Terms of Service
ShipKey Software as a Service
Last Updated: February 2023
THIS TERMS OF SERVICE (THIS “TOS”) IS A LEGAL AGREEMENT BETWEEN SHIPKEY, LLC (“ShipKey”) AND YOU, EITHER AS AN INDIVIDUAL OR AN ENTITY (“YOU” OR “YOUR”), REGARDING THE SERVICE OR SERVICES (AS DEFINED BELOW).
BY AGREEING TO THIS TOS, YOU EXPRESSLY: (A) ACKNOWLEDGE THAT YOU HAVE READ THIS TOS IN ITS ENTIRETY, AND (B) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS TOS AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THIS TOS. IF YOU DO NOT AGREE TO THE TERMS OF THIS TOS, DO NOT EXECUTE THIS TOS AND DO NOT USE THE SHIPKEY WEBSITE AT WWW.SHIPKEY.COM.
IF YOU ARE AGREEING TO THE TOS ON BEHALF OF A THIRD PARTY, COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (EACH AN “ENTITY”), YOU ARE AGREEING TO THE TOS FOR THAT ENTITY AND YOU REPRESENT TO ShipKey THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “YOU” OR “YOUR” AS USED HEREIN WILL ALSO REFER TO SUCH ENTITY AND ITS AFFILIATES. PLEASE NOTE THAT THESE TERMS INCLUDE A CLASS-ACTION WAIVER AND WAIVER OF JURY TRIALS.
- This online shipping software (the “Service”) can be accessed via the ShipKey website at www.shipkey.com (“Site”). You must register an account with ShipKey.
- You may connect to the Service using any Internet browser. This Service is intended for use by adults at least 18 years of age.
- You are responsible for obtaining access to the Internet and the equipment necessary to use the Service.
- Subject to Your compliance with the terms of this TOS, ShipKey grants You a personal, limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Service during the term of this TOS, whether accessed via an Internet browser on a smartphone, tablet or other device: (a) solely in object code form; and (b) solely via a device that meets the minimum technical requirements necessary to run the Service (as determined by ShipKey). ShipKey, in its sole discretion, may make updates, upgrades or other new releases of the Service available to You.
- ShipKey will employ reasonable measures to provide You with access to the Service. However, there will be occasions when the Service will be interrupted for maintenance, upgrades for emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond ShipKey’s reasonable control. When possible, ShipKey will take reasonable steps to minimize such disruptions within ShipKey’s control.
- ShipKey may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Service, or suspend or discontinue the Service or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Service or otherwise), without notice or liability to You or to any third party (except that, in the event of a complete discontinuation or scheduled suspension of the Service, ShipKey will use reasonable efforts to provide You with actual notice, rather than merely constructive notice, as soon as commercially practicable under the circumstances). You agree that ShipKey shall not be liable to You for any modification, suspension or discontinuance of the Service or any features or functions thereof.
- The Service may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other third-party software or materials, which in each case is embedded in the Service or provided by ShipKey in connection with the Service (“Separately Licensed Software”). This TOS does not apply to Separately Licensed Software, and ShipKey hereby disclaims all warranties with respect to any Separately Licensed Software and disclaims any liability to You or any third party based on any claims arising out of use of Separately Licensed Software. Nothing in this TOS limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable Separately Licensed Software end user license agreement.
Privacy and Use of Data
- If You provide any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service to ShipKey, You agree that ShipKey and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in connection with the Service, other related technologies and/or for any other purpose, on a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual basis. ShipKey will not be obligated to implement any Feedback or correct any defects, bugs or errors in the Service identified in the Feedback or otherwise.
- ShipKey may: (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use Your Data from the Service in aggregated form to create statistical analyses and for research and development purposes, (these sections (a) and (b) collectively, “Service Analyses”). ShipKey may use Service Analyses for its business purposes; however, Service Analyses shall not incorporate Data in a form that could serve to identify You or any individual. Service Analyses do not constitute Your Data, and ShipKey shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
- During and after the term of this TOS, ShipKey may: (a) collect, retain and use any Data submitted to the Service, including usage history, in order to provide and administer the Service; however, ShipKey is not responsible for maintaining such Data, except as required by Law; and (b) access, read, preserve, and disclose any Data submitted to the Service that ShipKey reasonably believes is necessary to: (i) satisfy any Law, legal process or governmental request; (ii) enforce this TOS, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to a support request; or (v) protect its rights, property or safety, and that of its users and the public.
Rights and Restrictions
- You may use the Service solely for its intended purpose. You may not: share Your Registration Data for the Service with any other individual or allow any third party to access or use the Service (except that You are permitted to engage with other individuals who also hold a valid right to access and use the Service).
- You may not; (a) sell, resell, license, sublicense, distribute, rent or lease the Service unless given written authorization, including the Service in a service bureau or outsourcing offering, or otherwise access or use the Service other than as expressly permitted hereunder; (b) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; (c) use the Service to store or transmit code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses; (d) interfere with, or disrupt the integrity or performance of, the Service or third-party data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks.
- You agree that you may not copy the Service or any part, feature, function or user interface thereof or otherwise: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Service; (b) frame or mirror any part of the Service, other than framing on Your own intranet or otherwise for Your own internal business purposes or as permitted in the documentation for the Service; (c) access the Service in order to build a competitive product or service, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (d) “harvest” or collect information from the Service (including information about other users of the Service or offerings, products or services available on the Service) using an automated software tool or manually on a mass basis; (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Service or any component thereof, in whole or in part, except as and only to the extent such restriction is permitted by any applicable federal, state, or local laws, codes, rules, regulations, or orders of any governmental authority (“Law”); (f) integrate or link to any open source software or freeware with the Service; (g) remove any proprietary notices, labels or marks from the Service; or (h) permit third parties to do any of the foregoing.
- You are not permitted to: (a) transfer or otherwise make the Service available to any third party; (b) provide any service based on the Services without prior written permission; (c) post links to third-party sites or use their logo, company name, etc. without their prior written permission; or (d) use the Service for spamming and/or other illegal purposes.
- You agree that: (a) Your submission and the use of any Data in connection with the Service will be in compliance with Law; and (b) You will not upload any Data to the Service or print any Data using the Service that depicts violence, nudity, partial nudity or is unlawful, sexually suggestive, pornographic, offensive, discriminatory, threatening, libelous, defamatory, obscene, or otherwise violates any third party’s rights, including Intellectual Property Rights and/or privacy rights, or that violates this TOS.
ShipKey User Account, Subscription Plans, and Billing
- You will need to create a ShipKey account (“Account”) to access the Services. You agree to use thorough and accurate information when completing the account set up process.
- You will not share your Account credentials with others and acknowledge that You are responsible for any activity associated with Your Account.
- At the time of Account creation, You will choose a ShipKey subscription plan (“Plan”) with associated fees for Your chosen Plan (“Fees”) and either a monthly or annual billing cycle. The date Your account is created will be the date of Your recurring payment for the Service (“Billing Date”). For example, if You create Your ShipKey account on February 17th and You choose monthly billing, You will be charged every month on the 17th. If You choose annual billing, You will be charged every February 17th. If Your account is created on a date that doesn’t occur every month or every year, You will be charged on a date as close to Your Billing Date as reasonably possible.
- You will be required to enter a credit card for payment of Fees associated with your Plan at the time of Account creation. Your credit card will be charged on or around Your Billing Date for access to the Service through the current billing cycle. Your Billing Date will serve as the first day of your billing cycle. If Your credit card is declined for any reason, You will be notified. If ShipKey is unable to collect payment after 30 days, Your Service may be interrupted, suspended, or canceled.
- You may change Your Plan at any time. If You choose to upgrade Your Plan, You will be charged a one-time prorated amount for the remaining days in Your billing cycle. If You choose to downgrade Your Plan, any change to Your Fees will be reflected on the next Billing Date. You will not receive a prorated refund when downgrading Your Plan.
- Your Plan has monthly feature limits such as shipping label maximums. If You exceed Your shipping label maximum based on Your Plan before Your monthly count renews, You will be charged a shipping label surcharge for each shipping label that exceeds Your monthly limit. It is Your responsibility to understand all monthly feature limits associated with Your Plan.
- This TOS will remain in effect until: (a) ShipKey terminates Your rights under this TOS, which it may do immediately, without notice or liability, if You fail to comply with any term(s) of this TOS; or (b) You cancel the Service, whichever occurs first. You may terminate Your access to the Service by submitting a written request to ShipKey’s customer service department at [email protected] fifteen (15) days prior to the renewal on monthly billing subscription plans and thirty (30) days prior to the renewal on annual billing subscription plans.
- You acknowledge that if You breach this TOS, ShipKey may have no adequate remedy at law, will suffer irreparable harm as a result of such a breach, and therefore will be entitled to injunctive relief without the obligation of posting a bond. Upon termination of this TOS based on Your breach: (a) You agree to immediately cease using the Service; and (b) Your access to the Service will be automatically terminated and Registration Data will be removed.
- Upon the termination of this TOS for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except those post-termination obligations expressly provided for in this TOS, and those provisions which by their nature should survive termination will survive, including use restrictions, indemnity obligations, warranty disclaimers, and limitations of liability.
- You will remain the sole and exclusive owner of all right, title, and interest in and to all of Your Data. You hereby grant to ShipKey a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors and service providers), irrevocable, royalty-free, fully paid-up license to access, use and process the Data in accordance with the terms of this TOS.
- If You are contacted by (or otherwise become aware of) a third-party claiming rights in any portion of the Service, or claiming that use of the Service infringes any right of that third party, You must immediately notify ShipKey and, at ShipKey’s request, immediately cease use of the Service. If ShipKey determines in its sole discretion that it cannot or should not otherwise allow You to continue using the Service because of such claim, ShipKey may terminate this TOS immediately by delivering notice to You without any resulting obligation or liability to You by reason of such termination.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. SHIPKEY EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
SHIPKEY DOES NOT WARRANT THAT THE SERVICE WILL: PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES. SHIPKEY SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME OF THE SERVICE, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICE, FAILURE OF THE SERVICE, OR OTHERWISE RELATING TO THE SERVICE.
USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM SHIPKEY, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHIPKEY WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY, INCLUDING DAMAGES FOR COMPUTER MALFUNCTION, LOST PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, AND/OR THE COST TO OBTAIN SUBSTITUTE SOFTWARE OR SERVICES ARISING IN ANY WAY OUT OF THIS TOS OR THE USE OF (OR INABILITY TO USE) THE SERVICE, HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SHIPKEY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SHIPKEY’s TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID TO SHIPKEY FOR THE SERVICES DURING THE LAST MONTH PRECEDING THE DATE THE CLAIM AROSE, OR U.S. $100.00. THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER AN ACTION IS IN CONTRACT OR TORT, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF SHIPKEY AND ITS REPRESENTATIVES IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF SERVICE FAIL OF THEIR ESSENTIAL PURPOSE.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICE, THIS TOS OR ANY ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree to indemnify, hold harmless and defend SHIPKEY, including its licensees and their subsidiaries, affiliates, officers, directors, agents, employees, successors and assigns, from and against any and all liabilities, losses, fines, penalties, damages, judgments, awards, settlements, costs, and expenses (including reasonable attorneys’ fees and costs of investigation) arising out of or resulting from any claim, suit, action, demand or proceeding arising out of: (a) Your use or misuse of the Service; or (b) Your violation of the terms of this TOS. ShipKey reserves the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by You, in which event You agree to cooperate with ShipKey in defending such action. Your indemnification, defense, and hold harmless obligations will survive the termination of Your use of the Service and/or this TOS.
Export Control Laws
The Service is subject to export controls under the laws and regulations of the United States (“U.S.”) and any other applicable countries’ laws and regulations. You agree to comply with such laws and regulations governing export, re-export, transfer and use of the Service, and You shall obtain all required U.S. and local authorizations, permits, or licenses. You represent and warrant that: (a) You are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties.
Governing Law; Venue
This TOS and any dispute or claim arising out of or related to this TOS, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this TOS, or the Product shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and You further agree that such courts shall have in personam jurisdiction and venue with respect to You, and You hereby submit to the jurisdiction and venue of such courts and waive any objection. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY CLAIM ARISING OUT OF OR RELATING TO THIS TOS. ADDITIONALLY, BOTH YOU AND SHIPKEY AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.
This TOS constitutes the entire TOS binding between You and ShipKey with respect to Your use of the the Service and supersedes all prior or contemporaneous understandings, whether written or oral, regarding such subject matter. ShipKey reserves the right, in its sole discretion, to modify this TOS at any time upon notice to You, including by posting a revised version of this TOS on the Service. Any such modified TOS will be effective immediately upon being made available to You, and your continued use of the Service thereafter constitutes Your affirmative acceptance of such modified TOS. Otherwise, the terms of this TOS may not be modified, in whole or in part, except by written TOS executed by an authorized signatory of ShipKey. If You are dissatisfied with the terms of the TOS or any modifications thereof, then You agree that Your sole and exclusive remedy is to discontinue any use of the Service.
Any remedy of ShipKey set forth in this TOS is in addition to any other remedy afforded to ShipKey under applicable Law or otherwise. ShipKey’s failure to exercise or enforce any right or provision of this TOS will not constitute a waiver of such right or provision. If any provision of this TOS is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or by disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the TOS is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. You may not assign or otherwise transfer any of Your rights or obligations under this TOS without ShipKey’s prior written consent. Any purported assignment in violation of this Section shall be void. ShipKey may freely assign or otherwise transfer its rights or obligations under this TOS. The terms and conditions of this TOS shall apply to, and be binding upon, the approved successors and permitted assigns of the parties hereto. The parties are independent contractors. This TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. This TOS does not and is not intended to confer any rights or remedies upon any person other than You and ShipKey. For all purposes of this TOS, the words “including” and “includes” mean inclusion without limitation.
Communications and Contacting ShipKey
Communications from ShipKey to You may be by electronic means. You hereby consent to receiving communications from ShipKey in electronic form and agree that all terms and conditions, TOSs, notices, disclosures, and other communications that ShipKey provides to You electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any nonwaivable rights.
If You have any questions about the Service or this TOS, You may email us at [email protected].