Retailer Terms of Service
(Last updated December 21, 2012)
These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Dashery, LLC d/b/a Doorbound ("Doorbound") offers you, our third party retailers (each, a "Retailer"), access to Doorbound’s proprietary application software service hosted at www.doorbound.com (the "Service") solely for the purposes of facilitating the selection of a parcel carrier. By clicking “I Agree” or by accessing or otherwise using the Service, you agree to be bound by these Terms. If you do not agree to these Terms of Service, do not access or use the Services. This is a legally enforceable contract.
Limited License to Use the Service. Subject to Retailer’s compliance with the terms and conditions of these Terms of Service, Doorbound hereby grants to Retailer a limited, personal, non-exclusive, non- transferable, license to access and use the Service solely for the purposes of facilitating the selection of a parcel carrier and for other related functions that the Service is designed to perform. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Doorbound to Retailer hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto Doorbound.
Other License Restrictions. Retailer shall not (i) copy or modify the Service for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service; or (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service to any other person or entity.
Service Fees. In consideration of Doorbound providing access to the Service, Retailer shall pay Doorbound the monthly fees applicable to the subscription plan that you selected, as set forth on the Doorbound website, or as otherwise agreed upon in writing (the “Service Fees”). Retailer may upgrade or downgrade your subscription plan at any time; provided, however, that any downgrades will be applied in the next billing period and any upgrades will be applied immediately, with Retailer being charged the prorated difference between the Retailer’s current subscription plan and the upgraded subscription plan. Doorbound may modify the Service Fees at any time in its sole discretion by posting such modified Service Fees on its website, provided, however, that any such modifications shall not apply to any Service Fees received from you prior to the date of such modification. Your continued use of the Service following any modification of the Service Fees shall constitute your acceptance to any modified Service Fees.
Parcel Fees. When you place a delivery order through the Service, Doorbound will charge you, through the method specified in your profile information, the parcel fees on behalf of the carrier (the “Parcel Fees”). In the event that you cancel an order prior to delivery, Doorbound cannot guarantee a refund, since any such refund will be subject to the carrier's refund policy. Doorbound will, however, use commercially reasonable efforts to seek a refund on your behalf.
Payment. Full payment of the Service Fees and Parcel Fees shall be made by Retailer to Doorbound through the payment method established in your user profile. You hereby authorize Doorbound to charge you the applicable Service Fee and Parcel Fees using such payment method.
Taxes. The Service Fee and Parcel Fees do not include any foreign, federal, state or local sales, use, value added, or other similar taxes, however designated, levied against the licensing, delivery or use of the Service. Retailer shall pay, or reimburse Doorbound for, all such taxes imposed on Retailer or Doorbound, provided, however, that Retailer shall not be liable for any taxes based on Doorbound's net income.
INTELLECTUAL PROPERTY RIGHTS
Doorbound retains all intellectual property rights in and to the Service and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in this Agreement, Retailer hereby assigns to Doorbound all other intellectual property rights it may now or hereafter possess in the Service and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. Retailer also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Service and any related documentation delivered to Retailer by Doorbound and all whole or partial copies thereof.
WARRANTIES AND LIMITATIONS OF LIABILITY.
Warranties. Doorbound warrants that the Service will operate in substantial conformance its published documentation. Doorbound’s sole obligation and Retailer’s sole remedy with respect to any failure of the Service to substantially conform to the documentation therefore is for Doorbound to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for Retailer to terminate these Terms of Service pursuant to Section 6.2.
The Service matches carriers with Retailers and does not operate as a carrier. The terms and conditions of the carrier governs your transaction with the carriers and nothing in this Agreement shall be construed to extend or modify any such carrier terms and conditions. While Doorbound may assist you with certain inquiries related to your order, Doorbound makes no representations or warranties with respect to the actual delivery of your parcel by carriers. Retailers should contact the applicable carrier in the event there is any questions or concerns regarding a parcel delivery.
Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 4.1, DOORBOUND DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DOORBOUND DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE SERVICE TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. DOORBOUND MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE.
Limitations of Liability. IN NO EVENT SHALL DOORBOUND BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of Doorbound for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed the amounts paid by Retailer for the Service during the twelve (12) month period prior to when such claim arose.
Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 4 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
INDEMNIFICATION; UNAUTHORIZED USE
Indemnification. Retailer hereby agrees to indemnify and hold harmless Doorbound from any and all damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Doorbound in connection with any claims that Doorbound is required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to any dispute between a carrier and Retailer.
Notification of Unauthorized Use. Retailer shall promptly notify Doorbound in writing upon its discovery of any unauthorized use or infringement of the Service or the related documentation, or Doorbound's intellectual property rights with respect thereto. Doorbound shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Doorbound brings such an action or proceeding, Retailer shall cooperate and provide full information and assistance to Doorbound and its counsel in connection with any such action or proceeding.
TERM AND TERMINATION
Term. Retailer’s access to the Services shall begin on the date Retailer purchases such access and shall continue in force for the term specified in the pricing plan chosen by Retailer, unless terminated earlier under the provisions of this Article 7.
Termination for Cause. In the event of any material breach of these Terms of Service, the non-breaching party may terminate this Agreement by giving 30 days' prior written notice to the other party; provided, however, that this Agreement shall not terminate if the other party has cured the breach prior to the expiration of such 30 day period, or if such breach cannot be cured within such 30 day period, the other party has taken steps within such 30 day period to cure the breach and thereafter cured such breach as soon as practicable.
Termination for Convenience. Doorbound may terminate Retailer’s use of the Service at any time, provided, however, that in the event Doorbound terminates Retailer’s use of the Service without cause, Doorbound shall refund a prorated portion of any unused Service Fees paid for the month during which such termination occurs.
Termination for Insolvency. Either party may terminate this Agreement immediately, (a) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (and if such proceeding is instituted against it, such proceeding is not dismissed within sixty (60) days), (b) upon the other party's making an assignment for the benefit of creditors, or (c) upon the other party's dissolution or ceasing to do business.
Effect of Termination. Upon the expiration or sooner termination of these Terms of Service, all license rights of Retailer under these Terms of Service shall automatically and immediately cease and Retailer shall promptly cease all uses of the Service. Sections 3, 4.2, 4.3, 4.4, 5, 6.5, and 7 shall survive the expiration or sooner termination of these Terms of Service.
Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from Doorbound once granted by the appropriate jurisdiction. The rights and obligations of Retailer shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export
Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. Retailer each shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. Retailer shall indemnify and hold harmless Doorbound from and against any and all losses, claims and expenses incurred by Doorbound as a result of the breach of Retailer's obligations under this Section.
Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
Force Majeure. In the event that Doorbound is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Doorbound shall not be liable to the Retailer for any damages resulting from such failure to perform or otherwise from such causes.
Governing Law. These Terms of Service and its subject matter shall be governed in accordance with the law of the Commonwealth of Pennsylvania, without reference to its conflict of laws principles.
Public Statements. Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
Assignment. Retailer may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of Doorbound. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Doorbound, to the address set forth on the Doorbound website to the attention of the President; and (b) in the case of Retailer, to the address set forth in its account information.
Entire Agreement; Amendment. These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties and attached hereto.
Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.