This Agreement (the “Agreement”) is entered into by and between Kuberas Inc., with offices at 22382 Avenida Empresa, Rancho Santa Margarita, CA 92688 (“Kuberas”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you click the “I Agree” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button below. This Agreement governs Customer’s access to and use of the Services defined below.
Services
1.1. Generally. Kuberas will provide services to the Customer during the Term of this Agreement, including but not limited to OrderCup services (OrderCup). Kuberas will provide Customer with a password for accessing OrderCup.
1.2. Facilities. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Kuberas stores and processes its own information of a similar type. Kuberas has implemented systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data.
1.3. Modifications.
a. To the Services. Kuberas may make modifications to the Service, or particular components of the Service, from time to time.
b. To Applicable Terms. Kuberas may make material change to its Terms from time to time. Kuberas will notify Customer by either sending an email to the Email Address on file or alerting Customer via an online notice. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify Kuberas via the Support link within thirty days after receiving notice of the change. If Customer notifies Kuberas as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current term for the affected Services. If the affected Services are renewed, they will be renewed under Kuberas’ then current URL Terms.
1.4. Customer Domain Name Ownership. Prior to providing the Services, Kuberas may verify that Customer owns or controls the Customer Domain Names. If Customer does not own, or control, the Customer Domain Names, then Kuberas will have no obligation to provide Customer with the Services.
1.5. Privacy Policies. Kuberas will comply with the Privacy Policy. Changes to the Privacy Policy and the Privacy Notice will be made as stated in the applicable policy.
1.6. Ads.
a. Kuberas may serve Ads to its users or to viewers of its content and communications.
b. Ads will comply with generally accepted commercial guidelines for serving ads. Kuberas may contact end Users to inform them of changes to their order or provide them with tracking numbers of relevant packages. Any ad revenue that may be generated will not be subject to any revenue sharing.
1.7. Data Transfer. As part of providing the Service, Kuberas may store and process Customer data in the United States or any other country in which Kuberas or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer data. In addition, Kuberas employees may access a Customer Account or download Customer data to their workstations for the purposes of diagnosing and resolving Customer issues or Service defects.
Customer Obligations
2.1 Compliance with the Agreement. Customer will comply with the Agreement, and will use best efforts to ensure its End Users do the same. Kuberas may make additional applications, features or functionality available from time to time through the Service, the use of which may be contingent upon Customer’s agreement to additional terms. Customer agrees that its use of the APIs or the Domain Service is subject to its compliance with the API Terms of Use, or Domain Service Terms, as applicable.
2.2 Privacy. Customer agrees to protect the privacy rights of its End Users under all applicable laws and regulations. Customer is responsible for obtaining any necessary authorizations from End Users or third parties to enable Kuberas to provide the Services.
2.3 Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Service, and to terminate any unauthorized use. Customer will promptly notify Kuberas of any unauthorized use of, or access to, the Services of which it becomes aware.
Service Term
3.1 Term. The Term of this Agreement is 30 days, renewed automatically for 30 days unless terminated by Kuberas or Customer. Kuberas may terminate its services to a User at any time with a 30-day notice. Kuberas may revise its rates with at least thirty days prior written notice to Customer, including by email, effective for the following term.
3.2 Automatic Renewal. The default setting for the Services is auto renewal for all End User Accounts. If the automatic renewal setting is enabled, after the initial term each End User Account will automatically renew on each anniversary of the Service Commencement Date for an additional one month term.
Payments
4.1 Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice.
a. Credit Card Orders. Fees for Credit Card orders are due immediately upon order placement. Kuberas will bill the credit card provided via the Order Page for all applicable Fees when due. If credit card authorizations or charge attempts are declined, Kuberas may immediately disable or cancel the Service, in its sole discretion.
b. Invoice Orders. Fees for orders where Kuberas issues an invoice are due upon Customer’s receipt of the invoice, and are considered delinquent thirty days after the date of the applicable invoice.
4.2 Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Kuberas in collecting delinquent amounts, except where such delinquent amounts are due to Kuberas’s billing inaccuracies.
4.3 Taxes. Customer is responsible for any Taxes, and Customer will pay Kuberas for the Services without any reduction for such amounts. If Kuberas is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Kuberas with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Kuberas, Customer must provide Kuberas with an official tax receipt or other appropriate documentation to support such payments.
Refunds
5.1 Refunds on Monthly Subscription Fees:
All subscription fees are to be paid in advance and are earned when paid. Kuberas does not charge cancellation fees, and does not provide any prorated refunds for early service termination.
5.2 Refunds on discarded USPS postage:
If you use OrderCup to ship USPS, the “USPS Label Server” service allows you to print USPS shipping labels with built-in PC postage by directly communicating with USPS, without having to subscribe to software from third parties such as Stamps.com, etc. USPS label Server works like a postage meter, so you purchase postage using your credit card, and a balance will be maintained in your USPS Label Server account at OrderCup. When you void a shipping label generated via USPS label Server, you are entitled to a refund for that postage amount. This refund is initiated by a “Refund Request” from you. OrderCup initiates that process on your behalf automatically. The Refund Request is administered and processed by Endicia, and typically takes about 10 business days to process. Once your Refund Request is processed and accepted by Endicia, your Label Server account will automatically increase to reflect the refund. Thus, most of the time, the refund and re-credit process back to your account is automatic. However, in certain cases (e.g. when a Delivery Confirmation or Tracking Number is not printed on the shipping label), the Refund Request needs to be backed by sending the paper shipping label to Endicia via US mail (Physical Proof) in order to obtain the refund. In such cases, Kuberas will mail the discarded label to Endicia on your behalf, saving you the effort. If everything goes smoothly, you will once again see your account automatically credited for the refunded amount once Endicia has processed the Refund Request. Since all refunds are processed and approved by Endicia, you agree to hold Kuberas harmless for any liability related to Refund Requests.
5.3 Refunds for Service Guarantees, Service Failures and Undeliverable packages:
You agree that Kuberas is not liable for service guarantees, service failures or undeliverable packages by any of the carriers supported by OrderCup, and that you will take up such matters directly with the carrier in question.
Technical Support Services
6.1 By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s, End Users’ or Kuberas’ use of the Service. Customer will use commercially reasonable efforts to resolve issues brought to its attention on its own.
6.2 By Kuberas. If Customer cannot resolve a support issue, then Customer may escalate the issue to Kuberas in accordance with the applicable TSS Guidelines. Kuberas will respond in accordance with the applicable TSS Guidelines.
Suspension
7.1 Of the Services by Kuberas. If: (i) Customer materially violates this Agreement; (ii) Kuberas provides Customer with commercially reasonable notice of this violation (which may be by email to the Notification Email Address); (iii) Kuberas uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to Kuberas’ reasonable satisfaction, then Kuberas reserves the right to Suspend administrative access to the Service, or to particular components of the Service. If, after all of the foregoing, Customer still has not cured a violation within thirty days of the commencement of a suspension under this Section, then Kuberas may immediately terminate the Services for cause.
7.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Kuberas may automatically Suspend the offending use. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If Kuberas Suspends an End User Account for any reason without prior notice to Customer, at Customer’s request, Kuberas will provide Customer the reason for the Suspension as soon as is reasonably possible.
Confidential Information
8.1 Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
8.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
8.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
Intellectual Property Rights
Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Kuberas owns all Intellectual Property Rights in its Services.
Restrictions on Use
Unless Kuberas specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) alter the Service Pages; (b) alter information transmitted through the Services to End Users (except as required to comply with the terms of this Agreement or commercially reasonable internal policies of Customer); (c) share content or documentation provided by Kuberas to Customer as a part of Kuberas’ provision of the Services with any third party; (d) except as expressly authorized in the Agreement, sell, resell, lease, or the functional equivalent, the Services to a third party; (e) attempt to reverse engineer the Services or any component of the Services; (f) attempt to create a substitute or similar service through use of, or access to, the Services; or (g) use the Services for High Risk Activities.
Publicity
Customer hereby consents to Kuberas’s inclusion of Customer’s name in a customer list, but only if Customer is not the only customer appearing on the list. Customer explicitly grants permission for Kuberas to use Customer’s name for legitimate publicity purposes.
Representations and Disclaimers
12.1 Representations. Each party represents that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
12.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. ORDERCUP MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE.
Termination
13.1 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
13.2 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately; (ii) Kuberas will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at Kuberas’ then-current rates for the applicable Service; and (iii) upon request Customer will destroy all Confidential Information of Kuberas.
Indemnification
14.1 By Customer. Customer will indemnify, defend, and hold harmless Kuberas from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding Customer or End User Data.
14.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Limitation of Liability
15.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
15.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO ORDERCUP DURING THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
15.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
Miscellaneous
16.1 Notices. All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
16.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
16.3 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
16.4 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
16.5 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
16.6 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
16.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
16.8 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
16.9 Governing Law. This Agreement is governed by California law, excluding that state’s choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN ORANGE COUNTY, CALIFORNIA.
16.10 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
16.11 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
16.12 Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
16.13 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.