TERMS OF SERVICE
TERMS OF SERVICE
TERMS OF SERVICE
Starship Fulfillment Terms of Service
Date of Last Revision: July 15, 2020
Acceptance of Terms
Registration
Description of Service
Access to and Use of the Services
Service Fees
Your Data Rights
Payment Method and Liens
Inbound Shipments - Your Obligation
Onboarding
Audit and Inspection
Shippable Addresses
Delays or Non-Delivery
Fraudulent Orders
International Returns
International CDT
Returns
Required Removals
Abandoned Account
Force Majeure
Termination
Disclaimer of Warranties
Limitation of Liability
Insurance, Damage and Loss of Goods
Indemnification
US Government Matters
Assignment
Miscellaneous
Governing Law
Acceptance of Terms.
Starship Fulfillment (“Starship”, “we” or “our”) provides its Services (as defined below or in an ancillary agreement) to you (“you” or “your” or “Client”) which are exclusively governed by these Terms & Conditions (“Agreement”). By accepting this Agreement, by accessing or using the Services, or clicking through on our website or managed e-commerce stores, you acknowledge that you have read, understood, have the authority to, and agree to be bound by this Agreement. The terms of your Order shall not modify this Agreement. If you are an individual, you certify that you are 18 years of age or older. If you are entering into this Agreement on behalf of your customer, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall also refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by this Agreement, you must not accept this Agreement and may not use the Services.
We may change or revise this Agreement at our discretion. If any change or revision to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to support@starshipfulfillment.com. Otherwise, you will be bound by the changed or revised terms. Starship may change or revise this Agreement from time to time by providing ten (10) days prior notice either by emailing the email address associated with your account, by posting a notice on the website at www.starshipfulfillment.com or by providing notice on the Starship Platform (as defined below) (“Notice”). You can review the most current version of this Agreement at any time here or by logging into your account on the StarshipPlatform. Your use of the Services ten (10) days after this Notice shall constitute full acceptance of the revised or changed terms.
Registration.
You must sign up for Services. As part of the sign up process, you will share an administrative user name and password for your e-commerce account (“Account”). You may use the administrative user name and password to create standard users (each with a user password).
Description of Service.
The “Services” include, without limitation, (a) the setup, creation and maintenance of e-commerce platforms (b) receipt, counting, storage, packaging, and shipment of physical goods sold (the “Goods”) pursuant to the order (“Order”), (c) use of Starship’s integrated platforms and associated technology, is made available by Starship to you, and (d) all data, reports, text, images, sounds, video, and content, including any offline reports, pricing matrices, or other content, made available to you through any of the foregoing (collectively referred to as the “Content”).The terms of any Service Level Agreement are incorporated into this Agreement by reference. In our sole discretion, we may provide you additional Services as set forth in the Service Contract Amendment.
Access to and Use of the Service
Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title and interest in and to the Services (including all intellectual property rights) will remain with and belong exclusively to Starship. You shall not (i) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party; (ii) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services, or (iii) modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Starship provides you or publishes in connection with the Services, and you shall promptly notify Starship if you learn of a security breach related to the Services.
Any software made available to you by Starship in connection with the Services (“Software”), including but not limited to the Starship Platform, contains our proprietary and confidential information that is protected by applicable intellectual property laws and this Agreement. Starship hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license (“License”) to use the object code of any Software and Content on a single device solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any Content or right in any Software. You agree not to access the Services by any means other than through the interface that is provided by Starship. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Starship or any third party is granted to you in connection with the Services. The License may be terminated immediately at Starship’s sole discretion and shall, in any event, terminate upon the termination or expiration of this Agreement.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store in connection with or relating to the Services (“Your Content”). For every email sent outside of your organization via the Services, you acknowledge and agree that Starship shall have the right to automatically add an identifying footer in accordance with our standard policies then in effect. You agree to cooperate with and provide reasonable assistance to Starship in promoting and advertising the Services.
You are solely responsible for maintaining the confidentiality of your login, password, Your Content and account and for all activities that occur under your login or account. Starship reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Services, you hereby do and shall grant Starship worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content. Starship has the right, but not the obligation, to monitor the Services, Content, or Your Content. You further agree that Starship may remove or disable any Content (including Your Content)at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or Your Content), or for no reason at all.
You understand that the operation of the Services, including Your Content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to Starship’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Starship will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content, and you will indemnify and hold Starship harmless for any claims, damages or liability related to Your Content.
You own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Starship to perform its obligations) in connection with the Services without obtaining any further releases or consents; Your Content and other activities in connection with the Services, and Starship’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
You shall be responsible for obtaining and maintaining the e-commerce platform for your online store and any additional materials and products not specifically related to the packing and picking of products (collectively, “Your Platform”, “Your Equipment”). You shall be responsible for ensuring that Your Platform is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Starship’s published policies then in effect. You shall also be responsible for maintaining the security of Your Platform, Account, Passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or Your Platform with or without your knowledge or consent.
You have no right to access our physical facilities or property. Under no circumstances, and at no time, during the Term of this Agreement or after, are you permitted to enter Starship’s facilities or premises without prior express written notice by us. As your Goods may be commingled with the Goods of other vendors in Starship’s facilities, under no circumstances, during the Term or after, may you access the Goods while the Goods are stored in Starship’s facilities, without prior express written consent of Starship. If you are granted access, you will be monitored during the access period and your access can be terminated at our sole discretion.
Starship reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Starship’s website and in other communication with existing or potential Starship customers. To decline Starship this right you need to email support@starshipfulfillment.com stating that you do not wish to be used as a reference.
Starship may (but has no obligation to) provide technical support services, through email in accordance with our standard practice. Starship bears no liability for such technical support services.
Starship is not the importer of record for Goods stored at Starship. Starship shall not be held liable for complying with your instructions through the Starship Services. You understand that Starship only performs an audit and inspection of your Goods per Service Agreement but does not guarantee quality or standards, nor does Starship take responsibility for the business decisions that you make and implement through the Services. For example, Starship cannot control or ensure that a buyer or seller with whom you do business will remit payment for Goods in accordance with your agreement with them. For purposes of clarity, Starship is not the Merchant of Record for any of your Goods. Starship is not responsible for items damaged during the pick and pack process or for breakage of items during transit that have been picked and packed by Starship.
Service Fees You Will Owe.
“Service Fees” are the fees for any Services and any third-party fees (including, but not limited to carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums, taxes, or other charges incurred during your use of the Service).
You shall pay the following Service Fees (unless modified by a Service Level or Volume Agreement):
A (“Option 1”) $75.00 initial fee for e-commerce setup and to inventory and store the Goods OR A (“Option 2”) $50.00 initial fee to inventory and store the Goods. Option 1 or 2 referred to per Client Contract OR A (“Option 3”) Fee for Short Run Production to be determined based on volume of the fulfillment request and agreed upon in the Client Contract.
A (“Option 1”) $10.00 monthly storage and maintenance fee OR A (“Option 2”) $5.00 storage fee. Option 1 or 2 referred to per Client Contract.
A Fulfillment fees, which shall be calculated based on the package options outlined in the Client Contract including (a) all packaging materials, (b) postage fees per the final destination, dimensions of the final packaged shipment, and speed of shipment selected, (c) per package fee outlined in the Client Contract at $0.50 for all digital products in a single order OR $1.75 per package OR $2.00 per package
Additional services such as post production finishing or inventory audit and inspection are specified and priced based on fees incurred for services required and outlined in the Client Contract
Charges, costs, taxes and expenses identified with all above mentioned fees.
Any charges or fees incurred by us associated with your payment for the Services by credit card.
Based upon the dimensions and final destination of the final packaged shipment, Starship will use its integration software to browse through the following listed carriers and additional unlisted carriers: United Parcel Service, Inc. (“UPS”), FedEx Corporation (“FedEx”), United States Postal Service (“USPS”) and DHL Express (“DHL”) (each, individually, a “Carrier,” and collectively, the “Carriers”), to find the lowest shipping rate for the most reliable shipping option for the desired speed.
Quotations for the Services and Service Fees are for informational purposes only, are subject to change without notice, and shall not under any circumstances be binding upon Starship. Quotations accepted through our online interface are estimates based on the best information available at the time made. The final rates and Service Fees may vary based upon the Goods actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of your product, the delivery address, and service requested during the normal course of delivery. Starship reserves the right to bill the Service Fees based on actual charges at any time after the Services are rendered. Starship specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information provided to it, such as dimensions and weights.
Starship reserves the right to adjust its pricing in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes.
You acknowledge that you are responsible for, and agree to reimburse Starship for, all sales taxes, transportation taxes, Service Fees, reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by Starship (including costs and related expenses) in connection with the Services.
You acknowledge and agree that all Service Fees, charges, and any other rates or amounts charged by Starship to you hereunder are exclusive of applicable value added, sales/use or inventory, CDT (as defined in this Agreement) and service taxes (“Transaction Taxes”) which may be levied in connection with the supply by Starship of the Services to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Service Fees or other amounts charged to Starship by you.
All dollar amounts stated in this Agreement and the website will be in US dollars unless otherwise specified.
Prices for any services and materials provided by Starship Fulfillment subject to change without notice.
Failure to promptly pay Service Fees is a material breach of this Agreement and Starship may immediately suspend Services if prompt payment is not made by You. All Service Fees shall be payable as set forth in this Agreement. Time is of the essence for your payment obligations to us.
Your Data Rights.
You retain all right, title and interest in and to Your Data, other than the limited rights expressly granted in this Section 6. For purposes of this Agreement, “Your Data” means any and all information collected and/or stored by or on behalf of Starship in connection with your use of the Services, excluding data and information relating to the operation and/or performance of the Starship Platform.
You hereby grant Starship the non-exclusive right and license to (i) copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary to provide the Services to you pursuant to the Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Your Data on an aggregate and anonymous basis for marketing purposes.
Payment Method and Liens.
Payment processing for Services are provided by Wave and are subject to the Wave Connected Account Agreement, which includes the Wave Terms of Service https://my.waveapps.com/terms/ and Wave Privacy Policy https://my.waveapps.com/privacy/. By agreeing to this Agreement or continuing to operate as a User on the Services, you agree to be bound by the Wave Service Agreement, as the same may be modified by Wave from time to time. As a condition of Starship enabling payment processing Service through Wave, you agree to provide Starship accurate and complete information about you and your business, and you authorize Starship to share it and transaction information (including User Data) related to your use of the payment processing Service provided by Wave.
Unless otherwise specified by Starship, Wave will collect payment from you via credit card or ACH for Service Fees due on a daily, weekly or monthly basis depending on the account set-up; if necessary, payment may instead be collected at a later point. Starship cannot control any fees that may be charged to you by your bank related to Wave’s collection or disbursement of such payment, and Starship disclaims all liability in this regard.
When you use the Services, all charges for the Services and any additional fees payable to Starship will be immediately charged to the credit card associated with your Wave account. You agree to pay Starship the amount that is specified in accordance with this Agreement. If you dispute any charges you must let Starship know within thirty (30) days after the date that Starship invoices you.
You agree and acknowledge that Starship shall maintain a warehouseman’s lien and security interest under the UCC for all Goods in Starship’s possession or control, regardless of whether a specific receipt is issued by Starship, to cover all charges, expenses, costs and Service Fees set forth in this Agreement. In the event Starship is required to exercise its lien or security interest, you shall be responsible for all necessary and reasonable costs incurred by Starship to enforce the lien or security interest including, but not limited to, reasonable attorney fees. You will execute all agreements and documents so that Starship may obtain, perfect and maintain its lien rights and security interest in the Goods. You will execute all documentation to permit us to perfect our liens.
Inbound Shipments – Your Obligations.
You represent and warrant to Starship that (i) you are the legal owner and/or has lawful possession or control of the Goods and has the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (ii) there are no potential health, safety or environmental hazards associated with the shipment, warehousing or fulfillment of the Goods tendered to Starship under this Agreement, (iii) the Goods do not contain any material that violates any federal, state and local law (collectively, “Laws”); and (iv) the Goods are not and do not contain any hazardous or dangerous materials under applicable Laws. If the Goods do not meet the foregoing requirements, You may incur additional fees from Starship, or Starship may reject the Goods without liability. This may result in a delay and You agree that Starship shall not be liable for any loss or damage as a result of such delay or non-shipment. Starship’s hazardous and dangerous material provisions, and are hereby incorporated into this Agreement. You will strictly meet or exceed any compliance obligations under these provisions. Starship may, in its sole discretion, reject Goods if it determines that they are dangerous or hazardous.
Vendor shall provide Starship, in a digital format, with bills of lading for the inventory of all inbound shipments of Goods prior to the shipment arriving at Starship's facility. Vendor represents and warrants that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description and condition of the Goods, is accurate and complete and may be relied upon by Starship. If any inbound inventory received doesn’t follow Starship’s receiving and inbound shipment guidelines or the items in such shipment cannot be identified by Starship, they may be discarded and Starship assumes no responsibility for any associated losses.
Audit and Inspection
All inbound shipments must be received and inventoried before the Goods shall be picked and shipped.
Upon receipt, Starship may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that Starship has no obligation to verify the quantity, content, condition or quality of the Goods delivered to Starship for storage and/or delivery. Starship may, at its sole discretion, reject to store and/or deliver any Goods that it deems, in its sole discretion, to be improperly labeled or packaged or, any Goods that contain any hazardous or illegal material.
If there are any outstanding or pending Orders that need to be fulfilled first, you shall notify Starship as needed of the number of Orders to be sent initially and the expected timeline of processing such Orders.
Unless otherwise specified in a Service Level Agreement, upon actual receipt of the Goods, you can expect a minimum of five business days for products to be inventoried at Starship’s facility. After five business days, your Orders will begin to be processed and labeled, beginning with outstanding and pending Orders.
Starship will plan to fulfill the number of communicated Orders during onboarding every day. Additional time may be required for special kitting, picking or any alterations in regular process.
Starship shall thereafter process, package, and ship all Orders within one business day of actual receipt of the Order from you provided that proper inventory amounts exist and there are no issues with the Order. This provision shall not apply to Orders that are altered, Orders with low inventory items (less than 10 items in stock), held Orders and bulk Orders.
You shall provide Starship with an expectation of the date to begin shipping Goods, which shall conform to the terms of this Agreement.
You shall be solely responsible for the accuracy of any information provided to Starship and/or input on to the e-commerce website and it’s subsequent information. You agree that Starship shall not be liable for any delay, loss, damage or costs as a result of any inaccurate information provided by you to Starship or any information inputted incorrectly by you onto Starship’s integrations.
Promotional and Volume Spikes/Short Run Production. This Volume Agreement shall be integrated into all Service Level Agreements for any excel upload orders or large spikes in volume above regular volume. Customers with inconsistent volume with frequent and infrequent spikes without prior notice to Starship create difficulty in predicting the labor required. Infrequent high volume makes it difficult for Starship to predict and plan labor and other resources. Specifically in terms of any Order Fulfillment that has a sudden higher sales volume, including but not limited to Promotional or New Product Launch and to Short Run Production Fulfilment.
Accordingly, the following terms apply for anticipated or known order volume:
Order Count <100: No action required.
Order Count 100 – 500: Inform Starship Order through orders@starshipfulfillment.com or contact your Starship Fulfillment Client Liaison at least 7 days before expected shipments are to begin.
Order Count 500+: Client will contact Starship through orders@starshipfulfillment.com or directly with their Starship Fulfillment Client Liaison to determine a schedule to complete Orders.
Additionally, during peak season or holidays, fulfillment time may increase by 1 business day for each category.
Shippable Addresses.
You are solely responsible for the accuracy and deliverability of Order shipping addresses. Starship may, at its sole discretion, verify Order shipping addresses, but this is not a replacement for merchant address diligence and verification by You. You agree and acknowledge that Starship has no obligation to verify any shipping addresses provided by You.
If Starship provides an Order shipping estimate on the basis of an address later discovered to be inaccurate or incomplete, you are solely responsible for any applicable address correction fees Starship incurs from the Carrier, any difference in shipping cost or for any other costs or fees due to the incomplete or inaccurate address. Examples of discrepancies for which you may be responsible include, but are not limited to, incomplete addresses, incorrect addresses, commercial/residential address status, and rural address status. Starship also reserves the right to put the order on hold if addresses are not validated by the Starship system
Delays or Non-Delivery.
Unless specifically excepted in a Service Level Agreement, Starship shall not be liable or responsible for any delays in domestic or international shipments of Goods or Orders, and is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third-parties, including carriers.
Fraudulent Orders.
IT IS YOUR SOLE RESPONSIBILITY TO PROTECT YOURSELF FROM FRAUD. IT IS YOUR SOLE RESPONSIBILITY TO PAY ALL FEES RELATED TO ORDERS WHETHER THE ORDER IS FRAUDULENT OR THE PRODUCT IS DELIVERED OR NOT.
International Returns.
International shipments that are not delivered are often returned by the Carrier and assessed return shipping, brokerage, and returns processing carrier fees. These fees assessed by the Carriers are billed through to merchants, often without notice. Starship strives to work with you to circumvent International returns or abandoned inventory at your request; however, this is done on a reasonable efforts basis and Starship reserves the right to charge you fees to the value of the original shipping cost, including all costs and expenses of returns. If a tariff is not available, Starship will either put orders on hold until tariff information is available or override the order with no liability to Starship.
International CDT.
Customs, Duties and Taxes (“CDT”) on any international shipment charged by the Carrier are your sole responsibility and will be charged back to you regardless of whether they were or were not in the initial shipping estimate, or whether the order was or was not delivered.
Returns.
All non-Carrier related returns (international and domestic) must follow the return policy at https://shipbobsupport.force.com/Support/s/article/Returns-ShipBob, which may be updated from time to time. Custom returns may be rejected and/or subject to additional fees. Vendor shall be solely responsible for any fees assessed by any Carrier as a result of any shipments of Goods that are returned to Starship by the Carrier for any reason whatsoever.
Required Removals.
Starship may, at its sole discretion, require you to remove unsuitable or unsellable Goods from its distribution centers. Starship will notify You if it has any inventory that requires removal. Pick fees may also be assessed for labor incurred to remove inventory. If you do not remove the inventory within 30 days of receiving a required removal notice, Starship may dispose of the inventory listed in the required removal notice. You shall not be entitled to any damages or reimbursement for the value of Goods disposed of by Starship if you do promptly remove the Goods upon Starship’s written request. Products that must be removed may be shipped to You and thus, You will be responsible solely for all subsequent taxes and fees incurred in the picking, packaging and shipping process.
Abandoned Account.
If your Service Fees (or any other amounts owed Starship) remain unpaid for a period greater than 30 days, then Starship reserves the right, at its sole discretion, to terminate this Agreement, suspend its performance, and/or reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. To the fullest extent permitted by law, upon an Account becoming an Abandoned Account, all rights to ownership of the Account Balance and Goods would then immediately be forfeited by you. Goods will become immediately and irrevocably unavailable to you, and liquidation proceedings would begin. You agree such Goods would be free and clear of liability, and that you would assume any liability therefore. You would have no rights to the liquidation proceeds. You would also remain liable for any pending Service Fees above and beyond the liquidation proceeds.
Force Majeure.
Starship shall not be liable for any failure or delay in performance hereunder which may be due, in whole or in part, to fire, explosion, earthquake, storm, flood, drought or other adverse weather condition, accident, casualty, breakdown of machinery or facilities, strike, lockout, combination of workmen or other labor difficulties (from whatever cause arising, and whether or not the demands of the employees are reasonable or within Starship’s power to grant), war, civil disturbance, acts of terrorism, insurrection, riot, act of God or the public enemy, law, act, order, proclamation, decree, regulation, ordinance, instruction or request of Government or other public authorities, judgment or decree of a court of competent jurisdiction, delay or failure of carriers, shippers or contractors, labor shortage or inability to obtain transportation, equipment, operating materials, plant equipment or materials required for our performance, curtailment or suspension of operations to remedy or avoid an actual or alleged violation or violations of Federal, State or local law, as may be in effect from time to time during the Agreement period, or any contingency or delay or failure or cause of any nature beyond the reasonable control of Starship, whether or not of the kind hereinabove specified and whether or not any such contingency is presently occurring or occurs in the future. Starship shall give notice of any force majeure event as soon as reasonably practicable by giving notice to your administrative email account.
Termination.
You have the right to terminate this Agreement at any time, provided you do not have a balance due and owing (other than any amounts subject to a good faith dispute) by sending a termination request to support@starshipfulfillment.com. Subject to earlier termination as provided in this TOS, Starship may terminate, at its discretion and without cause, this Agreement (or our shipments of Goods or Services hereunder) at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Starship may also terminate this Agreement upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment) if you breach any of the terms or conditions of this Agreement. The termination of this Agreement shall constitute a termination of any Service Level Agreement. Starship reserves the right to immediately modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) if you are in breach of this Agreement. All of Your Content (if any) may be permanently deleted by Starship upon any termination of your account in Starship’s sole discretion. However, all rights to payment and the terms of Sections 1(a), 3, 4, 5, 6, 7, 8, 11, 12, 16, 17, 18, 20, 21, 22, 25 and 26 shall survive termination or expiration of this Agreement.
DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Starship or by third-party providers, or because of other causes beyond our reasonable control. Starship shall use reasonable efforts to provide advance notice in writing or by email of any Services disruption. Starship shall not be liable for any such unavailability or disruption of Services.
THE SERVICES, INCLUDING THE STARSHIP PLATFORM AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND STARSHIP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS OR ANY ANCILLARY AGREEMENT, YOU ACKNOWLEDGE THAT STARSHIP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES STARSHIP MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) SHALL STARSHIP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. FOR AVOIDANCE OF DOUBT, STARSHIP IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE GOODS DAMAGE CAP OR THE AGGREGATE LIABILITY CAP SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT.
INSURANCE, DAMAGE AND LOSS OF GOODS:
INSURANCE IS AVAILABLE AT YOUR SOLE COST AND EXPENSE. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE COVERAGE, IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION OF GOODS (“GOODS LOSS”) FOR WHICH STARSHIP IS OR MAY BE LEGALLY LIABLE, YOU AGREE THAT STARSHIP’S LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW. FOR INSURANCE TO APPLY TO YOUR CLAIM, YOU MUST PURCHASE THE INSURANCE PRIOR TO THE GOODS LOSS. STARSHIP DOES NOT REPRESENT, WARRANT OR GUARANTY THAT INSURANCE WILL COVER ALL OR A PORTION OF YOUR GOODS LOSS. STARSHIP SHALL NOT BE RESPONSIBLE OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF COVERAGE IS DENIED.
STARHIP’S MAXIMUM LIABILITY FOR GOODS LOSS (INCLUDING LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE CAPPED AT 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER (“GOODS DAMAGES CAP”). FOR GREATER COVERAGE, YOU MUST ADD INSURANCE IN YOUR ACCOUNT SETTINGS ON THE GOODS THAT YOU WISH COVERED BY INSURANCE, IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE. NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE OR DESTRUCTION TO ALL OR ANY PORTION OF THE GOODS HAS OCCURRED.
Exclusive Remedy. THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION 22 SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST STARSHIP FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF GOODS, AND SHALL APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).
IN ANY EVENT, STARSHIP’S MAXIMUM AGGREGATE LIABILITY TO YOU, NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY STARSHIP , SHALL NOT EXCEED $1,000 FOR ANY CLAIMS NOT COVERED BY THE GOODS DAMAGE CAP. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT AND THE PARTIES RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
Indemnification.
You shall defend, indemnify, and hold harmless Starship from and against any claims, actions or demands, liabilities (including court costs and attorney’s fees), tax obligations, fines and penalties, including without limitation reasonable legal and accounting fees and expenses, arising or resulting from your breach of this Agreement, any of Your Content, your negligence, fault, omissions or willful misconduct, your fraud or the misrepresentation in connection with the Services, or your access, contribution to, use or misuse of the Services (“Claims”). Starship shall provide notice to you of any claim. Starship reserves the right to assume the exclusive defense and control of any third-party Claims which are subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Starship’s defense of such Claim. This indemnity shall include, without limitations, all Claims in tort, contract, by statute or otherwise, including Claims for personal injury (including death) and actual or tangible property damage.
U.S. Government Matters – Your Compliance with Trade Laws.
You may not remove or export from the United States or allow the export or re-export of Goods subject to this Agreement or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
Assignment.
You may not assign this Agreement without the prior written consent of Starship, but Starship may assign or transfer this Agreement, in whole or in part, without restriction.
Miscellaneous.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect, and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, representation and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Except as specifically set forth in this Agreement (or a Volume Agreement or Service Level Agreement), the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement. The failure of Starship to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and Starship, even though it is electronic and is not physically signed by you and Starship, and it governs your use of the Services. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Starship in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement or otherwise, the substantially prevailing party will be entitled to recover its costs, expenses and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Governing Law – Prevailing Party in Litigation.
This Agreement and all Claims or disputes between the parties shall be governed by the laws of the State of Illinois without regard to its conflicts of law provisions. The UN Convention on the International Sale of Goods shall not apply. All Claims, lawsuits, causes of action and disputes between us shall be exclusively brought in the State or Federal Court located in Pittsburgh, Pennsylvania. The parties submit to the exclusive personal jurisdiction and venue of these courts. The substantially prevailing party in any dispute or litigation between us, including those related to this Agreement or the Services, shall be awarded their reasonable court costs, expenses and reasonable attorneys’ fees.
