Terms of Service

Date of Last Revision:  May 10, 2022

THIS SHIPPING SERVICES AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE HEREIN (COLLECTIVELY, THIS “AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU (“YOU” OR “CUSTOMER,” EITHER AN INDIVIDUAL OR THE ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT) AND PARCELCAST, LLC OR ANY OF ITS AFFILIATES (“WE”, “US”, “COMPANY”) WHICH GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW). BY ACCESSING AND USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF YOUR ACCEPTANCE OF THIS AGREEMENT (“EFFECTIVE DATE”). IF THIS AGREEMENT IS CONSIDERED TO BE AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN. CUSTOMER AND COMPANY ARE REFERRED TO COLLECTIVELY IN THIS AGREEMENT AS THE “PARTIES” AND EACH INDIVIDUALLY AS A “PARTY.” For mutual consideration, receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

The terms of this Agreement will apply to your access to and use of the Services, unless there is a separate signed agreement between Customer and Company, in which event such separate signed agreement will apply, to the extent that the terms of the separate signed agreement contradict those found in this Agreement. No terms, provisions or conditions inserted by Customer on any Company purchase order, acknowledgement, or other business form that Customer may use in connection with the use of the Services will have any effect on the rights, duties or obligations of the Parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of Company to object to such terms, provisions, or conditions.  The same shall be true for any documents created or used by Customer that are not signed by an executive of Company prior to transport.  Subcontracted service provider signatures are not sufficient to bind Company.

The use of the Services is subject to Company’s then-current Privacy Policy (a current copy is available at https://xdelivery.ai/privacy/).

Company reserves the right, in its discretion, to change, modify, add to, or remove portions of the terms and conditions of this Agreement (collectively, “Changes”), at any time. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Date of Last Revision” date. Company will notify Customer of Changes by posting a revised version of this Agreement incorporating the Changes to Company’s website. Customer’s continued purchase, use of or access to the Services following the posting of this Agreement incorporating the Changes on the Company website will mean that Customer accepts and agrees to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Company website.

Capitalized terms used in this Agreement have the meanings given to them in the Definitions.

DEFINITIONS

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

“Alcoholic Beverages” shall mean beverages intended for human consumption and containing alcohol including, but not limited to, beverages typically referred to or regulated as liquor, wine, beer, malt liquor and hard seltzer.

“Company API(s)” means any proprietary application programming interface of Company or any of its affiliates and any other related software and documentation owned, developed or licensed by Company or any of its affiliates (including any updates or upgrades thereto) and provided or made available to Customer by Company under this Agreement to enable or support Customer’s use of the Services.

“Customer Data” means any data, data sets or other information made available to Company by the Customer in connection with the Services.

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

“End User” means the individuals authorized by Customer to access and use the Services at any one time through the Customer account under this Agreement, and for whom Customer has issued or approved access credentials. Subject to the specific Services, Customer may identify certain End Users who will have specific roles or administrative, security and supervisory capacities with respect to the Services made available to Customer under this Agreement.

“Hazardous Materials” means a substance or material that the U.S. Secretary of Transportation has designated as hazardous pursuant to 49 U.S.C. § 5103. The term includes, but is not limited to, hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in 49 C.F.R. Parts 173 and 174.

“Hemp” shall be given the definition found at 7 U.S.C. § 1639o as amended from time to time, and shall include any product derived from Hemp, including products containing Hemp derived cannabidiol (“CBD”) product.  For purposes of this Agreement, any shipment or consignment containing Hemp shall be referred to as a Hemp Shipment.

“Representative” means any employee, agent, representative, contractor or subcontractor of a party or any of such party’s contractors or subcontractors. 

“Services” means the domestic freight and shipping services arranged by Company for Customer pursuant to this Agreement, including arranging transportation of accepted parcels via third party carriers and other providers, and which may include provision of the Company API, associated Documentation and related administrative functions.

“Tobacco Products” means any product containing nicotine, liquid nicotine, liquid nicotine containers, and any electronic nicotine delivery system (as defined at 15 U.S.C. § 375).

1.                 SERVICES; USAGE  RIGHTS AND RESTRICTIONS.

1.   Services. Subject to the terms and conditions of this Agreement, Company agrees to provide the Services to Customer, which shall include all utilities reasonably necessary to transport accepted packages for Customer. Company hereby reserves the right to refuse to transport any packages that it determines, in its sole discretion, do not comply with the terms and conditions of this Agreement or applicable laws.   

2.   License Grant. Subject to the terms and conditions of this Agreement, Company grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to use the Company API solely for the Services and only: (a) during the relevant Order Term, (b) internally for Customer’s own internal business purposes and not for resale or license to third parties, (c) up to the authorized number of Users, if specified, (d) subject to any applicable Usage Allowances, and (e) in accordance with any additional rights and limitations specified in the Order. In the event that a Company API is subject to a third-party end user license agreement, the terms of that agreement shall apply to Customer’s use of the Company API.

3.   Modifications. Features and functions of the Company API are provided “as is” and may be modified, supplemented or removed by Company from time to time in its sole discretion. Modifications may include optional new features, which Customer may use subject to the Agreement.

4.   No Other Rights. Except as expressly set forth in the Agreement, no additional rights are granted to Customer. Company hereby reserves all rights not expressly granted to Customer under the Agreement

5.   Restrictions.  Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) copy, modify or create derivative works of the Company API, (b) publish, sublicense, sell, resell, rent, lease, market or distribute the Company API, or otherwise make the Company API available to anyone other than End Users; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the Company API; (d) use the Company API in violation of any applicable law, including export, intellectual property, libel, and privacy laws; (e) remove any proprietary notices from the Company API or any other materials made available by Company; (f) use or access the Services in order to build a competitive product or service; (g) interfere with or disrupt the integrity or performance of the Services; (h) attempt to gain unauthorized access to the Company API or its related data, systems or networks; or (i) publish or disclose to third parties any evaluation of the Services or data or information on Customer’s results from using the Services, without Company’s prior written consent. Customer is responsible for each End User’s use of the Services and compliance with the terms of the Agreement.

2. IP RIGHTS; CONFIDENTIALITY.

1.   Company Ownership. As between the parties and except for the limited express license granted to Customer under the Agreement, Company retains ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the Services.

2.   Customer Ownership.  As between the parties and except for the limited express license granted to Company under the Agreement, Customer retains ownership of all right, title and interest, including all related Intellectual Property Rights, in and to all Customer Data.

3.   Confidentiality. The receiving party (“Recipient”) will maintain all of the disclosing party’s (“Discloser”) Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Recipient will not use Discloser’s Confidential Information except to carry out its rights and obligations under the Agreement. Recipient will not divulge Discloser’s Confidential Information (or any information derived therefrom) to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the information to exercise Recipient’s rights under or perform under the Agreement, and who are subject to a contractual, professional or other obligation to keep such information confidential that is no less protective of Discloser than this Section 2.3. Each party is responsible for any violation of this Section 2.3 by its Representatives. If Recipient suffers any unauthorized disclosure, loss of, or inability to account for Discloser’s Confidential Information, Recipient will promptly notify and cooperate with Discloser, and take such actions as may be necessary or reasonably requested by Discloser to minimize the damage. If Recipient is legally required to disclose Discloser’s Confidential Information, Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. Each party may disclose information concerning the Agreement and the transactions contemplated hereby, including providing a copy of the Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors, lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by such persons and provided that such disclosures are made in confidence, (b) the party’s outside accounting firm, (c) the party’s outside legal counsel. Each party may also disclose the Agreement in connection with any litigation or legal action concerning the Agreement to the extent such disclosure is required or recommended upon advice of counsel, and (d) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser. Notwithstanding anything to the contrary, Company 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  Company 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 Company 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. For purposes of this Agreement, “Confidential Information” means and includes any software, data, technical, business, financial, operational, customer, vendor or other information disclosed or provided by one party or any of its Representatives to the other party or any of its Representatives, whether before or after the Order Date, whether in writing, orally, visually (or other non-tangible format) or any other means. Confidential Information does not include information that: (a) was or becomes available to the Recipient on a nonconfidential basis from a source other than the Discloser or its Representatives; provided that such source is not bound by any confidentiality agreement with, or other contractual, legal or fiduciary obligation of secrecy to Discloser; (b) at the time of disclosure or thereafter is or becomes available to and widely known by the public as to be reasonably regarded as public information, other than as a result of disclosure by Recipient or any of its Representatives in breach of the Agreement; (c) is developed by Recipient independently of any disclosure hereunder or reference to Discloser’s Confidential Information, as evidenced by Recipient’s records, and without violating any of Recipient’s obligations under the Agreement; or (d) is disclosed by Recipient with Discloser’s prior written express approval. 

3. PAYMENT OF FEES.

1.   Customer will pay the applicable Services Fees and any additional fees or expenses as specified in the Order. Initial rates for Services (“Service Fees”) are stated in Appendix A. However, because shipping rates may change, Company reserves the right to change the Service Fees or applicable charges and to institute new charges  and Service Fees at any time and the applicable rate shall be the rate returned via the Company API. Customer understands that quotations based on the fees listed on Schedule B are provided to Customer in reliance on the information furnished to Company at the time the quotation is provided, and are subject to change based on actual weights, package dimensions, commodity, contents, mode of transportation, and volumes tendered by Customer, as well as due to unforeseen or unanticipated costs, occurrences or events which are beyond the control of Company.

2.   The Customer will be invoiced each Monday for the prior week’s shipments. The Customer agrees to be charged directly via ACH 14 days following the invoice date and shall notify Company of its desired payment method prior to the due date for the first invoice issued to Customer by Company. If the Customer’s payment method choice is credit card, an additional credit card fee of 3% will be added to all invoices.

3.   All Service Fees are exclusive of applicable federal, state or local taxes and all use, sales, valued added, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges (collectively, “Taxes”), whether charged to or against Company, and all such Taxes will be the sole responsibility of and payable by the Customer. Customer will pay to Company an amount equal to any Taxes arising from or relating to the Agreement, which are paid by or are payable by Company. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due to Company, then the sum payable to Company will be increased by the amount necessary so that Company receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

4.   Customer will notify Company 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 Company within 30 days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 30-day period described in this Section, 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.   Company reserves the right to suspend the Services provided to Customer if: (a) Customer is delinquent on any payment obligations for more than 10 days following any applicable invoice date; (b) Company reasonably believes that suspension of the Services is necessary to comply with the law or requests of governmental entities; or (c) Company reasonably determines that Customer’s use of the Services is in violation of this Agreement or poses any security or vulnerability risk to Company, its other customers, or the Services. Customer is only responsible for Services Fees during the period of suspension if the underlying cause was Customer’s breach of the Agreement. Company will endeavor to give advance notice of the suspension, to the extent it is able, taking into account the nature of the underlying cause. Company will restore access to the suspended Services promptly after the underlying cause of suspension is mitigated.

4. TERM AND TERMINATION.

1.   Term. The term of this Agreement begins on the Effective Date and will remain in full force and effect for the Initial Service Term and any renewal terms, unless terminated earlier in accordance with this Agreement. This Agreement will automatically renew for additional one-year terms unless either party provides written notice of non-renewal no less than 30 days prior to the end of the Initial Service Term or any renewal term.

2.   Termination. Either party may terminate this Agreement if the other party breaches any term of the Agreement and fails to cure such breach within 30 days (or 10 days in the case of non-payment) after written notice thereof.

3.    In addition to its rights in Section 4.2 above, Company may also suspend or terminate the Services immediately upon notice for cause if: (a) Company determines, in its sole discretion, that its provision of any of the Services may be 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.

4.   Upon termination or expiration of this Agreement, all rights and licenses granted to Customer shall immediately terminate. The termination or expiration of the Agreement for any reason will not affect either party’s rights or obligations that expressly or by their nature continue and survive (including the payment terms and the provisions concerning ownership, confidentiality, limitation on liability, indemnity and warranty disclaimers), and Customer will promptly pay to Company any and all unpaid amounts due under the Agreement.

5.              EQUIPMENT; DATA.

1.   Equipment. Customer shall be responsible for obtaining and maintaining any information systems, equipment, and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networks, and web servers (collectively, “Equipment”).

2.   Customer Data. Customer is solely responsible for collecting and providing Customer Data to Company that is needed for Company’s provision of the Services. Customer retains ownership of any Intellectual Property Rights that it holds in Customer Data. When Customer or an End User uploads, submits, stores, or sends Customer Data to Company in connection with the Services, including through the Company API, Customer hereby grants Company (and its third-party service providers) a worldwide non-exclusive license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes Company makes so that Customer Data is better utilized), communicate, perform, display and distribute Customer Data solely for purposes of providing the Services to Customer. Company does not and is not obligated to verify, authenticate, monitor or edit the Customer Data for completeness, integrity, quality, accuracy or otherwise. Customer, not Company, is responsible and liable for the completeness, integrity, quality and accuracy of Customer Data. Company does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data. The provision and use of Services is subject to Company’s then-current Privacy Policy available on its website. For the avoidance of doubt, Customer is solely responsible for (a) ensuring the accuracy of all shipping information received by Company directly or indirectly (and whether in written or electronic format) from Customer, including information contained in the bill of lading, waybill or other shipping document, and (b) for the proper packaging of the shipment, which includes kitting, labeling, including the proper packing material, or any special instructions needed to preserve the goods being transported.

3.   Anti-Virus. Customer will, and will ensure that its End Users will, (a) deploy and maintain current up-to-date commercially available, and consistent with industry standards, anti-virus, anti-spam, anti-malware software on any Equipment used for the purpose of accessing and transmitting Customer Data to Company, (b) provide for regular scanning for viral infections and update virus signature files frequently, and (c) immediately inform Company if it becomes aware of the possibility of transmission of any virus, spam or malware to Company.

6.              WARRANTIES AND DISCLAIMER.

1.   Company Warranty. Company warrants to Customer that it 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 Company or by third-party providers, or because of other causes beyond Company’s reasonable control.

2.   Customer Warranty. Customer represents and warrants that it holds all authorizations, permits, licenses and consents required to tender any cargo provided to Company pursuant to this Agreement for transportation and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rule s or regulations. If Customer is not the owner of the cargo to be tendered for transportation, Customer nevertheless represents and warrants that it is authorized to arrange transportation of the cargo on behalf of the owner of the cargo in accordance with the terms and conditions herein. Customer further represents and warrants that its use of the Services will not include shipments that contain either (a) any items that are prohibited by law from being shipped by a carrier or that are otherwise prohibited from being shipped pursuant to an applicable carrier’s policies, including but not limited to antiques, biological substances, bagged goods such as cement, stocks or bonds, dangerous goods (except shipments with batteries or cosmetic items in excepted quantities as noted below or as otherwise mutually agreed by the parties in writing), illegal goods (such as ivory), deeds, documents, manuscripts, plans, securities, stamps, treasury notes, bullion, cash, jewelry, precious metals and stones, cement, cigars, cigarettes (as defined at 15 U.S.C. § 375), smokeless tobacco (as defined at 15 U.S.C. § 375), loose tobacco, firearms and weapons, fragile articles, furs, animals, livestock perishable foodstuffs, pharmaceuticals, plasma screens, scrap metals, television sets, unprotected goods, video recorders, secondhand goods, counterfeit goods, white goods (i.e., stoves, ovens, refrigerators, washing machines, microwaves and dishwashers, including parts, spares and ancillary equipment), one-of-a-kind articles or models, prototypes, valuable rugs (i.e. Oriental rugs and Persian rugs), guitars and other musical instruments that are more than 20 years old, and customized or personalized musical instruments, plants, prints or lithographs or household goods and/or personal effects when the total declared value of the shipment exceeds $500.00 or when the declared value exceeds $0.50 per pound, per piece, or items that weigh greater than 50 pounds   (“Prohibited Items”) or (b) subject to the remainder of this Section 6.2, any items that are subject to additional regulatory requirements or that require specialized handling, including but not limited to, Tobacco Products, Alcoholic Beverages, Hazardous Materials, or Hemp (including hemp-derived products), including products that contain CBD (collectively, “Restricted Items”). In the event that Customer desires to use the Services to ship any cargo containing Restricted Items, Customer shall notify Company of such Restricted Items in writing prior to tendering any cargo containing such items, and Customer and Company shall execute Schedule C to this Agreement regarding proper handling of such Restricted Items. For the avoidance of doubt, failure of Customer to notify Company of the inclusion of Restricted Items in cargo tendered by Customer to Company shall constitute a breach of this Agreement by Customer. Company shall not be liable for any loss, damage, delay, liabilities, fees, penalties or fines resulting from the transportation of any (x) Prohibited Items or (y) Restricted Items for which Company has not approved in writing, in each case, however described or misdescribed in the shipping documentation, and no employee or agent of Company has any authority to accept for transportation such articles or to waive the limitations herein contained (such shipment, a “Prohibited Shipment”). In the event that Company discovers, after acceptance of a shipment, that the shipment is a Prohibited Shipment, it reserves the right to refuse the Prohibited Shipment, or, if already in transit, to refuse to deliver the Prohibited Shipment to the consignee. Customer agrees to pay all expenses, freight charges, fines and penalties for a Prohibited Shipment, and further agrees to indemnify and hold harmless Company and Company Group from any and all loss, damage, delay, liabilities, penalties or fines of whatsoever nature arising out of or related in any way to a Prohibited Shipment.

3.   Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO      WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY DOES NOT WARRANT THAT THE SERVICE: (A) WILL MEET CUSTOMER (OR CUSTOMER’S CUSTOMER) REQUIREMENTS OR EXPECTATIONS OR THAT PACKAGES TENDERED BY CUSTOMER WILL BE ACCEPTED FOR TRANSPORT BY COMPANY; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS OR THAT PACKAGES WILL BE DELIVERED IN ACCORDANCE WITH STATED TRANSIT TIMES; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (D) WILL RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION.

7. INDEMNIFICATION; LIMITATION ON LIABILITY.

1.   Company Obligations. Company will, at its own cost and expense, defend Customer against any cause of action, claim, suit or proceeding (each a “Claim”) made or brought against Customer by a third party to the extent the Claim alleges that Customer’s permitted use of the Company API infringes or misappropriates any copyright, trade secret or any patent issued in the U.S., Canada or the European Union of a third party, and indemnify Customer for any damages finally awarded against Customer, or agreed upon by Company in settlement, and incidental costs reasonably incurred by Customer in connection with the Claim. If a Claim under this Section 7.1 is brought or threatened, or Company believes is likely to occur, Company may, at its option, (a) procure for Customer the right to use the Company API, or (b) replace the Company API with non-infringing products that are functionally equivalent in all material respects, or (c) if neither option (a) nor option (b) can be accomplished despite Company’s commercially reasonable efforts, then Company may terminate this Agreement and issue a pro-rata refund or credit to Customer for any prepaid Services Fees corresponding to the remaining Order Term of the Services after the date of termination. Company will have no liability under the Agreement or otherwise to the extent a Claim is based upon (i) use of the Company API in combination with software, hardware or technology that is not reasonably necessary to use the Company API and not provided by or specified by Company, if infringement would have been avoided in the absence of the combination, (ii) modifications to the Company API not made by or for Company, if infringement would have been avoided by the absence of the modifications, (iii) Company’s use of any Customer Data or any other Customer-provided material in accordance with the Agreement; (iv) Customer’s use of the Company API or Services in violation of the Agreement; (v) Company’s compliance with a Customer-provided specification or instruction or (vi) use of any version other than a current release of the Company API, if infringement would have been avoided by use of a current release made available to Customer.

2.   Customer Obligations. Customer will, at its own cost and expense, defend Company and its affiliates, and its and their employees, officers, directors, shareholders, agents and representatives (collectively, “Company Group”) against any Claim arising out of or relating to (a) Customer Data or any other materials or information provided by Customer hereunder; (b) a Prohibited Shipment; (c) a breach by Customer of this Agreement; (d) reliance on, or operations in accordance with, information or instructions provided by or on behalf of Customer; or (e) any attempt by a third party seeking to impose liability arising out of Services rendered by Company with respect to cargo tendered by or on behalf of Customer in excess of the liabilities expressly assumed by Company pursuant to this Agreement and indemnify Company and Company Group for any damages finally awarded against Company or any member of Company Group, or agreed upon by Customer in settlement, and incidental costs reasonably incurred by Company or any member of Company Group in connection with the Claim.

3.   Indemnity Process. The indemnified party must (a) notify the indemnifying party promptly in writing of the Claim, setting forth in reasonable detail the facts and circumstances surrounding the Claim; (b) give the indemnifying party sole control of the defense of the Claim and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying party to defend the Claim; and (c) cooperating and, at the indemnifying party’s request and expense, assisting in such defense. However, the indemnifying party shall not settle any Claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability, and imposes no obligations or restrictions on the indemnified party. The indemnified party may engage counsel of its choice at its own expense.

4.        Cargo Liability. Subject to Section 7.5, Company shall assume liability for actual loss or damage to cargo under this Agreement up the lesser of: (i) actual replacement cost of the lost or damaged cargo; (ii) $50 per lost or damaged parcel; or (iii) $50,000 per truckload or shipment.

5.   Claims for Loss or Damage to Cargo. All claims, to the extent covered under this Agreement, must be submitted in writing to Company within thirty (30) days from the date that Company accepted the shipment, failing which Company shall have no liability whatsoever. Claims shall be reported to Company in writing at the Company’s address specified in the preamble to this Agreement, Attn: Claims, with a copy to [email protected] and are limited to one claim per shipment, settlement of which will be full and final settlement for all loss or damage in connection therewith.

6.   Limitation on Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY OR ANY OF ITS RELEASED PARTIES (DEFINED BELOW) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER PURSUANT TO THE APPLICABLE ORDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE LIMITATIONS CONTAINED IN THIS SECTION 7.4 APPLY IN SPITE OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THIS IS AN AGGREGATE LIMITATION AND MULTIPLE CLAIMS WILL NOT EXPAND IT. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS AND REMEDIES PROVIDED BY PART B TO SUBTITLE IV OF TITLE 49 TO THE U.S. CODE, INCLUDING, BUT NOT LIMITED TO, 49 U.S.C. § 14706, TO THE EXTENT SUCH RIGHTS AND REMEDIES CONFLICT WITH THE PROVISIONS OF THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THIRD PARTY TRANSPORTING CARRIERS USED BY COMPANY IN CONNECTION WITH THE SERVICES MAY LIMIT THEIR LIABILITY FOR CARGO LOSS, DAMAGE OR DELAY. IT WILL BE CUSTOMER’S RESPONSIBILITY TO INSURE PRODUCT IN-TRANSIT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY WILL HAVE NO LIABILITY FOR ANY ACT OR OMISSION OF ANY THIRD–PARTY CARRIER, INCLUDING WITH RESPECT TO CARGO LOSS, DAMAGE OR DELAY, OR SUCH CARRIER’S REFUSAL TO ACCEPT FULL VALUE LIABILITY OR OTHERWISE LIMITING ITS LIABILITY FOR CARGO LOSS AND DAMAGE. COMPANY SHALL BE UNDER NO OBLIGATION TO ARRANGE, AND CARRIER SHALL BE UNDER NO OBLIGATION TO PROVIDE, SERVICE IN ACCORDANCE WITH ANY SET PICK-UP OR DELIVERY SCHEDULE. COMPANY SHALL HAVE NO LIABILITY FOR CARGO LOSS, DAMAGE, OR SHORTAGE EXCEPT TO THE EXTENT SUCH CLAIMS ARE DIRECTLY CAUSED BY COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN WHICH CASE, COMPANY’S LIABILITY SHALL BE LIMITED TO THE CHARGES ASSESSED BY COMPANY AND PAID BY CUSTOMER WITH RESPECT TO THE GOODS AT ISSUE. CUSTOMER IS RESPONSIBLE FOR FILING A CLAIM WITH COMPANY ALLEGING COMPANY’S LIABILITY FOR CARGO LOSS AND DAMAGE WITHIN SIXTY (60) DAYS OF THE DATE OF DELIVERY OF THE CARGO IN QUESTION (OR, IF NONE, WITHIN SIXTY (60) DAYS OF THE DATE CARGO SHOULD HAVE BEEN DELIVERED). FAILURE TO DO SO WILL RESULT IN AN ABSOLUTE BAR TO ANY SUCH CLAIM AND WILL RELIEVE COMPANY OF ANY AND ALL LIABILITY WITH RESPECT THERETO. ANY LAWSUIT ARISING FROM SUCH CLAIM MUST BE COMMENCED WITHIN EIGHTEEN (18) MONTHS OF DENIAL OF ALL OR ANY PART OF SUCH CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOLE LIABILITY OF COMPANY WITH RESPECT TO LOSS, DAMAGE OR DELAY TO CARGO SHALL BE AS SET FORTH IN THIS PROVISION AND CUSTOMER WARRANTS AND REPRESENTS THAT IF IT IS NOT THE OWNER OF SUCH CARGO, CUSTOMER HOLDS AUTHORITY FROM SUCH OWNER TO BIND THE OWNER TO THE PROVISIONS OF THIS PARAGRAPH.

7.   Exclusion of Consequential Damages. IN NO EVENT WILL COMPANY OR ANY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS AND TRANSPORTING CARRIERS), AFFILIATES, MANAGERS, MEMBERS, OFFICERS, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES (COLLECTIVELY, THE “RELEASED PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IN SPITE OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

8.              GOVERNING LAW; DISPUTE RESOLUTION. This Agreement will be governed by the laws of the State of Texas, excluding rules as to choice and conflict of law, and all disputes arising out of or in connection with this Agreement will be finally settled under the Commercial Arbitration Rules of the American Arbitration Association using expedited procedures by one or more arbitrators appointed in accordance with those Rules. The place of the arbitration will be Austin, Texas. The following provisions apply to any arbitration proceedings arising out of or relating to the Agreement: The language of the arbitration will be English. Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance to: (i) compel arbitration; (ii) obtain interim measures of protection before or pending arbitration, (iii) seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) enforce any decision of the arbitrator(s), including the final award. The parties will share equally in the costs of the arbitration arbitrator(s) will award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable attorneys’ fees and costs, including the costs of the arbitration. The parties shall keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a court or other judicial authority. If any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, then the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this Section only, “prevailing party” means the party that prevails on a majority of causes of action in such dispute. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

9.              GENERAL.

1.   Inspection; Consent to Screen for Air Transport. Company has the right to open and inspect a shipment without notice for safety, security, customs or other regulatory reasons. The Transportation Security Administration (“TSA”) considers all cargo tendered for air transportation subject to screening/search by the forwarder, air carrier or the TSA; and requires that X and its affiliates refuse to offer air transportation of any cargo where the shipper/customer does not consent to screening of the cargo. X, its affiliates, and its and their hired carriers and the TSA may conduct screening of cargo tendered under this Agreement. By tendering shipments to X or any of its affiliates, Customer is deemed to consent to any such screening or search. No member of X Group shall be liable for, and Customer shall indemnify and hold X Group harmless for any claim arising out of, any loss, damage or delay due to opening of Customer’s cargo, resulting physical inspection or repackaging arising out of any such screening. 49 USC § 114 authorizes the collection of certain information pertaining to Customer to qualify Customer as or to verify Customer’s status as a possible “known shipper.” Providing this information is voluntary; however, failure to provide the information will prevent Customer from qualifying as a “known shipper”. This information will be disclosed to TSA personnel and contractors or other agents, including independent air carriers (“IACs”) in the maintenance and operation of the “known shipper” program. The TSA may share the information with airport operators, foreign air carriers, IACs, law enforcement agencies and others in accordance with the Privacy Act, 5 USC §552a. For additional details, see the system of records notice for the Transportation Security Threat Assessment System (DHS/TSA 002) published in the Federal Register. Any fraudulent or intentionally false statements or certificate made by Customer may be subject to both civil and criminal penalties under 49 CFR parts 1540 and 1548 and 18 USC § 1001, in addition to any other penalties that may be imposed by applicable laws.

2.   Assignment. Customer shall not assign or transfer (whether by merger, operation of law or otherwise) the Agreement, in whole or in part, without Company’s prior written consent, such consent not to be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. Company may assign or transfer its rights and delegate its obligations under the Agreement, without Customer’s consent, to an affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which the Agreement relates. Any attempted assignment or delegation in violation of the foregoing is void. The Agreement is binding upon the parties and their successors and permitted assigns.

3.   Subcontractors. Company may subcontract parts of the Services to third parties as determined in its sole discretion.

4.   Independent Contractor. The parties are independent contractors. Nothing contained herein or done pursuant to the Agreement will constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever and neither party will have the right to make any warranty or representation to such effect.

5.   Marketing. Company may include and use Customer’s name, trademarks, logos and designs on a list of customers and may refer to Customer as a user of the Services in its advertising, marketing, promotional and investor materials.

6.   Open Source Software. Certain items of software included with the Services may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Nothing in this document limits Customer’s rights or obligations under the terms and conditions of any applicable end user license for the Open Source Software.

7.   Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1(Services; Usage Rights and Restrictions) and Section 2 (IP Rights; Confidentiality) or any other provisions of the Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to seek specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

8.   No Third-Party Beneficiaries. With the exception of the Released Parties, each of which is an intended third-party beneficiary of this Agreement, no provision of the Agreement is intended nor will be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto are solely between Company and Customer.

9.   Notices. Unless otherwise provided herein, any notice, request, or other communication will be given in writing under the Agreement and will be deemed to have been given by either party to the other party (a) upon the date of receipt, if hand delivered, (b) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (c) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery (three business days for international addresses), or (d) upon the date of electronic confirmation of receipt of a facsimile or email transmission. Notices to (i) Company will be sent to ParcelCast, LLC, 410 Baylor Street, Ste. B Austin, TX 78703 to the attention of: Legal Department, and (ii) Customer will be sent to Customer’s primary address and contact provided to Company in the Order, or at such other address as given by either party to the other in writing.

10.           Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of the force majeure, the anticipated impact of the force majeure on the affected party’s performance, and use commercially reasonable efforts to correct its failures or delays in performance.

11.           Miscellaneous. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral. The term “includes”, “including” and the like means “including without limitation”. Amendments: The Agreement may be modified solely by a writing signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the use of the Services will have any effect on the rights, duties or obligations of the parties under the Agreement, or otherwise modify the Agreement, regardless of any failure of Company to object to such terms, provisions, or conditions. Waiver: A waiver of any breach of the Agreement is not deemed a waiver of any other breach. Severability: If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement. Electronic Signatures: Electronic signatures that comply with applicable law are deemed original signatures. Counterparts: The Agreement may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the parties. Each signed counterpart, including a signed counterpart reproduced by reliable means (such as facsimile and electronic signature), will be considered as legally effective as an original signature.

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