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Effective 12.19.22
Retroship General Terms
These General Terms and the applicable Service Terms apply to all Retroship Service Agreements and constitute the entire agreement between Customer and Retroship for Services (collectively, the “Agreement”). By executing the Service Agreement and/or accepting Services, Retroship and Customer agree to these General Terms and the applicable Service Terms.
Retroship may from time to time change these General Terms. Any changes are effective immediately upon posting on Retroship’s website at shipretro.com/general-terms. Customer and Retroship are each referred to individually as a “Party”, and collectively as the “Parties.”
1. Definitions.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership, or control of more than 50% of the voting interests of the subject entity.
“Agreement” means the Service Agreement and the Terms and Conditions.
“Carrier” means a motor carrier providing transportation as defined by 49 USC §13102(14) and, if applicable, draymen and/or railroad intermodal carriers.
“Customer” means the entity that has executed an Agreement with Retroship and Affiliates of that entity (for so long as they remain Affiliates) that have entered into SOWs under the Agreement.
“Facility” means any storage or warehouse locations provided to Customer from time to time by the Retroship Group.
“Freight Services” means arranging for third party motor carriers to provide cargo transportation “Freight” to Customers in accordance with its role as a Broker under 49 U.S.C. § 13102 (2) and 49 C.F.R. §371.2.
“Parcel Services” means arranging for third party motor carriers to provide delivery transportation services of small packages “Parcel(s)” to Customer’s end customers on behalf of Customer in consideration for additional payment.
“Goods” means the merchandise or property that the Customer tenders to Retroship for Warehouse Services.
“IP Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
“Scope of Work” or “SOW” means a signed document or online order specifying the Services to be provided hereunder that is entered into between Customer and Retroship or any of their Affiliates. By entering into an SOW hereunder, an Affiliate agrees to be bound by the terms of the Agreement as if it were an original party hereto.
“Services” means the products, services, and access that are provided by Retroship to Customer under a Service Agreement or SOW. “Services” exclude Third-Party Applications.
“Service Agreement” means the initial signed document between Customer and Retroship, specifying the Services to be provided by Retroship.
“Service Terms” means the Warehouse Terms, Parcel Terms, Freight Terms, and Software Terms. The applicable Service Terms only apply to the extent Customer utilizes those Services through Retroship.
“Software Services” means Retroship’s cloud-based platform service, and any other online subscription services provided by Retroship. Software Services include but are not limited to an internet-based technology designed to enable Users to manage inventory, orders, shipments, and distribution to provide data visibility and analytics regarding those activities in a single platform which may connect to Third Party Applications via EDI, API, flat-file, or other means to transmit data. Software Services include software files and other computer information including algorithms, computer programs, object code, icons, web designs, web applications, databases, database management systems, and screen layouts.
“Retroship” means Retroship, Inc., and its Affiliates.
The “Retroship Group” means Retroship, Inc. as well as its Affiliates, Carriers, related companies, agents, representatives, and companies that own and operate the Facilities.
“Terms and Conditions” means the General Terms and the Service Terms. All Services are governed by the Terms and Conditions, unless (i) Customer has a written master service agreement signed by Retroship or its Affiliates, in which case such written Retroship master service agreement shall govern, or (ii) as otherwise set forth in the Agreement or mutually agreed upon in writing.
“Warehouse” means Retroship, Inc. as well as its Affiliates, related companies, agents, representatives, and companies that own and operate the Facilities.
“Warehouse Services” means the provision of logistics services in Facilities, including, but not limited to inbound receiving, storage, picking and packing, outbound, and related warehouse administrative functions of Customer’s Goods.
2. Fees, Payment Terms, Taxes and Charges.
2.1 Fees and Payment Terms. Customer will pay Retroship the fees set forth in the applicable Service Agreement or SOW in U.S. dollars for Services provided by Retroship to Customer “Fees”. Fees will be due as set forth in the Service Agreement or SOW, not to exceed net 15 from the date the invoice is received by Customer. Retroship may require Customer to pay a late fee on any undisputed overdue invoices. Late fees are calculated at the rate of 1.5% per month or the maximum rate allowed by applicable law, whichever is lower, from the date such payment was due until the date paid. Any dispute by the Customer of any invoice issued by Retroship shall be made in good faith and in writing, specifically indicating the nature of the dispute and made within thirty (15) days from the date the invoiced is received. Any invoice dispute not made within 15 days of receipt is waived. Customer may not offset payment of invoices without the prior written consent of Retroship. In the event of a change in Retroship’s costs to Services caused by circumstances outside of the reasonable control of Retroship, such as the costs of fuel, changes in minimum wages, a shortage or change in the costs of packing materials, or increases in Parcel rates or Carrier surcharges, that alone or in the aggregate cause a material increase to Retroship’s costs, Retroship may provide Customer with a request to increase Fees with 15 days’ notice. If Customer does not object or does not respond to the request within 15 days, such Fees will go then go into effect. If Customer objects, the Parties shall negotiate in good faith to amend the relevant Fees as necessary to address the increased costs. If the Parties are not able to agree on such amendment after 60 days from the original notification, Retroship shall be, at Retroship’s option, excused from its obligation to provide the affected Services.
2.2 Taxes and Charges. Fees do not include any applicable sales, use or other similar taxes imposed by government authorities, all of which will be invoiced by Retroship or paid directly by Customer and are Customer’s sole responsibility. Customer shall be liable for all charges payable on account of the Services provided to Customer. Such charges may include, without limitation, any charges made or required by the Retroship Group, and all fees, duties, assessments, and fines. Retroship reserves the right to reasonably amend or adjust charges and to re-invoice Customer in the following events: (i) if the original quoted rates were based upon incorrect information provided by the Customer in the applicable SOW; (ii) if out of scope Services by the Retroship Group were required that were not contemplated by the applicable SOW; or (iii) if the Retroship Group passes through any costs to Retroship. If agreed upon in writing by Customer regarding such travel and budget, Customer shall reimburse Retroship for all pre-approved out-of-pocket travel expenses.
2.3. Non-Payment of Fees. If any Fees owed by Customer are overdue as set forth in the Agreement, Retroship may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full. Retroship will provide at least 10 days’ prior written notice to Customer prior to suspending Services. Retroship will not suspend Services if Customer is reasonably disputing Fees in good faith; provided, however, that Customer pays all such Fees that are not reasonably in a good faith dispute. If any Fees not reasonably disputed in good faith are not paid within 15 days from when due, Retroship may terminate the Agreement for material breach as set forth in Section 4.16.
3. Confidential Information.
3.1 Definition of Confidential Information. “Confidential Information” means any information disclosed, directly or indirectly, by one Party “Disclosing Party” to the other “Receiving Party” pursuant to the Agreement that: (a) is designated as “confidential” or in some other manner to indicate its confidential nature, or (b) a person exercising reasonable business judgment would understand to be confidential based on the circumstances of its disclosure or the nature of the information itself. Confidential Information includes, but is not limited to, all financial information of a Party and that of the Retroship Group, including, but not limited to rates, compensation amounts received for Services rendered, volume information, as well as the Retroship Group contact information, Retroship Group shipping, storage or other logistics requirements, the Software Services of Retroship, and the terms and conditions of this Agreement and all SOWs. Confidential Information does not include information that (i) was possessed by either Party, prior to being disclosed; (ii) either Party develops independently, without use of or reference to the Confidential Information; (iii) is already public when one Party discloses it to the other (other than from a breach of the Agreement); or (iv) is in the possession of the other Party as the result of disclosure by a third Party not under an obligation to keep that information confidential.
3.2 Use of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. Each Party shall limit their use of the Confidential Information of the other Party to purposes related to their performance under the Agreement. Except as set forth herein, neither Party shall transfer or disclose the Confidential Information of the other Party to any third Party. Each Party shall (i) give access to Confidential Information only to those employees and subcontractors that need to have access for the performance of Services (provided they have are bound by confidentiality obligations at least as restrictive as those set forth herein); and (ii) take reasonable and adequate precautions to prevent disclosure or use of Confidential Information other than as authorized in the Agreement.
3.3 Equitable Remedies. The Parties acknowledge that a breach of any Confidential Information obligation under the Agreement could cause irreparable harm for which damages would be an inadequate remedy. If any such breach occurs or is threatened, the Party impacted by such breach will be entitled to seek an injunction, a restraining order, or any other equitable remedy. The impacted Party would not need to post a bond or other security or provide proof of actual damages.
3.4 Publicity. Retroship may use Customer’s name and logo on Retroship’s website and in other Retroship marketing materials. Retroship will cease such use upon Customer’s written request.
4. General.
4.1. Intellectual Property Rights. Except for rights expressly granted herein, nothing in this Agreement will transfer any of either Party’s IP Rights to the other Party. Retroship reserves all rights not expressly granted to Customer herein. Retroship exclusively owns and retains all title, ownership rights, and intellectual property rights in and to Services. Customer grants to Retroship and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Retroship’s or its Affiliates’ Services.
4.2. Insurance. Retroship agrees to maintain throughout the time of its provisions of the Services, the following insurance coverage: (i) employer’s liability insurance with limits not less than $1,000,000 per occurrence; and (ii) comprehensive general liability insurance with contractual coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. Retroship’s maximum liability to Customer for any loss shall be limited to Retroship’s insurance policy terms and conditions and the dollar amounts for coverage therein.
4.3. Limitation of Liability. In no event shall the aggregate liability for any claims, losses, or damages of Retroship together with all of its Affiliates arising out of or related to this Agreement exceed the lesser of: (i) the amount paid by Customer to Retroship for the applicable Service under the Agreement in the twelve (12) months prior to the first occurrence out of which the liability arose; or (ii) the maximum liability set forth in the applicable Service Terms. These terms are in addition to and do not supersede the terms regarding liability in the Service Terms. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability but will not limit Customer's and its Affiliates’ payment obligations of Fees.
4.4. Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
4.5. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WITH REGARD TO THE SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND THAT YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK. SOFTWARE SERVICES SOFTWARE SERVICES MAY ALSO BE SUBJECT TO INTERRUPTIONS AND DELAYS INHERENT IN THE USE OF THE INTERNET. CUSTOMER ACKNOWLEDGES THAT RETROSHIP IS NOT RESPONSIBLE FOR ANY INTERRUPTIONS OR DELAYS CAUSED BY ITS OR CUSTOMER’S INTERNET SERVICE PROVIDERS.
4.6. Indemnification. Subject to the Agreement, Customer and its Affiliates “Indemnifying Party” shall indemnify, defend, and hold harmless Retroship, the Retroship Group, each of its Affiliates, and the respective directors, officers, employees, agents, successors and assigns (collectively, “Indemnified Party”) against any losses, damages, liabilities, claims, actions, judgments, settlements, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, the costs of enforcing any right to indemnification under the Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party, arising out of or resulting from any claim of a third Party alleging: (a) any negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement; (b) any bodily injury or death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or Indemnifying Party's personnel; (c) any failure by Indemnifying Party or its personnel to comply with applicable laws; or (d) breach of the Agreement by Indemnifying Party or Indemnifying Party’s personnel (“Claims”); provided, however, the foregoing indemnification obligation does not apply to the extent such Claims result from Indemnified Party’s negligence or willful misconduct. Indemnified Party reserves the right at Indemnifying Party’s expense to assume the exclusive defense and control of any Claim for which it is required to indemnify, and the Indemnifying Party agrees to cooperate with such defense of these Claims. The Indemnifying Party shall not settle any matter without the Indemnified Party’s prior written consent. The Indemnified Party will use reasonable efforts to notify the Indemnifying Party of any such claim, action or proceeding upon becoming aware of it. This indemnity shall include, without limitations, all Claims in tort, contract, by statute or otherwise, including Claims for personal injury (including death) and actual or tangible property damage.
4.7. Modification. No amendment to any Service Agreement or SOW will be effective unless made in writing and signed by both Parties. Retroship may change the Terms and Conditions from time to time in its sole discretion. Any changes to the Terms and Conditions are effective immediately upon publication on the website.
4.8. Non-Assignability. Neither Party may assign this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer all of its rights and obligations under this Agreement to an affiliated company by majority ownership or control or in connection with a sale or transfer of all or substantially all of its assets or equity relating to the applicable Agreement without the prior consent of the other Party.
4.9. Subcontracting. Retroship may from time to time in its discretion engage third parties to perform Services, as described in the applicable Service Agreement or SOW.
4.10. Third-Party Beneficiaries. The Agreement is made for the sole benefit of the Parties hereto and their successors and permitted assigns. Except as expressly provided herein, no other person or entity is intended to or shall have the rights or benefits hereunder, whether as third-party beneficiaries or otherwise.
4.11. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
4.12. Governing Law. The laws of the State of Delaware govern all interpretations and adversarial proceedings arising out of the Agreement. The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to the Agreement in any manner whatsoever. The Parties will be subject to the exclusive jurisdiction of the state and federal courts located in City of Atlanta, Fulton County, Georgia, and the Parties agree and consent to the exclusive jurisdiction and venue of such courts.
4.13. Entire Agreement. The Agreement, together with the SOWs, any other documents included as exhibits, schedules, attachments and appendices, constitute the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
4.14. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision
will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
4.15. Force Majeure. Neither Party shall be liable to the other for default in the performance or discharge of any duty or obligation under this Agreement, except for Customer’s obligation to pay for Services rendered by Retroship, which may be due, in whole or in part, to acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, delay or failure of Carriers or other third parties, shippers or contractors, labor shortage or inability to obtain transportation, equipment, operating materials, plant equipment or materials required for our performance failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, cyber-attacks, viruses, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of Goods, closure of public highways, railways, airways or shipping lanes, governmental interference, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations (including but not limited to quarantine or other employee restrictions) or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the affected Party (“Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Party seeking to rely on this provision shall promptly give written notice to the other Party of the nature and consequences of the cause.
4.16. Term and Termination Rights. This Agreement commences as set forth in the Service Agreement and continues until the Agreement expires or is terminated as set forth herein. Either Party may terminate the Agreement: (i) upon thirty (30) days’ written notice, due to the other Party’s material breach of this Agreement that is not cured during the 30-day notice period (including Customer’s non-payment of Fees); or (ii) immediately upon written notice of the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings that are not dismissed within sixty (60) days of the date of filing; (iii) upon the other Party's making an assignment for the benefit of creditors; or (iv) upon the other Party's dissolution or ceasing to do business.
4.17. Effect of Termination. Upon termination of the Agreement for any reason, Customer shall pay to Retroship all amounts due for the remaining amount of the Term or otherwise due and owing as of the date of termination as set forth in the Service Agreement or SOW. All licensed rights granted to Customer (if any) in this Agreement will immediately cease to exist upon termination. Termination of this Agreement will result in the termination of all ongoing SOWs; provided, however, that the termination or modification of a single SOW will not result in the termination or modification of this Agreement.
4.18. Waiver. No waiver of any part of the Agreement will be effective unless it is in writing and signed by the Party granting the waiver. No failure or delay in exercising any discretion or remedy under the Agreement operates as a waiver of that discretion or remedy. A waiver granted on one occasion will not operate as a waiver on future occasions.
4.19. Notices. Notices must be in writing and delivered by hand, by a national transportation company (with all fees prepaid), or by email if consented to by the receiving Party. Email notices delivered to Retroship will include: landon@shipretro.com. A valid notice will be effective when received by the addressee. The Parties will deliver all notices to the addresses listed on the Agreement signature page.
4.20. Counterparts. The Parties may execute the Service Agreement in any number of counterparts, each of which will be deemed an original, but all of which together constitute a single agreement.
4.21. Compliance with Laws. In connection with the Services provided under the Agreement, the Parties agree to comply with all applicable laws, rules and regulations, including those relating to anti-corruption and anti-bribery and customs, import and export.
4.22. Precedence. In the event of a direct conflict between these General Terms, the applicable Service Terms, and the Service Agreement, the Service Agreement, followed by the General Terms, and then the applicable Service Terms shall apply and shall take precedence in the interpretation of the rights and obligations of the Parties.
4.23. Survival of Provisions. The provisions of these General Terms, the applicable Service Terms, and the Service Agreement that would logically survive termination or expiration, will survive the Agreement.