Master Services Agreement
1.1 “Affiliate” means any entity controlled by, controlling, or under common control with a Party.
1.2 “Customer Data” means any data or information provided by Customer to parcelLab, whether or not in the Platform.
1.3 “Data Processing Addendum” or “DPA” means parcelLab’s data processing addendum, found in Exhibit A.
1.4 “Data Protection Legislation” means the Data Protection Act 2018 implementing the General Data Protection Regulation (EU) 2016/679 (as applicable) and any other applicable laws relating to the protection of personal data and the privacy of individuals.
1.5 “End Customer” means the individual or entity receiving a parcel and/or a Post-Checkout Communication.
1.6 “Exclusions” means either Party’s gross negligence or willful misconduct, either Party’s indemnification obligations under this Agreement; the Restrictions, and the Fees (that are not Disputed Fees) due under this Agreement.
1.7 “Force Majeure Event” means circumstances beyond a Party’s reasonable control, including but not limited to acts of God, labor disputes, terrorism, pandemic, failure of third party networks, or governmental controls or restrictions.
1.8 “Order Form” means a written order executed by the Parties for the provision of Services by parcelLab to Customer.
1.9 “Platform” means parcelLab’s proprietary shipping and communication software services, including the Portal, data transfer mechanisms (API, FTP, or email), and communication mechanisms (including email, SMS, Push, Webhooks, Alexa, WhatsApp) made available to Customer pursuant to an applicable Order Form. The Platform is accessible at parcelLab’s web-based portal located at https:/prtl.parcellab.com.
1.10 “Professional Services” means technical services other than the Platform that are made available by parcelLab to Customer from time to time pursuant to an applicable Order Form.
1.11“Service Level Agreement” or “SLA” means parcelLab’s service level agreement, found in Exhibit B.
1.12 “Services” means collectively, the Platform and Professional Services.
1.13 “Tracking Information” means the tracking information provided to Customer as set out in the applicable Order Form.
2. INTELLECTUAL PROPERTY; RIGHTS OF USE; AFFILIATE USE; RESTRICTIONS.
2.1 parcelLab owns all right, title, and interest in and to the Services. parcelLab grants Customer a limited, non-exclusive, non-transferable right and license to access and use the Services during the Term as permitted hereunder and in the applicable Order Form. In the event Customer provides parcelLab with any feedback or suggestions with respect to the Services (“Feedback”), then parcelLab shall own outright such Feedback, whether or not it is incorporated into the Services, and Customer shall have no right to the Feedback.
2.2 Customer owns all right, title, and interest in and to the Customer Data. Customer grants parcelLab a license to access and use the Customer Data solely as necessary to provide the Services to Customer during the Term. Notwithstanding the foregoing, parcelLab shall have a perpetual license to use aggregated and de-identified portions of the Customer Data for any lawful purposes, including for benchmarking and analytics, provided that such uses do not identify nor are capable of re-identifying Customer. Additionally, during the Term, Customer grants parcelLab a limited, non-exclusive right and license to use Customer’s trademarks solely for the purpose of modifying the appearance of Customer’s interface within the Platform to incorporate Customer’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement or otherwise in writing.
2.3 Each Party will maintain its ownership of, and rights in and to, any pre-existing materials or intellectual property rights it has prior to entering into this Agreement or as may be developed by ta Party independent, and without the use of Confidential Information, of the other Party.
2.4 Subject to this Agreement, Customer’s Affiliates may access and use the Services. All obligations of Customer shall apply equally to each Customer Affiliate that uses the Services, provided that Customer shall be responsible for (i) ensuring that all Customer Affiliates comply with this Agreement; and (ii) all acts or omissions of its Affiliates under this Agreement.
2.5 Customer will not: (i) misappropriate or infringe parcelLab’s intellectual property rights; (ii) reverse engineer, decompile, disassemble, disclose, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform; (iii) modify, translate, or create derivative works based on the Platform; (iv) use the Services for purposes of a third party or otherwise for the benefit of a third party; or (v) use or view the Platform for the purposes of developing, directly or indirectly, a product or service commercially competitive to the Services (collectively, the “Restrictions”).
3. CUSTOMER OBLIGATIONS.
3.1 Customer shall (i) ensure that the terms of the Order Form are accurate and complete; (ii) provide reasonable cooperation to parcelLab in all matters relating to the Services, upon parcelLab’s request, including without limitation providing data and information reasonably required for parcelLab to perform its obligations hereunder; (iii) obtain and maintain all necessary licenses, permissions, and consents which may be required for the Services before the start of the Term.
4. TERM; TERMINATION.
4.1 The term of this Agreement shall begin on the Effective Date and continue until the earlier of (i) termination as permitted hereunder, or (ii) expiration of all active Order Forms (the “Term”). Each Order Form will have its own term as stated in such document.
4.2 Either Party may terminate this Agreement and all Order Forms in the event the other Party materially breaches this Agreement and such breach has not been cured within thirty (30) days of the breaching Party’s receipt of written notice (email sufficient) of the breach.
4.3 Upon expiration or termination of this Agreement: (i) Customer shall pay all Fees due through the termination date, or if Customer prepaid, parcelLab shall provide a pro-rata refund of any such prepaid Fees; (ii) Customer’s right to access the Services shall immediately cease; (iii) within thirty (30) days, each Party shall return or destroy all of the other Party’s Confidential Information then in its possession; (iv) Customer may request a copy of Customer Data within such thirty (30) day period and parcelLab will provide such copy in an industry-standard format. parcelLab has no obligation to maintain Customer Data beyond such thirty (30) day period; and (v) any provisions of this Agreement which by their nature are reasonably intended to survive a termination or expiration, shall so survive.
5. FEES; PAYMENT.
5.1 Except as otherwise stated in the applicable Order Form, Customer shall pay parcelLab the fees set forth in the applicable Order Form (“Fees”) within thirty (30) days of receipt of invoice from parcelLab. Customer shall notify parcelLab within thirty (30) days of receipt of invoice if there is a good faith dispute regarding the Fees (“Disputed Fees”), and Customer may withhold payment of Disputed Fees during the pendency of the dispute, provided that Customer pays all Fees that are not Disputed Fees. Once the dispute is resolved, Customer must pay any resolved Fees within five (5) business days.
5.2 Except as otherwise provided for in the applicable Order Form and/or in this Agreement, all Fees set forth in an applicable Order Form are non-cancelable and non-refundable. Customer shall reimburse parcelLab for all reasonable out-of-pocket expenses incurred in providing the Services where such expenses have been approved in writing by Customer prior to being incurred.
5.3 In the event any Fees are more than ten (10) days past due, parcelLab may, in addition to any other rights and remedies it may have: (i) upon written notice to Customer suspend Customer’s access to the Services; and (ii) require full payment of all Fees prior to reinstating Customer’s access to the Services.
5.4 All Fees are exclusive of any applicable sales, use, or excise taxes, other than those based on parcelLab’s income. If Customer is tax-exempt, Customer shall promptly provide an exemption certificate to parcelLab. Customer shall be liable for any liability or expense incurred by parcelLab as a result of Customer’s failure or delay in paying taxes due or if Customer’s claimed tax exemption is rejected. If Customer is legally required to withhold tax from its payment of Fees, then Customer agrees to gross up all Fees that are subject to such withholding, and shall not be entitled to reduce the Fees, such that the net payment to parcelLab is the full amount listed in the applicable Order Form.
6.1 Each Party represents and warrants that it has full right and authority to enter into and perform its obligations under this Agreement and shall comply with all applicable laws.
6.2 parcelLab warrants that during the Term the Services shall substantially comply with the material terms of this Agreement and the applicable Order Form. In the event Customer identifies a deficiency, Customer shall notify parcelLab in writing of the deficiency and parcelLab shall repair the deficiency within thirty (30) days or Customer may terminate this Agreement pursuant to Section 3, above, as Customer’s sole remedy for such deficiency.
6.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND PARCELLAB DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE.
7.1 parcelLab shall indemnify, defend, and hold harmless Customer from and against any and all third-party claims arising out of or relating to (i) parcelLab’s gross negligence or willful misconduct; or (ii) actual or alleged infringement by the Services, when used as permitted hereunder, of a third party’s intellectual property rights. In the event the Services are enjoined or in parcelLab’s opinion likely to be enjoined, then as Customer’s exclusive remedy and parcelLab’s sole liability, parcelLab shall do one of the following, at its discretion: (x) procure for Customer the right to continue using the Services; (y) modify or replace the Services such that they are non-infringing but functionally equivalent; or (z) terminate the provision of the Services that are the subject of the claim and provide a pro-rata refund to Customer of any prepaid Fees for Services that would have been rendered after the termination date.
7.2 Customer shall indemnify, defend, and hold harmless parcelLab from and against any and all third-party claims arising out of or relating to (i) Customer’s gross negligence or willful misconduct; or (ii) actual or alleged infringement of a third party’s intellectual property rights, or violation of applicable law, by the Customer Data, when used as permitted hereunder.
7.3 The indemnification obligations contained in this Section are conditioned on: (i) prompt written notice of the claim by the Party seeking indemnity (“Indemnitee”) to the Party with the indemnity obligation (“Indemnitor”); (ii) sole control of the selection of counsel and defense of the claim by the Indemnitor, provided that the Indemnitee may engage its own legal counsel at its own expense, and Indemnitor shall not settle any claim where such settlement contains any admission by, or imposes any liability on, the Indemnitee; and (iii) reasonable assistance by the Indemnitee at the Indemnitor’s request and expense.
8. LIMITATION OF LIABILITY.
8.1 Except with respect to the Exclusions, (i) in no event shall either Party be liable for any indirect, incidental, exemplary, consequential, or special damages of any kind whatsoever; and (ii) in no event shall either Party’s liability to the other Party exceed an amount equal to the total Fees paid or payable by Customer to parcelLab under this Agreement during the twelve (12) months preceding the date on which the claim arose.
9.1 “Confidential Information” means (i) any business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the Services, including the Platform (current or planned), are parcelLab’s Confidential Information, and all of the foregoing as they relate to Customer’s business, are Customer’s Confidential Information); and (ii) information designated by the disclosing Party (“Discloser”) as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential.
9.2 Confidential Information includes information disclosed by Discloser to the other Party (“Recipient”) prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the Recipient; (ii) is or becomes available to the Recipient on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the Recipient without use of any of Discloser’s Confidential Information and by persons without access to such Confidential Information.
9.3 Recipient agrees not to share Discloser’s Confidential Information except to those employees, other personnel, contractors, and advisors who have a need-to-know such information and who are bound by confidentiality obligations at least as stringent as those contained herein. Notwithstanding the foregoing, Recipient remains liable for all acts and omissions of those to whom it discloses Discloser’s Confidential Information. Recipient may disclose Confidential Information as required by law, provided that Recipient first notifies Discloser (to the extent legally permitted) and provides Discloser an opportunity to contest the required disclosure, and that Recipient limits disclosure to only that Confidential Information reasonably necessary to comply with its legal requirements.
10. DATA PROTECTION.
10.1 The Parties acknowledge and agree that for the purposes of Data Protection Legislation, Customer is the controller and parcelLab is the processor. The DPA sets out the scope, nature, and purpose of processing by parcelLab, the duration of the processing, and the types of personal data and categories of data subject. parcelLab agrees that it will (i) have reasonable and appropriate physical, technical, and organizational measures in place to protect the personal data against unauthorized or unlawful processing and against accidental loss or destruction of, or damage to, the personal data; (ii) take reasonable steps to ensure the reliability and fitness of any of its personnel who will have access to personal data, and that such personnel maintain the confidential nature of Customer’s Confidential Information; (iii) act only on Customer’s documented instructions with respect to personal data; (iv) not transfer or otherwise process personal data outside the European Economic Area without the prior written consent of Customer (it being understood that this Agreement constitutes written consent to the transfer to the United States); (v) provide reasonable assistance to Customer, in responding to requests for exercising data subjects’ rights; (vi) delete or return all of the personal data to Customer upon Customer’s request; (vii) immediately inform Customer if, in parcelLab’s reasonable opinion, an instruction of Customer violates applicable Data Protection Legislation; and (viii) maintain complete and accurate records and information to demonstrate its compliance with this Section and allow for audits by Customer or Customer’s designated independent third-party auditor, so long as such audits (x) do not occur more than one (1) time per calendar year; (y) are conducted during normal business hours, in a manner reasonably design to limit disruption to parcelLab’s business operations, and on no less than ten (10) business days’ prior written notice; and (z) do not access systems where such access, in parcelLab’s reasonable opinion, violate its third party confidentiality obligations.
11. GOVERNING LAW.
11.1 The governing law and the applicable venue for bringing any causes of action, disputes, or controversies arising out of, under, or relating to this Agreement shall be based on the parcelLab entity entering into this Agreement as follows:
ParcelLab Entity: parcelLab, Inc.
Governing Law: Delaware, USA
Venue: New Castle County, Delaware
ParcelLab Entity: parcelLab SAS
Governing Law: France
Venue: Paris, France
ParcelLab Entity: parcelLab LTD
Governing Law: England & Wales
Venue: London, United Kingdom
ParcelLab Entity: parcelLab GmbH
Governing Law: Germany
Venue: Berlin, Germany
12.1 Neither Party may assign this Agreement without the prior written consent of the other Party, provided however that either Party may assign or transfer this Agreement upon written notice, but without the requirement of obtaining the other Party’s consent, (i) to an Affiliate; or (ii) in connection with a merger or sale of all or substantially all of the assigning Party’s assets. Any attempted assignment in violation of this Section shall be null and void.
12.2 During the Term, parcelLab may identify Customer as a parcelLab customer and use Customer’s name and logo on its websites and in marketing materials. Any other uses of Customer’s name or logo requires Customer’s prior written consent.
12.3 The Parties are independent contractors, and nothing herein will be construed to create a joint venture, partnership, or the relationship of principal and agent between the Parties.
12.4 The failure of either Party to enforce or to exercise at any time or for any period of time any term of, or any right pursuant to, this Agreement does not constitute a waiver of such term or right and shall in no way affect that Party’s right to enforce or seek remedy thereto. Additionally, except as otherwise stated in this Agreement, the rights and remedies provided hereunder are in addition to, and not exclusive of, any rights or remedies provided by law. If any term of this Agreement is found to be illegal, invalid, or unenforceable, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity, or enforceability of the remaining terms.
12.5 Neither Party shall be in breach of this Agreement or have any further obligations with respect to this Agreement as a result of, and during, a Force Majeure Event.
12.6 This Agreement contains the entire understanding of the Parties with respect to the subject matter herein, and supersedes any prior agreement or understanding, whether oral or written, related thereto. No variations, modifications, or changes may be made to this Agreement except by a mutual written agreement of the Parties.
12.7 Any notice required to be given by a Party to the other Party under this Agreement shall: (i) in the case of notice to parcellab, shall be sent by mail to the address found below, with a copy emailed to support@parcelLab.com; and (ii) in the case of notice to Customer, shall be sent by mail to the address on record with parcelLab, with a copy emailed to the email address on record with parcelLab.