Auctane, Inc. and its subsidiaries (collectively, “Provider”) own and operate the ShipEngine products and services (“Services”), which may be made available to you directly by Provider or through a third-party platform (“Platform”). “You” means in the case of an individual accepting these Terms (as defined below) on its own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a business or other entity, the business or other entity for which such individual is accepting these Terms. Unless otherwise agreed in writing with Provider, these ShipEngine General Terms of Service (these “Terms”) govern your access and use of the Services. These Terms form a legally binding agreement between you and Provider in relation to your use of the Services. It is important that you take the time to read them carefully. In addition, by accessing or using any ShipEngine APIs, developer services or associated software, you agree to the ShipEngine API Terms of Service (“API Terms of Service”). 

Provider is firmly committed to protecting the privacy of your personal information and the personal information of your customers. By using the Services, you acknowledge and agree that Provider’s collection, usage and disclosure of personal information is governed by Provider’s Privacy Policy (“Privacy Policy”). For clarity, personal information collected by Provider may be disclosed to the United States Postal Service (“USPS”) and other carriers in connection with the Services and pursuant to the applicable carrier’s privacy policies and practices. In addition, if accessing the Services through a Platform, personal information collected by Provider may be disclosed to the Platform in connection with the Services. If (a) you are established in the European Union (“EU”); (b) you provide goods or services to customers in the EU; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation, Annex 1 shall also apply.

Provider may, from time to time, modify, amend or supplement these Terms and post the changes on the terms of service page on its website. Modifications, amendments and supplements to these Terms shall be automatically effective seven (7) days after posting. If you do not agree to be bound by (or cannot comply with) these Terms, including the Terms as modified, amended or supplemented, you agree that your sole remedy is to cease using the Services by canceling your account. Your continued use of the Services constitutes your agreement to be bound by these Terms, including the modified, amended or supplemented Terms.

Both you and Provider agree, with the limited exceptions noted below and as further provided below, to resolve all disputes between you and Provider through BINDING ARBITRATION. ARBITRATION MEANS THAT YOU AND THE PROVIDER ARE EACH WAIVING THE RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION.

1. RESPONSIBILITY FOR ACCOUNT 

You agree to provide accurate, current and complete account information and to maintain and promptly update this information if it changes. If you establish an account for a business or other entity, you represent and warrant that you have all necessary authority to establish the account on behalf of such business or other entity that is the responsible account holder. You shall use commercially reasonable efforts to prevent unauthorized access to or use of your account and shall promptly notify Provider of any unauthorized access to or use of your account or the Services, or any loss or theft of an account user’s login credentials. By completing the registration process, you agree that all transactions originating from your account are your responsibility and you agree to pay all fees incurred on your account, including but not limited to all variable and transactional costs of using the Services such as postage, variable shipping costs, fees for private carriers, package insurance, and any other special services selected. The billing entity for part or all of the services provided by Provider may be that of a subsidiary, affiliate or partner organization of Provider, and you hereby consent to any such billing, including changes to the billing entity from time to time.

2. METHOD OF PAYMENT

You are required to keep a valid credit card on file with your account. Provider currently accepts Visa, MasterCard, American Express and Discover. Certain users may be approved to set up an automated debit from a bank savings or checking account. Acceptable payment methods are subject to change at any time. You must include correct information (e.g., the address and phone number the payment credit card issuer has on file for you) when enrolling. Incorrect information may cause delays in establishing service. All information received from you, including credit card and/or bank account information, will be treated in accordance with the Privacy Policy. Please note that Provider may receive updated information regarding your payment card account, debit card account or bank account from your financial institution and by accepting these Terms you hereby consent to such updating. For example, Provider may receive updated card expiration date or account number information. During account registration, Provider may verify that your payment card is valid for the service fees associated with your service plan. 

DEBIT NOTICE WAIVER: If you elect to pay Provider via a debit card, you hereby waive your rights under 12 C.F.R. 205.10(d) to receive ten (10) days’ advance notice of the amount and date of all varying electronic fund transfers, so long as the transfer falls inside the range of $0.01 and the sum of any amounts you authorize for insurance, hidden postage labels, reset fees or other non-recurring charges. 

3. PROVIDER RATES; SHIPENGINE CARRIER ACCOUNTS; YOUR CARRIER ACCOUNTS 

3.1 ShipEngine Carrier Accounts. ShipEngine Carrier Accounts will allow you to maintain a pre-funded account balance with Provider using the credit card on file, such that payment for various carriers and services can be made by Provider on your behalf, using rates provided to Provider by the carriers or partners of Provider. You hereby authorize Provider to maintain an account balance for you that will only be valid in ShipEngine Carrier Accounts and will not be portable or transferable outside ShipEngine Carrier Accounts, unless allowed by Provider and the individual carrier, at their sole discretion. Prior to accessing each carrier through ShipEngine Carrier Accounts, you must accept any terms and conditions required by such carrier for their services. You are not required to accept accounts from each carrier offered in ShipEngine Carrier Accounts, as you will be able to opt out of any carriers that you do not intend to use or for which you have a pre-existing relationship. You may not use your own account number for a carrier service, not created through a relationship with Provider, within ShipEngine Carrier Accounts. All applicable carrier rules and terms shall be applicable for the services provided, and Provider accepts no liability or responsibility for damages to any parcels or the failure of delivery or failure of the services of any carrier. Additional important terms that apply to ShipEngine Carrier Accounts are set forth on Appendix A. 

3.2 Your own Carrier Accounts. You may be allowed to connect to a carrier service using your own account number outside of the ShipEngine Carrier Accounts service. If you do so, you acknowledge and agree that you are responsible for directly paying the applicable carrier for any amounts due to the carrier pursuant to your agreement with the carrier.  

4. PROVIDER SERVICE FEES

As set forth in the pricing terms (if any) for your offer for the Services, as provided to you by Provider or Platform, you will be billed monthly in arrears for any service fees incurred on your account (“Service Fees”), such as transactional fees to create shipping labels, receive and compare shipping rate quotes, track parcels and receive shipping events, validate addresses, import orders, estimate duties and taxes for international shipments, etc. (collectively, “Service Fees”).  Service Fees will be charged to the payment method on file for your account.

5. SUSPENSION/TERMINATION OF ACCOUNT

You may close your account at any time by accessing your online account or calling customer support. Provider reserves the right to suspend or terminate your account and/or cancel orders if you maintain a negative account balance, fail to timely make payment or violate these Terms, or if Provider believes that your conduct violates applicable law or is harmful to the interests of Provider.

6. PROPRIETARY RIGHTS 

You acknowledge that content available through the Services is protected by copyrights, trademarks and other intellectual and proprietary rights of Provider (“Rights”); these Rights are valid and protected in all media and technologies existing now or later developed; and except as explicitly provided otherwise, these Terms and applicable copyright, trademark and other laws govern your use of such content. Any other use, including but not limited to the reproduction, modification, distribution, transmission, republication, display, or performance, of the content available through the Services is strictly prohibited. “Auctane”, “ShipEngine” and associated brand names and domain names are trademarks of Provider in the United States and/or other countries. Provider trademarks and trade dress may not be used in connection with any product or service that is likely to cause confusion among your customers, or in any manner can be interpreted as business disparagement. All marks not owned by Provider are the property of their respective owners. You may not use, and nothing contained in these Terms grants, by implication, waiver, estoppel or otherwise, any right to use, any trademark displayed in connection with the Services without the written permission of Provider or the respective owner of such trademark, service mark or logo.

7. RESTRICTIONS

The Services (or any portion thereof) and any materials made available by Provider through the Services, may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose that is not expressly permitted by Provider. Any use of content or descriptions; any derivative use of the Services or its contents; and any use of data mining, robots, or similar data gathering and extraction tools are strictly prohibited. In no event shall you frame any portion of the Services or any content contained therein. You may not use the Services in any manner that could damage, disable, overburden, or impair the systems of the Provider. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided through the Services. You shall not transmit to Provider or upload to the Services any Harmful Code or use or misappropriate the data provided through the Services for your own commercial gain. “Harmful Code” means any software (sometimes referred to as “viruses,” “worms,” “trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is intentionally designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.

You may not use the Services for activities that:

1) violate any law, statute, ordinance or regulation that relates to sales of (a) narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (b) tobacco products, (c) prescription drugs and devices, (d) drug paraphernalia, (e) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (f) items that promote hate, violence, racial intolerance, or the financial exploitation of a crime, (g) items that are considered obscene, (h) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (i) certain sexually oriented materials or services, (j) ammunition, firearms, or certain firearm parts or accessories, or (k) certain weapons or knives regulated under applicable law;

2) relate to transactions that (a) show the personal information of third parties in violation of applicable law, (b) support pyramid or ponzi schemes, matrix programs, other “get rich quick” schemes or certain multi-level marketing programs, (c) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (d) are for the sale of certain items before the seller has control or possession of the item, (e) are by payment processors to collect payments on behalf of merchants, (f) are associated with the following Money Service Business activities: the sale of traveler’s checks or money orders, currency exchanges or check cashing, or (g) provide certain credit repair or debt settlement services;

3) involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent;

4) involve gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes unless the operator has obtained prior approval and the operator and its customers are located exclusively in jurisdictions where such activities are permitted by law.

If the Services are made available to you through a Platform, the Services may only be used within the Platform. No other use is permitted without Provider’s prior written consent.

8. COMPLIANCE WITH LAWS

You agree that you will not use the Services for any purpose that is unlawful or prohibited by these Terms or the laws and regulations of the jurisdiction in which you are located or to which your envelope or parcel was sent. You also agree that you will comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations, U.S. economic sanctions laws and regulations, U.S. state or federal data or privacy laws, HIPAA, GLB and EU data privacy laws (including the General Data Protection Regulation) (collectively, “Applicable Law”). You are responsible for determining whether the Services are suitable for you to use in light of your obligations under Applicable Law. If you are subject to specific requirements under Applicable Law (for example, HIPAA) and you use the Services, Provider will not be liable if the Services do not meet those requirements. Provider reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. 

9. DISCLAIMERS

9.1 THE SERVICES ARE PROVIDED BY PROVIDER ON AN “AS IS” BASIS. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF, OR THE INFORMATION, CONTENT, OR MATERIALS PROVIDED IN CONNECTION WITH, THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT PROMISE OR GUARANTY UNINTERRUPTED OR ERROR-FREE SERVICE. 

9.2 IN ADDITION, YOU ACKNOWLEDGE THAT PROVIDER DOES NOT GUARANTY THE ACCURACY OR DELIVERY OF PARCELS AND PACKAGES OFFERED BY SHIPPING CARRIERS. PROVIDER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT. YOU ACKNOWLEDGE AND AGREE THAT PROVIDER RECEIVES CERTAIN INFORMATION FROM THIRD PARTY PARTNERS AND CARRIERS AND DOES NOT GUARANTEE THE ACCURACY OF INFORMATION FROM THIRD PARTY PARTNERS AND CARRIERS, INCLUDING THE ACCURACY OF RATES, DELIVERY INFORMATION, OR BUSINESS REQUIREMENTS OF ANY CARRIER.

10. LIMITATION OF LIABILITY

10.1 PROVIDER WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS OR LOST BUSINESS OPPORTUNITIES), THE COST OF ALTERNATIVE SERVICES OR ATTORNEYS’ FEES. IN THE EVENT PROVIDER IS FOUND TO BE RESPONSIBLE TO YOU FOR DAMAGES IN ANY WAY RELATING TO THE SERVICES, YOU AGREE THAT PROVIDER’S AGGREGATE LIABILITY IS LIMITED TO THE SERVICE FEES YOU PAID PROVIDER TO USE THE SERVICES, EXCLUDING ANY VARIABLE TRANSACTION COSTS, SUCH AS AMOUNTS PAID TO PROVIDER OR TO THIRD PARTY PARTNERS FOR SHIPPING COSTS, DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

10.2 You should note that, in some circumstances, the liability of a carrier is limited under the Convention of the Unification of Certain Rules Relating to International Carriage by Air (Warsaw, 12 October 1929), the Convention of the Unification of Certain Rules Relating to International Carriage by Air (Montreal, 28 May 1999), the Convention on the Contract for International Carriage of Goods by Road (Geneva, 19 May 1956) or similar international conventions.

11. DISPUTE RESOLUTION; AGREEMENT TO ARBITRATION; AND CLASS WAIVER

11.1 You and Provider agree that, except as provided below regarding small claims court proceedings, any dispute, claim or controversy arising out of or relating in any way to the Services and these Terms shall be determined by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. YOU AGREE THAT, BY AGREEING TO THESE TERMS, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT YOU AND PROVIDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This arbitration provision shall survive termination of these Terms and the termination of your account.

11.2 In the event of a dispute, prior to initiating arbitration, the party asserting the claim must first send to the other, by certified mail with return receipt requested (or any successor service), a written notice of claim (“Notice”). If you are the claimant, the Notice to Provider must be addressed to: Auctane, Inc., Attention: Dispute Resolution, 4301 Bull Creek Rd, Suite 300, Austin, TX 78731. If Provider is the claimant, the Notice must be addressed to the address on file with your account. The Notice must describe the nature and basis of the claim or dispute, and set forth the specific relief sought. Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court.

11.3 Additional arbitration provisions include the following:

Settlement Offers: During the arbitration, the amount of any settlement offer made by Provider or you shall not be disclosed to the arbitrator.

Initiating A Claim: The form required to initiate an arbitration can be printed or downloaded from www.adr.org. Alternatively, you can contact the arbitration administrator by calling 800-778-7879.

Fees for Initiating Arbitration: If you are required to pay a filing fee to initiate arbitration, after Provider receives notice of the initiation of arbitration, it will promptly reimburse you for your payment of the filing fee at the address we have for you on file (or the address provided in the Notice), unless your claim is for greater than US $10,000.

Applicable Rules; Administrator: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the requirements of this section of the Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Agreement to Arbitrate.

Location of Hearing: Unless Provider and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.

Award Enhancement: If the arbitrator issues you an award that is greater than the value of Provider’s last written settlement offer made before an arbitrator was selected (or if Provider did not make a settlement offer before an arbitrator was selected), then Provider will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.

Class Waiver: YOU AND PROVIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Provider agree otherwise, the arbitrator may not consolidate the claims of more than one party, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by you, then the entirety of the arbitration provision set forth in this section shall be null and void.

Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

Small Claims Procedure Alternative: Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such program) as an alternative to proceeding with arbitration.

12. INDEMNIFICATION

You agree to defend, indemnify and hold harmless Provider, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your access and use of the Services; (ii) your violation of these Terms; (iii) your agreement with any carrier pr partners accessed through the Services (including any terms and conditions of any such carriers or partners); (iv) your violation of any third party right, including without limitation any copyright, property, or privacy right; (v) any claim that your transaction or shipment thereof caused damage to a third party; or (vi) to the extent you are accessing the Services through a Platform, your agreement with the Platform and your access and use of the Platform. This defense and indemnification obligation will survive these Terms.

13. GOVERNING LAW

The Services under these Terms are provided by Provider’s offices in the State of Texas.  The laws of the State of Texas (or U.S. federal law, if applicable), without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Services. By using the Services, you submit to the exclusive jurisdiction of Texas courts and further agree that any cause of action arising out of or in connection with these Terms and/or your use of the Services shall be brought only in the federal or state courts in Travis County, Texas.

14. U.S. GOVERNMENT USERS RESTRICTED RIGHTS

Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Services by the U.S. Government constitutes acknowledgment of Provider’s proprietary rights in them.

15. TERMS REGARDING 3RD PARTY SHIPPING INSURANCE

Provider provides shipping insurance through a third party company. You agree that Provider is in no way responsible for any loss, liability, claim, or demand that relates to insurance. You are solely responsible for ensuring that listings you add insurance to are covered under the applicable coverage, terms, conditions, and exclusions. 

16. MISCELLANEOUS

The following miscellaneous terms are fully applicable and important. Please read them with the same degree of care you read the preceding provisions.

16.1 THIRD PARTY TERMS AND CONDITIONS: You are responsible for following the terms and conditions of all carriers and partners accessed through the Services. Please visit each individual website to obtain and review their terms and conditions. Use of carrier or partner services via the Provider platform is at your own risk. Provider is not responsible for your use of carrier or partner services. Your use of carrier or partner services is as a direct customer of the specific carrier or partner of your choosing and you agree to be bound by the terms and conditions of that carrier or partner for use of services, including the payment of any fees associated and a carrier’s right to open, inspect and assess your package before and after collection.

16.2 NO SUBLICENSE OR THIRD PARTY USE: You may only use the Services for your own direct use. Provider does not grant the right to sublicense, resell, offer, or utilize any Provider products or services such that Provider products or services are stored, loaded, installed, combined, integrated or displayed as part of a product or software offering (including as part of an application programming interface) of yours to other third party products and services. Provider does not allow you to sublicense, resell, offer, or utilize Provider products or services to third parties (including customers of yours). If Provider determines, in its sole and absolute discretion, that you have violated the foregoing limitations, Provider reserves the right to immediately suspend or terminate your account without notice.

16.3 COLLECTION: Each party agrees that if timely payment by the other of any amounts due is not made, the aggrieved party may pursue the claim directly or assign such claim for collection, and the collection agency may pursue the collection of the past due amounts and any interest or cost of collection permitted by law.

16.4 ORDER ACCEPTANCE/REJECTION: Provider reserves the right at any time after receipt of an order for products or services to accept or decline the order for any reason.

16.5 RISK OF LOSS: The risk of loss and title for non-postage products purchased from Provider passes to you upon our delivery of the purchase to our common carrier for delivery to you.

16.6 SALES AND VALUE ADDED TAXES: Tax is not collectable on the purchase of postage. If required by applicable law, sales / value added tax (VAT) is charged/collected on non-postage purchases. You are responsible for the payment of all sales, use, VAT, or other taxes owed on products or taxable items utilized regardless of whether such taxes are collected by Provider at the time of purchase.

16.7 SEVERABILITY: If any provision of these Terms is held to be invalid or unenforceable, such provision will be deemed to be restated to reflect as nearly as possible the original intention in accordance with applicable law, and the remainder of the Terms will remain in full force and effect. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms by Provider will be effective only if in writing and signed by Provider. Provider’s failure to enforce any right under these Terms shall not be a waiver of the provision or the right to enforce it at a later time.

16.8 MISTAKES: Although we make reasonable efforts to provide accurate pricing information and product descriptions, pricing mistakes, typographical errors or mistakes regarding product availability may occur. We reserve the right to correct such mistakes and errors.

16.9 SURVIVAL: Provisions of these Terms which by their nature should survive termination or expiration in order to be given full effect will survive such termination or expiration of these Terms.

APPENDIX A:

ADDITIONAL IMPORTANT TERMS RELATING TO SHIPENGINE CARRIER ACCOUNTS

FEES FOR SHIPENGINE CARRIER ACCOUNTS

You must pay for any variable transactional fees including for, among other things, mailing, shipping, duties and fees, and package insurance purchased. In order to use ShipEngine Carrier Accounts for any mailing and shipping services, you must pre-fund your ShipEngine Carrier Accounts account in an amount equal to or greater than the mailing or shipping service to be purchased. All purchases, debits and adjustments will be reflected in your account balance or otherwise provided to you in writing. Please note that your account is managed by Provider and although Provider’s records will account for the amounts that you have posted, the funds are maintained in a pooled account. In the event of any losses, failure or other insolvency of the bank used, Provider may be afforded FDIC insurance on the account, (individual account holders are not entitled to such insurance) and Provider may then allocate any insurance proceeds for all account holders; however, you may not be entitled to receive a refund of all amounts posted with Provider. In the event of any failure or insolvency of Provider, because the amounts held in your Provider account are not insured, they may not be fully refunded.

Provider accounts will be used to fund purchases by users of ShipEngine Carrier Accounts, including postage from the USPS, as well as shipping charges from other carriers. A portion of Provider user account balances are linked to virtual postage meters authorized by USPS.

Virtual postage meters permit the printing of PC postage; absent such meters, Provider could not provide the services it offers. In certain instances, a virtual postage meter may be set up on your behalf and exclusively used to hold your account funds and purchase postage on your behalf (a “personal virtual postage meter”). In other instances, multiple Provider account holders will be aggregated in a group of virtual postage meters, which may be opened and owned in the name of Provider or one of its business partners (an “aggregate virtual postage meter”). When you pre-fund your account to conduct mailing and shipping transactions, the funds you provide will be processed by Provider and either (i) deposited in its general account and reflected in your account balance or (ii) funded directly to the USPS and reflected in your account balance. Your account balance may be utilized for any service provided by ShipEngine Carrier Accounts, including shipping with multiple carriers and insurance. 

Provider, or business partners of Provider, will separately deposit funds to the virtual postage meter which is related to your account balance, as needed based on your mailing and shipping requests and the requests of other accounts assigned to that same aggregate virtual postage meter. As long as you have deposited sufficient funds into the account, Provider or its business partner will ensure that sufficient funds are deposited with the aggregate virtual postage meter in order for you to print all of the postage and other transactions that you may request based on your account balance. Please note that Provider may also apply your payment for increases to your account balance directly to the applicable virtual postage meter (personal or aggregate) or into Provider’s general account. Such application of funds will not convert the aggregate virtual postage meter to which you are assigned into a personal virtual postage meter. Provider shall have complete and absolute discretion in deciding whether to assign you to a personal or aggregated virtual postage meter, whether to open a new virtual postage meter or use an existing one, whether to open the virtual postage meter in your name or to assign you to an existing aggregate virtual postage meter, and under whose name the virtual postage meter will be activated or maintained. Provider, moreover, may move your account from one virtual postage meter to another (whether personal or aggregate), with these variables, from time to time or at any time.

You acknowledge and agree that all mailing and shipping transaction pricing through an account is controlled by Provider. Provider business partners, including mailing and shipping carriers, consolidators, resellers, wholesalers, among others, provide certain rates that may be made available through ShipEngine Carrier Accounts by Provider in its sole and absolute discretion.

Provider does not always provide the lowest rates that may be available for your transaction, as rates are dependent on the service you choose and a variety of factors driven by your actions in using our Services and by decisions from Provider and other business partners of Provider. You agree to the rate provided and displayed at the time of the transaction, as that amount may fluctuate. No refunds shall be applicable to transactions that could have been obtained at a less expensive rate, unless the transaction qualifies for a refund as provided for elsewhere in our terms.

ACCOUNT FUNDING

In order to use your account for mailing and shipping transactions and other extra services, you must pre-fund your account in an amount equal to or greater than the funds needed for the mailing or shipping transaction to be purchased. All purchases and debits will be reflected in your account, or otherwise provided to you in writing, once the transaction clears. Clearance times vary by financial institution. You are allowed to print or create labels up to the amount of pre-funding in your account.

If any payment cannot be completed successfully, your account may be suspended until payment is made. You will be notified that your service has been temporarily suspended until all past balances have been paid. You may re-load your account as often as you like so long as you do not exceed the maximum balance on your account. Auto-funding of your account may also be permitted. The minimum purchase (to fund your account) and the maximum purchase, if any, varies by service program.

If your account balance becomes negative, you authorize Provider to automatically charge your payment method or seek reimbursement so that the account balance is no longer a negative number (to cover previously selected mailing and shipping transactions or other requested purchases with Provider). This charge may apply whether you are a current and active customer, or whether you have already canceled your account.

COST ADJUSTMENT TRANSACTIONS

If you conduct a transaction with ShipEngine Carrier Accounts that is paid only when the label is used or if it is determined by Provider or a carrier that a mailing or shipping transaction did not contain sufficient funds (for example, not enough postage to cover a USPS shipment due to an underreporting of weight or package size at time of print), Provider may automatically deduct the amount for the unpaid or short-paid transaction from your account balance. Provider also has the right, in its sole discretion, to make adjustments for surcharges, duties and fees determined by the carriers or the country shipped to. You will be able to review these adjustments in your account history and reports. If one or more of these payments cannot be collected from your account due to a lack of available funds, in Provider’s complete discretion, (i) Provider may charge the method of payment on file for the shortfall automatically without notice to you and/or (ii) your account may be suspended until you fund your account to cover all outstanding amounts due.

USER REFUNDS FOR UNUSED OR MISPRINTED TRANSACTIONS; DESTRUCTION OF UNUSED OR MISPRINTED TRANSACTIONS

You may request a refund for mailing and shipping unused transactions through ShipEngine Carrier Accounts, subject to the following rules and limitations, for any unused or misprinted items:

Authorized User Request: You acknowledge and agree that Provider and/or its authorized partners, to the extent necessary by any carrier service, is appointed to act on your behalf to request and obtain refunds. In addition to Provider’s refund requirements set forth in these Terms, refund requests are further subject to the rules and requirements of Provider’s third party carrier services, including the USPS. Provider makes no guarantee that a refund will be made.

Unused or Misprinted USPS Postage: Unused and/or misprinted USPS mailing and shipping labels or “postage” shall be defined as an envelope, label, plain paper, label stock containing carrier-compliant labels, or electronic image files, with full, intact indicium which is scan-able and unused. Postage handled and/or returned to sender shall not be considered valid unused and/or misprinted postage.

Unused or Misprinted Carrier Labels: Unused and/or misprinted pre-paid carrier shipping labels shall be defined as an envelope, label, plain paper containing carrier-compliant labels, or electronic image files, with full, intact indicium which is scan-able and unused. Labels handled and/or returned to sender shall not be considered a valid unused and/or misprinted label.

Time Limit and Risk of Carrier Rejection of Request: You must complete the refund request within the time limit required by each carrier. Please see each carrier’s terms and conditions on their website for additional information. 

>For USPS and DHL Pre-paid labels, you must complete the refund request within twenty-eight (28) days of generating the mailing or shipping label.

Active Account Required: Your account must be active and in good standing to request a refund and at the time the refund is to be credited to your account, in order for the refund to be processed and your account to be credited.

Refund Process: Please visit the ShipEngine website to learn how to submit your refund request. You must follow all of the steps listed and provide all of the required information to initiate and complete your refund request, including the return or destruction, if required, of the printed or misprinted but unused mailing and shipping labels. Incomplete requests will not be processed.

Refund Rejections: You take the risk of the carrier partner improperly rejecting a refund request. Provider will not refund the transaction unless the relevant carrier partner approves the refund.

Reimbursement of Account: If a refund request is properly initiated by you within the timeframe required pursuant to Provider and carrier requirements, your account is active and in good standing, and the relevant carrier approves the refund, Provider will credit your account for the value of the transaction to be refunded, as approved by the carrier. Refund processing times may vary. If you have an outstanding balance in any amount (including but not limited to for unpaid service fees or unpaid termination fees) you may not receive any reimbursement credit until your account is brought current. In addition, Provider may, in its sole and absolute discretion, deduct such unpaid fees from any refund otherwise due.

Automated Refund Requests: If your account is eligible and approved for automated refund request processing, Provider will identify labels that may be potentially eligible for refunds, submit refund requests on your behalf, and update your account balance once processed refunds are received. Provider shall charge a fee for all processed automated refunds that may be deducted directly from the total refunded amount. If you wish to avoid this fee, you must initiate the refund request directly within the time limits set by Provider and the relevant carrier or service provider.

Potentially eligible labels will be limited to labels that include any form of shipping label tracking codes or other identifying characteristics that are scanned and generated by Provider, subject to modification at any time at Provider’s sole discretion. You hereby authorize Provider as your agent in fact to submit automated refund requests on your behalf to carriers for any and all labels identified as being potentially eligible for refunds without further instruction from you and agree to cooperate in submitting the refund request and to take all steps necessary to perfect the refund request that may be reasonably requested of you. You hereby release Provider from any responsibility, any liability, or any causes of action arising out of or related to improper refund requests submitted by Provider on your behalf, including but not limited to refund eligible labels that were not identified or refund requests that were denied upon submission. It remains your sole responsibility to identify any labels that have not been automatically identified and submitted on your behalf by Provider. For instance, it may not be possible for Provider to determine if a label is eligible for refund due to missing the appropriate service level. Provider will use reasonable efforts to assist in each refund process, at the direction of the user.

Destruction of Unused or Misprinted USPS Postage: All transactions printed through Provider with a designated mailing date expiry after that date, will be eligible for participation in the auto-refund program (for instance USPS transactions expire pursuant to the Code of Federal Regulations). USPS misprinted or unused labels must be destroyed or returned to the USPS, as provided in the Domestic Mail Manual, regardless of whether a refund is requested.

PAY-ON-USE SHIPPING LABELS

Pay-on-Use Program: Provider’s Pay-on-Use shipping label feature, hereafter referred to as “Pay-on-Use” is a program offered to certain users. This program enables such users to print service shipping labels (either outbound or returns) for which shipping charges are paid when the label is scanned by the carrier in the mail stream (known as Pay-on-Use), rather than at the time the label is printed (known as pre-paid).

Payments: Provider will automatically debit the applicable account balance for shipping charges and any applicable transaction fees for any Pay-On-Use label that is scanned by the carrier in the mail stream. Because rates can vary over time, you hereby agree that the shipping charges debited from your account balance may be calculated based on the customer rate at the time the label is scanned by the carrier in the mail stream, not at the time the label is printed. In addition to shipping charges and other applicable account fees, Provider reserves the right to charge additional fees for participation in the Pay-On-Use Program. You are responsible for paying for any Pay-On-Use label that is scanned before the applicable label’s expiration date (expiration dates vary by carrier).

Restrictions: Pay-on-Use labels designated as return labels shall not be used as original outbound shipping labels. Pay-On-Use labels are not eligible for refunds. If you participate in the Pay-On-Use program, you may be required to maintain balance sufficient to cover the cost of the Pay-On-Use labels. Your access to the Pay-On-Use program may be disabled immediately if Provider determines, in its sole discretion, that your account is delinquent or that you are misusing the Pay-On-Use program.

Termination: Even after your account is terminated (by you or Provider), you must still pay for any Pay-On-Use labels that are scanned before the labels’ expiration dates.

POSTAL POSTAGE ACCOUNT REQUIREMENTS

As noted elsewhere in these Terms, your ability to print USPS postage in ShipEngine Carrier Accounts is facilitated by Provider, an authorized PC Postage provider. Therefore, as a result of accepting these Terms, you are also entering into an Agreement with the USPS in accordance with the Domestic Mail Manual (DMM) 604.4, Postage Payment Methods, Postage Meters and PC Postage Products (Postage Evidencing Systems or “PES”). You accept responsibility for control and use of your account and the PES printed therefrom.

You acknowledge that you have read the Domestic Mail Manual 604.4, Postage Payment Methods, Postage Meters and PC Postage Products (Postage Evidencing Systems) and agree to abide by all rules and regulations governing its use.

Failure to comply with the rules and regulations contained in the DMM or use of the PES in any fraudulent or unlawful scheme or enterprise may result in the revocation of this agreement.

You further acknowledge that any use of this PES that fraudulently deprives the USPS of revenue can cause you to be subject to civil and criminal penalties applicable to fraud and/or false claims against the United States. The submission of a false, fictitious or fraudulent statement can result in imprisonment of up to five (5) years and fines of up to $10,000 (18 U.S.C. 1001). In addition, a civil penalty of up to $5,000 and an additional assessment of twice the amount falsely claimed may be imposed (3 U.S.C. 3802).

You further understand that the rules and regulations regarding the use of this PES as documented in the DMM may be updated from time to time by the USPS and it is your obligation to remain up to date on the rules and regulations and to comply with any current and future rules and regulations regarding its use.

CARRIER TERMS

You agree to be bound by the terms and conditions of each carrier and partner accessed through the ShipEngine Carrier Accounts and must accept such terms and conditions prior to using such carrier’s services. Please note that each carrier may change their terms and conditions within their sole discretion, and we strongly suggest that you visit each carrier’s website regularly, to familiarize yourself with each company’s individual terms and conditions, as well as any potential changes, prior to using each service.

ANNEX 1:

TERMS RELATED TO EUROPEAN UNION DATA SUBJECTS

Additionally, if you: (a) are established in the EU; (b) provide goods or services to customers in the EU; or (c) are otherwise subject to the requirements of the EU General Data Protection Regulation (“GDPR”), Provider’s processing on your behalf of Personal Data which is within the territorial scope of the GDPR is also subject to the following rules. All defined terms not otherwise defined herewith shall be interpreted in accordance with the GDPR.

Before you provide Personal Data of your customers or that of other individuals to Provider in order for Provider to provide the Services, you must be in compliance with the GDPR.

You acknowledge that, for the purposes of the GDPR, Provider is a Processor and you are the Controller of the Personal Data of you and your customers, for the purpose of providing the Services. Provider may share the Personal Data with its agents or subcontractors or affiliates or other third party service providers for the sole purpose of providing or improving the Services.

In relation to any Personal Data which is within the territorial scope of the GDPR provided by you to Provider:

(i) You warrant, undertake and confirm that you have grounds for sharing the Personal Data with Provider as envisaged;

(ii) You process and control the Personal Data in compliance with all applicable laws;

(iii) You consent to its use and you have obtained any necessary consents from the receiver of the goods (your customer) as required under the GDPR to pass to Provider the details required to complete the Services requested, including but not limited to name, address, email address, mobile telephone number, and contents of package;

(iv) You have made your customers aware that such details may be used by Provider to enhance the delivery process for your customers and it may use notifications and geodata for that purpose. This may involve Provider sharing such details with limited third parties’ data processors, for the purpose of completing the requested Services; and

(v) You have told your customers that you use the Provider’s Services, and given them a link to the Privacy Policy.

Personal Data of EU Data Subjects that originates in the EU will be stored in the EU. As part of providing the Services, this Personal Data may be transferred to other regions, including the United States, subject to the EU-US Privacy Shield or other appropriate conditions provided for in Chapter V of the GDPR. Prior to any such transfers you will be notified of the specific countries to which the data may be transferred and the specific legal conditions applicable to the transfers.

(vi) Provider retains the Personal Data processed on behalf of its customers which is within the territorial scope of the GDPR subject to the requests of its customers, the contractual and regulatory obligations to the USPS, our other partners, other legal requirements, and its retention schedule.

Processing by Provider of Personal Data within the Territorial Scope of the GDPR on Your Behalf

To the extent that Provider in the course of its provision of Services to you under these Terms processes on your behalf Personal Data which is within the territorial scope of the GDPR, Provider will:

  1. Process the Personal Data as a Data Processor, only for the purpose of providing the Services in accordance with documented instructions from you (provided that such instructions are commensurate with the functionalities of the Services), and as may subsequently be agreed to by you. If Provider is required by law to Process the Personal Data for any other purpose, Provider will provide you with prior notice of this requirement, unless Provider is prohibited by law from providing such notice;
  1. Ensure that Provider’s personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose Personal Data;
  1. Notify you if, in Provider’s opinion, your instruction for the processing of Personal Data infringes the GDPR;
  1. Notify you promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Data Subject or Supervisory Authority relating to Provider’s Processing of the Personal Data;
  1. Implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected;
  1. Notify you promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data and, at your cost and request, assist you with the notification of such incidents to data protection supervisory authorities and the persons whose data is affected, where required by the GDPR;
  1. Taking into account the nature of Provider’s processing activities and at your cost and request, assist you, insofar as this is possible, to fulfill your obligations to respond to requests made by Data Subjects in relation to their rights under Data Protection Laws;
  1. Taking into account the nature of Provider’s processing activities and at your cost and request, assist you to fulfill your obligations to conduct data protection impact assessments and consult with data protection supervisory authorities in relation to such assessments, where required by the GDPR;
  1. At your choice and cost, delete or return all the Personal Data to you on termination of these Terms, and delete existing copies of such data unless Provider is subject to a legal requirement under European Union or Member State law to retain such data beyond such term;
  1. At your cost and request, make available to you all information reasonably necessary to demonstrate Provider’s compliance with its obligations under (1) through (9) above and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you, but in each case only in relation to the Personal Data processed on your behalf by Provider in the course of its provision of services under these Terms.

In the course of providing the Services, you acknowledge and agree that Provider may use subprocessors to Process the Personal Data. Provider’s use of any specific subprocessor to process the Personal Data must be in compliance with the GDPR and must be governed by a contract between Provider and subprocessor, which binds the subprocessor to comply with the same data protection obligations as contained in this Section. Provider will inform you of any intended changes concerning the addition or replacement of such subprocessors, thereby giving you the opportunity to object to such changes.

You agree to fully indemnify Provider, for any costs, fees, fines, and professional fees incurred due to a breach by you of the provisions of this Section.