ShipERP Legal Agreements

These terms govern the professional services ordered from ShipERP specified in the applicable Order Form (“ShipERP”) by company or other legal entity (“Client”) as specified in the applicable Order Form (the “Services”). By executing the Order Form that references these terms, you agree to the terms.

 

ERP Integrated Solutions, LLC dba ShipERP, a corporation incorporated under the laws of the State of California with its principal place of business at 5000 Airport Plaza Dr. #230, Long Beach, CA 90815 (“ShipERP”) and the customer that has purchased a subscription to the Service (“Client”). Each of ShipERP and Client is a “Party” and together they are the “Parties.” In consideration of the mutual obligations set forth hereinafter and intending to be legally bound, ShipERP and Client hereby agree as follows:

 

1. DEFINITIONS AND ORDERING

 

1.1 Definitions.

 

(a) “Acceptance Tests” means those tests that are performed by and together with Client to ensure that the Deliverables meet the Specifications prior to acceptance of the Deliverables by Client, as reasonably determined by Client.

 

(b) “Agreement” means this Master Services Agreement, its terms and conditions, attached Exhibits, and any future Exhibits, which are incorporated by reference and executed by authorized representatives of the Parties.

 

(c) “Documentation” means any Client specific custom operating manuals, technical manuals, programming manuals, modification manuals, flow charts, drawings and software listings that are designed to assist or supplement the understanding or application of the Deliverables.

 

(d) “Deliverables” means the (i) Documentation and (ii) Developed Products, and (iii) ShipERP Software Applications and Tools delivered by ShipERP pursuant to this Agreement as more fully described in the applicable Exhibit(s) or SOW’s.

 

(e) “Developed Products” means any client specific custom software comprised of the computer programs encoded on media, if any, in object and/or source code form, or subscription software as more fully described in the applicable Exhibit(s).

 

(f) “Exhibit(s)” means any SOW, addendum, exhibit, purchase order or change order attached hereto, which incorporates the terms and conditions hereof by reference and is executed by both parties.

 

(g) “Go-Live” means the date which Deliverables are used in a Production environment.

 

(h) “Services” means the professional services performed by ShipERP or its subcontractors pursuant to this Agreement as more fully described in the applicable Exhibit(s).

 

(i) “Specifications” means the functional performance parameters for the Deliverables as set forth in the applicable Exhibit(s).

 

(j) “ShipERP Software Applications and Tools” means any software, configuration, or utility tools that are created by ShipERP and sold as software solutions to customers. ShipERP owns all right, title and interest in and to the Software, Documentation, and any and all related materials that comprise the ShipERP Software Applications and Tools. For clarification these applications are listed in Exhibit A.

 

(k) “Statement of Work” or “SOW” means each document executed by both ShipERP and Client which specifies Services to be performed and the Deliverables to be provided to Client by ShipERP, and any other performance requirements mutually agreed to between the Parties in writing. Any SOW may amend this Master Service Agreement if authorized representatives of both Parties agree in writing.

 

1.2 Ordering. Client hereby orders those Services and/or Deliverables offered by described in and pursuant to the applicable SOW(s). The terms and conditions of this Agreement and no others shall apply to all Services and/or Deliverables (unless otherwise specified herein) ordered by Client notwithstanding any different or additional terms on any other purchase order, invoice, sales acknowledgement or other document, unless specifically amended and agreed in writing by authorized representatives of both Parties. If ShipERP at any time has reasonable concern about security or timeliness of validly due payments, it may decline to provide Services, and/or the Deliverables until receipt of payment or establishment of a satisfactory arrangement securing payment.

 

2. SERVICES AND DELIVERABLES

 

2.1 Scope of Services and Deliverables. ShipERP will perform the Services and deliver the Deliverables described in the applicable SOW(s), pursuant to the terms and conditions set forth herein and therein, and will use commercially reasonable efforts to do so by the estimated completion date set forth in the applicable SOW (“Completion Date”). Completion Dates shall be reasonably extended by the time of any delays caused by Client, provided that Client’s written consent to the extension is given, which consent shall not be unreasonably withheld.

 

2.2 Control and Supervision. Each SOW shall designate a Client Manager, and an ShipERP Project Manager to direct their respective employees and who have sufficient authority to represent Client and ShipERP, respectively, on all technical, administrative and supervisory matters hereunder. Each of the parties may replace its manager upon reasonable notice to the other parties.

 

2.3 Changes in Scope. The fees set forth in each SOW are based upon the terms set forth in the same. If the scope of the Services and the Deliverables desired by Client changes, ShipERP will notify Client, as soon as practicable, of the resulting changes to the fees and Completion Dates. Client may either agree to such changes or proceed with the originally requested Services and Deliverables.

 

2.4 Customer Satisfaction Surveys. Client shall complete ShipERP customer satisfaction surveys upon request by ShipERP. The customer satisfaction surveys will be conducted periodically and/or after the Services and Deliverables have been completed.

 

 

3. LICENSE AND OWNERSHIP RIGHTS. If Client has elected to purchase a subscription to ShipERP which is part of ShipERP’s Software Applications and Tools offerings, Client will be subject to terms and conditions set forth in the Software Subscription Agreement (SubscriptionAgreement-SA001). If Client elects to purchase additional subscriptions to ShipERP Software Applications and Tools then Client will be subject to the terms and conditions set forth in the Software Subscription Agreement for the additional product(s). Any and all intellectual property of ShipERP, whether existing at the date of this Agreement or arising in the course of completion of the provisioning of Software Services for Client, including those software applications and tools that have been developed by ShipERP unrelated to this Agreement (collectively, the “ShipERP Software Applications and Tools”) will remain solely owned by ShipERP.

 

4. ELECTRONIC DELIVERY. ShipERP shall deliver the Deliverables electronically to Client’s systems. Client will be provided an exhibit to this agreement verifying acceptance of software through electronic delivery.

 

5. ACCEPTANCE TESTING

 

5.1 Acceptance Testing. Within fifteen (15) days after ShipERP’s delivery of the Deliverables, ShipERP and Client shall conduct the Acceptance Tests to determine if the Deliverables materially conform to the Specifications. If, through no fault of ShipERP, Client fails to participate and/or complete the Acceptance Tests within later of said fifteen 15-day period the Deliverables shall be deemed to (i) satisfy the Specifications, and (ii) be fully accepted by Client.

 

5.2 Certificate of Acceptance. Subject to Section 5.1 hereof, upon successful completion of the Acceptance Tests pursuant to which the Deliverables shall materially conform to the Specifications to Client’s reasonable satisfaction, Client shall issue a Certificate of Acceptance in accordance with Appendix B to ShipERP confirming that the Deliverables have been fully accepted by Client.

 

5.3 Rejection of Deliverables. If, as a result of the Acceptance Tests, it is demonstrated that the Deliverables fail to materially conform to the Specifications, Client may notify ShipERP in writing that it rejects the Deliverables. Upon receipt of such notice, ShipERP will have thirty (30) days in which to demonstrate, to Client’s reasonable satisfaction, that the Deliverables conform to the Specifications in all material respects. In the event that ShipERP fails to demonstrate, to Client’s reasonable satisfaction, that the Deliverables conform to the Specifications in all material respects, Client may terminate this Agreement without any liability to ShipERP.

 

6. FEES AND TAXES

 

6.1 Fees and Payment. Client is solely responsible for all invoiced charges pertaining to ShipERP’s provision of Services and Deliverables to Client. Services shall be provided on a time and materials basis as set forth in each SOW. ShipERP will invoice Client once a month for Services provided to Client. Invoiced charges are due and payable within thirty days (30) of the date of invoice. Payments shall be in U.S. dollars by electronic wire transfer to the bank account designated by ShipERP from time to time or by Client’s check. Payment terms set forth in the SOW for the project which is required to be amended to this agreement will supersede this section.

 

6.2 Expenses. Payment of reasonable, pre-approved by Client, expenses related to professional services (travel, lodging, meals) are due upon receipt of invoice. Travel must comply with Client guidelines including receipts of expenses with invoice.

 

6.3 Taxes. Fees due and payable pursuant to Section 6.1 do not include sales, use, value added or other excise tax. For purposes of Section 6.1, Client shall pay if ShipERP is required to collect from the client all customary and applicable taxes based on this Agreement or fees payable hereunder (but not any taxes based upon ShipERP’s gross revenues or net income), together with any interest on such taxes if not due to ShipERP’s delay.

 

7. RELATIONSHIP OF PARTIES. The relationship of ShipERP and its employees and subcontractors to Client shall be that of an independent contractor, and neither this Agreement nor Services or the Deliverables provided hereunder shall for any purpose whatsoever or in any manner either create an employer-employee relationship between ShipERP and Client or make ShipERP an agent of Client. ShipERP shall have sole and exclusive responsibility for the payment of all federal, state and local income taxes, for all employment and disability insurance, and for Social Security and other similar taxes with respect to any compensation or benefits provided to ShipERP’s employees and consultants hereunder.

 

8. LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES

 

8.1 Limited Warranty Regarding Services. ShipERP warrants that each of its employees and contractors who perform Services hereunder shall have the proper skill, training and background to be able to perform such Services competently and professionally and that all Services will be so performed.

 

8.2 Limited Warranty Regarding Developed Products.

 

(a) ShipERP warrants, for the benefit solely of Client, that (i) for a period of one year or as agreed by the Parties in writing after delivery of the Developed Products pursuant to Section 5 hereof, the Developed Products shall perform in material conformance with the Specifications; (ii) notwithstanding any other provision of this Agreement to the contrary, the Developed Products shall not contain any virus or any built-in, automatic and/or random expiry dates; (iii) for a period of one year or as agreed by the Parties after delivery of the Developed Products the media on which the Developed Products are delivered (if any) shall be free from defects in material and workmanship; and (iv) the Developed Products are designed to be year 2000 compliant to the extent that the Developed Products are used with the operating system(s) and database(s) stipulated in the Specifications. Notwithstanding the foregoing, ShipERP makes no warranty that the Developed Products will operate uninterrupted or be error-free and assumes no responsibility for obsolescence of the Developed Products. Client’s remedy for breach of an aforementioned warranty is limited to ShipERP using reasonable best efforts to correct such breach.

 

(b) ShipERP will not be responsible for any breach of warranty caused solely by (i) modification of the Deliverables by Client or a third party unauthorized by ShipERP; (ii) use in combination with other computer programs; or (iii) use in combination with other computer hardware.

 

8.3 DISCLAIMER OF OTHER WARRANTIES. Software programs, computers and other hardware, and related services for business use are inherently complex, and, unless ShipERP has expressly agreed to the contrary, Client is solely responsible for the evaluation of its software requirements and verification of resulting data. EXCEPT AS EXPRESSLY STATED IN SECTIONS 8.1, 8.2 and 11.1 OF THIS AGREEMENT, SHIPERP PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO SERVICES OR THE DELIVERABLES PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. SHIPERP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY SHIPERP EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT SHALL NOT BE DEEMED TO BE A WARRANTY BY SHIPERP FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF SHIPERP WHATSOEVER.

 

8.4 Harmful Code. ShipERP shall (1) employ best efforts and commercially reasonable measures (which may consist of the use of commercially available software programs to screen for Harmful Code (as hereinafter defined) and or other measures, as ShipERP may reasonably determine in its sole discretion) to ensure that Services and/or the Developed Products provided hereunder will not contain any computer code, programming instruction or set of instructions that is intentionally and specifically constructed to damage, interfere with or otherwise adversely affect computer programs, data files or hardware without the consent or intent of the computer user, including but not limited to self-replicating and self-propagating programming instructions commonly called viruses and worms (collectively, “Harmful Code”); and (2) notify Client immediately if it suspects that any Services and/or the Developed Products delivered to Client hereunder contain Harmful Code and make every commercially reasonable effort (best efforts) to assist and to ensure that it is removed.

 

9. LIMITATION OF LIABILITY. Regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), and except as otherwise expressly provided herein, except for ShipERP’s obligations pursuant to Section 11.1 of the Master Services Agreement, IN NO EVENT (i) SHALL ShipERP’S MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED ACTUAL DIRECT DAMAGES CAUSED BY THE SPECIFIC SERVICE OR DELIVERABLES COMPLAINED OF, OR (ii) SHALL CLIENT OR SHIPERP BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME, OR (iii) SHALL EITHER PARTY NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SHIPERP SOFTWARE APPLICATIONS AND TOOLS SOFTWARE AND THE DOCUMENTATION BE LIABLE FOR ANY CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT THIS AGREEMENT OR OUT OF THE USE OR INABILITY TO USE SUCH SOFTWARE (SHIPERP SOFTWARE APPLICATIONS AND TOOLS) INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOST DATA, EVEN IN THE EVENT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. (iv) SHALL SHIPERP’ MAXIMUM LIABILITY FOR ALL DAMAGES RELATED TO THE SOFTWARE, SERVICE OR DELIVERABLES PURCHASED HEREUNDER OR OTHERWISE ARISING IN CONNECTION HEREWITH EXCEED THE TOTAL AMOUNT PAID TO SHIPERP PURSUANT HERETO. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.

 

10. PROTECTION OF CONFIDENTIAL INFORMATION. In the performance of its obligations or the exercise of its rights under this Agreement, either Party may gain access to oral, written, printed, graphic, or electronically recorded materials containing confidential and/or proprietary information of the other Party or its affiliates (“Confidential Information”). Confidential Information includes, but is not limited to, information regarding customers, employees, organizational structure, agents, service and sales marketing techniques, prices, and the terms of this Agreement. Each Party acknowledges that such information constitutes valuable property of the other Party and its affiliates and that it will not acquire any interest in such information. Each Party will, and will cause any designee or contractor acting on its behalf to, maintain in confidence and will not, directly or indirectly, disclose or use, either during or after the term of this Agreement, any Confidential Information of the other Party or its affiliates, whether or not it is in written or permanent form, except to the extent necessary to perform services for the benefit of that Party or its affiliates under this Agreement. Upon termination of this Agreement, or at the request of the disclosing Party prior to termination, each of the parties shall deliver to the other Party all material in its possession constituting that Party’s or its affiliates’ Confidential Information.

 

Confidential Information does not include information that: (i) has become publicly known other than as a result of a disclosure by the receiving Party or its representatives; (ii) has been received from a third Party who was not or is not bound by a confidentiality agreement with or other obligation of secrecy to the disclosing Party; (iii) has been approved for release by written authorization of the disclosing Party; or (iv) has been independently developed by the receiving Party without reference to and prior to the receiving Party’s receipt of the Confidential Information.

If a receiving Party is requested or becomes legally compelled or is required by a regulatory body or governmental entity to make any disclosure that is prohibited or otherwise constrained by this Agreement, such receiving Party shall provide the disclosing Party with prompt notice of such request so that the disclosing Party may seek an appropriate protective order or other appropriate remedy. Subject to the foregoing, such receiving Party may furnish that portion of the Confidential Information of the disclosing Party that such receiving Party, upon advice of reputable counsel, is legally compelled or is otherwise required to disclose or else stand liable for contempt or suffer other material censure or penalty; provided that such receiving Party shall use reasonable efforts to obtain reliable assurance that confidential treatment will be afforded any of the information so disclosed.

Without first obtaining the written consent of Customer, ShipERP shall not advertise or publish the fact that ShipERP has furnished or contracted to furnish any products or services to Customer, except as may be required to perform this Agreement.

 

11. INDEMNIFICATION.

 

11.1 By ShipERP. ShipERP shall defend, indemnify and hold harmless Client from and against any claims or actions by a third party alleging that the Developed Products infringe a copyright, patent, trade secret or trademark of said third party (“Intellectual Property Claims”), provided, however, that (i) Client promptly notifies ShipERP in writing of any such Intellectual Property Claims, (ii) ShipERP, at its sole option, shall have sole control of the defense and all related settlement negotiations, providing that ShipERP shall notify Client in advance and seek their agreement to any settlements which may impact Client financially, and (iii) Client shall, if requested by ShipERP at ShipERP’s expense provide ShipERP with reasonable assistance in conducting the defense of such Intellectual Property Claims. Additionally, ShipERP shall indemnify, defend and hold Client harmless from and against any claims or actions by a third party arising from ShipERP’ intentional and/or negligent acts and/or omissions in carrying out its duties hereunder this Agreement.

 

11.2 By Client. Notwithstanding any term herein to the contrary, if Client requests ShipERP to perform services on proprietary products not owned by Client, Client represents and warrants that ShipERP shall have a valid right to perform such services and agrees to hold harmless and indemnify ShipERP from and against any damages, liabilities, losses and expenses (including reasonable attorney’s fees) incurred in connection with any claims, demands, or proceedings made against ShipERP by a third party alleging that ShipERP’s performance of the services infringes upon such third party’s intellectual property rights.

 

12. TRAINING AND MAINTENANCE SUPPORT

 

12.1 Training. ShipERP may provide training for Client’s personnel with respect to the operation of the Implemented ShipERP Software Applications and Tools or Developed Products (“Training”) if so specified in the applicable SOW subject to the terms and conditions for such training as described in the same SOW. Client shall pay for all travel and lodging expenses incurred by ShipERP personnel in connection with the Training, unless otherwise set forth in the applicable SOW when traveling to Client locations(s) are required.

 

12.2 Software Service Support. ShipERP may provide maintenance and support for the ShipERP Software Applications and Tools if so specified in a Software Subscription Agreement or applicable SOW.

 

13. NON-SOLICITATION

 

13.1 Non-Solicitation by Client. For the term of this Agreement and for a period of six (6) months thereafter, Client shall not, without ShipERP’s prior written consent, directly or indirectly solicit as an employee or contractor any person or entity employed or contracted by ShipERP or any authorized representative of ShipERP who is or was involved in providing Services or the Deliverables to Client during the term hereof.

 

13.2 Non-Solicitation By ShipERP. For the term of this Agreement and for a period of six (6) months thereafter, ShipERP shall not, without Client’s prior written consent, directly or indirectly solicit as an employee or contractor any person or entity employed or contracted by Client with whom ShipERP had contact during the term hereof in the course of providing Services or Deliverables to Client. Nothing contained in Sections 13.1 or 13.2 shall preclude a Party from offering employment to anyone who responds to a general advertisement seeking candidates for employment.

 

14. TERM AND TERMINATION

14.1 Term. The term of this Agreement shall commence on the date first set forth above and continue for a term of One (1) Year. It may be renewed prior to expiration for another term by written agreement of the Parties.

 

14.2 Termination by Client for Breach by ShipERP. If ShipERP breaches any material obligation hereunder, Client may terminate this Agreement by giving written notice to ShipERP. Such termination shall be effective twenty (20) business days after receipt of notice unless ShipERP cures such breach within the 20-day period.

 

14.3 Termination by ShipERP for Breach by Client. If Client breaches any material obligation hereunder, ShipERP may terminate this Agreement by giving written notice to Client. Such termination shall be effective twenty (20) business days after receipt of notice unless Client cures such breach within the 20-day period. Notwithstanding the foregoing, the aforesaid 10-day cure period shall not apply to a breach by Client for non-payment.

 

14.4 Bankruptcy Events. Unless otherwise agreed between the parties in writing, this Agreement shall terminate without notice if: (a) either party makes any assignment for the benefit of its creditors or makes any compositions with its creditors; (b) any actions or proceedings under any bankruptcy or insolvency law are taken by or against either party; (c) either party shall pass a resolution for its voluntary or compulsory liquidation; or (d) either party suffers execution to be levied against any of its goods, chattels or other assets.

 

14.5 Effect of Termination. Upon termination of this Agreement, each of the parties shall return or destroy, at the direction of the other party, all Confidential Information of the other party. Termination of this Agreement shall not affect any rights or obligations accrued prior thereto. Sections 3, 6, and 8 through 18 shall survive termination of this Agreement.

 

15. GOVERNING LAW; JURISDICTION

 

15.1 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law rules. In the event of any dispute arising between the parties in connection with the rights or obligations of either party under this Agreement, the dispute shall be resolved before a single arbitrator in accordance with the applicable rules of the Judicial Arbitration Mediation Service “JAMS”, Alternative Dispute Resolution Services, (“ADR”) or any other dispute resolution agency mutually agreed upon by the Parties located in Los Angeles, California.

The parties expressly reject application of the United Nations Convention on the International Sale of Goods.

 

15.2 Jurisdiction. The parties consent to the personal and exclusive jurisdiction of California Federal and State Courts, as applicable, in the County of Los Angeles.

 

16. ASSIGNMENT. This Agreement shall be binding upon ShipERP’s and Client’s successors or permitted assigns. Any party (the “Seller”) may assign its rights hereunder to the purchaser or surviving entity (the “Purchaser”) in any stock, assets, merger or other transaction in which all or substantially all of the business of such party is transferred, regardless of the form such transaction may take; provided that the Purchaser assumes all of the obligations of the Seller hereunder and the Seller hereunder remains jointly and severally liable for such obligations. Client understands and agrees that ShipERP shall solely direct the provision of Services and Deliverables and may subcontract certain portions thereof to third parties at any time during the term of the Agreement with prior notice and written agreement of Client Except as expressly authorized in this Section 16, neither this Agreement nor any right hereunder may be assigned, licensed, sublicensed, sold, mortgaged, pledged or otherwise disposed of by any party in whole or part without the prior written consent of the other party. Notwithstanding the foregoing, in the event Client decides to divest an operating segment or subsidiary (“Divested Entity”), ShipERP agrees that if requested by Client, such Divested Entity shall be permitted to continue to use Services and/or Deliverables following the closing of the divestiture event so long as said Divested Entity either executes a new agreement with ShipERP under terms and conditions substantially similar to those contained herein or agrees in writing to be bound by this Agreement as in force at such time.

 

17. NOTICE. All notices shall be in writing and sent by first class mail or overnight mail (or courier), or transmitted by facsimile (if confirmed by such mailing), to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party.

If to ShipERP, to:

ERP Integrated Solutions, LLC dba ShipERP,

5000 Airport Plaza Dr.

#230, Long Beach, CA 90815

Attention: General Counsel

Fax: 562-394-0648

And, if to Client, to:
Company Name:	Client Name Listed on Order Form
Company Address:	Client Address Listed on Order Form

18. INSURANCE. Throughout the term of the indemnification obligations set forth herein, ShipERP shall carry, at its sole cost and expense, commercial general liability insurance on a form offering coverages equal to ISO form CG 0001 10 01, including product liability and completed operations coverage and broad form vendors and contractual liability endorsements, in the amount of not less than $2,000,000 combined single limit per occurrence, without any portion of such insurance designated as self-insurance/deductible and with such insurance to be primary over and above any other insurance available to Client. Such coverage shall be on a date of occurrence form, shall name Client as an additional insured, and shall provide for a waiver of subrogation in favor of Client. The insurance coverage required by this Section shall be provided by an insurance company with a rating of at least “A VII” in Best’s Insurance Guide. ShipERP shall deliver to Client, within five business days of the Effective Date, an ACORD certificate of insurance showing Client as an additional insured under the foregoing insurance coverage and providing that such insurance shall not lapse or be canceled or modified until Client has been given 30 days’ prior written notice of the intended cancellation or modification. Within 60 days after the Effective Date, ShipERP shall deliver to Client copies of the endorsement naming Client as an additional insured. In the event that ERPIS does not deliver copies of such endorsements, Client shall have the right to withhold payments due to ShipERP.

 

19. GENERAL. Each of the parties shall comply with all provisions of the export control laws of the United States and other relevant countries as such laws currently exist and as they may be amended from time to time, with respect to any export of the Deliverables. Client assumes and agrees to pay all export and import duties, fees and other charges (excluding only expenses if pre-agreed in writing in connection with obtaining necessary export license authorizations hereunder), and all costs and charges for shipping, brokerage, handling and insurance of Services and/or the Deliverables related thereto. In no event shall any party be liable for any delay or failure to perform under this Agreement which is due to causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, strike, war, terrorist acts, civil disturbances, civil or military authority, unavailability of products or materials that are not reasonably available from alternate sources, acts of God or public enemy. Performance times under this Agreement shall be considered extended for a period of time equivalent to the time lost because of any delay, which is excusable hereunder. This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. This Agreement may be modified only by a written instrument signed by an authorized representative of each of the parties. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision shall be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision. To the extent that any provision of any Exhibit, which has been made a part of this Agreement, directly conflicts with any term or condition of this Agreement, the terms of the Exhibit shall be deemed the controlling provision.
20. This Agreement shall become effective upon its execution by both ShipERP and Client and execution of the ShipERP Software Subscription Agreement between ShipERP and Client by both ShipERP and Client.

EXHIBIT A

ShipERP Product List

ShipERP Software Applications and Tools. ShipERP is a provider of cloud-based shipping software solutions. These applications are available to the Client for subscription licensing. If Client elects to purchase a subscription to ShipERP Software Applications and Tools then in consideration of Client’s payment of the subscription Fee and subject to the terms and conditions set forth in the Software Licensing Agreement, ShipERP hereby grants Customer and its affiliates a non-exclusive, royalty-free, worldwide subscription to use the Software and any Extensions thereto created by ShipERP, exclusively for their business purposes, and to use the Documentation solely in connection with their use of the Software for a Subscription Fee. All products are listed on https://www.shiperp.com/. In the event that there is a question, conflict or challenge regarding ShipERP products the Exhibit will be referenced first and if products are not listed there then the website will be referenced. Products listed on the website will supersede products listed in Exhibit A.

1. INTRODUCTION

A. This ShipERP Software Subscription Agreement (“Agreement”) is between ERP Integrated Solutions, LLC dba ShipERP (“ShipERP”), a corporation incorporated under the laws of the State of California with its principal place of business at 5000 Airport Plaza Dr. #230, Long Beach, CA 90815 and the customer that has purchased a subscription to the Service (“Client”). Each of ShipERP and Client is a “Party” and together they are the “Parties.”

This Agreement applies only to the Service listed in the applicable Order Form or any amendment thereto. ShipERP reserves the right to make other ShipERP software or services available under separate agreements. This Agreement includes any attachments and referenced policies, including without limitation the applicable ShipERP Support Policy and Order Form entered into between the Parties.

From time to time, ShipERP may modify this Agreement. Unless otherwise specified by ShipERP, changes become effective for existing subscription Clients upon renewal of the then-current Subscription Term. Client may be required to click to accept the modified Agreement before using the ShipERP Service in a Renewal Subscription Term, and in any event, continued use of the Service during the Renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the Renewal Subscription Term begins.

IMPORTANT: IF CLIENT DOES NOT AGREE TO THE TERMS AND CONDITIONS, CLIENT MAY NOT ACCESS OR USE THE SERVICE. BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ANY PORTION OF THE SERVICE, CLIENT IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

B. ShipERP develops and markets the ShipERP Cloud Software Service.

C. Client desires to purchase from ShipERP and ShipERP desires to sell to Client a Service to use and reproduce the Software and Documentation for the internal business purposes of Client and its Affiliates (defined below). 

 

THEREFORE, the Parties agree as follows:

2. DEFINITIONS.

A. “Acceptance Date” means the date when the Software is deemed to have been accepted by Client, which shall occur when Client signs-off on the Software Service is provisioned (“Software Sign-off”) or thirty (30) days after completion of the Software Service is provisioning unless otherwise notified by Client of a Software Error as defined below, whichever is earlier.

B. “Affiliate” means a person or corporation that directly, or indirectly through one or more persons and/or corporations, Controls, is Controlled by, or is under common Control with, the specified person or corporation.

C. “Cloud” means the use of cloud computing to provide on-demand availability of computer system resources, especially data storage and computing power, without direct active management by the Client.

D. “Consulting Services” means any mutually agreed upon consulting services performed by ShipERP under the terms of this Agreement and any applicable Order Form or Statement of Work.

E. “Control” means the possession, directly or indirectly, of the authority to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the generality of the foregoing, for purposes of this definition of “control” (a) one person shall be deemed to be under common control with another person if a majority of members of the board of directors or other governing board of one of them are also members of the board of directors or other governing board of the other, (b) one person shall be deemed to control another person if the first person has the power to appoint or remove a majority of the directors of the second person, and (c) a Client employee or contractor, and any entity controlled by or under common control with Client, shall be deemed to be an Affiliate Client.

F. “Delivery Date” shall have the meaning of the day in which the Software and supporting documentation is delivered to Client.

G. “Documentation” means all user manuals and other written material created by ShipERP to describe the functionality or assist in the use of the Software.

H. “Effective Date” means the date when this Agreement is fully executed by both parties.

I. “Extension” means an addition to the Software’s API which does not require a Modification to the core application.

J. “Freight/Shipping Service Providers” means the use of small parcel, LTL and TL shipping providers to ship products.

K. “Go-Live” means the date which Software is used in a Production environment.

L. “Modification” means a change to the Software which changes the source code.

M. “Order Form” means a written document, executed by the Parties, pursuant to which Client orders ShipERP Products or Consulting Services.

N. “Person” is a natural person, corporation, partnership, Limited Liability Company, joint venture, trust, unincorporated organization or any legal entity.

O. “Production” means an environment that supports the processing of business transactions through the use of technology. This environment is used to facilitate live business transactions with vendors and customers.

P. “Service” means the products and services purchased by Client pursuant to the Order Form(s) and made available by ShipERP as a subscription service subject to this Agreement.

Q. “Statement of Work” or “SOW” means each document executed by both ShipERP and Client which specifies Services to be performed and the Deliverables to be provided to Client by ShipERP, and any other performance requirements mutually agreed to between the Parties in writing. Any SOW may amend this Master Service Agreement if authorized representatives of both Parties agree in writing.

R. “Software” means the ShipERP™ software and associated modules in the Cloud that is delivered by ShipERP in order to provide a complete Cloud shipping solution.

S. “Software Error” means an error resulting from bad code in the application which is producing an erroneous result.

T. “Software Sign-off” means that Software has been successfully provisioned for Client and the Client has signed the Software Sign-off Document.

U. “Subscription Fee” means the fee to be paid by Client to ShipERP under Paragraph 5 as consideration for the license granted under this Agreement and the right to use the Software and the Documentation.

V. “Subscription Term” means the set term designated herein or in the applicable Order Form.

W. “Support” means the support, assurance, new releases and related maintenance services for the Service described in the Support Documentation and includes the Support Documentation and all other associated Material provided by ShipERP in relation to that support. “Material” means material in any form, including online, including documents, reports, products, information, data, source code, and methodologies.

X. “Users” means the individuals who are authorized by Client to have access to the Service.

 

3. GRANT OF SUBSCRIPTION LICENSE

A. In consideration of Client’s payment of the Subscription Fee and subject to the terms and conditions set forth in this Agreement, ShipERP hereby grants Client and its Affiliates a non-exclusive, royalty-free, license to use the Software thereto within created by ShipERP, exclusively for their business purposes they licensed the Software for, and to use the Documentation solely in connection with their use of the Software.

B. In addition, ShipERP grants Client and its Affiliates the right to make Extensions to the Software API for their business purposes and is to be used only by the Client and its Affiliates.

C. Client shall have no right to resell or sublicense the Software, the source code or any Extensions made to Software API without the express written permission of ShipERP. Client may not allow any third parties other than its Affiliates to access Extensions and will take all reasonable steps to protect the confidentiality of the Extensions from disclosure to third parties.

D. ShipERP owns and retains all right, title and interest in and to the Software, Documentation, and any and all related materials.

 

4. ITEMS PROVIDED BY ShipERP

A. ShipERP shall furnish Client with access to the Software Service (“Delivery Date”). Software Service access and Documentation will be delivered electronically to Client. The Documentation will be made available as machine-readable text files suitable for printing.

B. ShipERP shall furnish to Client one copy of the Documentation. Upon request, at ShipERP’ option, Documentation will be made available online. Client may copy or otherwise reproduce any Documentation, provided that all copyrights and other proprietary notices are reproduced substantially similar to the originals.

C. Client acknowledges and agrees that it has independently verified that the Software Service is appropriate for the purposes for which the Client intends to use it.

 

5. SUBSCRIPTION, RENEWAL AND PAYMENT TERMS

In consideration for the Software Service granted to Client and its Affiliates under this Agreement, Client shall pay ShipERP a Subscription Fee in accordance to the terms stated herewith in and amount set forth the Order Form found in Appendix A. Terms are as followed:

A. Subscriptions. Unless otherwise indicated on an Order Form, Software Service(s) shall automatically renew for successive annual terms unless either Party provides prior written notice of non-renewal to the other Party at least forty-five (45) days prior to the end of the then-current subscription period. Subscriptions may not be cancelled in whole or in part during any subscription period. Subscription Fees are subject to increase based upon prevailing rates at the time of renewal.

B. Payment Terms.

i. Payment for the Software and associated source code is due net thirty (30) days after invoice date. Payment for professional services is due net thirty (30) days from invoice date.

ii. Invoices for any Extensions to the Software API made by ShipERP shall be issued no earlier than the date as defined by the SOW for the Extension. All SOW’s will be part of the Master Services Agreement (MasterServicesAgreement-MSA001) which will accompany the Software Subscription Agreement (SubscriptionAgreement-SA001).

C. Late Payment Fee.

i. All amounts not paid within thirty (30) days of the date on which payment is due shall bear the charge for late payment fees of twelve percent (12%) per annum or the maximum rate permitted by law charged on delinquent amounts.

 

6. TAXES

A. In addition to other amounts payable under this Agreement, Client shall pay any and all customary and applicable or other legally imposed taxes or fees on, or withholding currently or subsequently imposed on, Client’s use of the Software Service or the payment of the Subscription Fee to ShipERP excluding taxes imposed on or measured by ShipERP’ income (“Taxes”). If ShipERP is required to pay said Taxes levied or imposed by reason of this Agreement. Client shall, upon demand and in accordance with the payment terms in Paragraph 5 above, pay to ShipERP an amount equal to such tax(es) actually paid or required to be collected or paid by ShipERP.

 

7. INTELLECTUAL PROPERTY

A. Client acknowledges and agrees that except for its rights set forth herein, it obtains no ownership right in the Software, Service and Documentation under the terms of this Agreement, and that ShipERP has and retains all right, title, interest and ownership in and to the Software, Service, Documentation and other material licensed or provided to Client under the terms of this Agreement, and in and to any copies or updates of the Software, Documentation or material if they are made by ShipERP.

B. Under no circumstance will Client or its affiliates ever have the right to remarket, sell, resell or sub-license the Software.

C. Client acknowledges that the Software, the Documentation, and material under this Agreement including Extensions made by ShipERP constitute proprietary information and trade secrets of ShipERP, whether or not any portion of the Software, the Documentation or material is or may be the subject of a valid copyright or patent.

D. Any authorized copies of the Software, Extensions or Documentation made by Client shall contain a reproduction or equivalent of the copyright notice or other proprietary markings appearing on the Software and Documentation delivered by ShipERP.

E. No license is granted with respect to the Software except as expressly provided in this Agreement. All other rights are reserved by ShipERP.

F. ShipERP shall indemnify, defend and hold harmless Client with respect to any claim or action brought against Client by a Third Party to the extent that it is based on a claim that the Software, Extensions or Documentation supplied by ShipERP under this Agreement, when used by Client as authorized under this Agreement, infringes any proprietary rights of any Third Party (including, but not limited to, patent, copyright or trade secret) provided that Client promptly notifies ShipERP in writing of any such claim and allows ShipERP to control the defense, prosecution and/or settlement of such claim, and Client shall cooperate with ShipERP at ShipERP’s expense as required. In the event an injunction is sought or obtained against Client’s use of the Software or Documentation as a result of any such infringement claim, ShipERP may, at its sole option and expense, replace or modify the affected Software or Documentation so that it does not infringe provided that the functionality of the Software does not change in any material respect. This indemnity does not apply to any claim of infringement to the extent caused by a Client Extension.

 

8. LIMITED WARRANTIES

A. ShipERP hereby represents and warrants to Client that:

i. ShipERP is the sole owner of the Software and the Documentation and has the right to grant Client the license to use the Software and the Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of any Person (including, but not limited to, patent, copyright or trade secret) and without the consent of any other Person. If ShipERP creates any Extension to the Software, it shall be the sole owner of the Extension and any Documentation relating thereto and it shall have the right to grant Client the license to use the Extension and the Documentation relating thereto in the manner and for the purposes set forth in this agreement without violating any rights of any person or without the consent of any other person.

ii. Neither the Software nor any Extension thereto created by ShipERP contains or will contain any known “computer viruses” or “time bombs” as those terms are commonly understood in the information processing industry. Specifically, neither the Software nor any Extension thereto created by ShipERP contains or will contain any known code or instructions (including any code or instructions provided by third parties) that may be used to access, modify, delete, damage, or disable any computer, associated equipment, computer programs, data files or other electronically stored information operated or maintained by Client or its Affiliates. In the event that ShipERP receives notice or otherwise becomes aware that a computer virus or time bomb has been incorporated into the Software through no fault of Client, ShipERP shall (i) promptly notify Client of the existence thereof (unless Client gave ShipERP notice of the existence thereof), (ii) utilize its best efforts to isolate the computer virus or time bomb and assist Client in destroying the effects thereof, and (iii) as soon as reasonably practicable, forward to Client a version(s)/copies of the Software or Extension that do not contain the computer virus or time bomb. In the event that the virus or time bomb is determined to have occurred due to the actions of Client or Client Extensions, Client agrees to reimburse ShipERP for any related services.

iii. In providing the products and services to Client under this Agreement, ShipERP shall be in compliance with all applicable federal, state and local laws, ordinances and regulations. In the event that any of the products or services supplied pursuant to this Agreement are found to be in noncompliance with such laws, ordinances, orders, and/or regulations, ShipERP shall bear the costs of conforming to same.

B. EXCEPT FOR THE EXPLICIT REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT, THE SOFTWARE AND DOCUMENTATION HEREUNDER ARE PROVIDED “AS IS”, AND SHIPERP MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.

 

9. SOFTWARE MAINTENANCE AND SUPPORT

A. ShipERP shall provide on-going support, carrier compliancy and maintenance to the Client for the Software Service, commencing on the Effective Date (the “Maintenance Support Subscription Period”) and concluding on the last day of the Subscription Period as defined in the Order Form found. Support shall consist of ShipERP’s correction of any failure (“Error”) by the Software to achieve in any material respect the required functionality. Work to correct an Error shall be performed by ShipERP at no additional cost to Client as long as the Software Subscription Fee has been paid for the current Maintenance Support Subscription Period.

B. If Client performs any Extensions, enhancements or other modifications then those changes will not be subject to standard maintenance. Maintenance shall only cover Software and Extensions as it was defined by Client and ShipERP in all SOW documents that are amended to the Master Services Agreement (MasterServicesAgreement-MSA001) or the ShipERP Software Licensing Agreement (SubscriptionAgreement-SA001).

C. Support shall be available by phone, web portal and e-mail, 24 hours a day seven days a week. ShipERP shall respond to requests for support as follows:

1. High (Production Down) – Immediate Response followed by active resolution response

2. Medium (Affecting Production Processes) – Response in 2 hours; resolution response follows

3. Low (Non-Production Issues) – Response in 4 hours; resolution response follows

After responding to a request for support, ShipERP shall use best commercial efforts to correct the Error promptly.

D. Provided that Client is not in breach of this Agreement, ShipERP will, upon written request, provide professional services for Extensions to the Software API requested by Client at ShipERP’s Current hourly rate for professional services. Prior to commencing work on any Extensions, ShipERP and Client shall mutually agree upon a written description (“Statement of Work”) of the functionality to be achieved by such Extensions. ShipERP retains all right, title and interest in any modifications to the Software API or the source code for the Software made by ShipERP.

E. In consideration for the Software Maintenance which is included with the paid Subscription Fee and provided to Client and its Affiliates under this Agreement, Client shall pay ShipERP a Subscription Fee in accordance to the amount set forth in the Order Form.

F. Freight/Shipping Service Providers.

i. The Software licensed hereunder requires integration with various Freight/Shipping Service Providers (“Carriers”). The various Carriers may have their own End-user Licensing Agreement which is not covered in this Agreement. ShipERP makes no representations or warranties as to the terms of any license or the use of any of the services provided by the Carriers. Client is responsible for establishing a relationship with the Carriers as it relates to shipping product with them. Client is also responsible for all financial commitments as it relates to shipping the products and the services that are provided by the Carriers. ShipERP has no responsibility in this regard.

ii. Carriers, Freight Forwarders or 3rd Party Freight Brokers that are not already integrated with the Software will require integration which will be covered with a subscription fee of one thousand US dollars ($1,000 USD) annually plus any setup charges (Configuration, setup, testing etc.). However, as new Carriers, Freight Forwarders or 3rd Party Freight Brokers are added to the Software Service over time they will be exposed in the software to Client and available for general use. This provides Clients with a steady stream of carriers that they can integrate with. Current list of integrated carriers is listed on the ShipERP website (https://shiperp.com/carriers/).

 

10. TERMINATION

A. Either Party shall have the right to terminate this Agreement in the event that the other Party commits material breach of its obligations hereunder, or upon the occurrence of one of the following: (i) a petition of bankruptcy is filed by or against a Party, (b) a Party is unable to pay its debts as they become due, or (c) a Party makes a general assignment for the benefit of creditors. Intent to terminate shall be made by written notice setting forth the details of the breach. Termination shall become effective thirty (30) calendar days from the date that the notification of intent to terminate was given, unless the breaching Party has cured the breach prior to the end of that thirty (30) calendar day period.

B. If this Agreement is terminated due to a material breach by Client of its obligations under this Agreement, ShipERP may, at its sole discretion and in addition to all other rights and remedies available at law, revoke the license and the rights granted under Paragraph 3 of this Agreement. If ShipERP notifies Client in writing that its subscription license which includes support has been revoked, Client will, within ninety (90) days of such notice,: (i) discontinue all use of the Software; (ii) remove all copies of the Software, Extensions, and Documentation contained in any computer memory or data storage device under the control of Client; (iii) destroy or deliver to ShipERP, at ShipERP’ option, all ShipERP’ confidential information and intellectual property, and certify to ShipERP in writing that it has complied with the requirements of this Paragraph 10.B.

C. If this Agreement is terminated due to a material breach by ShipERP of its obligations under this Agreement, Client may, at its sole discretion and in addition to all other rights and remedies available at law, terminate this agreement which will in turn revoke the license and the rights granted under Paragraph 3 of this Agreement. Upon notification of termination from Client in writing, Client will, within ninety (90) days of such notice,: (i) discontinue all use of the Software Service; (ii) remove all copies of the Software, Extensions and Documentation contained in any computer memory or data storage device under the control of Client; (iii) destroy or deliver to ShipERP, at ShipERP’ option, all ShipERP’ confidential information and intellectual property, and certify to ShipERP in writing that it has complied with the requirements of this Paragraph 10.B.

 

11. ASSIGNMENT AND DELEGATION

A. Neither Party may sell, transfer, assign, delegate, or subcontract any rights or obligations under this Agreement without the prior written consent of the other Party. Consent shall not be unreasonably withheld.

B. Notwithstanding Paragraph A above, if a Party sells or transfers to a single entity all or substantially all of its business to which this Agreement relates or consolidates the entity with an Affiliate, that Party may, upon written notice to the other Party, assign or delegate its rights and obligations, under this Agreement to that entity.

 

12. GENERAL

A. Applicable Law. This Agreement shall be governed by the laws of the State of California.

B. Modification. This Agreement may not be modified or amended except by writing signed by both parties.

C. Entire Agreement. This Agreement, including its Attachments and Documents constitute the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants or undertakings other than those expressly set forth in this Agreement.

D. Severability. If any provision of this Agreement is found to be invalid by any court of competent jurisdiction, that portion shall be construed to reflect the Parties’ original intent, and the balance of this Agreement shall remain in full force and effect.

E. Jurisdiction and Venue. Client and ShipERP each expressly agree that jurisdiction for any suit or action brought under this Agreement resides in the federal and state courts of the State of California, venue in the county of Los Angeles California.

F. Mediation. The Parties agree to mediate any dispute or claim arising between them out of this Agreement or any resulting transaction before resorting to arbitration or court action. Mediation fees, if any, shall be divided equally among the Parties involved. If any Party commences an arbitration or court action based on a dispute of claim to which this provision applies without first attempting to resolve the matter through mediation, then that Party shall not be entitled to recover attorneys’ fees, even if they would otherwise be available in any such arbitration or court action.

G. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Los Angeles County. The arbitration shall be administered by JAMS in Los Angeles, CA pursuant to its Comprehensive Arbitration Rules and Procedures. At the request of any Party, the arbitrators, attorneys, parties to the arbitration, witnesses, experts, court reporters, or other persons present at the arbitration shall agree in writing to maintain the strict confidentiality of the arbitration proceedings. Arbitration shall be conducted by a single, neutral arbitrator, or, at the election of any Party, three neutral arbitrators, appointed in accordance with the rules of JAMS Comprehensive Arbitration Rules and Procedures. The award of the arbitrator(s) shall be enforceable according to the applicable provisions of the California Code of Civil Procedure. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing Party, provided that the prevailing Party is in compliance with Paragraph 12.F above. The arbitrator(s) may award damages pursuant to this Agreement and/or permanent injunctive relief, but in no event shall the arbitrator(s) have the authority to award consequential, punitive or exemplary damages. Notwithstanding the foregoing, a Party may apply to a court of competent jurisdiction for an injunction, or other provisional remedy pending final determination of a claim through arbitration in accordance with this paragraph.

H. Attorneys’ Fees: In the event that any action, suit, counterclaim, appeal, arbitration, or mediation is instituted to enforce the provisions of this Agreement, the prevailing Party will be entitled to recover attorneys’ fees and costs, provided that the prevailing Party is in compliance with Paragraphs 12.F and 12.G above. “Prevailing Party” within the meaning of this paragraph includes, without limitation, a Party who agrees to dismiss an action on the other Party’s payment of the sums allegedly due or performance of the covenants allegedly breached, or who obtains substantially the relief sought by it.

I. Notices. All notices and other communications required or permitted hereunder (“Notice”) shall be in writing and sent by personal delivery or reputable overnight delivery service, addressed as follows:

 

If to ShipERP, to:

ERP Integrated Solutions, LLC dba ShipERP

5000 Airport Plaza Dr. #230, Long Beach, CA 90815

Attention: General Counsel

Fax: 562-394-0648

 

And, if to Client, to: 

Company Name: Client Name Listed on Order Form

Company Address: Client Address Listed on Order Form

 

Notice shall be deemed received or given on the earlier of the day of personal delivery or the business day after mailing by overnight delivery service. The address to which Notice shall be given may be changed from time to time by Notice served in the manner set forth above.

 

J. Effectiveness of Agreement. This Agreement shall become effective upon execution by both Parties.

K. Waiver. Failure or delay on the part of either Party to exercise any right, remedy, power or privilege under this Agreement shall not operate as a waiver of any other right, remedy, power or privilege. A waiver, to be effective, must be in writing and must be signed by the Party making the waiver. A written waiver of a default shall not operate as a waiver of any other default or of the same type of default on a future occasion.

L. Independent Contractor. It is understood and agreed that in the performance of its obligations hereunder, ShipERP shall at all times act in the capacity of an independent contractor and not as an employee, partner, agent, joint venturer, or principal of Client.

M. This Agreement shall become effective upon its execution by both ShipERP and Client and execution of the Master Services Agreement between ShipERP and Client by both ShipERP and Client.