PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) BEFORE USING THE SERVICES OF CART.COM, INC. (“CART”). BY ACCESSING OR USING CART’S SERVICES, YOU (“CUSTOMER” AND, TOGETHER WITH CART, THE “PARTIES” AND, EACH, A “PARTY”) SIGNIFY ACCEPTANCE OF AND AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE CART’S SERVICES.
WHEREAS, Cart is a service provider that offers access to, and use of, certain applications including its fully integrated set of web-based modules (the “Services”) and implementation support to initiate such access and use; and
WHEREAS, the Customer desires to obtain access to the Services and to engage Cart to perform professional services in connection with Customer’s use of the Services, in each case pursuant to these Terms.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Cart agree to the following terms:
(a) “Aggregated Anonymous Data” means anonymous, aggregate data derived from the use of the Services or anonymous, aggregate data collected through the use of the Services, statistics, log files, and similar information gathered by the Services, including benchmarking, performance, and usage information, provided that such data cannot be associated with you or your clients.
(b) “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms.
(c) “Cart IP” means the Services, the Documentation, and any and all intellectual property embodied in or related to the foregoing. For the avoidance of doubt, Cart IP does not include Customer Data.
(d) “Customer Data” means information, data, and other content that is submitted, posted, or otherwise transmitted through the Services by an Authorized User.
(e) “Documentation” means any Cart’s user manuals and guides relating to Cart services.
(f) “Master Services Agreement” means an ordering document entered into by the Parties describing the package or packages of Services to which Customer is subscribing and, if applicable, the Support Services to be provided by Cart to Customer.
(g) “Services” means any of the services provided by Cart currently or in the future.
(h) “Statement of Work” means an ordering document entered into by the Parties with detailed description of Services purchased by the Customer.
(i) “Support Services” means the implementation and support services, if any, described in the applicable Master Services Agreement or Statement of Work.
2. Access and Use
(a) Access Rights. Subject to Customer’s full compliance with these Terms, Cart hereby grants Customer and its Authorized Users a non-exclusive, non-transferable right to access and use the Services during the Term, solely for Customer’s internal use. Cart may, in its sole discretion modify, enhance or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services to which Customer has subscribed pursuant to the Master Services Agreement or Statement of Work.
(b) Provisioning. Cart will issue to one Authorized User (the “Customer Administrator”) an individual logon identifier and password (the "Administrator Credentials”) for purposes of administering the Services to which Customer has subscribed. Customer acknowledges and agrees that its Customer Administrator shall be authorized to bind Customer in connection with the Services and Support Services provided to Customer pursuant to these Terms. Using the Administrator Credentials, the Customer Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the Services.
(c) Use Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in these Terms; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (v) remove any product identification, proprietary, copyright or other notices from the Services or Software; (vi) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (vii) use the Services for the purpose of selling, marketing or otherwise posting any product, service or material that is libelous, tortuous, indecently depicts children, is of a profane, sexual, pornographic, or obscene nature, or is likely to result in retaliation against Cart by offended users, or any material that Cart determines in its sole discretion to be inappropriate; or (viii) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Cart of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use. Customer will comply with Cart’s Digital Millennium Copyright Act Notice.
(d) Reservation of Rights. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Cart IP.
(e) Suspension. Notwithstanding anything to the contrary in these Terms, Cart may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Cart reasonably determines that (A) there is a threat or attack on the Services or Software; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services, the Software or to any other customer or vendor of Cart; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities or otherwise in violation of these Terms; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Cart’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; or (ii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Cart shall use commercially reasonable efforts to provide prior notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Cart shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Cart will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
3. Service Levels; Support Services
(a) Availability. Cart shall use commercially reasonable efforts to keep the Services available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance, and systems outages. Notwithstanding the foregoing, Cart makes no guarantees that the Services will be available at any given time, and Cart shall not be liable to Customer for failure of accessibility to the Services.
(b) Support Services. Cart will provide the Support Services, if any, which are set forth in any Master Services Agreement or Statement of Work.
4. Customer Data Security
5. Customer Responsibilities
(a) General. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer shall ensure that each Authorized User will: (i) be responsible for the security and/or use of his or her logon credentials; (ii) not disclose such logon credentials to any person or entity; (iii) not permit any other person or entity to use his or her logon identifier; (iv) use the Services consistent with the assigned business rules; and (v) use the Services in accordance with these Terms. Customer will be responsible for all acts or omissions of its Authorized Users, including any and all costs and expenses incurred through the Administrator Credentials and the credentials of other Authorized Users.
(b) Third Party Services. Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Cart is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Cart does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions
6. Fees and Payment
(a) Fees. Customer shall pay Cart the fees (“Fees”) as agreed to online, as set forth in Master Services Agreement, or as set forth in the Statement of Work without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth online, in the Master Services Agreement, or in the Statement of Work. If Customer fails to make any payment when due, without limiting Cart’s other rights and remedies: (i) Cart may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Cart for all costs incurred by Cart in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Cart may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Cart’s income.
7. Confidential Information; Feedback; Data Usage
(a) Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, to the extent permitted pursuant to applicable law, rule or regulation, first have given written notice to the other Party and made a reasonable effort to obtain a protective order or (ii) to establish a Party’s rights under these Terms, including to make required court filings. Cart may use Customer Data to (i) provide the Services and Support Services to Customer and perform these Terms; and (b) to test, improve, and provide Cart products and services; provided, that Cart will disclose Customer Data used for the purposes described in this clause (b) solely in aggregated and anonymized form and in a manner that does not disclose Customer Data or Confidential Information of Customer.
(b) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Cart by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cart IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Cart is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
(c) Usage Data. Cart may collect, retain, and use, during and after the Term for purposes of Cart’s business, usage data that is derived from the operation of the Services, including patterns identified through the use of the Services and algorithms, log data, and data regarding the performance and availability of the Services (“Usage Data”), which such Usage Data is not Customer Data or otherwise Customer’s Confidential Information hereunder.
(d) User Data. During the Term, Customer hereby grants to Cart a limited, non-exclusive, royalty-free license, to use and modify the content and data that is submitted to or collected by the Services for purposes of providing and improving the Services and generating Aggregated Anonymous Data. If you purchase analytics from Cart, subject to the terms and conditions of this Agreement, Cart grants Customer a limited, revocable, non-exclusive, non-sublicensable license to view, copy, and use the analytics provided by Cart. Customer will not and Customer will not allow any third party to (i) copy, modify, adapt, translate, or otherwise create derivative works of the analytics; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the analytics, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign, or otherwise transfer rights in or to the analytics, or the Services; (iv) remove any proprietary notices or labels on the analytics or placed by the Service; or (v) use, post, transmit, or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services. Customer will comply with all applicable laws and regulations in Customer’s use of and access to the analytics, any reports, and the Services
(e) Return or Destruction. On the expiration or termination of the Terms, the Customer shall promptly return to Cart all copies, whether in written, electronic, or other form or media, of the Cart’s Confidential Information, or destroy all such copies.
8. Warranties and Disclaimers
(a) Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into these Terms, to carry out its obligations under these Terms, and to grant the rights granted to the other Party herein; (iii) the execution of these Terms by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
(b) Cart. Cart warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and (ii) it will provide the Support Services, if applicable, in a professional and workmanlike manner.
(c) Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE SERVICES AND THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND CART HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CART SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, CART MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, SUPPORT SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) Cart Indemnification. Cart shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Customer’s permitted use of the Services infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Cart in writing of the claim, cooperates with Cart, and allows Cart sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Cart, at Cart’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue to use the Services in substantially the same manner as contemplated in these Terms and the applicable Master Services Agreement or Statement of Work. If Cart determines that neither alternative is reasonably available, Cart may terminate these Terms and each outstanding Master Services Agreement or Statement of Work, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply with respect to portions or components of the Services (A) not created by Cart, including but not limited to Customer Data or Third-Party Products; (B) that are modified by anyone other than Cart where the alleged infringement relates to such modification; (C) combined with other products, processes or materials where the alleged infringement relates to such combination; (D) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (E) where Customer directed the development of the feature or functionality that gives rise to the alleged infringement; or (F) where Customer’s use thereof is not strictly in accordance with these Terms and all related documentation.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Cart’s option, defend Cart from and against any Losses resulting from (i) any Third-Party Claim that the Customer Data infringes or misappropriates such third party’s intellectual property rights; (ii) any Third-Party Claims excluded from indemnity obligation in Section 9(a) above; (iii) any Third-Party Claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the Services by Customer or its customers; or (iv) any Third-Party Claims otherwise resulting from Customer’s or any Authorized User’s violation of these Terms; provided, in each case that, if Cart requests Customer to assume the defense of any such Third-Party Claim, Customer may not settle any Third-Party Claim against Cart unless Cart consents to such settlement, and further provided that Cart will have the right, at its option, to defend itself against any such Third-Party Claim at Customer’s expense or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability
(a) Indirect Liabilities. IN NO EVENT WILL CART BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CART WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) Direct Liability. IN NO EVENT WILL CART’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Terms and Termination
(a) Term. These Terms shall become effective on the date the Customer first uses any Cart Service, enters into a Master Services Agreement, or enters into a Statement of Work and shall remain in effect until Customer’s use of the Services is terminated pursuant to subsection (b) or (c) of this Section 11 (the “Term”).
(b) Termination for Convenience by Customer. To cancel the Services, Customer must submit a cancellation request from within the Services or as described in the Customer’s Master Services Agreement or Statement of Work. This request process will verify that the person submitting the cancellation request has the proper permissions to do so. A ticket will be automatically created to provide proof of cancellation. Customer is responsible for all outstanding charges up to the time the cancellation request is approved. NOTWITHSTANDING THE FOREGOING, CUSTOMER IS NOT PERMITTED TO TERMINATE OR CANCEL ITS SUBSCRIPTION IF CUSTOMER HAS AGREED TO A MINIMUM TERM LENGTH. IN ADDITION, CUSTOMER WILL NOT BE ENTITLED TO A REFUND OF PREPAID FEES IF IT TERMINATES OR CANCELS ITS SUBSCRIPTION PURSUANT TO THIS SUBSECTION (B). FOR SECURITY PURPOSES, TERMINATION REQUESTS SUBMITTED BY E-MAIL OR OTHERWISE NOT SUBMITTED THROUGH THE SERVICES WILL BE NULL AND VOID, UNLESS A DIFFERENT TERMINATION MECHANISM IS DESCRIBED IN THE CUSTOMER’S MASTER SERVICES AGREEMENT OR STATEMENT OF WORK.
(c) Termination for Breach. In addition to any other express termination right set forth in these Terms: (i) either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days (or 10 days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Services. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(e) Survival. This Section 11(e) and Sections 1, 6, 7, 8(c), 9, 10, and 14 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms
All unsolicited commercial email (“UCE”) and unsolicited bulk email (“UBE”) is subject to Cart’s Email Acceptable Use Policy
(a) Unsolicited commercial email (UCE) is defined by Cart as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc.) sent for purposes of distributing commercial information of any kind, soliciting the purchase or sale of products or services or soliciting any transfer of funds to a recipient who has not agreed to receive such communication.
(b) Unsolicited bulk e-mail (UBE) is defined by Cart as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc.) to multiple recipients who have not agreed to receive such communication.
(c) Use of the Cart’s network, servers, or services to transmit any unsolicited commercial or unsolicited bulk-e-mail is expressly prohibited, as is hosting web sites or services on a server, which are advertised in any UCE/UBE. Cart prohibits the sending of any fraudulent, malicious, harassing, false, or misleading electronic communications, including, without limitation, chain letters, pyramid schemes, or e-mails with forged headers. Posting off-topic advertisements to Usenet discussion groups, ICQ, Instant Messenger, etc., is expressly prohibited.
(d) Cart’s Customers are expressly prohibited from sending any UCE/UBE from Cart network or any email from another network that in any way references a document, image, or Web site that resides on the Cart network or in one of Cart’s data centers. Violations of this type may result in the termination of the offending Customer account. Cart Customers are responsible for any violations of the AUP by their clients, and any violation of the AUP by a client of a Cart Customer will be deemed a violation of the AUP by such Cart Customer.
(e) Customers whose actions directly or indirectly result in Cart IP space being listed in any of the various abuse databases may be subject to having the offending domain(s), server(s), or user(s) immediately removed from Cart Services. In addition, if Cart, in its sole discretion, determines that a Customer is in violation of Cart’s AUP, Cart may, at its sole discretion, restrict, suspend, or terminate the Customer’s account. Cart may attempt to contact the Customer prior to suspension or termination of a server(s), but does not guarantee prior notification.
(f) Any server suspended or terminated for AUP violations will be reconnected only after the Customer agrees in writing to cease all activities that violate the Cart AUP and pays all applicable reconnect fees and related charges. Any server suspended a second time for AUP violations will be immediately and permanently removed from Cart’s network. Customers that Cart determines, in its sole discretion, to be in violation of the Cart AUP may be subject to additional fees or fines including, without limitation, any applicable reconnect fees.
13. Beta Services
From time to time, Cart may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Cart will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Cart’s Confidential Information and subject to the confidentiality provisions in these Terms. Customer agrees that it will not make any public statements or otherwise disclose its participation in the Beta Services without Cart’s prior written consent. Cart makes no representations or warranties that the Beta Services will function. Cart may discontinue the Beta Services at any time in its sole discretion, with or without notice to Customer. Cart will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Cart may change or not release a final or commercial version of a Beta Service in our sole discretion.
(a) Entire Agreement. These Terms, together with the Master Services Agreement or Statement of Works and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the Master Services Agreement or Statement of Works or any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the applicable Master Services Agreement or Statement of Work; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Master Services Agreement or Statement of Work (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission to the intended recipient), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Cart be liable to Customer or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Cart’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, epidemic or pandemic, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. Notwithstanding the foregoing, Cart may update these Terms from time to time, and such updated Terms will apply to any new Master Services Agreement or Statement of Work entered into following such update as well as any renewal or extension of an Master Services Agreement or Statement of Work following such update. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in Austin, Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Cart, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign these Terms without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which these Terms relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the
Services or the underlying software or technology available outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(j) Publicity. During the Term, Cart may include Customer’s name and logo in its customer lists, including on its website or in a press release. To the extent Customer provides standard trademark usage guidelines, Cart shall use Customer’s name and logo in accordance with such guidelines.
(k) Interpretation. For purposes of interpreting these Terms, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this SaaS Agreement as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; and (e) the captions and section and paragraph headings used in these Terms are inserted for convenience only and will not affect the meaning or interpretation of these Terms.
15. Additional Shipping Label Terms of Service for using Cart’s Shipping Label Solution
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO CART’S SHIPPING LABEL SHIPPING LABEL SERVICES ARE SUBJECT TO THE FOLLOWING SHIPPING LABEL TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SHIPPING LABEL SHIPPING LABEL SERVICES IN ANY MANNER.
These terms of Section 15 (“Shipping Label Terms”) apply to all printing and paying for shipping labels offered by Cart and its associated applications (the “Shipping Label Services”).
You must agree to and accept all of the Shipping Label Terms, or you do not have the right to use the Shipping Label Services. Your use of the Shipping Label Services in any way means that you agree to all of these Shipping Label Terms, and these Shipping Label Terms will remain in effect while you use the Shipping Label Services.
We reserve the right to change the Shipping Label Terms at any time. If the changes materially impact the Shipping Label Terms, we will use reasonable efforts to bring it to your attention by placing a notice on the Cart website, by sending you an email, and/or by some other means.
If you do not agree with the new Shipping Label Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Shipping Label Services. If you use the Shipping Label Services in any way after a change to the Shipping Label Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Shipping Label Terms will be effective unless in writing and signed by both you and us.
What are the basics of using the Shipping Label Services?
Cart’s Shipping Label Services allow you to find, compare, select, and buy courier Shipping Label Services for shipping documents and goods nationally and internationally. You may use the Shipping Label Services to purchase postage from a third-party mail service or courier (“Courier”) and Cart will provide you with the appropriate evidence of postage, for example a shipping label, to use with your shipments. Cart serves as an intermediary between you and your selected Courier. Cart does not transport or deliver shipments and Cart is not a party to any contract you form with a Courier to pick up, transport, or deliver your shipments.
You may be required to sign up for an account, and select a password and user name (“Cart User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Cart User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Shipping Label Services and gotten your parent or guardian to agree to these Shipping Label Terms on your behalf). If you’re agreeing to these Shipping Label Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Shipping Label Terms on that organization or entity’s behalf and bind them to these Shipping Label Terms (in which case, the references to “you” and “your” in these Shipping Label Terms, except for in this sentence, refer to that organization or entity).
You will only use the Shipping Label Services for your own internal, personal, use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. You will ensure that the information you supply to us in connection with purchasing postage or otherwise ordering Courier Shipping Label Services is complete and accurate. If your use of the Shipping Label Services is prohibited by applicable laws, then you aren’t authorized to use the Shipping Label Services. We can’t and won’t be responsible for your using the Shipping Label Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
Your use of the Shipping Label Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not use the Shipping Label Services, including without limitation contributing any Content or User Submission (each of those Shipping Label Terms is defined below), or otherwise use the Shipping Label Services (or any Courier Shipping Label Services) or interact with the Shipping Label Services in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Cart or any Courier);
(b) Constitutes a breach of, or otherwise conflicts with, any Courier Shipping Label Terms, rules, or policies, or your agreements with any Courier;
(c) Violates any law or regulation, including any applicable export control laws;
(d) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(e) Jeopardizes the security of your Cart account or anyone else’s (such as allowing someone else to log in to the Shipping Label Services as you);
(f) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(g) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(h) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Shipping Label Services, or any processes that run or are activated while you are not logged into the Shipping Label Services, or that otherwise interfere with the proper working of the Shipping Label Services (including by placing an unreasonable load on the Shipping Label Services’ infrastructure);
(i) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Shipping Label Services or Content (through use of manual or automated means);
(j) Copies or stores any significant portion of the Content;
(k) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Shipping Label Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Shipping Label Services.
Intellectual Property Rights
The materials displayed or performed or available on or through the Shipping Label Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Shipping Label Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Cart’s) rights.
You understand that Cart owns the Shipping Label Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Shipping Label Services.
The Shipping Label Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Your content provided to Cart
You hereby grant Cart a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to provide and operate the Shipping Label Services. You agree that the license you grant is royalty-free, perpetual, irrevocable, and worldwide. This is a license only – your ownership in User Submissions is not affected.
Finally, you understand and agree that Cart, in performing the required technical steps to provide the Shipping Label Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, Shipping Label Services, or media, and the foregoing licenses include the rights to do so.
You are responsible for all Content you contribute, in any manner, to the Shipping Label Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Shipping Label Services.
What do I need to know about interacting with Couriers and other third parties through Cart?
The Shipping Label Services may contain links or connections to Couriers or other third party websites or Shipping Label Services that are not owned or controlled by Cart. Our display on or through the Shipping Label Services of delivery service options offered by third parties does not in any way imply, suggest, or constitute any sponsorship or approval of us by any such Courier or any affiliation between any such Courier and us. Our display of specific options does not suggest a recommendation by us of the Courier or its delivery options. You agree that we are in no way responsible for the accuracy, timeliness or completeness of information it may obtain from these Couriers. Your interaction with any Courier or other third party found on or through our Shipping Label Services, including payment and delivery of goods or Shipping Label Services, and any other Shipping Label Terms, conditions, warranties or representations associated with such dealings, is solely at your own risk. You agree that Cart will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any Courier or other third party or for any personal injuries, death, property damage, or other damages or expenses resulting in any manner from your interactions with any Courier.
You agree to comply with the Shipping Label Terms or conditions of purchase imposed by any Courier with whom you elect to deal. The circumvention of a Courier’s rules is prohibited. The use of prohibited practices may result in the termination of your account on the Shipping Label Services, the Courier taking actions including the cancellation of a service order, denied delivery, additional charges to your credit card, additional charges collected at the delivery or collection, or future invoicing.
Any information or content publicly posted or privately transmitted through the Shipping Label Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Shipping Label Services. We can’t guarantee the identity of any users with whom you interact in using the Shipping Label Services and are not responsible for which users gain access to the Shipping Label Services.
If there is a dispute between participants on this site, or between users and Couriers or any other third party, you agree that Cart is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Cart, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Shipping Label Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
Will Cart ever change the Shipping Label Services?
We’re always trying to improve the Shipping Label Services, so they may change over time. We may suspend or discontinue any part of the Shipping Label Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Shipping Label Services. We’ll try to give you notice when we make a material change to the Shipping Label Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Shipping Label Services at any time, for any reason, in our sole discretion, and without notice.
How do I pay for Cart Shipping Label Services?
You agree to pay all fees associated with the Service. Cart’s current standard pricing will be provided to you, which may be updated from time to time. If you purchase a subscription, your payment method automatically will be charged at the start of each subscription period for the fees and taxes applicable to that period. To avoid future charges, cancel before the renewal date. You may be subject to alternate pricing as set forth on a separate order form (“Order Form”) or in some other written form accepted by Cart. Cart reserves the right to revise your pricing at any time by providing written notice to you. Cart will send you an invoice detailing your orders and the applicable charges at the end of each week in which you place an order. For users with a high volume of orders, Cart may send invoices more frequently. Once the invoice has been sent to you, you agree to pay Cart and you authorize Cart to charge the full invoice amount to the payment method you provide in your account information. If we are unable to charge the payment method you provide, you agree to pay all amounts due on your outstanding invoice(s) upon demand.
When you purchase the Shipping Label Services on a subscription basis (e.g., monthly or annually), you agree that you are authorizing recurring payments, and payments will be made to Cart by the method and at the recurring intervals you have agreed to, until the subscription for that service is terminated by you or by Cart. By authorizing recurring payments, you are authorizing Cart and/or Cart’s authorized payment processors to store your payment instrument and process such payments. Subscription fees are generally charged in advance of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Cart or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee and process any such payment as an electronic payment.
You must provide current, complete, and accurate payment and billing information for your account. You must properly update all information to keep your account current, complete, and accurate (for example you must notify us of a change in billing address, credit card number, or credit card expiration date). Failure to keep such payment method details current and accurate may result in Cart’s failure to collect applicable fees and may result in the suspension or termination of your access to the Shipping Label Services.
You may request a refund of unused postage through Cart, but such refunds are subject to the policies of the applicable Courier. If a Courier refuses to issue a refund, Cart will not be responsible for refunding any postage amounts paid to such Courier. Cart may, at its discretion, issue a refund of any fees paid in addition to the Courier’s postage fees. If a refund is issued, it will be provided no earlier than 7 days after the order date. Any postage or fee refund claims must be filed within 30 days after the postage or order has been created.
Cart shall not be responsible for any local customs charges, import taxes, or duties or any similar charge(s) incurred through the carriage and/or delivery of any shipments and you must satisfy yourself as to whether any of these charges will become due, and if so in what amounts, before completing an order with us. If any such charges become due as a result of a carriage and/or delivery of a shipment on your behalf and are charged to us by any competent authority you agree to reimburse us fully in respect of the same within 7 days of our demand.
What if I want to stop using Cart?
You’re free to do that at any time, by contacting us at email@example.com.
If automatic renewals are allowed in your state, you may choose for Shipping Label Services to automatically renew at the end of a fixed service period. We will attempt to remind you by email, or other reasonable manner, before any Shipping Label Services renew for a new term. We may automatically renew your Shipping Label Services at the end of the current service period and charge you the then current price for the renewal term, unless you have chosen to cancel the Shipping Label Services as described above. You must cancel the Shipping Label Services before the renewal date to avoid being billed for the renewal.
Cart is also free to terminate (or suspend access to) your use of the Shipping Label Services or your account, for any reason in our discretion, including your breach of these Shipping Label Terms. Upon deactivation of your account for any reason, you shall immediately pay to us all of your outstanding unpaid invoices. Cart has the sole right to decide whether you are in violation of any of the restrictions set forth in these Shipping Label Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to deactivate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Shipping Label Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Cart.
Trial-Period Offers. If you are taking part in any trial-period offer, you must cancel the trial service(s) by the end of the trial period to avoid incurring new charges, unless we notify you otherwise. If you do not cancel the trial service(s) by the end of the trial period, we may charge you for the service(s).
If you have deactivated your account by mistake, contact us immediately at firstname.lastname@example.org – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Shipping Label Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any Shipping Label Terms regarding ownership or intellectual property rights, and Shipping Label Terms regarding disputes between us.
What else do I need to know?
While the Agreement is in force, Cart may include your company logo and profile on any web site it maintains for customers of Cart’s Shipping Label Services. You consent to publication of your company’s name by Cart as a Cart customer.
Warranty Disclaimer.. Neither Cart nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Shipping Label Services, and we will not be responsible or liable for (i) the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Shipping Label Services, (ii) any failure or delay in purchasing postage or delivering shipments (including, without limitation, any failure or delay arising from the use of or inability to use any part of the Shipping Label Services), or (iii) the performance or non-performance by a Courier or any other provider of postage or delivery Shipping Label Services arranged through the Shipping Label Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of Shipping Label Services or products offered or purchased through the Shipping Label Services. Products and Shipping Label Services purchased or offered (whether or not following such recommendations and suggestions) through the Shipping Label Services are provided “AS IS” and without any warranty of any kind from Cart or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SHIPPING LABEL SERVICES AND CONTENT ARE PROVIDED BY CART (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SHIPPING LABEL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL CART (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO CART IN CONNECTION WITH THE SHIPPING LABEL SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, (C) ANY ACTS, OMISSIONS, OR FAILURES OF A COURIER, OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Cart, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Shipping Label Services (including any actions taken by a third party using your account), (b) your violation of these Shipping Label Terms, and (c) your violation of a Courier’s rules, policies, Shipping Label Terms of service, or any agreement between you and a Courier. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate, or transfer these Shipping Label Terms or your rights or obligations hereunder, or your Shipping Label Services account, in any way (by operation of law or otherwise) without Cart’s prior written consent. We may transfer, assign, or delegate these Shipping Label Terms and our rights and obligations without consent.
Digital Millennium Copyright Act Notice
The terms below are incorporated into, and form an integral part of, the Cart.com Terms of Service. Unless otherwise defined herein, capitalized terms shall have the meaning ascribed them in the Terms of Service. Any breach of the terms below will be deemed a material breach of the Terms of Service.
1. Digital Millennium Copyright Act.
Cart.com complies with the provisions of the Digital Millennium Copyright Act (DMCA) and applicable law for copyright infringement. Cart.com applies this protocol to other allegations of infringement of intellectual property rights because the DMCA provides a useful framework for resolving disputes surrounding allegedly infringing materials in other contexts or jurisdictions, where applicable.
2. Reporting Claims.
Cart.com responds to notices of infringement that comply with applicable law. If an intellectual property rights holder believes that there has been a violation of his or her rights on a site that is hosted by Cart.com or one of its subsidiaries, the intellectual property rights holder may request that Cart.com remove the material by submitting written notification to Cart.com. If you knowingly make a material misrepresentation regarding your infringement claim, you may be held liable for damages under applicable law. The written notification regarding infringement must include the following:
a. A signature (physical or electronic) of a person authorized to act on behalf of the intellectual property rights owner.
b. Clear and specific identification of the intellectual property rights that are claimed to have been infringed, or, if the claim involves multiple works, a list of such works.
c. Identification of the material that is claimed to be infringing, with sufficient information to allow Cart.com to locate the material.
d. Contact information, including name, address, telephone, and email address, for the person giving the notification.
e. A statement that the person giving the notification has a good faith belief that use of the allegedly infringing material is not authorized by the intellectual property rights holder, its agent, or the law.
f. A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the intellectual property rights owner.
Cart.com’s designated person to receive such notices is:
612 Brazos Street
Austin, TX 78701
If you believe that your material was removed or disabled by mistake or misidentification, you may file a counter-notice with Cart.com by submitting written notification to Cart.com’s legal team. If you knowingly make a material misrepresentation that material or activity was removed or disabled by mistake or misidentification, you may be held liable for damages under applicable statutes. The counter-notice must contain all the following:
a. A signature of the person submitting the counter-notification.
b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before i
c. Contact information for the person submitting the counter-notification, including name, address, telephone, and email address.
d. A statement under penalty of perjury by the person submitting the counter-notification that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification.
e. A statement that you will consent to the jurisdiction of the Federal District Court in Harris Count, Texas and that you will accept service from the person who submitted the notice at issue.
4. Repeat Infringement.
It is Cart.com’s policy in certain circumstances to disable and/or terminate the accounts of customers who infringe intellectual property rights multiple times.