Terms and Conditions
1. DEFINITIONS.
a. “Aggregated Data” means any data, information and input that may be obtained and from third parties, including, but not limited to, order management systems, transportations systems, carriers and transport providers, which data provision to OneRail is a requirement for the delivery of Services.
b. “Consignee” means the final or end receiver of a delivery order, often referred to as the Customer’s customer.
c. "Customer Data" means, collectively, data provided to OneRail by Customer for processing by the Service.
d. “Delivery Order” means the transformation of inbound data supplied by a Customer; either by browser-based UI, API, or email, by the OneRail Platform, which is used to dispatch a Contractor to fulfill the delivery of items to a Consignee.
e. "Documentation" means any documentation made available to Customer by OneRail for use with the Service.
f. “Order Form” means each OneRail order form, order schedule, statement of work or similar ordering document signed by duly authorized representatives of both Parties, which references these Terms and Conditions, identifies the specific Services ordered by Customer from OneRail, sets forth the prices for the Services and contains other applicable terms and conditions.
g. “Reporting Portal” means a web-based reporting portal with proprietary data access.
h. "Services" means a combination of OneRail’s proprietary technology platform and Logistics Management, which facilitate the real-time fulfillment of Delivery Orders between Customer and Consignees.
2. SERVICES. OneRail shall make available to Customer its Services, as set forth in this Order Form. Subject to Customer’s continuing compliance with the terms and conditions of this Order Form, during the Term (as defined below), OneRail will use commercially reasonable efforts to provide the Services.
3. OBLIGATIONS and COOPERATION OF CUSTOMER. Customer acknowledges and agrees to, for the Term of this Order Form, provide access to Customer’s data, required systems, support and operations personnel, for OneRail to provide the Services. Furthermore, Customer agrees to make the Services available to Consumers through its marketing efforts. Obligations and cooperation of Customer are set forth in this Order Form.
4. FEES.
a. In consideration for the Services and the License granted hereunder, Customer will pay to OneRail the fees detailed in the Order Form (the “Consideration”).
b. In consideration for the Program Delivery Fees detailed hereto, Customer will pay for the fulfillment of Delivery Orders (the “Transportation Pricing”) detailed within the Order Form.
c. The Consideration and Program Delivery Fees will be invoiced by OneRail on a monthly basis, and payment is due within fifteen (15) days of delivery of the applicable invoice.
d. It is agreed that all past due amounts under this Order Form shall bear interest at the maximum rate permitted by law, beginning with the date on which the applicable amount became due.
e. Customer will pay OneRail all sales or other taxes associated with the Service. Customer will pay OneRail all costs and expenses of collection (including attorneys' fees) incurred by OneRail for collecting any amounts past due under this Order Form.
f. OneRail may update the Consideration at any time without any notice.
5. TERM.
a. The Services shall commence upon the authorization of OneRail Services by the Customer within the Shopify OneRail app. This agreement shall remain in effect if the Customer maintains an active subscription status.
b. Notwithstanding any other provision of this Order Form, OneRail may immediately suspend Customer’s use of the Services (on a temporary basis) for any actual or suspected violation of any obligations of Sections 4 and 6.
6. CONFIDENTIAL INFORMATION. During the term of this Order Form, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature, including, without limitation, account credentials, Output and asset identifiers. The receiving Party shall hold in confidence, and shall not disclose or permit its personnel to disclose any Confidential Information to any person or entity, except to a director, officer, employee, outside consultant, or advisor who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party, and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Order Form. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed, and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The terms and pricing set forth herein, as well as the Order Form, constitute Confidential Information. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
7. TERMS OF USE.
a. OWNERSHIP OF SERVICE. As between OneRail and Customer, the Service, and all intellectual property rights in the Service (including any improvements thereto) are, and will remain, the property of OneRail. All rights not expressly granted to Customer in this Order Form are hereby expressly reserved and retained by OneRail and its licensors. OneRail may identify Customer in advertising, marketing and promotional literature and activities as OneRail’s customer without obtaining Customer’s prior written consent in each case.
b. RESTRICTIONS. Customer will safeguard the confidentiality of Customer’s password(s) and user account name(s) for the System, and is responsible for any use by Customer or other users occurring under its accounts (unless such user names and passwords have been used by third parties with no fault of Customer). Customer will not (nor will Customer permit any third party to): (a) make the Service available to any third party (via a services arrangement, service bureau, lease, sale, resale, or otherwise), except for third-party contractors performing services on behalf of Customer; (b) modify, adapt or otherwise create derivative works of the Services, software that is used by OneRail to provide the Services or the Documentation; (c) circumvent any usage or access limits on the use of the Service; (d) damage, disable, overburden, impair or disrupt the Service, or attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the Operation of the Service, or in any way with the use or enjoyment of the Service by others; or, (e) use the Service or any information obtained therefrom in any unlawful manner, or for any unlawful purpose or in any jurisdiction where any such use is illegal.
c. ACCEPTABLE USE. The following restrictions apply to Customer’s use of the Services. Failure to comply with such restrictions will constitute a breach of this Order Form: (a) Customer may not create a browser, frame, border environment or GUI around the Services application or website; (b) Customer may not actually or seek to interfere with or disrupt the operation of the Services; (c) Customer may not actually or seek to interfere with or violate other users' rights to privacy and other rights, or harvest or collect data and information about users without their express consent, whether manually or with the use of any robot, spider, crawler, site search or retrieval application, or other automatic device or process to access the Services applications, websites, servers or databases and/or retrieve index and/or data-mine information; (d) Customer may not actually or seek to impersonate any person or entity or provide false or misleading personal information — notwithstanding the foregoing, Customer may use pseudonyms for its End Customers when providing Customer Data to OneRail; (e) Customer may not transmit or otherwise make available through or in connection with the Services any virus, “worm”, “Trojan Horse”, “time bomb”, “web bug”, spyware or any other computer code, file, application or program that is malicious by nature or defective, and may, or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive or invasive code or component; (f) Customer may not use the Services for any illegal, unlawful or unauthorized purposes; and (g) Customer may not access any Service in order to build a competitive product or service.
d. OWNERSHIP OF CUSTOMER DATA Customer owns all rights, title, and interest in the Customer Data. OneRail may disclose Customer Data if OneRail (a) has Customer’s prior written consent or such disclosure is needed to provide the Services; (b) concludes that it is required by law or has a good-faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of OneRail, its users or the public; or (c) provides such information in anonymous and aggregated form in a manner that does not identify Customer or its customers or allows the identity of Customer or its customers to be inferred. Data collected or generated by OneRail in the performance of the Services and held by OneRail in a form that is identifiable to Customer shall be and shall remain the property of Customer (“Customer Data”). OneRail shall have a royalty-free, non-exclusive license to use Customer Data to perform the Services, and to aggregate, or otherwise manipulate and prepare derivative works based upon Customer Data, in a form that is not identifiable to Customer. Customer agrees that it will not disclose or transmit any aggregated or compiled data provided by OneRail in the performance of the Services to any third party without the prior written consent of OneRail. Customer shall not grant access to the Reporting Portal to any third party.
e. PERSONALLY IDENTIFIABLE DATA. Customer will obtain any consents required by law or applicable self-regulatory principles to use the Service (including, without limitation, using the Service to collect or use any Customer Data). Customer will publish, maintain and abide by a privacy policy that: (i) is consistent with Customer’s use of the Customer Data or any other information Customer collects from individuals using the Service, including with respect to personally identifiable information (“PII”); (ii) complies with applicable law and applicable self-regulatory principles, if any; and (iii) adequately discloses Customer’s collection, use and disclosure of any information Customer collects from individuals using the Service, including any PII and non-PII, collected via tracking codes, locally stored objects or other tracking technologies.
f. THIRD-PARTY ACCESS TO DATA. Customer will not (and will not allow any third party to) use the Service to track or collect PII without properly informing individuals of Customer’s data collection, use and disclosure practices (and only so long as such use conforms with any additional Customer obligations under this Order Form).
8. DEFAULT.
a. Any breach of any of the material terms of this Order Form that is not cured within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach will constitute default of the Order Form by the breaching party.
b. Failure of Customer to make any payment due to OneRail shall constitute default by Customer if such nonpayment continues for a period of ten (10) days after receipt of written notice of delinquency from OneRail.
c. Insolvency, receivership, bankruptcy or any similar proceeding initiated against either party will constitute default by that party.
9. WARRANTY.
a. OneRail warrants that during the Term (i) the Services will conform, in all material respects, with the Documentation, (ii) OneRail will provide the Services in accordance with the Oder Form and (iii) all related technical support shall be provided in a competent and professional manner. OneRail does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error-free. OneRail makes no warranty regarding features or services provided by third parties, and OneRail does not warrant the uninterrupted availability of Aggregated Data. Such warranty shall only apply if the Subscription Service has been utilized by Customer in accordance with the Order Form and this Order Form.
b. ONERAIL DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ONERAIL. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. The total cumulative liability of a Party to the other Party for any and all claims and damages under this Order Form, whether arising by statute, contract, tort or otherwise, will not exceed the Consideration paid or payable by Customer to OneRail under the Order Form for the Services which form the subject of the claim during the twelve- (12-) month period immediately preceding the event giving rise to the claim. The limitations of liability above shall not apply to: (i) a Party’s indemnification obligations in the Order Form; (ii) fraud, gross negligence or willful misconduct by either Party; or (iii) loss, corruption or unauthorized destruction, disclosure or access to Customer Data caused by OneRail’s failure to observe or perform its obligations hereunder (collectively, the “Excluded Claims”). Notwithstanding the foregoing, each Party’s total cumulative liability hereunder with respect to the Excluded Claims (other than willful misconduct, which shall not be capped) shall not exceed $100,000. The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.
11. FORCE MAJURE. OneRail shall not be liable to Customer for any delay or failure of performance of this Order Form if such delay or failure is caused by any occurrence or condition beyond OneRail’s reasonable control, including weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, pandemic, labor unrest, acts of terrorism and civil disturbance (each an “Event of Force Majeure”). If a delay or failure of performance by OneRail is caused by an Event of Force Majeure, OneRail shall notify Customer and shall be excused from obligations of performance without any liability under this Order Form, to the extent and for the period of time that such performance is prevented or hindered by the Event of Force Majeure.
12. GOVERNING LAW. This Order Form shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to the conflict of law rules of such state.