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Terms & Conditions
Date of Last Revision: June 1st, 2023.
1. Acceptance of Terms.
1.1 Terms. EC Scrum, Inc. (“EC Scrum,” “we,” or “our”) provides Services (as defined below) to you (“you,” “your,” or “Merchant”) through our website at tradepawtal.com (“Site”) and the EC Scrum Platform (as defined below), subject to these Terms of Service, the Policies (“Policies) all of which are incorporated by reference (collectively, the “Agreement”).
1.2 Acceptance. By accepting this Agreement either by clicking through on our Site or by accessing or using the Services, you acknowledge that you have read, understood, and have the legal capacity or authority to agree to be bound by this Agreement. The terms of your Order (as defined below) shall not modify this Agreement.
1.3 Changes. EC Scrum may change these Terms of Service, the Policies and Fees from time to time at its discretion. Any changes to these Terms of Service are effective immediately upon publication on our website or ten (10) days after we post to the EC Scrum Platform or send you email notification of such changes (“Notice”). All changes to you in regards to GRI or surcharges charged by Carriers shall be effective fifteen (15) days after we provide Notice. All other changes to existing Fees shall be effective thirty (30) days after we provide Notice. Your use of the Services thereafter shall constitute full acceptance of any revisions or changes to this Agreement or the Fees. If any change to the Terms of Service, Policies, or Fees are unacceptable to you, your only remedy is to stop using the Services and send a cancellation email to info@ecscrum.com.
2. Registration.
You must register for the Services. As part of the registration process, you will identify an administrative username and password for your account (“Account”) on the EC Scrum Platform (as defined below) and you may create additional standard users (each with a user password).
3. Description of Services.
3.1 Services. EC Scrum’s “Services” include: (a) developing E-commerce (“EC”) websites, (b) data integration with other EC websites, your company’s system, or others, (c) providing warehousing services by you (the “Goods”) pursuant to your order (“Order”) by EC Scrum or by third-party fulfillment or warehouse providers (“SFN Providers”) and related technology solutions. (d)providing technology solutions to support the shipment of Goods by independent third-party carriers (“Carriers”) (e) supporting to establish or maintaining a company in the US and related services, opening your bank account, submitting documents to the government on behalf of you, tax return or other related services by EC Scrum or by third-party lawyers, accountants, or experts.
4. Carriers.
4.1 Carrier Relationships. You understand and agree that the EC Scrum Platform connects you with Carriers who are responsible for the actual shipping of your Goods. EC Scrum shall use our proprietary technology to find the best available shipping option with a Carrier based upon the dimensions, desired speed, and final destination of the Order. EC Scrum is not a carrier and does not ship your Goods, nor do the Services include any shipping services. To the extent that EC Scrum does arrange for the transportation of shipments of Goods by Carriers,
4.2 Carrier Claims. EC Scrum will help facilitate the filing of claims with Carriers for Goods that are lost or damaged by a Carrier, but EC Scrum is not responsible for any loss or damage caused by a Carrier.
4.3 Carrier Performance. EC Scrum will use commercially reasonable efforts to facilitate each Carrier’s agreement that such Carrier: (a) has the necessary approvals, authorities, licenses, and insurance to provide the shipping services; (b) will comply with all federal, state, provincial, and local laws, regulations, and ordinances including, but not limited to, safety laws and regulations and (c) will maintain insurance as required by law. Notwithstanding the foregoing, EC Scrum will not assess or guarantee the suitability, legality, or ability of any Carrier. You agree that EC Scrum is not responsible or liable for the Carriers’ performance of the shipping services and you agree that EC Scrum does not guarantee any Carriers’ compliance with applicable laws or regulations.
4.4. Shippable Addresses. You are solely responsible for the accuracy and deliverability of Order shipping addresses. EC Scrum has no obligation to verify any shipping addresses provided by you and reserves the right to put the Order on hold if addresses cannot be validated. If EC Scrum provides an Order shipping estimate based on an address later discovered to be inaccurate, incomplete, or undeliverable for any reason, you are solely responsible for any applicable address correction fees, any difference in Carrier shipping cost, costs for return transportation, and any other costs. Examples of discrepancies for which you are responsible include but are not limited to, incomplete addresses, incorrect addresses, undeliverable addresses, commercial/residential address status, and rural address status.
5. Access to and Use of the Services.
5.1 EC Scrum Intellectual Property. Any software made available to you by EC Scrum in connection with the Services (“Software”), including but not limited to the EC Scrum Platform, contains EC Scrum’s proprietary and confidential information that is protected by applicable intellectual property laws and this Agreement. EC Scrum grants you a non-transferable, non-sublicensable, and non-exclusive right and license (“License”) to use the Software solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in any Software. You agree not to access the Services by any means other than through the interface that is provided by EC Scrum. Any rights not expressly granted herein are reserved and no license or right to use any trademark of EC Scrum or any third party is granted to you in connection with the Services. The License may be terminated immediately at EC Scrum’s sole discretion and shall, in any event, terminate upon the termination or expiration of this Agreement.
5.2 Your Content.
5.2.1. You are solely responsible for all data, information, feedback, suggestions, text, content, and other materials that you upload, post, deliver, provide, or otherwise transmit to EC Scrum in connection with your use of the Services, excluding data and information relating to the operation and/or performance of the EC Scrum Platform (“Your Content”). You retain all right, title and interest in and to Your Content, other than the limited rights expressly granted to EC Scrum in this Agreement. EC Scrum has the right, but not the obligation to monitor Your Content. You further agree that EC Scrum may remove or disable Your Content at any time for any reason.
5.2.2. You own all of Your Content or have obtained all permissions, releases, rights, or licenses required to engage in your posting and other activities (and to allow EC Scrum to perform our obligations) in connection with the Services. Your Content does not, and will not, violate, infringe, or misappropriate any third party’s intellectual property or privacy rights, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harassing.
5.3 Use and Modification of Your Content. You grant EC Scrum a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable right and license to (i) copy, use, modify, distribute, display, and disclose Your Content solely to the extent necessary to provide the Services to you pursuant to the Agreement, (ii) copy, modify and use Your Content in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, financial reporting and analysis, audit functions, and archival purposes and (iii) copy, use, modify, distribute, display, and disclose Your Content on an aggregate and anonymous basis for marketing and other purposes.
5.4 Account Confidentiality. You are solely responsible for maintaining the confidentiality of your login, password, Your Content, Account, and for all activities that occur under your login or Account. For support purposes, designated EC Scrum employees have the ability to access your Account. This access includes but is not limited to production data, including Personally Identifiable Information (“PII”) within the dashboard and data storage locations. This access is audited on a regular basis as a part of EC Scrum’s internal audit processes.
5.5 Security Acknowledgment. You understand that the operation of the Services, including Your Content, may be unencrypted and may involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices; and (iii) transmission to EC Scrum’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content. EC Scrum will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction, or loss of any of Your Content.
5.6 Maintenance and Security of Equipment. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including hardware, software, networks, and telephone service. You shall also be responsible for maintaining the security of your equipment and ancillary services, your Account, passwords (including but not limited to administrative and user passwords), files, and for all uses of your Account or your equipment and ancillary services.
5.7 Restricted Access to EC Scrum Facilities. As your Goods may be commingled with the Goods of other merchants, you are not permitted to enter EC Scrum’s Facilities or access your Goods while stored at a EC Scrum Facility, without prior express written consent by EC Scrum. If you are granted access, you will be monitored during the access period and your access can be terminated at EC Scrum’s discretion.
5.8 Publicity Rights. EC Scrum reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on the Site and in other communication with existing or potential merchants. To decline EC Scrum this right you need to email info@ecscrum.com stating that you do not wish to be used as a reference.
5.9 Technical Support. EC Scrum may provide, at EC Scrum’s sole discretion, technical support services, through email, chat, or telephone in accordance with our standard practice.
6. Merchant Obligations and Warranties.
6.1 Use of Services. Subject to the terms and conditions of this Agreement, you may access and use the Services only for lawful purposes. All rights, title, and interest in and to the Services (including all intellectual property rights) will remain with and belong exclusively to EC Scrum. You shall not: (i) sublicense, resell, rent, lease, transfer, assign, timeshare, or otherwise commercially exploit or make the Services available to any third party; (ii) use the Services in any unlawful manner (including without limitation in violation of any data, privacy, or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services; or (iii) modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or related systems or networks. You shall comply with any codes of conduct, policies, or other notices EC Scrum provides you or publishes in connection with the Services, and you shall promptly notify EC Scrum if you learn of a security breach related to the Services. As defined in FAR section 2.101, the software and documentation installed by EC Scrum on your equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
6.2 OFAC Representation. You represent and warrant that you are not (a) located in, or a national or resident of, any country that is subject to U.S. trade sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) that prohibit the export of U.S. services, or (b) a person or entity named on OFAC’s List of Specially Designated Nationals and Blocked Persons (the “SDN List”) or acting on behalf of any person or entity on the SDN List. You agree to comply with these laws and regulations and to inform EC Scrum promptly of any obstacle to such compliance.
6.3 Shipping. It is Merchant’s expressly assumed obligation to ensure that all Merchant documentation specifically, separately, and correctly address any Legal Requirements (as defined below) related to Merchant’s Goods, the shipping requirements applicable to the Goods, and the instructions required by Merchant that arise under this Agreement which apply to Merchant. The term “Legal Requirements” shall mean all present and future laws, statutes, ordinances, requirements, orders, directions, rules, and regulations of any kind or nature, whether statutory or common law, including, without limitation, all environmental and safety laws, issued or enforced by any federal, state, provincial, or local authority or agency, which governs or applies in any way to the Goods provided by Merchant or the shipping requirements applicable to the Goods that arise under this Agreement. To the extent there are Legal Requirements or requirements for storage or handling related to Merchant’s Goods about which EC Scrum must know and with which it must comply in order to properly perform the Services or otherwise meet its obligations under and pursuant to this Agreement, Merchant shall make EC Scrum aware of any and all such Legal Requirements in writing no less than sixty (60) days prior to the enactment of such Legal Requirements, particularly to the extent such Legal Requirements relate specifically to the safeguarding, receiving, storing, and handling of Merchant’s goods. Moreover, in the event and to the extent compliance with any Legal Requirement(s) either, prevents EC Scrum from performing the Services, or materially increases EC Scrum’s cost(s) to perform such Services, all in accordance with the terms of the Agreement, EC Scrum shall be excused from such performance without sustaining any liability therefor.
7. Your Goods.
7.1 Representations, Warrants, and Covenants. You represent, warrant, and covenant that: (i) you have the legal power to enter into and perform your obligations under this Agreement and the person binding you to this Agreement on your behalf has been duly authorized to do so; (ii) you are the legal owner of the Goods, including any underlying intellectual property, and/or have lawful possession of the Goods and have the sole legal right to store and thereafter direct the release and/or delivery of the Goods, (iii) your Goods do not violate EC Scrum’s Acceptable Products Policy which is on Site or any applicable laws, including without limitation the Food, Drug and Cosmetic Act (as amended); (iv) there are no potential health, safety, or environmental hazards associated with the shipment, warehousing, or fulfillment of the Goods; (iv) the Goods are not mislabeled, misbranded, adulterated, flammable, hazardous or dangerous materials, explosives, or pesticides as defined under applicable law; (v) your activities related to the promotion, sale and distribution of the Goods comply with all applicable laws. You will strictly meet or exceed any compliance obligations under these provisions. EC Scrum may reject Goods, in its sole discretion, if they do not meet the above compliance obligations. Rejected Goods may incur additional fees and/or result in a delay or non-shipment for which EC Scrum shall not be liable.
7.2 Import Compliance. You shall comply with all applicable laws and regulations and bear all costs and responsibilities of importing your Goods into a respective country or territory. You shall deliver the Goods Delivered Duty Paid (DDP) EC Scrum Facility location, be the importer of record and payer of all customs, duties, taxes and other charges in connection with the importation and delivery of the Goods. You shall identify yourself on the bill of lading as the “named consignee, in care of EC Scrum,” and shall not identify EC Scrum as the consignee, importer of record or the merchant of record. Beneficial title and interest to all Goods shall always remain with you, even when the Goods are stored at a EC Scrum Facility.
7.3 Warehouseman’s Lien. You agree and acknowledge that the EC Scrum Facilities shall maintain an actual or constructive general and continuing warehouseman’s lien and security interest under the UCC for all Goods in such EC Scrum Facility’s possession or control, regardless of whether a specific receipt is issued, to cover all charges, expenses, costs, and Service Fees set forth in this Agreement. In the event a EC Scrum Facility is required to exercise a lien or security interest, you shall be responsible for all necessary and reasonable costs incurred to enforce the lien or security interest including, but not limited to, reasonable attorneys’ fees. You will execute any and all agreements and documents so that the EC Scrum Facility may obtain, perfect, and maintain the lien rights and security interest in the Goods. You will also execute any and all documentation to permit EC Scrum to perfect the liens.
7.4 No Inspection of Goods Disclaimer. EC Scrum does not inspect your Goods nor does EC Scrum take responsibility for the business decisions that you make and implement through the Services.
8. Service Fees.
8.1 Fees. “Fees” are the fees for any Services and any third-party fees (third-party fees include, but are not limited to, Carrier, and other shipping fees, rates of duty, international brokerage charges, freight charges, insurance premiums, or other third-party charges incurred during your use of the Service).
8.2 List of Fees. Unless otherwise specified in the pricing dashboard, you shall pay the Fees based on your quotation.
8.3 Pricing Quotations. Pricing quotations accepted through the EC Scrum Platform are estimates based on the best information available at the time made. All dollar amounts stated in this Agreement and the Site will be in US dollars, unless otherwise specified. The final rates and Service Fees may vary based upon the Goods actually tendered, the work actually performed, or a number of factors such as Carrier shipping prices, the actual characteristics of your Goods, the delivery address, and service requested during the normal course of delivery. EC Scrum reserves the right to bill the Service Fees based on actual charges at any time after the Services are rendered. EC Scrum specifically disclaims liability for any Carrier shipping rate errors due to inaccurate or incomplete information, such as dimensions and weights.
8.4 GRI and Carrier Surcharges. EC Scrum may pass through to you any General Rate Increases (GRI) or surcharges charged by Carriers, including but not limited to fuel, dangerous goods, and peak season surcharges, with fifteen (15) days’ notice.
8.5 Reimbursement of Taxes, Chargebacks, and Related Fees. You acknowledge that you are responsible for, and agree to reimburse EC Scrum and Carriers, as applicable, for, all sales taxes, transportation taxes, Service Fees, reversals, chargebacks, claims, fees, fines, penalties and other liability incurred by EC Scrum and Carriers, as applicable in connection with the Services. The aforementioned charges shall be posted to your Account within fifteen (15) days of EC Scrum’s knowledge of such charges and shall be payable immediately pursuant to Section 9.2 of this Agreement. Carrier and retail chargebacks may be subject to additional administrative fees as specified in our Policies.
8.6 Exclusive of International CDT and Transaction Taxes. Customs, Duties, and Taxes (“CDT”) on any international shipment charged by a Carrier are your sole responsibility and will be charged back to you regardless of whether they were or were not in the initial estimate, or whether the Order was or was not delivered. You acknowledge and agree that all Service Fees, charges, and any other amounts charged by EC Scrum to you are exclusive of applicable value added, sales/use or inventory, CDT, and service taxes (“Transaction Taxes”) which may be levied in connection with the Services. Where applicable, you shall pay all Transaction Taxes and indemnify EC Scrum from all claims and liability arising from such Transaction Taxes..
9. Payment Methods and Abandoned Accounts.
9.1 Payment Options. EC Scrum provides you the convenience to pay for your invoices online using the following payment methods: bank transfer & ACH (free), or a wire transfer (subject to standard bank fees.
9.2 Payment Collection. EC Scrum disclaims all liability for any fees charged to you by your bank If you dispute any charges, you must let EC Scrum know within thirty (30) days after the date that EC Scrum invoices you.
9.3 Abandoned Account and Liquidation. Failure to promptly pay Service Fees is a material breach of this Agreement. If your Service Fees (or any other amounts owed to EC Scrum or Carriers) remain unpaid for a period greater than thirty (30) days, then EC Scrum reserves the right, at our sole discretion, to terminate this Agreement or suspend our performance of Services. If the Service Fees remain unpaid for a period greater than sixty (60) days, then EC Scrum will automatically reclassify your Account as an “Abandoned Account.” TO THE FULLEST EXTENT PERMITTED BY LAW, UPON AN ACCOUNT BECOMING AN ABANDONED ACCOUNT, ALL RIGHTS TO OWNERSHIP OF THE ACCOUNT BALANCE AND GOODS WILL IMMEDIATELY BE FORFEITED BY YOU TO EC SCRUM. GOODS WILL BECOME IMMEDIATELY AND IRREVOCABLY UNAVAILABLE TO YOU, AND LIQUIDATION PROCEEDINGS WILL BEGIN. You agree such Goods would be free and clear of liability, and that you would assume any liability therefore. You will remain liable for any pending Service Fees above and beyond the liquidation proceeds.
10. Onboarding.
10.1 Inbound Shipment Instructions. Prior to any inbound shipment of Goods arriving at a EC Scrum Facility, you must follow EC Scrum’s Warehouse Receiving Order (“WRO”) instructions to provide EC Scrum with digital bills of lading through the EC Scrum Platform and schedule an appointment for inbound freight shipments (non-parcel) prior to arrival at a EC Scrum Facility. All inbound shipments shall be properly labeled and clearly identify the units and quantities of carton, case, or master case. You represent and warrant that the information set forth on any shipment or delivery document, including, without limitation, information as to count, weight, description, and condition of the Goods, is accurate and complete and may be relied upon by EC Scrum. Any inbound inventory received that does not follow the WRO instructions as determined by EC Scrum, will be classified as an Unidentified Receiving Order (“URO”) and will be delayed and apply additional Fees.
10.2 Verification and Inspection. Per EC Scrum’s operations and errors policy, EC Scrum may, at its sole discretion, verify the quantity of the Goods and inspect for any damage. You acknowledge and agree that EC Scrum has no obligation to verify the quantity, content, condition, or quality of the Goods delivered for storage and/or delivery. EC Scrum may reject storing and/or delivering any Goods that EC Scrum deems, in its sole discretion, to be improperly labeled or packaged as a URO, or any Goods that contain any hazardous or illegal material.
10.3 Outstanding and Pending Orders. If there are any outstanding or pending Orders that need to be fulfilled first, you shall notify EC Scrum of the number of Orders to be sent initially and the expected timeline of processing such Orders.
10.4 Receipt of Goods. Upon a WRO being marked as arrived within the EC Scrum system and the items in the WRO not having any issues that would cause a URO to be created, you can expect a maximum of three (3) business days for Goods to be available to use for fulfilling orders at a EC Scrum Facility. After three (3) business days, your Orders will begin to be processed and labeled, beginning with outstanding and pending Orders. These timelines are subject to change during Peak Season (defined as the dates between and including Thanksgiving Day and Christmas Eve, but subject to change dependent upon Carriers) or other holidays.
10.5 Processing of Orders. EC Scrum shall label and ready the Orders for pick up by Carriers within two (2) business day of actual receipt of the Order from you provided that proper inventory amounts exist and there are no issues with the Order. This provision shall not apply to Orders that are altered, Orders with low inventory items (less than ten (10) items in stock), held Orders and bulk Orders.
10.6 Expected Date of Shipping Commencement. You shall provide EC Scrum with an expectation of the date for EC Scrum to begin facilitating Carriers to ship your Goods, which shall conform to the terms of this Agreement.
10.7 Accuracy of Information. You are solely responsible for the accuracy of any information provided to EC Scrum and/or inputted onto the Site or the EC Scrum Platform. You agree that EC Scrum shall not be liable for any delay, loss, damage or costs as a result of any inaccurate information provided by you to EC Scrum or any information inputted incorrectly by you onto the Site or the EC Scrum Platform.
12. Returns, Transfers and Disposal.
12.1 Returns. You shall be solely responsible for any Fees and any additional Carrier fees, including without limitation shipping, brokerage, or returns processing fees, for Goods that are returned to EC Scrum Facility for any reason whatsoever. Custom returns may be rejected and/or subject to additional fees.
12.1.1. EC Scrum Is Not Liable for International Returns. International shipments that are not delivered are often returned by the Carrier and assessed return shipping, brokerage, and returns processing Carrier fees that are billed through to you, often without notice. EC Scrum will make reasonable efforts to circumvent international returns or abandoned inventory at your request; however, EC Scrum reserves the right to charge you fees up to the value of the original Carrier shipping cost, including all costs and expenses of returns. If a tariff is not available, EC Scrum will either put Orders on hold until tariff information is available or override the Order with no liability to EC Scrum.
12.2 Transfers between EC Scrum Facilities. You agree that EC Scrum may, in its sole discretion, remove and transfer your Goods at any time for any reason, including without limitation optimization of EC Scrum’s fulfillment network, to another EC Scrum Facility.
12.3 Required Removal & Disposal. EC Scrum may, at its sole discretion, require you to remove unsuitable or unsellable Goods from a EC Scrum Facility. EC Scrum will notify you if any inventory requires removal. Pick fees may also be assessed for labor incurred to remove inventory. IF YOU DO NOT REMOVE THE INVENTORY WITHIN THIRTY (30) DAYS OF RECEIVING A REQUIRED REMOVAL NOTICE, EC SCRUM MAY DISPOSE OF THE INVENTORY LISTED IN THE REQUIRED REMOVAL NOTICE. YOU SHALL NOT BE ENTITLED TO ANY DAMAGES OR REIMBURSEMENT FOR THE VALUE OF GOODS DISPOSED OF BY EC SCRUM IF YOU DO NOT PROMPTLY REMOVE THE GOODS UPON EC SCRUM’S WRITTEN REQUEST.
13. Confidentiality and Publicity.
13.1 Confidentiality Information. EC Scrum and Merchant have each developed certain confidential and proprietary information (“Confidential Information”) including, but not limited to, financial statements, financing documents, trade secrets, new products, copyrights, computer software, documentation, specifications, systems, hardware, concepts, designs, configurations, schedules, costs, performance features, techniques, copyrighted matter, patentable and patented inventions, plans, methods, drawings, data, tables, calculations, documents or other paperwork, computer program narratives, flow charts, source and object codes, business and marketing plans, dealings, arrangements, objectives and locations. Confidential Information shall only include such information which is either explicitly designated as “confidential” at the time of disclosure or by its nature is reasonably identifiable as confidential. For purposes of this Agreement, a party disclosing the Confidential Information is the “Discloser” and a party receiving the Confidential Information is the “Recipient.” Confidential Information shall not, however, include any information that Recipient can establish: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to Recipient by Discloser; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure to Recipient by Discloser through no action or inaction of Recipient; (iii) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s then-contemporaneous written files and records kept in the ordinary course of business; or (iv) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
13.2 Disclosure of Confidential Information. Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the Discloser. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder. Recipient may disclose Confidential Information to its officers, directors, employees, contractors, affiliates or representatives (“Representatives”) who (i) are required to have the Confidential Information in order for the Recipient to perform its obligations under these Terms of Service, (ii) are informed of its confidential nature, and (iii) are subject to confidentiality obligations at least as protective of the Confidential Information as these Terms of Service. The Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures it employs to protect its own Confidential Information of like importance, and shall use no less than a reasonable degree of care in protecting such Confidential Information. The Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Confidential Information.
13.3 Injunctive Relief. The Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Discloser, entitling Discloser to obtain injunctive relief in addition to all legal remedies without showing or proving any actual damage and without any bond being required to be posted.
13.4 No Publicity Rights. Merchant shall not, without the prior express written consent of EC Scrum (a) issue any statement, printed material or other communication acknowledging its relationship with EC Scrum or its affiliates, or (b) use EC Scrum’s or its affiliates’ name or logo in any manner.
14. Force Majeure.
EC Scrum shall not be liable for default in the performance or discharge of any duty or obligation under this Agreement when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, pandemic, epidemic, disease, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of goods, closure of public highways, railways, airways or shipping lanes, governmental interference or regulations, or other contingencies, similar or dissimilar to the foregoing, beyond the reasonable control of the affected party. All Goods are stored, handled, and transported at Merchant’s sole risk of loss, damage, or delay caused by any of the above.
15. Termination.
15.1 Termination Rights. You have the right to terminate this Agreement at any time, provided you do not have a balance due and owing by sending a termination request to info@ecscrum.com. EC Scrum may terminate this Agreement, at our discretion and with or without cause (including your breach), at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. EC Scrum may also terminate this Agreement upon ten (10) days’ notice in the case of your nonpayment. EC Scrum reserves the right to immediately modify, suspend, or discontinue, temporarily or permanently, the Services or an Account (or any part thereof) if you are in breach of this Agreement or any term of a EC Scrum Policy. All of Your Content may be permanently deleted by EC Scrum upon any termination of your Account. All rights to payment and all other Sections which by their terms are intended to survive shall survive termination or expiration of this Agreement.
15.2 Effects of Termination. EC Scrum shall reasonably cooperate to transition services to Merchant or Merchant’s designee. Prior to Merchant removing all the remaining Merchant Goods following termination as stated herein, Merchant shall pay (or pre-pay, as the case may be) EC Scrum (i) all current fees outstanding for Services and (ii) a good faith estimate of fees that will become due for Services that will be incurred as a result of removing all Goods from the facility. Should Merchant not fully and timely pay any fees owed, Merchant’s account shall be deemed an Abandoned Account in accordance with Section 9.3 above.
16. DISCLAIMER OF WARRANTIES.
16.1 GENERAL DISCLAIMER. THE SERVICES, INCLUDING THE EC SCRUM PLATFORM AND WMS, AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND EC SCRUM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU ACKNOWLEDGE THAT EC SCRUM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR DOES EC SCRUM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE, OR SERVICES OBTAINED BY YOU FROM EC SCRUM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
16.2 Services Disruption. The Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance or because of other causes beyond our reasonable control. EC Scrum shall use reasonable efforts to provide advance notice of any Services disruption. EC Scrum shall not be liable for any such unavailability or disruption of Services.
16.3 Temperature and Humidity Levels. EC Scrum does not represent, warrant or guarantee that any EC Scrum Facility will maintain a specific temperature range or humidity level, nor shall EC Scrum be liable for any fluctuations.
16.4 Delays or Non-Delivery by Third-Parties, including Carriers. EC Scrum shall not be liable or responsible for any delays in domestic or international shipments of Goods or Orders, and EC Scrum is, without limitation, not responsible or liable for non-delivery or late delivery of Goods caused by third-parties, including Carriers.
16.5 Fraudulent Orders. IT IS YOUR SOLE RESPONSIBILITY TO PROTECT YOURSELF FROM FRAUD AND TO PAY ALL FEES RELATED TO FRAUDULENT ORDERS EVEN IF THE GOODS ARE NOT DELIVERED.
17. LIMITATION OF LIABILITY.
17.1 CARRIER POSSESSION OF GOODS. YOU ACKNOWLEDGE AND AGREE THAT WHEN CARRIERS ARE IN POSSESSION OF YOUR GOODS, CARRIERS, AND NOT EC SCRUM, ARE SOLELY RESPONSIBLE FOR ANY ACTUAL OR ALLEGED HARMS SUSTAINED BY YOU OR YOUR GOODS AS DETERMINED UNDER APPLICABLE LAW.
17.2 INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) SHALL EC SCRUM BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. FOR AVOIDANCE OF DOUBT, EC SCRUM IS NOT LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OR LIABILITIES IN EXCESS OF THE GOODS DAMAGE CAP OR THE AGGREGATE LIABILITY CAP SET FORTH BELOW, WHICHEVER IS THE LESSER AMOUNT.
17.3 IMPLIED WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, EC SCRUM’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.
17.4 INSURANCE, DAMAGE, AND LOSS OF GOODS.
17.4.1 INSURANCE OF GOODS. YOU AGREE THAT YOUR GOODS ARE NOT INSURED AGAINST LOSS OR DAMAGE BY EC SCRUM. FOR GREATER COVERAGE FOR YOUR GOODS, YOU MAY ADD INSURANCE IN YOUR ACCOUNT SETTINGS ON THE GOODS THAT YOU WISH TO BE COVERED, IN WHICH CASE YOU WILL BE SUBJECT TO AN INCREASED CHARGE FOR SUCH INCREASED COVERAGE. NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE, OR DESTRUCTION TO ALL OR ANY PORTION OF THE GOODS HAS OCCURRED. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING ANY INSURANCE COVERAGE FOR THE GOODS AT YOUR SOLE COST AND EXPENSE. EC SCRUM DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT INSURANCE WILL COVER ALL OR A PORTION OF YOUR GOODS LOSS (AS DEFINED BELOW). EC SCRUM SHALL NOT BE RESPONSIBLE OR LIABLE IF INSURANCE COVERAGE IS NOT AFFORDED FOR THE GOODS LOSS OR IF COVERAGE IS DENIED. THE DECISION TO PURCHASE INSURANCE AND ITS EXPENSE IS YOURS ALONE. ALL SUCH INSURANCE IS PROVIDED BY THIRD-PARTY INSURANCE CARRIERS OR BROKERS YOU MAY SELECT. EC SCRUM DOES NOT AND WILL NOT SELL INSURANCE AND SHALL NOT BE DEEMED AN INSURANCE PROVIDER. NOTWITHSTANDING YOUR PURCHASE OF INSURANCE COVERAGE, IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF GOODS (“GOODS LOSS”) FOR WHICH EC SCRUM IS OR MAY BE LEGALLY LIABLE, YOU AGREE THAT EC SCRUM’S LIABILITY SHALL NOT EXCEED THE GOODS DAMAGE CAP SET FORTH BELOW.
17.4.2 MAXIMUM LIABILITY. IN THE EVENT THAT EC SCRUM IS FOUND LEGALLY LIABLE FOR HARMS TO YOUR GOODS, YOU AGREE THAT EC SCRUM’S MAXIMUM LIABILITY FOR GOODS LOSS (INCLUDING LOSS FROM ANY GOODS COUNT INACCURACIES) WILL BE LIMITED TO THE ACTUAL PRODUCT VALUE OF THE LOST OR DAMAGED GOODS, WHICH SHALL BE MEASURED BY THE ORIGINAL PURCHASE INVOICE FROM THE MANUFACTURER OR SUPPLIER, SUBJECT TO A CAP OF 5% OF THE TOTAL PRODUCT VALUE OR ONE MONTH OF THE AVERAGE BILLABLE STORAGE, WHICHEVER IS LOWER (“GOODS DAMAGES CAP”). FURTHERMORE, EC SCRUM’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CLAIMS NOTWITHSTANDING THE NATURE OR GROUNDS FOR ALL CLAIMS, INCLUDING THE BREACH OF THIS AGREEMENT BY EC SCRUM, SHALL NOT EXCEED $2,000. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
17.4.3 SHRINK ALLOWANCE. HANDLING GOODS IN EC SCRUM FACILITIES COULD RESULT IN LOSS OR DAMAGE OF GOODS. EC SCRUM MAINTAINS HIGH STANDARDS, HOWEVER OCCASIONALLY EC SCRUM FACILITIES EXPERIENCE CONCEALED SHORTAGES, PRODUCT DAMAGES, MISLABELED, MISS-PICKED GOODS AND/OR CROSS-SHIPMENTS. YOU AGREE THAT EC SCRUM WILL HAVE A 0.5% SHRINK ALLOWANCE BASED ON THE UNITS OF YOUR ACCOUNT’S GOODS KNOWN TO BE IN EC SCRUM’S FACILITIES BASED ON THE TOTAL GOODS VALUE AS DETERMINED IN EC SCRUM’S SOLE REASONABLE DISCRETION MEASURED ON AN ANNUAL BASIS (“GOODS VALUE”) AND SUBJECT TO THE LIMITATIONS OF LIABILITY IN THIS SECTION. EXPLAINABLE, OFFSETTING GOODS ADJUSTMENTS BASED ON MISMARKED GOODS OR RECEIVING GOODS ERRORS WILL NOT BE DEEMED A GOODS SHRINKAGE EVENT OR LOST GOODS.
17.4 EXCLUSIVE REMEDY. THE GOODS DAMAGE CAP SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AGAINST EC SCRUM FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE, AND/OR DESTRUCTION OF GOODS, AND SHALL APPLY TO ALL CLAIMS, INCLUDING GOODS SHORTAGE OR ANY OTHER CLAIMS RELATING TO THE SERVICES (INCLUDING CONVERSION OR THEFT CLAIMS).
18. Indemnification.
You shall defend, indemnify, and hold harmless EC Scrum from and against any claims, actions or demands, liabilities (including court costs and attorneys’ fees), tax obligations, fines, and penalties, including without limitation reasonable legal and accounting fees and expenses, arising or resulting from: (a) your breach of this Agreement; (b) Your Content; (c) your negligence, fault, omissions, or willful misconduct; (d) your fraud or misrepresentation in connection with the Services; (e) any product liability, infringement, or mislabeling claim arising from your Goods; or (f) your misuse of the Services (“Claims”). EC Scrum shall provide notice to you of any Claim. EC Scrum reserves the right to assume the exclusive defense and control of any third-party Claims which are subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting EC Scrum’s defense of such Claim. This indemnity shall include, without limitations, all Claims in tort, contract, by statute or otherwise, including Claims for personal injury (including death) and actual or tangible property damage.
19. Assignment.
You may not assign or transfer this Agreement without the prior written consent of EC Scrum. EC Scrum may assign or transfer this Agreement, in whole or in part, without restriction. This Agreement is binding upon, and will inure to the benefit of, the successors and permitted assigns of the parties.
20. Miscellaneous.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect, and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, representations, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Except as specifically set forth in an agreement signed by EC Scrum, the terms of this Agreement shall take precedence over any contrary or conflicting terms in any other agreement. The failure of EC Scrum to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and EC Scrum, even though it is electronic and is not physically signed by you and EC Scrum, and it governs your use of the Services. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind EC Scrum in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
21. Governing Law, Venue, and Jurisdiction.
This Agreement and all Claims or disputes between the parties shall be governed by the laws of the State of Florida without regard to its conflicts of law provisions. All Claims, lawsuits, causes of action, and disputes between the parties shall be brought exclusively in the state or federal courts located in Chicago, Illinois and you agree to submit to the exclusive personal jurisdiction and venue of these courts.