This Master Services Agreement (the “Agreement”) is entered into by Deliver WMS LLC, a Delaware limited liability company with offices at [TODO: registered Delaware office address] (“Deliver WMS”), and the customer identified on the applicable Order Form (“Customer”). Deliver WMS and Customer are each a “Party” and collectively the “Parties.”
This Agreement governs Customer’s use of the Deliver WMS platform and any related services and is incorporated by reference into each Order Form executed by the Parties.
1. Definitions
Capitalized terms have the meanings set forth below or in the body of this Agreement.
- “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party.
- “Confidential Information” has the meaning set forth in Section 9.
- “Customer Data” means data, content, and information uploaded to or generated through the Service by or on behalf of Customer, including personal information and operational warehouse data.
- “Documentation” means user guides, technical documentation, and other materials made available by Deliver WMS describing the operation and use of the Service.
- “Effective Date” means the date of the first Order Form executed under this Agreement.
- “Intellectual Property Rights” means all rights in patents, copyrights, trademarks, trade secrets, know-how, and other intellectual property rights worldwide.
- “Order Form” means a written ordering document signed by both Parties referencing this Agreement and specifying the Service plan, included volumes, fees, and any custom terms.
- “Personal Information” means information that identifies, relates to, or could reasonably be linked with a specific individual.
- “Service” means the Deliver WMS warehouse management and last-mile delivery platform and related services as described in the Documentation and the applicable Order Form.
- “Subscription Term” means the term during which Customer is authorized to access and use the Service as set forth in the Order Form.
2. The Service
2.1 Provision of the Service
Subject to Customer’s compliance with this Agreement and payment of fees, Deliver WMS will make the Service available to Customer during the Subscription Term in accordance with the Documentation and the applicable Order Form.
2.2 License
Deliver WMS grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Service solely for Customer’s internal business purposes and the business purposes of Customer’s warehouse clients (when Customer is operating as a third-party logistics provider).
2.3 Restrictions
Customer will not, and will not permit any third party to: (a) modify, copy, or create derivative works of the Service or Documentation; (b) reverse engineer, decompile, or attempt to derive source code from the Service, except to the extent such restriction is prohibited by applicable law; (c) rent, lease, lend, resell, sublicense, or otherwise commercially exploit the Service except as expressly permitted; (d) use the Service to build a competing product or to train a machine learning or AI model that competes with the Service; (e) remove or obscure any proprietary notices on the Service; or (f) use the Service in violation of applicable law or the rights of any third party.
2.4 Updates and changes
Deliver WMS may update and improve the Service from time to time. Deliver WMS will not materially reduce the core functionality of the Service during the Subscription Term in a manner that diminishes the value paid for under the applicable Order Form, except where required by law. Deprecation of a major feature will be communicated at least sixty (60) days in advance where reasonably practicable.
2.5 Service levels
Where an Order Form expressly references a service level agreement (“SLA”), the SLA terms attached or referenced therein apply. Absent an SLA, the Service is provided on a commercially reasonable best-efforts basis.
3. Order Forms
The specific Services, fees, included volumes, term, and any custom commercial terms are set forth in one or more Order Forms. Each Order Form is incorporated into and forms part of this Agreement upon execution by both Parties. In the event of a conflict between this Agreement and an Order Form, this Agreement controls, except to the extent the Order Form expressly states that a specific provision overrides this Agreement.
4. Fees and payment
4.1 Fees
Customer will pay the fees set forth on each Order Form. Unless otherwise specified, platform fees are billed monthly in advance and usage-based fees (per stop, per label, per pallet position, and any other metered usage) are billed monthly in arrears.
4.2 Invoicing and payment terms
Deliver WMS will invoice Customer per the schedule on the Order Form. Invoices are due net thirty (30) days from invoice date unless otherwise stated. Customer will pay all undisputed amounts by the due date. Disputed amounts must be raised in good faith in writing within fifteen (15) days of invoice date.
4.3 Late payment
Past-due undisputed amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Deliver WMS may suspend the Service for non-payment after thirty (30) days written notice and an opportunity to cure.
4.4 Taxes
Fees are exclusive of all taxes other than taxes on Deliver WMS’s net income. Customer is responsible for all sales, use, excise, value-added, withholding, and similar taxes associated with its purchases. If Deliver WMS is required to pay or collect a tax for which Customer is responsible, Customer will reimburse Deliver WMS promptly upon presentation of an invoice.
4.5 Fee changes
Deliver WMS may change fees with at least sixty (60) days written notice prior to the start of a renewal Subscription Term. Fees within an active Subscription Term will not change except as provided in the Order Form.
5. Customer responsibilities
Customer is responsible for: (a) configuring the Service consistent with its operations; (b) the accuracy, quality, legality, and security of Customer Data and Customer’s use of it; (c) maintaining the security of Customer’s accounts and credentials; (d) ensuring its personnel and end users (including warehouse clients granted access via the B2B portal) comply with this Agreement; and (e) compliance with all laws and regulations applicable to Customer’s business and use of the Service.
6. Customer Data
6.1 Ownership
As between the Parties, Customer retains all right, title, and interest in and to Customer Data. Deliver WMS claims no ownership over Customer Data.
6.2 License to operate the Service
Customer grants Deliver WMS a worldwide, non-exclusive, royalty-free license to use, host, copy, transmit, display, and process Customer Data solely as necessary to provide, secure, and improve the Service and perform its obligations under this Agreement.
6.3 Data processing
To the extent Customer Data includes Personal Information, the Parties’ rights and obligations regarding such processing are set out in the Deliver WMS Data Processing Agreement, which is incorporated by reference.
6.4 Aggregated data
Deliver WMS may use aggregated, anonymized, or de-identified data derived from Customer Data (data that cannot reasonably be used to identify Customer, any individual, or any of Customer’s warehouse clients) to operate, secure, analyze, and improve the Service and to produce industry benchmarks and research.
6.5 Return and deletion
Upon termination or expiration of this Agreement, Deliver WMS will, on written request received within thirty (30) days after the effective date of termination, make Customer Data available to Customer for export in a commercially reasonable format. After thirty (30) days, Deliver WMS may delete Customer Data, except where retention is required by law.
7. Intellectual property
7.1 Ownership of the Service
The Service, Documentation, and all related Intellectual Property Rights are and remain the exclusive property of Deliver WMS and its licensors. Except for the limited license granted to Customer in Section 2.2, no rights are transferred to Customer.
7.2 Feedback
If Customer or any of its personnel provides Deliver WMS with suggestions, enhancement requests, comments, or other feedback regarding the Service (“Feedback”), Customer hereby grants Deliver WMS a perpetual, irrevocable, worldwide, royalty-free license to use such Feedback for any purpose without compensation or attribution.
7.3 Trademarks
Each Party retains all rights in its trademarks. Neither Party may use the other’s trademarks except with prior written consent or in factual reference (for example, identifying Customer as a Deliver WMS customer on a customer logo wall, with Customer’s separate written permission).
8. Warranties
8.1 Mutual
Each Party represents and warrants that it has the power and authority to enter into this Agreement and that its performance will not violate any other agreement or applicable law.
8.2 Service warranty
Deliver WMS warrants that, during the Subscription Term, the Service will perform materially in accordance with the Documentation. Customer’s sole and exclusive remedy, and Deliver WMS’s sole and exclusive liability, for breach of this warranty is for Deliver WMS to use commercially reasonable efforts to correct the non-conforming aspect of the Service. If Deliver WMS is unable to correct it within thirty (30) days after receiving Customer’s written notice, Customer may terminate the affected Order Form and receive a pro-rated refund of pre-paid, unused fees for the affected portion of the Service.
8.3 Customer warranties
Customer represents and warrants that it has all rights, consents, and authorizations necessary to upload Customer Data to and process it through the Service, including any notices and consents required from individuals whose Personal Information is included in Customer Data.
8.4 Disclaimer
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND DELIVER WMS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. DELIVER WMS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
9. Confidentiality
9.1 Definition
“Confidential Information” means non-public information disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”) that is marked confidential or that a reasonable person would understand to be confidential, including the Service’s technical details, customer lists, pricing, business strategies, and Customer Data.
9.2 Obligations
The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information with at least the same degree of care it uses for its own confidential information, and in no event less than reasonable care; (b) use Confidential Information only as necessary to perform under this Agreement; and (c) disclose Confidential Information only to those of its personnel, contractors, and advisors who need to know and are bound by similar confidentiality obligations.
9.3 Exclusions
Confidential Information does not include information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) was rightfully known to the Receiving Party without confidentiality obligation before receipt; (c) is rightfully received from a third party without confidentiality obligation; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
9.4 Compelled disclosure
The Receiving Party may disclose Confidential Information if required by law, provided that (where lawfully permitted) the Receiving Party gives the Disclosing Party prompt notice and a reasonable opportunity to seek a protective order.
9.5 Survival
Confidentiality obligations survive for three (3) years after termination of this Agreement, except for trade secrets and Customer Data, which remain confidential indefinitely.
10. Indemnification
10.1 By Deliver WMS
Deliver WMS will defend Customer against any third-party claim alleging that the Service, when used in accordance with this Agreement, infringes such third party’s Intellectual Property Rights and will indemnify Customer against damages and reasonable attorneys’ fees finally awarded against Customer (or settled with Deliver WMS’s prior written consent). This obligation does not apply to claims arising from: (a) Customer Data; (b) Customer’s modification of the Service; (c) combination of the Service with products or services not provided by Deliver WMS; or (d) use of the Service in violation of this Agreement.
If the Service is, or in Deliver WMS’s reasonable opinion is likely to become, the subject of an infringement claim, Deliver WMS may, at its option: (i) procure for Customer the right to continue using the Service; (ii) modify the Service so it is non-infringing; or (iii) terminate the affected Order Form and refund any pre-paid, unused fees for the remainder of the Subscription Term.
10.2 By Customer
Customer will defend Deliver WMS against any third-party claim arising from: (a) Customer Data, including any claim that Customer Data infringes a third party’s rights or violates law; (b) Customer’s use of the Service in violation of this Agreement or applicable law; or (c) Customer’s breach of its representations or warranties. Customer will indemnify Deliver WMS against damages and reasonable attorneys’ fees finally awarded against Deliver WMS (or settled with Customer’s prior written consent).
10.3 Procedure
The indemnified Party will: (a) promptly notify the indemnifying Party of the claim; (b) tender sole control of the defense and settlement to the indemnifying Party (provided any settlement that admits liability or imposes obligations on the indemnified Party requires its prior written consent); and (c) provide reasonable cooperation at the indemnifying Party’s expense.
11. Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO DELIVER WMS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(C) THE LIMITATIONS IN SUBSECTIONS (A) AND (B) DO NOT APPLY TO: (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; (II) CUSTOMER’S PAYMENT OBLIGATIONS; (III) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9; OR (IV) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
12. Insurance
During the Subscription Term and for one (1) year after, Deliver WMS will maintain insurance coverage appropriate to its operations, including (where commercially available and reasonable) commercial general liability, professional liability (errors and omissions), and cyber liability coverage with limits not less than $1,000,000 per occurrence. Upon written request, Deliver WMS will provide a certificate of insurance evidencing such coverage.
13. Term and termination
13.1 Term
This Agreement begins on the Effective Date and continues until all Order Forms have expired or been terminated.
13.2 Subscription term
Each Order Form sets forth its own Subscription Term. Unless otherwise specified in an Order Form, Subscription Terms automatically renew for successive periods of equal length unless either Party gives written notice of non-renewal at least thirty (30) days before the end of the then-current term.
13.3 Termination for cause
Either Party may terminate this Agreement or any Order Form if the other Party materially breaches this Agreement and fails to cure the breach within thirty (30) days of written notice. Either Party may terminate immediately upon written notice if the other Party becomes insolvent, files for bankruptcy, or makes an assignment for the benefit of creditors.
13.4 Effect of termination
Upon termination: (a) Customer’s right to access the Service ends; (b) all amounts owed by Customer become immediately due and payable; (c) the Parties will return or destroy each other’s Confidential Information except as required by law; and (d) the data export and deletion provisions of Section 6.5 apply.
13.5 Survival
Sections that by their nature should survive termination will survive, including Sections 1, 4 (with respect to amounts owed), 6.1, 6.5, 7, 9, 10, 11, 13.4, 13.5, 14, and 15.
14. Governing law and dispute resolution
This Agreement is governed by the laws of the State of New Jersey, without regard to its conflicts of law principles. The Parties consent to the exclusive jurisdiction and venue of the state courts located in Monmouth County, New Jersey, for any dispute arising out of or relating to this Agreement.
Before initiating any formal dispute, the Parties will attempt good-faith resolution by written notice to the other Party. If the dispute is not resolved within thirty (30) days, either Party may proceed with legal action.
THE PARTIES EACH WAIVE THE RIGHT TO A TRIAL BY JURY. THE PARTIES EACH WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. DISPUTES MUST BE BROUGHT IN AN INDIVIDUAL CAPACITY ONLY.
15. General
15.1 Entire agreement
This Agreement, together with all executed Order Forms, the Data Processing Agreement, the Privacy Policy, and any documents expressly incorporated by reference, constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous agreements.
15.2 Amendments
Amendments must be in writing and signed by both Parties.
15.3 Assignment
Neither Party may assign this Agreement without the other Party’s prior written consent (not to be unreasonably withheld), except either Party may assign upon written notice in connection with a merger, acquisition, or sale of substantially all of its assets, provided the assignee assumes all obligations under this Agreement.
15.4 Severability
If any provision of this Agreement is held invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect.
15.5 No waiver
A Party’s failure to enforce any provision does not constitute a waiver of that provision or any other right.
15.6 Force majeure
Neither Party is liable for delays or failures in performance caused by events beyond reasonable control, including acts of God, war, terrorism, civil unrest, governmental action, labor disputes, internet or utility outages, pandemics, or natural disasters, except for payment obligations.
15.7 Notices
Notices under this Agreement must be in writing and sent to the addresses on the applicable Order Form or to the email addresses designated below. Notices are effective upon delivery. Notices to Deliver WMS: legal@deliverwms.com. Notices to Customer: the email address on the Order Form.
15.8 Independent contractors
The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.
15.9 Counterparts and electronic signatures
This Agreement and any Order Form may be executed in counterparts, each of which is deemed an original, and may be signed electronically.
15.10 Order of precedence
In the event of any conflict between this Agreement and any Order Form, this Agreement controls except to the extent the Order Form expressly states that a specific provision overrides this Agreement.
Questions about this document? Email legal@deliverwms.com or contact us.