Smart Warehousing Software Terms

IMPORTANT: These Software Terms (“Software Terms”) are made by and between Smart Warehousing, LLC (hereinafter "SW"), a Kansas limited liability company, and Customer (as defined herein). These Software Terms contain the complete terms and conditions that govern the use of the SW Software, SW Content and all other SW services (collectively, the “Services”). BY ACCESSING, VISITING, USING, OR ATTEMPTING TO INTERACT WITH OR USE ANY PART OF THE SERVICES, CUSTOMER AGREES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE SOFTWARE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE SOFTWARE TERMS, IT SHOULD NOT ACCESS OR USE ANY PART OF THE SERVICES. SW RESERVES THE RIGHT, WITH OR WITHOUT NOTICE, TO MAKE CHANGES TO THESE SOFTWARE TERMS IN ITS SOLE DISCRETION. CONTINUED USE OF ANY PART OF THE SERVICES CONSTITUTES CUSTOMER’S ACCEPTANCE OF SUCH CHANGES. THESE SOFTWARE TERMS APPLY TO ALL OF CUSTOMER’S ACCESS TO AND USE OF THE SERVICES WHENEVER OCCURRING.

Capitalized terms not defined herein (Section 14 below) are defined in the MWA. Customer’s use of the Services is also governed by SW’s other posted policies, including without limitation, the SW Privacy Policy.

1. Access Rights. SW provides Customer with a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to access and use the Services solely for Customer’s internal business use by Users during the term set forth in the applicable MWA. No right to use, print, copy, modify, create derivative works of, adapt, translate, distribute, disclose, decompile or reverse engineer the SW Software is granted, except as expressly set forth in these Software Terms and the MWA. SW reserves all title to the Services and all rights not expressly granted hereunder. Customer will not outsource its operation of the Services to any third party without SW’s prior written consent.

2. Limited Use. Customer may access the Services solely for Customer’s internal business purposes. Each User account is valid for one User only and may not be shared concurrently or otherwise by or among multiple Users. Customer shall, and will use best efforts to ensure that its Users shall, refrain from the following actions, any of which shall constitute a breach of these Software Terms and the MWA and give SW the immediate right to terminate the MWA or the right to revoke or deny access to the Services to Customer or any User:

1. (a) sell, resell, lease, lend, license, sublicense, rent or otherwise distribute the SW Software, including any means that would create revenue for Customer;
2. (b) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based upon the SW Software or any portion thereof;
3. (c) remove any proprietary or copyright notices on the Services;
4. (d) use any device, software, or routine intended to damage or interfere with the IP Rights or the proper operation of any aspect of the Services;
5. (e) use any of SW’s intellectual property except as permitted under these Software Terms or the MWA;
6. (f) use the Services to send or store spam, infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;
7. (g) use the Services to store or transmit Malicious Code;
8. (h) attempt to gain unauthorized access to the SW Software or its related systems or networks;
9. (i) access or use the Services as a Competitor, or allow access to a Competitor, unless expressly otherwise agreed in writing by SW;
10. (j) allow or use the Services for purposes of competitive analysis or the development of a competing product; or
11. (k) cause or permit any third party to do any of the foregoing.

3. Customer Responsibilities. Customer shall: (a) monitor and be solely liable for its Users’ compliance with these Software Terms and the MWA; (b) be responsible for the accuracy, quality, legality and means of acquiring its User Content, the means by which Customer acquired User Content, Customer and third party use of User Content (whether through use of the SW Software or otherwise), and the interoperation of any Third-Party Applications with which Customer uses the Services; (c) use commercially reasonable efforts to prevent unauthorized access to SW Software, and immediately notify SW of any such unauthorized access; (d) use the Services only in accordance with these Software Terms, the MWA and applicable law; and (e) disclose Customer Information and User Content only as strictly required to utilize the Services as outlined in the MWA. Customer is solely responsible for all User Content that Customer makes available through the SW Software, and warrants that the User Content abides by all applicable privacy laws. Except to the extent caused solely by SW’s violation of these Software Terms, the MWA or applicable law, SW will not be liable for Customer’s losses caused by any unauthorized use of Customer’s account. Customer agrees to provide information requested by SW to verify Customer’s compliance with these Software Terms. Customer is also responsible for its security and privacy compliance, including obtaining consents and authorizations where required to allow the storage, access, disclosure and use of the Customer Information and User Content by SW and through the Services.

4. User Content Limited License. Customer grants SW a non-exclusive, non-transferable, non-assignable, non-sublicensable (except as set forth herein), revocable and limited worldwide license to use the User Content as reasonably necessary for SW to maintain the SW Software and perform the Services for Customer. SW will only disclose User Content to its employees, contractors, and affiliates that: (i) need to know that information in order to process it on SW’s behalf or to provide the Services to Customer, (ii) with entities that SW has a contract in place with appropriate confidentiality obligations, (iii) with law enforcement agencies and regulatory bodies with applicable jurisdiction pursuant to a lawful order. By submitting or uploading User Content to the SW Software, Customer, notwithstanding any provision to the contrary, grants SW a worldwide, royalty-free, perpetual, and non-exclusive license to generate patterns, trends, knowledge, metadata, other insights, and the derivatives thereof, from: (i) User Content anonymized by SW to remove any data that would identify Customer or an individual; and/or (ii) utilizing anonymous learnings, logs, and data regarding use of SW Software, products or services (collectively, “Usage Data”). The Parties agree that Usage Data shall belong to SW and that SW may use the Usage Data for any legal purpose during or after the term of the MWA (including without limitation to develop, provide, operate, maintain and improve Services, and to create and distribute reports and other materials). Usage Data does not grant SW any ownership rights to Customer Information.

5. Third-Party Applications. If agreed to in the applicable MWA, SW may configure the SW Software by integrating mutually agreed upon Customer systems and Third-Party Applications. SW’s ability to integrate these systems is subject to SW Software compatibility with the Third-Party Application that Customer uses. Customer may only utilize the number of Third-Party Application integrations or the specific Third-Party Application integrations identified in the MWA as part of the initial integration services that are included with the mutually agreed upon fees. Additional integration services are available as agreed in writing and subject to additional fees. By requesting SW to integrate a Third-Party Application, Customer grants permission to SW to access such Third-Party Application on its behalf solely for the performance of services under these Software Terms and the MWA. The providers of Third-Party Applications may require Customer to accept additional terms and pay an additional fee to use such Third-Party Applications. If Customer elects to install or enable Third-Party Applications for use with the SW Software, Customer permits SW to grant such Third-Party Applications access to User Content, as required for the interoperation and support of such Third-Party Applications with the SW Software. SW is not responsible and provides no warranty with respect to Third-Party Applications and their use of User Content or for the security practices (or any acts or omissions) of such third-party service providers or Third-Party Applications. The Services may contain links to the Third-Party Application websites or resources. SW provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources or links displayed on such sites. Customer acknowledges sole responsibility for, and assumes all risk arising from, Customer’s use of any Third-Party Application websites or resources. SW will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond SW’s control. SW is not responsible for any issues relating to: (i) Third-Party Applications; (ii) Customer’s changes to application protocol interfaces; or (iii) Customer’s failure to use the SW Software as designed or intended in accordance with its documentation.

6. Intellectual Property Rights. As between Customer and SW,

1. (a) Customer owns and retains all right, title and interest in and to: (i) the Customer Information and User Content; (ii) Customer’s name, logo, and other trademarks, and (iii) all Customer IP Rights in and to any of the foregoing.
2. (b) SW owns and retains all right, title and interest in and to: (i) the SW Software, and all improvements, enhancements, derivatives, or modifications made by any party; (ii) the SW Content, Usage Data and Services; (iii) any software, applications, inventions or other technology developed by SW in connection with providing the SW Software or the Services; (iv) SW’s name, logo, and other trademarks; and (v) all SW IP Rights in and to any of the foregoing.

7. Data Security. SW will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services, Customer Information and User Content. SW, however, will have no responsibility for errors in transmission, Third-Party Applications, unauthorized third-party access, or other causes beyond SW’s control. Customer is responsible for implementing reasonable security capabilities and policies and procedures to minimize or prevent unlawful access of the Services by Customer or its Users, and access by unauthorized persons. Upon Customer’s request, SW will promptly delete any Customer Information. SW shall have no obligation to return Customer Information to Customer after thirty (30) days following the expiration or termination of these Software Terms or the MWA.

8. Availability; Suspension. SW shall use commercially reasonable efforts to minimize the amount of time the SW Software is unavailable. SW is not responsible for Users’ internet connections. Customer understands and agrees that from time to time the Services may be inaccessible or inoperable during normal business hours in the event of periodic maintenance procedures or repairs which SW deems necessary and may undertake. SW will not be liable for failure to provide access to the Services due to any emergency maintenance, any system failure, any failures of Customer's equipment or systems, or due to other acts outside of SW’s reasonable control. If (i) there is a threat to the security of SW’s systems, the SW Software or the Services, or (ii) Customer’s undisputed invoices are sixty (60) days or more overdue, in addition to any other rights and remedies (including termination rights) under these Software Terms or the MWA, SW may, upon notice to Customer, suspend Customer and its Users’ access to the Services without liability to Client until all issues are resolved to SW’s reasonable satisfaction.

9. Disclaimer of Warranties and Limitation of Liability. SW DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL. SW DOES NOT WARRANT THAT THE SW SOFTWARE, PRODUCTS OR SERVICES WILL BE ERROR-FREE OR UNINTERUPPED, THAT DEFECTS WILL BE CORRECTED OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, SUBJECT TO TIME DELAYS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND THAT CUSTOMER’S USE OF THE SW SOFTWARE, SW CONTENT, PRODUCTS AND SERVICES IS AT CUSTOMER’S SOLE RISK. SW SOFTWARE AND SERVICES MAY ALSO BE SUBJECT TO INTERRUPTIONS AND DELAYS INHERENT IN THE USE OF THE INTERNET. CUSTOMER ACKNOWLEDGES THAT SW IS NOT RESPONSIBLE FOR ANY INTERRUPTIONS OR DELAYS CAUSED BY ITS OR CUSTOMER’S INTERNET SERVICE PROVIDERS OR THIRD PARTY APPLICATIONS.

SW, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORSEEABLE.

IN NO EVENT WILL THE COLLECTIVE LIABILITY OF SW AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EXCEED THE GREATER OF $500 OR THE AMOUNT CUSTOMER HAS PAID TO SW FOR THE APPLICABLE SW SOFTWARE, CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE. ALL CLAIMS MADE BY CUSTOMER HEREUNDER MUST BE MADE WITHIN ONE YEAR OF THE ACTION TO WHICH SUCH CLAIM RELATES OR FOREVER BE BARRED.

10. Indemnification by Customer. To the fullest extent permitted by applicable law, Customer shall defend, indemnify and hold harmless SW and its affiliates, officers, employees, agents, and representatives from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorney's fees, asserted by any third party arising out of or relating to: (a) breach of these Software Terms; (b) Customer's and its Users' use of the Services, including any User Content, and Malicious Code from Third-Party Applications; or (c) Customer's or its Users' violation of any third-party rights, including, without limitation, any IP Right or privacy right.

11. Modification of Software. SW may, at its sole discretion and without liability, modify the Services, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.

12. Governing Law; Disputes. If there is any dispute about or involving these Software Terms or the Services, Customer agrees that any dispute shall be governed by the laws of the State of Kansas, notwithstanding any principles of conflicts of law. Customer specifically consents to personal and exclusive jurisdiction by and venue in the State and Federal courts of Johnson County, Kansas in connection with any dispute between SW and Customer arising out of or involving these Software Terms or the Services. Each party acknowledges and agrees that any controversy that may arise under these Software Terms is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Software Terms. Should either party institute any legal suit, action or proceeding to enforce these Software Terms, the prevailing party shall be entitled to receive, and the other party shall pay, in addition to all other remedies to which prevailing party may be entitled, the costs and expenses incurred in conducting the suit, action or proceeding, including attorneys’ fees and expenses, court costs and other expenses, even if not recoverable by law (including, without limitation, all fees, taxes, costs and expenses incident to appellate, bankruptcy and post-judgment proceedings).

13. Miscellaneous.

1. (a) If any part of these Software Terms is found by a court of competent jurisdiction to be unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
2. (b) You agree that no joint venture, partnership, employment, or agency relationship exists between Company and SW as a result of these Software Terms or use of the Services.
3. (c) These Software Terms constitute the entire agreement among the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between SW and Company with respect to the Services. Notwithstanding the foregoing, Company is also subject to the MWA and additional SW terms and conditions, posted policies, guidelines, or rules that may apply when you use the SW Software or the Services. In the event of a conflict between these Software Terms and any additional terms and conditions, including but not limited to the MWA, these Software Terms shall govern and control all use of the Services and the subject matter hereof. SW may revise these Software Terms at any time by updating these posted terms. Company is hereby notified of its continuing obligation to review these Software Terms from time to time to determine if any changes have been made. Company’s continued use of the Services after any changes have been made to these Software Terms signifies and confirms Company’s acceptance of any changes or amendments.
4. (d) The failure of SW to exercise or enforce any right or provision of these Software Terms or the MWA shall not operate as a waiver of such right or provision. Any waiver of these Software Terms or the MWA by SW must be in writing and signed by an authorized representative of SW.
5. (e) The section titles in these Software Terms are for convenience only and have no legal or contractual effect.
6. (f) Any violations of these Software Terms should be immediately reported to SW. To provide such notification, or to contact SW with any questions regarding these Software Terms, please reach out to legal@smartwarehousing.com.

14. Definitions.

“Competitor” means any third party that makes commercially available solutions to assist companies with managing inventory, orders, and distribution, and provide data visibility and analytics similar to the Services.

“Customer” means an entity utilizing SW’s warehousing or logistics services under an MSA (or similar master services agreement) that has elected to access and use the SW Software.

“Customer Information” means the name, mailing address, telephone number, e-mail address, and any other personally identifying information of Customer or a purchaser of Customer’s goods provided by, collected, stored, processed or generated through Customer’s use of the Services; provided, however, Customer Information does not include SW Content. Customer Information is Confidential Information of Customer.

“IP Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.

“Malicious Code” means code, files, scripts, agents, or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information, including, for example, viruses, worms, time bombs and Trojan horses.

“MWA” means the Master Warehousing Agreement or similar master services agreement executed between Customer and SW.

“SW Content” means any data and information with or related to the SW Software provided by SW to Customer. SW Content includes Usage Data. All SW Content is Confidential Information of SW.

“SW Software” means the machine-readable form of software programs, web-based platforms, applications and any other software or subscription services developed by, for, or on behalf of SW and provided to Customer for use. SW Software is the Confidential Information of SW and includes, without limitation, SW’s web-based inventory management software (“SWIMS”) designed to enable Customers to manage inventory, orders, shipments, and distribution, and the Smart Visibility platform, a web-based technology providing data visibility and analytics regarding Customer inventory and shipment activity, all in a single platform which may connect to Third Party Applications via EDI, API, or other means to integrate and transmit data. SW Software includes software files and other computer information including algorithms, computer programs, object code, icons, web designs, web applications, databases, database management systems, and screen layouts, and all new releases, updates or enhancements to the same.

“Third-Party Application” means system functionality that interoperates with the SW Software, via integration or otherwise, that is provided by Customer or a third party, including, without limitation enterprise resource planning systems (e.g., SAP, MS Dynamics, etc.), e-commerce systems (e.g., Shopify, ShipStation, etc.), third party shipping systems (e.g., SPS Commerce, Sterling Commerce, etc.) and warehouse/transportation management systems.

“User” means, an individual who is authorized by Customer and SW to use the Services, and to whom has been supplied a user identification and password for utilizing the SW Software. Users may include, for example, employees, contractors, and agents of Customer. If User is using the Services on behalf of a Customer (i.e., a business or other legal entity), User is nevertheless individually bound by these Software Terms even if such Customer has a separate MWA or other agreement with SW.

“User Content” means all data and information submitted by or for Customer and its Users, collected, stored, processed or generated through Customer’s use of the Services, including Customer Information, but excluding SW Content and Third-Party Applications. User Content is Confidential Information of Customer.