Service for your own use. Except for the foregoing license grant, these Terms do not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other right, title or interest in the Software or Service, ownership of which is retained by the Provider and its suppliers, as applicable. Software updates are governed by these Terms. The Software is licensed, not sold, to you for use only under these Terms, and the Provider reserves all rights not expressly granted to you. Elements of the Software may not be used separate from the Software as a whole unless subject to a license granting separate use. Except as expressly authorized in these Terms or allowed by applicable law, you may not use, copy, modify, reverse engineer, disassemble, decompile, modify, or transfer the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing.
Compliance with Laws. You agree to comply with any local laws and regulations regarding your right to download, install, import, export or use the Software and/or Service. You acknowledge and agree that the Software is controlled for export purposes and that your use of the Software may be subject to audit to ensure compliance with these Terms. You agree to: (i) strictly comply with all United States export laws and regulations, including, but not limited to the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR), the Office of Foreign Asset Control (OFAC) regulations as administered by the Department of Treasury, and all treaties, Executive Orders, laws, statutes, amendments, or supplement thereto, including all applicable international, national, state, regional and local laws, and regulations; (ii) not export, re-export or transfer, directly or indirectly, the Software to any prohibited country outlined in the EAR, or to any denied person, entity, or against any general denial order, as listed with the DOC as follows: Denied Persons List, Entities List, the Unverified List, and General Order No. 3 to Supplement No. 1 to Part 736 of the EAR, or on any OFAC list, currently the Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists; (iii) not export, or re-export the Software to any military entity or military end-use not authorized under the applicable provision of the EAR; (iv) not to export or re-export into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; and (v) not to license, sell, provide or distribute the Software for any prohibited use or to any prohibited end user.
You agree to comply with all requirements presented by the Provider and all requirements presented by the various carriers on their respective websites and other communication vehicles.
Fraud. Providing false information to access discounted rates or pay less than the applicable postage due through the use of the Services or any carrier services, may subject you to criminal and/or civil penalties, including fines and imprisonment.
Duties and Taxes. Customs duties and taxes for packages mailed under this Agreement are the responsibility of the addressee.
M) Governments
The Software is a "Commercial Item", as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software documentation, " as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in these Terms. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES
N) Term and Termination
Your rights to use the Service and Software are effective until terminated. We reserve the right to terminate these Terms and your account without prior notice and without liability to you upon requests by government and/or law enforcement agencies.
Storage space, bandwidth availability, and account features may be limited, modified, or suspended, and your services may be terminated, at any time at our sole discretion without notice or liability to you. The Provider may terminate your 'service (i) at any time for any reason or no reason and without liability to you, (ii) upon your breach or failure to comply with any term or condition of these Terms, without liability to you, and (iii) without cause.
Upon termination, the licenses granted to you shall cease, you will not be able to access or retrieve any information stored in your account, and you shall promptly destroy the Software. If you terminate your account, you agree that the Provider may keep history information on its servers for reasonable time thereafter to enable continuity of transaction history as required by federal, state law and for lawful accounting practices.
In the event of expiration or termination of your account, the representations made by you in these Terms, and the obligations of each party, which by their nature would continue beyond the termination or expiration of these Terms, including without limitation the Sections entitled "Usage Requirements", "Compliance with Laws", "Governments", "Term and Termination", "Rights of Co-Brand Partners", "Disclaimer of Warranties", "Limitation of Liability", "Indemnification", "Modifications to the Terms", "Agreement to Arbitrate all Disputes", and "General" shall survive such expiration or termination.
We will follow the legal requests presented by government and/or law enforcement agencies. Your rights to use the Service and Software or any discounted rates are effective until modified or terminated. We reserve the right to modify or terminate the service, software and rates at any time without notice, or terminate these Terms and your account without prior notice.
O) Privacy Act Statement
Your information may be used to facilitate the purchase of Amazon postage and fulfill transactional reporting requirements for the Amazon postage systems. All Amazon Shipping privacy act apply to this section of Terms and conditions
P) Modifications to the Terms
These Terms may be amended at any time upon thirty (30) days' notice by (i) posting a revised version of these Terms on the BATCHSHIP Ship application website, and/or (ii) sending information regarding the amendments to the email address you provide. You are responsible for regularly reviewing the BATCHSHIP Ship application website to obtain timely notice of such amendments. Your continued use of the Service after such thirty (30) day period shall be deemed acceptance by you of the amended Terms.
R) Disclaimer of Warranties
THE SOFTWARE AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDERS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, THE USABILITY, CONDITION OR OPERATION OF THE SOFTARE OR SERVICE, COMPATIBILITY, SECURITY, ACCURACY, AND NON-INFRINGEMENT. THE PROVIDERS DO NOT WARRANT THAT: (I) THE ACCESS, USE OR QUALITY OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY; (II) THE RESULTS OBTAINED FROM USE OF THE SOFTWARE OR SERVICE WILL BE ACCURATE OR RELIABLE; OR (III) ANY ERRORS IN THE SOFTWARE OR THE SERVICE WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND SERVICE REMAINS WITH YOU, EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Nothing in this Agreement shall be construed as a representation or guarantee by Provider or any related carrier that Qualifying Mail will be delivered to the appropriate addresses within any particular time.
S) Limitation of Liability
IN ADDITION, YOU AGREE THAT NEITHER THE PROVIDERS NOR ANY OF ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT (INCLUDING CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL INFORMATION OR OTHER INFORMATION OR DATA, HARM TO YOUR COMPUTER SYSTEM, HARM THAT RESULTS FROM YOUR ACCESS TO THE SERVICE OR SOFTWARE, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF THESE TERMS OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE PROVIDERS OR ANY AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SOFTWARE AND THE SERVICE OR ANY BREACH OF THESE TERMS IS LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SOFTWARE (NOT INCLUDING ANY POSTAGE FEES) IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S.$500.00. YOU HEREBY RELEASE THE PROVIDERS AND EACH OF ITS AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER, IN EVALUATING THE SERVICE OR SOFTWARE OR ANY OTHER SERVICE OFFERED HEREWITH.
T) Providers
The Providers of BATCHSHIP Ship include the software developers including Straight Forwarding, Inc., various distribution agents, and other affiliated organizations that may provide branding, sales, support and technical access to the Services.
U) Indemnification
You agree to indemnify, defend and hold the Providers and their officers, directors, employees, agents, licensors, affiliates and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys' fees, arising out of claims based upon your use of the Service or Software, including but not limited to: (i) a violation or breach of these Terms by you, (ii) any activity related to access or use of your account (including but not limited to negligent or wrongful conduct) by you or any other person accessing or using your account and/or Files, or (iii) the Providers authorized use of data, Files or other content provided by you or obtained as authorized by you under these Terms.
W) Terms and Conditions and Disputes
You and the Providers agree that all disputes and claims shall be settled by binding arbitration instead of in courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to, any dispute, claim or controversy arising out of or relating in any way to the Service, the Software, the BATCHSHIP Ship website, these Terms or any aspect of the relationship between you and the Providers. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and the Providers are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against the Providers on your behalf. This arbitration provision shall survive termination of these Terms and the termination of your account.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Batchship should be addressed to: Batchship ATTN: Legal Department, 6230 Irvine Blvd, #206, Irvine, CA 92620 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought ("Demand"). If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, either party may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by either party shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which either party is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless the parties agree otherwise, any arbitration hearings will take place by video or telephone conference. If your claim is for US$10,000 or less, Provider agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator,
through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party's actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of these Terms. Provider may make a written settlement offer any time before an arbitrator is selected.
YOU AND PROVIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
V) General
You agree that conflicts of laws principles of such laws, the Uniform Computer Information Transactions Act, and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are excluded in their entirety from application to these Terms. You expressly agree that the exclusive jurisdiction for any arbitration proceeding resides in Salt Lake City, Utah. In addition, you expressly agree that the exclusive jurisdiction for any claim or dispute arising from the use of the Software or Service, if not settled via arbitration, resides in the United States District Court for the District of Utah. Neither these Terms nor any rights or obligations of you hereunder may be assigned by you in whole or in part without the prior written approval of the Provider. Any assignment in violation of the foregoing shall be null and void. If any part of these Terms is for any reason found to be invalid, illegal, or unenforceable, all other parts nevertheless remain valid, legal and enforceable. In lieu of the unenforceable provision, the parties agree that the court should attempt effect as much as possible the economic, legal, and business objectives as were intended by the unenforceable provision. Provider's failure to act with respect to a breach by you or others does not waive their right to act with respect to subsequent or similar breaches. Provider shall not be liable for any delay in the performance hereunder due to causes beyond its control, including but not limited to an act of God, war or natural disaster. These Terms set forth the entire understanding and complete and exclusive statement of the agreement between Provider and you and they supersede any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of these Terms. You have no third-party beneficiaries to these Terms. Notwithstanding any law, rule or regulation to the contrary, you agree that any claim or cause of action you may have arising out of these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
X) Limited Shipment Liability.
a. Shipment Liability. Batchship Inc's liability to Shipper for loss, damage, or misdelivery of a Shipment shall be in accordance with the provisions of 49 U.S.C. § 14706, which liability shall be hereby limited to the lesser of: (i) the actual replacement cost; (ii) $100 per parcel; or (iii) $5,000 per truckload ("Shipment Liability"). Shipper has considered the transportation Rates and limitations set forth herein (and has elected against available higher levels of motor carrier liability at higher transportation rates) and selects the limitation of Batchship Inc's Shipment Liability set forth in this Agreement. In all instances, evidence of actual loss, damage, or misdelivery shall be required before Batchship Inc shall have any Shipment Liability to Shipper under this Agreement, the Carmack Amendment, or otherwise. The Shipment Liability in this subsection applies in all circumstances and shall not be invalidated based on any action or inaction of Batchship Inc.b. BATCHSHIP INC DOES NOT GUARANTEE DELIVERY BY A SPECIFIC DAY OR TIME.
c. Without limitation of Section 16 below, Batchship Inc will not be liable to Shipper for any loss, damage, or misdelivery of Shipments caused by events Batchship Inc cannot control, including without limitation acts of God, Force Majeure Events (as defined in Section 16 below), unforeseeable weather conditions, pandemics, acts of public enemies, war, strikes or civil commotion, traffic, or other delays of vehicles used in providing delivery services. Batchship Inc's sole liability with respect to Shipment loss, damage, or misdelivery is as set forth in this Section.
d. If Shipper is not the owner of the Shipment(s), Shipper represents and warrants that it is authorized to bind the owner of the Shipment(s) to the provisions of this Section X and Section Y below.
e. Shipper waives any right(s) of subrogation held by Shipper (or its insurer) related to any Shipment Claims arising out of Shipments tendered to or transported by Batchship Inc under this Agreement. To the extent the Shipper (or its insurer) asserts a Shipment Claim (or other legal claim) in excess of the Shipment Liability limits stated herein this Section X, or outside of the procedure(s) set forth in Section Y below, Shipper will indemnify, defend, and hold Batchship Inc harmless from any and all costs, expenses and attorney fees related in any way to such claim asserted.
f. The provisions of this Section X shall expressly survive the expiration or termination of this Agreement.
Y) Shipment Claims; Service Credit Guidelines:
a. All claims related to loss, damage, or misdelivery of Shipments ("Shipment Claims") must be handled through Batchship Inc's Claims Management Department at claims@batchship.com and not its Accounts Receivable Department.b. Shipper shall file any Shipment Claims with Batchship Inc within thirty (30) calendar days of the anticipated due date of the Shipment (otherwise Batchship Inc reserves the right to refuse the Shipment Claim). [YP1] [KO2]
c. For a Shipment Claim to be filed and/or paid, the Shipper must: (i) be in current and good standing of its payment obligations to Batchship Inc; and (ii) provide Batchship Inc with the invoice that outlines the actual replacement cost for the contents in the Package being claimed. It is the responsibility of Shipper to complete Batchship Inc's Shipment Claim form and attach all supporting documentation requested by Batchship Inc.
d. Shipper may not deduct or "short pay" amounts of pending claims from charges owed to Batchship Inc. Shipper waives any and all rights, including statutory and common law rights, pertaining to set off and/or applying claim amounts against charges owed to Batchship Inc.
e. The provisions of this Section Y shall expressly survive the expiration or termination of this Agreement.