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For Customers registered in Germany, please refer to the Master Service Agreement here: https://parcellab.com/master-services-agreement/germany.
This Master Software Services Agreement (“MSA”) is entered into by and between parcelLab and the entity identified as the “Customer” in the Order Form. Each of parcelLab and the Customer is referred to individually as a “Party” and collectively as the “Parties”. The MSA, together with the Order Form, and any other attached appendices, constitutes the entire agreement between the Parties (the “Agreement”). All capitalised terms used but not defined in the MSA shall have the meaning assigned to them in the applicable Order Form.
1. DEFINITIONS.
1.1 “Affiliate” means an entity controlled by a Party. The word “controlled” shall, in the context of a corporation, mean direct beneficial ownership of at least fifty per cent (50%) of the shares entitled to vote for members of the board of directors of such corporation, and, in the context of any other business entity, shall mean the right to exercise similar management and control over such entity.
1.2 “Carrier(s)” means those third parties identified in the applicable SOW that provide logistical services to the Customer.
1.3 “Confidential Information” means the Agreement, the pricing and Fees associated herewith, the Services, Documentation, information, data, drawings, benchmark tests, specifications, trade secrets, and any other written or electronic information that is either (i) marked as confidential and/or proprietary, or which is accompanied by written notice that such information is confidential and/or proprietary, or (ii) which could reasonably be considered confidential or, if disclosed to any third party, foreseeably cause competitive harm to the owner of such information.
1.4 “Customer Data” means any data or information provided by the Customer to parcelLab, whether within or outside of the Platform, used in connection with the Services. This includes, but is not limited to, data or information generated, collected, or processed by the Customer, such as End-User Data.
1.5 “Data Processing Addendum” or “DPA” means parcelLab’s data processing addendum.
1.6 “Data Protection Legislation” means any applicable data privacy laws and regulations, including, but not limited to, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the UK GDPR as incorporated into the Data Protection Act 2018, the California Consumer Privacy Act (CCPA), and any other applicable data protection laws in the jurisdiction where the Parties operate.
1.7 “Documentation” means the technical and functional documentation provided by parcelLab to the Customer for using the Services, available on https://how.parcellab.works/docs, as amended from time to time.
1.8 “End-User” means an individual who interacts as a customer or user of the Customer’s products or services.
1.9 “End-User Data” means any data or information related to an End-User that is collected and processed through the Platform, which may include personal information.
1.10 “Third-Party Software” means external third-party components that the Customer may choose to integrate with the Platform, subject to parcelLab’s approval.
1.11 “Order Form” means an executed document entered into by the Parties, to which this MSA is attached, detailing the Services purchased, the Initial Term and applicable financial terms. It may include any subsequent amending Order Forms.
1.12 “parcelLab” means the parcelLab entity listed in the applicable Order Form, or any of its Affiliates as necessary to perform the Services.
1.13 “Platform” means parcelLab’s proprietary shipping and communication software services web-based portal, including the Portal, data transfer mechanisms (API, FTP, or email), and communication mechanisms (including email, SMS, Push, Webhooks, Alexa, WhatsApp) made available to the Customer pursuant to an applicable Order Form.
1.14 “Service(s)” means all services provided by parcelLab in connection with the Customer’s use of the Platform, including the Platform itself, implementation, and the support services as specified in the applicable Order Form. Detailed Service descriptions can be found in the relevant section of the parcelLab Services Catalog.
1.15 “SLA” means parcelLab’s Service Level Agreement, which forms part of the Agreement and pertains to the availability commitment levels and remedies of the Platform.
1.16 “Statement of Work” or “SOW” means the document mutually agreed upon between the Parties, which outlines the specific details and phases of the Services’ implementation. This document may be appended to each applicable Order Form.
2. LICENSES
2.1 Service Licence. Subject to the terms and conditions of the Agreement, parcelLab grants the Customer a non-exclusive, non-sublicensable, non-transferable, limited licence to use the Services and Documentation, limited to the terms of the Agreement, and only for the Customer’s internal use. The Customer may not store any copies of the Service unless expressly authorized in writing by parcelLab in the applicable Order Form. parcelLab reserves all rights and licences in and to the Services not expressly granted to the Customer under the Agreement.
2.2 Customer’s Affiliates. Subject to the Agreement, the Customer’s Affiliates may access and use the Services. All obligations of the Customer shall apply equally to each Customer Affiliate that uses the Services, provided that the Customer shall be responsible for (i) ensuring that all Customer Affiliates comply with the Agreement; and (ii) all acts or omissions of its Affiliates under the Agreement.
2.3 Licence Restrictions. The Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and shall notify parcelLab promptly of any such unauthorized use. The Customer shall not (a) copy, reproduce, distribute, republish, download display, post or transmit in any form or means the Service, (b) rent, transfer, lease, loan, resell for profit or otherwise, distribute, or otherwise grant any rights in the Service in any form to any other party in whole or in part, including without limitation to provide processing services to their parties for commercial timesharing or for rental or sharing arrangements, (c) modify, adapt, decompile, disassemble, reverse engineer, create derivative works or otherwise attempt to derive source code from the Services (or hosting environment, if applicable) in whole or in part, (d) or remove, modify, obscure and/or otherwise deface any copyright, trademark or other proprietary rights notices in the Services.
3. PROPRIETARY RIGHTS.
3.1 Pre-Existing Works. Each Party will maintain its ownership of, and rights in and to, any materials or intellectual property rights, whether registered or not, existing prior to entering into the Agreement or as may be developed by a Party independently, and without the use of Confidential Information of the other Party.
3.2 Customer Feedback and Service Enhancement. The Customer grants parcelLab and its Affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestions, enhancements, or other feedback provided by the Customer relating to the Services.
3.3 Customer Trademark. The Customer grants parcelLab a limited, non-exclusive right and right to use the Customer’s trademarks solely for the purpose of the Services and more specifically for customising the appearance of the Customer’s interface within the Platform, following Customer’s instructions
4. DATA.
4.1 Customer Data. The Customer warrants that it owns all right, title, and interest in and to the Customer Data and shall be solely responsible for ensuring the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants parcelLab a right to access and use the Customer Data solely to the extent necessary to provide the Services under the Agreement.
4.2 Analytics and Benchmarking Data. Notwithstanding Section 4.1, parcelLab shall retain all right, title, and interest in any data sets derived from anonymised and aggregated Customer Data. Such data sets will be used for, but not limited to, analytics to improve the Services and parcelLab’s benchmarking feature, provided they do not allow for the (re-)identification of the Customer or any End-Users.
4.3 Carrier Data. The Customer warrants that it has obtained all necessary consents to enable parcelLab to access and use data from Carriers for the purpose of providing analytical and comparative performance services.
5. CUSTOMER OBLIGATIONS.
5.1 General obligations. The Customer shall (i) obtain and maintain all necessary licences, permissions, and consents which may be required for the Services before the start of the Term (ii) cooperate with parcelLab in all matters relating to the Services, upon parcelLab’s reasonable request, including without limitation providing accurate data and information in a timely manner; (iii) ensure the timely availability of qualified personnel as reasonably necessary to enable parcelLab to fulfil its obligations during the implementation phase of the Services without undue delay.
5.2 Carrier Connections. The Customer is solely responsible for ensuring that the Carriers provide the necessary logistics event data, documentation, interface functionalities, to parcelLab for integration with the Platform. Additionally, the Customer must ensure that parcelLab has access to tracking data, either directly or indirectly, via the Carriers and any third-party logistics providers (3PLs).
6. THIRD-PARTY SOFTWARE.
6.1 Third-Party Software Integration. The Services may include Third-Party Software integration, which the Customer may elect to use at their discretion. Such software is not part of the Services, and parcelLab provides no warranty, support, or liability for it, except as expressly stated in the Agreement. The Customer is solely responsible for complying with the terms of any Third-Party Software and acknowledges that parcelLab is not responsible for any Customer Data shared with or accessed by such software.
6.2 Generative AI Tool. Although not required for performance of the Services, third-party generative AI tools may be made available to the Customer within the Platform. If the Customer chooses to opt-in to use such tool(s), the Customer understands that they are solely responsible for the data shared with the tool(s). The Customer warrants that they will not share personal data, as defined by the Data Protection Legislation, when using the tool.
7. TERM AND TERMINATION.
7.1 Agreement Term. The Agreement shall commence on the Effective Date of the initial Order Form and shall remain in effect until terminated in accordance with this Section 7 or upon expiration of all active Order Forms.
7.2 Order Form Term. Each Order Form shall commence on the Effective Date and remain in effect through the Initial Term and any Renewal Term, as applicable, unless terminated in accordance with Section 7.4. or 7.5.
7.3 Renewal. Unless otherwise set forth in the Order Form, upon expiration of the Initial Term, the Order Form will automatically renew for successive twelve (12) month periods (each a “Renewal Term”), unless the Customer provides parcelLab with a written notice of termination at least ninety (90) days prior to the renewal date. The Initial Term and any Renewal Terms are collectively referred to as the “Term”.
7.4 Termination. The Agreement, including all rights granted hereunder, may be terminated as follows: (a) by either Party with immediate effect if the other Party fails to perform any of its material obligations under the Agreement and such failure continues for thirty (30) days after receipt of written notice; (b) by either Party with immediate effect upon written notice in the event that the other Party: (i) becomes insolvent; (ii) makes an assignment for the benefit of creditors; (iii) files a voluntary bankruptcy petition; (iv) acquiesces to any involuntary bankruptcy petition; (v) is adjudicated bankrupt; or (vi) ceases to do business; or (c) by parcelLab immediately upon written notice of termination in the event of any breach of Section 2 (Licences).
7.5 Effect of Termination. Upon the expiration or termination of this Agreement, the Customer shall immediately cease use of the Services and each party shall immediately cease use of the Confidential Information of the other Party, and each Party shall return or, at its option, destroy the aforementioned materials from all equipment and electronic and other media, including all copies thereof. Each Party shall certify in writing its compliance with the foregoing upon the request of the other Party. In the event that the Customer rightfully terminates the Agreement due to parcelLab’s material breach, the Customer shall be reimbursed of any prepaid fees for the remaining term of the Agreement. The reimbursement shall be calculated on a pro-rata basis from the effective date of termination through the expiration of the then-current Term.
7.6 Survival. The rights and obligations of the Parties which by their nature extend beyond the expiration or termination of the Agreement shall survive termination or expiry of the Agreement for any reason.
8. FEES AND PAYMENT TERMS.
8.1 Fee and Payment terms. In consideration of the Services, the Customer shall pay parcelLab the amounts set forth in the applicable Order Form (“Fees”). Unless otherwise set forth in the Order Form, the Fees are due annually in advance and to be paid within thirty (30) days of date of invoice from parcelLab.
8.2 No Refunds. Except as otherwise specifically provided in the Agreement, the Fees are non-cancellable and non-refundable.
8.3 Late Payment. Except for any amounts disputed in good faith, all past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less. The Customer will reimburse parcelLab for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts. In addition, parcelLab reserves the right to suspend the use of the Services if the Customer fails to pay any undisputed invoice within 30 days after formal notice to pay sent by parcelLab.
8.4 Taxes. All Fees set forth in the applicable Order Form are exclusive of any sales, withholding taxes, value-added, or other similar taxes imposed by applicable law that parcelLab must pay based on the Services (“Taxes”). The Customer agrees to pay or reimburse parcelLab for all such relevant taxes, except for taxes based on parcelLab’s income (which shall be the responsibility of parcelLab). If parcelLab has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 8.4, the Customer will pay that amount unless the Customer can provide parcelLab with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.5 Annual Increase. Unless otherwise agreed in the applicable Order Form, after the Initial Term, the recurrent Fees shall be subject to a reasonable annual increase ensuring parcelLab’s ability to accommodate any increase in operating costs and maintain the quality of Services.
9. WARRANTIES.
9.1 Limited Warranty. parcelLab warrants that, for the Term of the applicable Order Form, the Services (i) will be performed in all material respects in accordance with the Agreement and with reasonable skill and care; and (ii) the Platform will be available at least 99.90% of the time. This warranty does not apply to the extent of any non-conformance caused by use of the Platform contrary to parcelLab’s instructions or modification or alteration made to the Platform by any party other than parcelLab.
9.2 Disclaimer. parcelLab does not warrant that the Services will meet the Customer’s requirements, that the operation of the Services will be error-free, timely or the operation therefore will be uninterrupted or that the Service errors will be corrected. parcellab is not responsible for any delays, delivery failures, or any other loss or damage resulting from (a) any issues with availability or performance of any Third-Party Software or other third-parties that are outside of parcelLab’s control; or (b) the transfer of data over communications networks and facilities, including the internet. EXCEPT AS PROVIDED IN SECTION 9.1, THE SERVICES HEREUNDER IS PROVIDED “AS IS” AND PARCELLAB MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SERVICES. PARCELLAB DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
10. INDEMNIFICATION.
10.1 Infringement Indemnity. Subject to the Customer’s compliance with the Agreement, parcelLab will, at its option, defend or settle any third-party claim that the Services, as provided by parcelLab under the Agreement and used within its scope, infringe any Intellectual Property Rights. parcelLab will pay any resulting costs, damages and reasonable attorneys’ fees awarded against the Customer.
10.2 Injunctions. If the Customer’s use of the Services is, or parcelLab’s believes is likely to be, enjoined due to aclaim specified in Section 10.1 above, parcelLab may, at its sole option and expense: (a) procure the right for the Customer to continue using the Services; (b) replace or modify such Services to be non-infringing and substantially equivalent in function; or (c) if neither option (a) nor (b) is feasible despite parcelLab’s commercially reasonable efforts, terminate the Customer’s rights to the affected Services and refund a pro-rated portion of the fees based on the then-current Term.
10.3 Exclusions. parcelLab will have no liability for any claim of infringement or misappropriation arising from: (a) the Customer’s use of the Services with equipment, software or data not supplied by parcelLab, where the claim would not have occurred without such use; (b) the Customer’s use of the Services outside the scope of the Agreement or the Documentation; (c) modifications made by anyone other than parcelLab; (d) unauthorised use by Customer’s users or Affiliates; (e) the Customer’s use of an outdated version of the Services, if the claim could have been avoided by using the current version; or (f) the Customer’s use, possession, or breach of any Third-Party Software.
10.4 Sole Remedy. This Section 10 provides the sole and exclusive remedies for claims of infringement or misappropriation of Intellectual Property Rights.
10.5 Customer Indemnification. The Customer agrees to indemnify, defend, and hold harmless parcelLab from third-party claims arising out of or relating to (i) the Customer’s gross negligence or wilful misconduct; or (ii) the Customer Data’s infringement of Intellectual Property Rights, or violation of applicable law.
10.6 Indemnification Process. The indemnification obligations are subject to: (i) prompt written notice of the claim by the Party seeking indemnity (“Indemnitee”) to the Party with the indemnity obligation (“Indemnitor”); (ii) Indemnitor’s sole control of the selection of counsel and defense of the claim, provided no settlement admits fault or liability of the Indemnitee without its consent; and (iii) reasonable assistance by the Indemnitee at the Indemnitor’s request and expense.
11. LIMITATION OF LIABILITY.
11.1 Liability Limit. To the extent permitted by applicable law, ParcelLab’s total cumulative liability under the Agreement shall not exceed the amount of the fees paid by the Customer for the Services as applicable, during the twelve (12) months preceding the event which gave rise to the liability claim.
11.2 No Consequential Damage. In no event shall either party, its directors, or employees be liable to the other for any indirect, special, exemplary, incidental, special or consequential damages, whether based on contract, tort, strict liability or any other legal theory, however caused and whether such loss or damage was foreseeable, known, foreseen, or a party was advised of the possibility of such damage.
11.3 Reasonable Limits. The parties acknowledge that these limitations and exclusions of liability are agreed to be reasonable allocations of liability and risk, having considered the relative commercial size of the parties, the nature of the contractual obligations, the ability of the parties to bear the losses and the availability of insurance.
12. CONFIDENTIALITY.
12.1 Exclusions. Confidential Information does not include information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
12.2 Disclosure Restrictions. Each party will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing the Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein and each party will remain directly liable and responsible to the other party and its licensors for any violation by a party or its subcontractors hereunder. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of the Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
13. PRIVACY AND SECURITY.
13.1 Compliance. When handling personal data, each Party agrees to comply with all Data Protection Legislation. When acting as a controller, parcelLab processes personal data in accordance with its privacy policy, as amended from time to time.
13.2 Security. parcelLab shall maintain up-to-date, industry-standard security controls to protect the confidentiality, privacy, integrity, and availability of all Customer Data, including protection against unauthorised access to the Services. Such controls include, but are not limited to, SOC and HIPAA compliance audits, third-party penetration testing, supply chain security scanning, and automated intrusion detection monitoring. parcelLab agrees to notify the Customer in writing (including via e-mail) as soon as reasonably possible of any event that may indicate a potential security incident (e.g., improper use of access rights, hacking, viruses, loss or theft of data). In the event of an actual security incident, parcelLab shall promptly report it in writing (including via email) to the Customer or its authorised representative.
13.3 Data Processing Agreement. In order to provide the Services, parcelLab, as processor, will collect and process End-User personal data on behalf of the Customer, the controller, in accordance with the DPA. 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.
14. SUPPORT.
14.1 Onboarding & Support. parcelLab shall provide onboarding and support services in accordance with the SOW.
14.2 Availability. If the Services do not meet the agreed availability standards, or the Customer encounters any other downtime event with the Services, the Customer should contact support@parcellab.com and parcelLab will address the issue in accordance with the SLA.
15. GOVERNING LAW.
15.1 Law and jurisdiction. The governing law for any dispute or lawsuit arising out of or in connection with the Agreement, and which courts shall have exclusive jurisdiction over any such disputes or lawsuits, shall be determined based on the Customer’s business address as provided in the Order Form, as follows:
Customer Business | Governing law | Jurisdiction |
---|---|---|
United States and Canada | Laws of Delaware | Federal and State Courts of Delaware (US) |
United Kingdom & Ireland | English laws | Court of London, England |
France | French Law | Courts of Paris, France |
EMEA and rest of the world | German law | Courts of Munich, Germany |
15.2 Exclusion. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
16. MISCELLANEOUS.
16.1 Assignment. Neither Party may assign the Agreement without the prior written consent of the other Party, provided however that either Party may assign or transfer the 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 the assigning Party’s assets. Any attempted assignment in violation of this Section 15.1 shall be null and void.
16.2 Logo Use. During the Term, parcelLab may identify the Customer as a parcelLab customer and use the Customer’s name and logo on its websites and in marketing materials. Any other use of the Customer’s name or logo requires the Customer’s prior written consent. parcelLab may ask the Customer to participate in joint marketing activities (e.g. press release, case study, reference calls).
16.3 Independence. 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. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
16.4 Anti-Bribery and Corruption. Both Parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery act 2010.
16.5 Severability. If for any reason a court of competent jurisdiction finds any provision of the Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of the Agreement will remain in full force and effect.
16.6 Amendments. Except as expressly agreed to by each party’s authorized representative in the relevant Order Form, this Agreement may not be amended, modified, or supplemented by the parties in any manner, except by a written instrument signed by an authorized representative of parcelLab and the Customer.
16.7 Waiver. The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision.
16.8 Force majeure. Except in the case of payment of Fees, neither of the parties shall be obliged to meet any obligations, including any guarantee obligation agreed between the parties, if it is prevented from doing so as a result of force majeure. Force majeure shall include but not limited to: (i) government measures, (ii) electricity failure, (iii) faults affecting the internet, computer network or telecommunication facilities, (iv) war, (v) terrorism, (vi) riot, and (vii) acts of God. If a situation of force majeure lasts for longer than forty-five days, either of the parties shall be entitled to terminate the agreement in writing.
16.9 Entire Agreement. The Agreement constitutes the entire and exclusive understanding between the Parties regarding its subject matter and supersedes all prior agreements, whether written or oral, relating to the same subject matter. Any terms and conditions in the Customer’s documents that conflict with or add to the terms of this Agreement will be considered not applicable, unless expressly agreed to in writing by parcelLab.
16.10 Order of Precedence. In the event of any conflict or inconsistency between the provisions of the Agreement, the documents shall take precedence in the following order: (1) the Order Form, (2) this MSA, and (3) any other appendices.
16.11 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by courier or overnight delivery services, or by certified mail, to the addressed set forth in the Order Form. Notifications will be deemed given upon receipt.
16.12 Electronic Copy. The exchange of a fully executed Order Form (in counterparts or otherwise) by digital signature or by other electronic means shall be sufficient to bind the parties to the terms and conditions of the Agreement.