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TERMS AND CONDITIONS

DEFINITIONS

The following terms, when used in this Agreement, shall have the following meanings:

“ONELIVEX API(s)” means an application programming interface for the Services (or feature of the Services) provided to Customer by ONELIVEX.

“Customer Application” means a software application that interfaces with the Services using an ONELIVEX API and includes any services (web-based or other services) made available by Customer in connection with that application.

“Customer Data” means data and other information made available to ONELIVEX through the use by the Customer of the Services under this Agreement.

“Documentation” means all of the instructions, code samples, on-line help files and technical documentation made available by ONELIVEX to the Customer for the Services.

“End User” means an end user of a Customer Application.

1. SERVICES; GRANT OF RIGHTS.

1. Subject to the terms of this Agreement, ONELIVEX agrees to provide Customer the Services. ONELIVEX will provide, at its sole cost and expense, all utilities necessary to transport packages for customer.
2. Subject to the terms of this Agreement, ONELIVEX grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable right to:
(a) Use the Documentation and ONELIVEX APIs as needed to develop Customer Applications;
(b) Use the Services though the ONELIVEX Application; and
(c) Offer and make the Services available to End Users through Customer Applications, in accordance with the Documentation.
3. Customer will be solely responsible for all use (whether or not authorized) of the Services and Documentation under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Services and notify ONELIVEX promptly of any such unauthorized access or use.
4. Customer acknowledges that the features and functions of the Services, including, the ONELIVEX APIs, may change over time. It is Customer’s responsibility to ensure that calls or requests Customer makes to the Services are compatible with then-current ONELIVEX APIs. Although ONELIVEX endeavors to avoid changes to the ONELIVEX APIs that are not backwards compatible, if any such changes become necessary ONELIVEX will use reasonable efforts to notify Customer at least 60 days prior to implementation of new ONELIVEX APIs.

2. RESTRICTIONS; RESPONSIBILITIES.

1. Except as expressly provided in Section 1.2, Customer will not transfer, resell, lease, license or otherwise make available the Services to third parties. Further, Customer will not offer the Services on a standalone basis under any circumstance. Customer will ensure that the Services are used in accordance with all applicable laws, regulations, third party rights and ONELIVEX policies, as well as the terms of this Agreement. Specifically, and without limitation, Customer will ensure that ONELIVEX is entitled (and hereby grants ONELIVEX the rights) to use the Customer Data as needed to provide the Services, and Customer will not use the Services in any manner that violates any data protection statute, regulation, order or any similar law. Except to the extent applicable law prohibits such restrictions, Customer will not (and will not permit any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, Documentation or data related to the Services; or modify, translate, or create derivative works based on the Services or any software (except to the extent expressly permitted by ONELIVEX or authorized within the Services). ONELIVEX has no obligation to monitor Customer’s use of the Services, ONELIVEX may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files.
3. Customer will defend, indemnify and hold harmless ONELIVEX against any actual or threatened claim, loss, liability, damage, action, proceeding, third-party discovery demand, governmental investigation or enforcement action (“Claim”) arising out of or relating to Customer’s use of the Services and activities under this Agreement (including any breach hereof) or Customer’s acts or omissions in connection with its obligations under this Agreement.

3. IP RIGHTS; CONFIDENTIALITY.

1. As between the parties, ONELIVEX exclusively owns and reserves all right, title and interest in and to the Services, ONELIVEX APIs, Documentation, ONELIVEX Confidential Information and all related intellectual property rights. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data, Customer Applications, Customer Confidential Information and all related intellectual property rights.
2. Subject to the terms of this Agreement, each party (the “Licensor”) grants to the other party (the “Licensee”) the right to use and display Licensor’s name and marks (the “Licensor Marks”) on its website and in other promotional materials solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor’s usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register or take other action with respect to any of the Licensor Marks, except to the extent authorized in advance writing by Licensor. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. The license granted in this Section 3.2. will terminate automatically in the event of any termination of this Agreement.
3. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding its disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of the receiving party; (ii) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
4. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information of the other party from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section 3.4. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law including, without limitation, providing notice to the other party and allowing the other party the right to seek protection from any such disclosure.
5. Notwithstanding anything to the contrary, ONELIVEX shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and ONELIVEX will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ONELIVEX offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES.

1. Customer agrees to pay all applicable Service Fees and the prices for postage rates that are returned via the ONELIVEX API, or auxiliary integrations through ONELIVEX. Because shipping rates may change day to day, ONELIVEX reserves the right to change the Service Fees or applicable charges and to institute new charges and Service Fees. All Service Fees are payable in accordance with the terms and on the schedule described in the Service.
2. The Customer will be invoiced each Monday for the prior week’s shipments. The Customer agrees to be charged directly via their desired payment method (ACH or credit card) 10 days following the invoice date and shall notify ONELIVEX of its desired payment method prior to the due date for the first invoice issued to Customer by ONELIVEX. If the Customer’s payment method choice is credit card, standard credit card fees (3%) will apply.
3. Unless otherwise stated in the Rate Schedule, all Service Fees are exclusive of applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, whether charged to or against ONELIVEX, and all such taxes, fees and charges will be the sole responsibility of and payable by the Customer. The Customer will not withhold any taxes from any amounts due to ONELIVEX.
4. Customer will notify ONELIVEX in writing in the event Customer disputes any portion of any Service Fees, taxes or other amounts paid or payable by Customer under this Agreement. Customer will provide such notice to ONELIVEX within 60 days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 60-day period described in this Section 4.4, Customer will not be entitled (and hereby waives any right) to dispute any Service Fees, taxes or other amounts paid or payable by Customer.
5. If Customer fails to timely pay any amounts due hereunder within 10 days following any applicable invoice date, ONELIVEX will (without limiting its other rights) be entitled to suspend the Services associated with the Customer’s account without prior notice to the Customer. ONELIVEX will not have any liability whatsoever for any damage, liabilities, losses (including any loss profits) or any other consequences that the Customer may incur with respect to any suspension of Services pursuant to this Section 4.5.

5. TERMINATION.

1. The term of this Agreement will commence on the Effective Date and continue for the Initial Service Term. This Agreement will automatically renew for additional one-year terms unless either party provides notice of non-renewal no less than 15 days prior to the end of the Initial Service Term or any renewal term.
2. Either party may terminate this Agreement for any reason upon 30 days written notice to the other party. Either party may also terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within 5 days after written notice of such breach is delivered to the breaching party. In addition to its rights in Section 4.5 above, ONELIVEX may also suspend or terminate the Services immediately upon notice for cause if: (a) ONELIVEX determines, in its sole discretion, that its provision of any of the Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (b) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, cessation of business, change of control, disposal of Customer’s assets, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding.
3. Upon termination or expiration of this Agreement, all rights and licenses granted to Customer shall immediately terminate, but Customer’s payment obligations, the terms of this Section 5.3 and the terms of the following Sections will survive: Sections 3, 4, 5 and 7-10.

6. WARRANTY AND DISCLAIMER. ONELIVEX shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ONELIVEX or by third-party providers, or because of other causes beyond ONELIVEX's reasonable control. ONELIVEX HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT AS SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.

7. LIMITATION OF LIABILITY.

1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ONELIVEX OR ANY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), MANAGERS, MEMBERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES (COLLECTIVELY, THE “RELEASED PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSSES, EVEN IF ONELIVEX HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ANY RELEASED PARTY BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE INITIAL SERVICE TERM OR ANY RENEWAL TERM PRECEDING THE INCIDENT OR CLAIM.
2. THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

8. GOVERNING LAW; DISPUTES. This Agreement will be governed by the laws of the State of Texas, exclusive of its rules governing conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties agree to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas.

9. GENERAL. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without ONELIVEX's prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void. ONELIVEX may assign this Agreement in whole or in part. No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in a writing signed by both parties. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Each party is an independent contractor in the performance of each and every part of this Agreement. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. ONELIVEX may use Customer’s current address, as provided by Customer in connection with billing and payment activities. ONELIVEX's current address may be found on its website. This Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written and contains the entire understanding of the parties on the subject matter hereof. No oral or written information or advice given by ONELIVEX, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party’s control (each, a “Force Majeure Event”) if the party makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues for more than 30 days.