Version: SR23
These terms and conditions (“Terms of Use”) defines your rights and obligations for your use of the firstmile.shiprush.com website (“ShipRush Web”) or the ShipRush desktop application (“ShipRush Desktop”). Depending on whether you are a user of the ShipRush Web or ShipRush Desktop or the plan you choose, different parts of these Terms of Use may apply to you. As logging into ShipRush Web or installation of ShipRush Desktop will be deemed to be your acceptance of these Terms of Use, it is important that you review them before proceeding further.
IF YOU ARE USING SHIPRUSH WEB OR SHIPRUSH DESKTOP ON BEHALF OF ANOTHER PERSON OR ENTITY (E.G. AS AN EMPLOYEE OR AGENT FOR A BUSINESS), IN ADDITION TO YOUR AGREEMENT TO BE BOUND BY THESE TERMS OF USE, YOU ALSO REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE OTHER PERSON OR ENTITY TO THESE TERMS OF USE.
1. License Grant and Restrictions
1.1. Descartes Systems (USA) LLC (“Descartes”) grants you, upon your payment of fees as set out in your order form, invoice, or other similar ordering document created by Descartes (collectively “Order”) or if a subscription fee is not required – upon your acceptance of these Terms of Use, a limited, term based, non-exclusive, non-transferable, non-sublicensable, and revocable license to use either ShipRush Web or ShipRush Desktop, as set out in your Order (“License”). The term of the License grant is set out in your Order. Upon expiration of the term, your License will automatically be revoked. For greater certainty, you are NOT being provided with a perpetual license to any application, service, or software.
1.2. ShipRush Web and ShipRush Desktop are offered under different plans. Depending on a plan you choose the features and the offering such as carriers’ catalog, fees, scope of use etc. available to you will differ. An evaluation or trial version cannot be used after the upgrade from a no-fee subscription plan to a subscription fee-based plan. If you have subscribed to an evaluation or trial version of ShipRush Web or ShipRush Desktop, upon expiration of your evaluation or trial term, you must immediately cease using it, and in the case of ShipRush Desktop uninstall the application and delete any copies of it you may have.
1.3. Your License may be revoked immediately upon the occurrence of any of the following events, unless a time to remedy is specifically provided for in your Order or in these Terms of Use:
1.3.1. Your failure to pay fees owed in the amount and frequency as set out in your Order;
1.3.2. The expiration of the term without any renewal being agreed upon between you and Descartes;
1.3.3. You commit a material breach of these Terms of Use; or
1.3.4. Descartes knows or has reasonable grounds to suspect that ShipRush Web or ShipRush Desktop has been used for fraudulent, unlawful or abusive purposes.
1.4. For subscribers to ShipRush Web, you are restricted to up to three users per License, unless specified otherwise in your Order.
1.5. For subscribers to ShipRush Desktop, your License allows the installation of ShipRush Desktop to only one workstation per License. If you wish to move your installation of ShipRush Desktop to another workstation, you must delete any copies of ShipRush Desktop from the first workstation immediately after installation on the second workstation.
1.6. All rights not expressly granted to you by these Terms of Use are reserved by Descartes.
2. Registration Information
2.1. Use of ShipRush Web and/or ShipRush Desktop will require you to provide some information to Descartes, including your full name, company name, mailing address, email address, and any information needed to identify you to the shipping carrier or carriers of your choice (collectively “Registration Information”). You are responsible for ensuring your Registration Information is accurate and is updated within a reasonable period of time following any change to your Registration Information.
2.2. Descartes may rely upon the Registration Information provided by you to send you any notices, invoices, requests, advisories, or updates (collectively “Communication”). Provided Descartes sends the Communication to the email address or mailing address in your Registration Information, you will be deemed to have received the Communication.
2.3. Providing false, inaccurate, or fictitious Registration Information, or using or attempting to use the Registration Information of any other person without their express permission is considered a material breach by you of these Terms of Use and may result in the immediate suspension and or termination of your License.
2.4. Descartes may disclose your Registration Information as well as additional information about you or your engagement or any activities on your account at ShipRush Web and/or ShipRush Desktop to the shipping carriers or third parties that provide services or products necessary to deliver ShipRush Web or ShipRush for the purpose of their legitimate interests, in particular, for detecting or preventing fraudulent, unlawful or abusive activities.
3. Access Credentials
3.1. Users of ShipRush Web will be required to input a username and password (collectively “Access Credentials”) in order to use ShipRush Web. Your Access Credentials are unique to you. You may not share your Access Credentials with any other person or user. You are responsible for protecting your Access Credentials as Descartes relies solely upon those Access Credentials to identify you and provide you access to ShipRush Web. If you believe that your Access Credentials may have been lost, stolen, or otherwise compromised, you should notify Descartes as soon as possible.
3.2. ShipRush Desktop does not require any Access Credentials. You are solely responsible for controlling the access to any copies of ShipRush Desktop installed or running on any workstations. Descartes does not control or restrict who has access to installed copies of ShipRush Desktop.
4. Usage Restrictions
4.1. You may not translate, reverse engineer, disassemble, decompile or otherwise attempt to extract the source code, algorithms, operational flow, data structures, or object structures of any Descartes product or service, or any portion thereof, unless expressly permitted or required by law, or you have written authorization from Descartes to do so.
4.2. You may not modify or remove any proprietary notices, including copyright notices, contained within any Descartes product or service or any materials obtained in connection with your use of any Descartes product or service.
4.3. You may not copy, except as expressly permitted herein, any Descartes product or service, including any copy by way of telecommunication transmittal or hosting of multiple instances or versions.
4.4. You may not create any derivative works from any Descartes product or service nor merge it with any other materials.
4.5. In addition to any other restrictions on use, You agree: (i) not to use the ShipRush Web or ShipRush Desktop for illegal purposes; (iii) not to interfere or disrupt networks connected to ShipRush Web or ShipRush Desktop; (iv) not to post, promote or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (v) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and (vi) not to interfere with another user’s use and enjoyment of the ShipRush Web or ShipRush Desktop or another entity’s use and enjoyment of similar services.
4.6. To allow the proper functioning of the Descartes product or service, verify your License, or audit or assess your usage, the Descartes product or service may need to communicate with Descartes’ servers or other network infrastructure. As part of this communication data related to the product or services’ usage may be transmitted to Descartes’ servers or updates to the product or service may be deployed. You agree not to restrict or prevent any such communication at any time and understand that disrupting or blocking such communication may result in the improper operation of or complete loss of functionality of the Descartes product or service.
4.7. Certain shipping carriers may require you to agree to additional terms and conditions applicable to their services (“Carrier Terms”). Descartes is not a party to Carrier Terms and you agree, to the maximum extent permitted by law, to indemnify and hold harmless Descartes from any claim, demand, damages, costs, or other causes of action that may arise as a result of any parties compliance or lack thereof to said Carrier Terms.
5. Scan Based Return Labels
5.1. Scan Based Return label feature, sometimes referred to as “Pay on Use” (hereafter referred to as “Scan-Based-Return”) is a program offered to qualified Descartes subscribers of ShipRush Web or ShipRush Desktop. Scan-Based-Return enables its users to print service shipping labels (either outbound or returns) for which shipping charges are paid when the label is scanned by the carrier in the mail stream rather than at the time the label is printed (which is commonly referred to as pre-paid).
5.2. Scan-Based-Return users will be automatically debited the applicable fee from a prepaid ShipRush account balance for shipping charges and any applicable transaction fees for any Scan-Based-Return label that is scanned by the carrier in the mail stream. As rates can vary over time, you hereby agree that the shipping charges debited from your account balance may be calculated based on the rates at the time the label is scanned by the carrier in the mail stream and not at the time the label is printed. In addition to shipping charges and other applicable account fees, Descartes reserves the right to charge additional fees for participation in the Scan-Based-Return program.
5.3. To participate in Scan-Based-Returns, you must deposit funds into a ShipRush account from which any applicable fees are paid and provide Descartes with a current credit card or ACH or other similar bank deposit information. You are responsible for maintaining sufficient funds in that account to pay for any Scan-Based-Return label that is scanned before the applicable label’s expiration date. Where Descartes determines, at its sole discretion, that your account has insufficient funds, you agree that Descartes may bill the credit card or bank account on file for the amount of any Scan-Based-Returns. Descartes may also temporarily or permanently prevent you from further issuance of shipping labels under the Scan-Based-Return program.
5.4. Scan-Based-Return labels designated as return labels shall not be used as original outbound shipping labels. Scan-Based-Return labels are not eligible for refunds. If you participate in the Scan-Based-Return program, you may be required to maintain balance sufficient to cover the cost of the Scan-Based-Return labels. Your access to the Scan-Based-Return program may be disabled immediately if Descartes determines, in its sole discretion, that your account is delinquent or that you are misusing the Scan-Based-Return program.
5.5. Even after expiration or termination of your License, regardless of if termination is by you or Descartes, you must still pay for any Scan-Based-Return labels that are scanned before the labels’ expiration dates. You agree and authorize Descartes to retain your payment method information for the sole purpose of using it to collect for any such charges, or alternatively at Descartes sole discretion, Descartes may delay the return of any unused prepaid account balance for so long as is reasonably necessary to ensure all such charges to be paid.
6. Automated Refund Requests
6.1. Descartes may, at its sole discretion, approve your subscription to the ShipRush Automated Refund Request feature. If you subscribe to the ShipRush Automated Refund Request feature, Descartes will attempt to identify labels and shipping services requested through ShipRush Web or ShipRush Desktop that may be eligible for refunds. Descartes may automatically submit refund requests on your behalf, and, if such request is approved, update your account when the refund is received. The fee for this feature will be automatically deducted from any refunded amounts you may be due.
6.2. Labels potentially eligible for the ShipRush Automated Refund Request feature will be determined at Descartes sole discretion and may be changed from time to time at Descartes sole discretion. These changes may take effect without notifying you.
6.3. As a condition of your subscription to the ShipRush Automated Refund Request program, you authorize Descartes to act as your agent to submit refund requests on your behalf. Where Descartes is not able to submit such requests automatically on your behalf, you agree to take, in a timely manner, whatever reasonable steps Descartes requests of you to effect the refund request.
6.4. You acknowledge that the label once returned, refunded or voided cannot be used. If you use a previously returned, refunded, or voided label, Descartes may, in addition to any fee due for this label, charge you with an administrative fee to cover any reprocessing costs and expenses.
6.5. As a further condition of your subscription to the ShipRush Automated Refund Request program, you release Descartes from any and all responsibility, liability or causes of action arising out of or related to proper or improper refund requests submitted by Descartes on your behalf, including, but not limited to, failing to request refunds for eligible labels, failing to identify eligible labels, and refund requests that are submitted but are then denied by the shipping carrier (including, but not limited to, the U.S. Postal Service).
7. Printing Labels for US Postal Service
For subscribers to ShipRush Web or ShipRush Desktop who are printing labels for the U.S. Postal Service, the following additional terms apply:
(a) By accepting these Terms, you are also entering into an Agreement with the United States Postal Service (“USPS”) in accordance with the Domestic Mail Manual (DMM) 604.4, Postage Payment Methods, Postage Meters and PC Postage Products (Postage Evidencing Systems or “PES”). You accept responsibility for control and use of your account and the PES printed therefrom. You agree and certify that: (i) you will comply with all laws and regulations applicable to USPS services, including, without limitation, the provisions of the Domestic Mail Manual and the International Mail Manual, (ii) you do not owe any money to the USPS and you are not a controlling member or officer of an entity that owes money to the USPS, and (iii) you authorize Descartes to disclose your personal information to the USPS and such other information retained by Descartes that may enable the USPS to collect debts owed to it.
(b) You acknowledge that you have read the Domestic Mail Manual 604.4, Postage Payment Methods, Postage Meters and PC Postage Products (Postage Evidencing Systems) and agree to abide by all rules and regulations governing its use.
(c) Failure to comply with the rules and regulations contained in the DMM or use of the PES in any fraudulent or unlawful scheme or enterprise may result in the revocation of this agreement and the termination of access to Website, ShipRush Web, or ShipRush Desktop.
(d) You further acknowledge that any use of this PES that fraudulently deprives the USPS of revenue can cause you to be subject to civil and criminal penalties applicable to fraud and/or false claims against the United States. The submission of a false, fictitious or fraudulent statement can result in imprisonment of up to five (5) years and fines of up to $10,000 (18 U.S.C. 1001). In addition, a civil penalty of up to $5,000 and an additional assessment of twice the amount falsely claimed may be imposed (3 U.S.C. 3802).
(e) You further understand that the rules and regulations regarding the use of this PES as documented in the DMM may be updated from time to time by the USPS and it is your obligation to remain up to date on the rules and regulations and to comply with any current and future rules and regulations regarding its use.
(f) You further understand that the USPS has initiated an Automatic Package Verification system, that may result in the charge for a label being applied to your account after the initial label has printed. Such charges may be assessed after your account is terminated (by you or Descartes), and you agree that Descartes may retain your payment method to collect such charges, or may delay refunding your account balance to allow such charges to be paid.
8. Fees
8.1. You acknowledge and agree that you are responsible for payments of any fees associated with your account, including but not limited to subscription monthly fees, postage, label fees, account add fees, insurance fees etc. and those fees might be charged directly from your account or the payment method we have on file.
8.2. Fees required will be set out in your Order and invoiced to you. Non-payment of fees may result in the suspension or termination of your License. Descartes may, at its sole discretion, waive or extend the time to pay such fees at any time, however any waiver or extension of time shall not obligate Descartes to offer any other waivers or extensions of time and shall not be deemed to be a waiver of any of Descartes’ rights.
8.3. You hereby agree and authorize Descartes to retain your payment method information and automatically charge You for any due fees or charges during the term of the License as well as after its expiry or termination. You are responsible for providing Descartes with valid credit card or payment account details for payment of all fees and charges.
8.4. You must deposit funds into a ShipRush account from which any applicable fees are paid and provide Descartes with a current credit card or ACH or other similar bank deposit information. You are responsible for maintaining sufficient funds in that account to pay for any fees or labels due in connection with your use of ShipRush Web or ShipRush Desktop. Where Descartes determines, at its sole discretion, that your account has insufficient funds, you agree that Descartes may bill the credit card or bank account on file for the amount due. Descartes may also temporarily or permanently prevent you from further use of ShipRush Web or ShipRush Desktop if you do not have sufficient funds on your account and the payment method on file cannot be charged or Descartes, in its sole discretion, assume that the charge will be unsuccessful.
8.5. On a minimum of thirty (30) days prior notice to you, Descartes may, in its sole discretion, increase fees associated with ShipRush Web or ShipRush Desktop, including but not limited to the rates for any transaction-based fees. Descartes may notify you of any such increase by sending you a Communication.
8.6. Descartes does not set or control the rates provided by your shipping carrier. The changing of any such rates will be dictated by your agreement with your shipping carrier and is solely between you and your shipping carrier.
8.7. Further, Descartes reserves the right to verify the credit of all persons or companies subscribing to ShipRush Web or ShipRush Desktop at any time.
9. User Data
9.1. ShipRush Web and ShipRush Desktop are designed to allow you to transmit or provide certain information as part of their functionality. You represent and warrant the following about any data you may transmit or provide (“User Data”):
9.1.1. You have all necessary authority and permission to share, provide, transmit, or store User Data as the case may be, including but not limited to any personal information that may be a part of any User Data, and your acquisition and use of User Data in ShipRush Web or on ShipRush Desktop will comply with all applicable laws and regulations;
9.1.2. The use of your User Data within ShipRush Web or ShipRush Desktop will not infringe the proprietary rights of any party, including but not limited to any copyright, patent, trademark, and trade secret rights; and
9.1.3. User Data does not contain or install any viruses, worms, malware, Trojan horses, cross script attacks, or other harmful or destructive content.
9.2. Descartes, in its sole discretion, has the right (but not the obligation) to: (i) refuse or remove any User Data that is harmful or objectionable; (ii) is inconsistent with any of Descartes’s policies or procedures related to use of Descartes products or services; (iii) would obligate Descartes to adopt a data security or privacy standard or be subject to audits or inspections which Descartes has not currently adopted or is not currently subjected to; or (iv) violates any term or condition of these Terms of Use.
9.3. To allow for ShipRush Web or ShipRush Desktop to function as designed you agree to grant Descartes a worldwide, royalty-free, non-exclusive, transferable, sublicensable, irrevocable, perpetual license to store, reproduce, modify, aggregate, display, and publish User Data for only the purpose of allowing Descartes to: provide the product or service agreed to between the parties; provide support and maintenance for the product or service, including but not limited to any underlying systems or services that the product or service depends on; assess, develop, and implement any upgrades or improvements; and to comply with any contractual, legal, or regulatory obligations Descartes may have.
10. Securing User Data
10.1. Descartes has implemented the following features to assist you with the protection of User Data:
10.1.1. Secure Sockets Layer (SSL) is used where applicable for transmission of User Data to or from any ecommerce platform which supports it. SSL is also used for login authentication where applicable.
10.1.2. Electronic tokens provided by ecommerce platforms in connection with accessing your account are encrypted when stored or otherwise at rest.
10.1.3. Descartes maintains security features appropriate to the type of data and the current industry standards, including but not limited to the use of firewalls, antivirus software, and intrusion detection mechanisms.
10.2. Notwithstanding the security features implemented by Descartes, you understand and agree that it is your sole obligation and responsibility to select and implement the processes, procedures and technologies for protecting access to, distribution of and use of, your User Data.
10.3. To the extent that we collect any personal information from you, the handling of that personal information will be subject to our privacy policy, available at https://www.descartes.com/privacy-center. Where we agree to process personal information on your behalf, the processing of that information will be subject to our standard data processing terms, available at https://www.descartes.com/legal/customer-agreements/data-processing-agreement.
11. Ownership of Intellectual Property
11.1. Descartes owns all rights, title, and interest in ShipRush Web and ShipRush Desktop. Some components, including connections to or content from shipping carriers may be owned by third parties who own the rights to their respective components. Except for the authorized use of any Descartes product or service, no term or provision of these Terms of Use or any Order shall be interpreted as a sale, assignment, or transfer of any right, title, or interest in the product or service, or any portion or component of it, to you or any third party.
11.2. Except for any User Data, Descartes retains all ownership rights to any data, process, procedure, interface, or design found in or related to ShipRush Web and ShipRush Desktop.
11.3. You acknowledge and agree that SHIPRUSH and the ShipRush logo are trademarks and service marks of Descartes. All other trademarks, service marks, logos, and trade names used within ShipRush Web or ShipRush Desktop are the intellectual property of their respective owners. Further, ShipRush Web and ShipRush Desktop are protected by United States and international copyright and trademark laws. Except in connection with the intended operation and function of the particular product or service, no portion of the content or information contained within or delivered by the particular product or service or information may be reprinted, republished, modified, or distributed in any form without the express written permission of Descartes.
12. Confidentiality Obligations
12.1. ShipRush Web and ShipRush Desktop, along with any process, procedure, methodology, documentation, report, performance metrics, prices, fees, or rates are considered the confidential information of Descartes. You may not share any such confidential information with any other third party, person, or entity, without Descartes express prior written approval. Any breach or threatened breach of your confidentiality obligations is considered a material breach of these Terms of Use and Descartes may, in addition to any other remedy available at law, immediately suspend or terminate your License.
13. Disclaimer, Limitation of Liability and Indemnity
13.1. SHIPRUSH WEB, SHIPRUSH DESKTOP, AND ANY RELATED SHIPRUSH WEBSITE, WEBPAGE, OR ONLINE PORTAL ARE PROVIDED “AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS WEBSITE AND THE SERVICES.
13.2 DESCARTES SHALL NOT HAVE ANY LIABILITY REGARDING DELIVERY OR FAILURE OF DELIVERY OF ANY PACKAGE OR FREIGHT, OR IN RESPECT OF DELIVERIES FACILITIED BY YOU USING SHIPRUSH WEB OR SHIPRUSH DESKTOP, OR ANY INSURANCE CLAIMS THAT MIGHT BE CONNECTED WITH ANY OF THE ABOVE.
13.3. TO THE MAXIMUM EXTENT PERMITTD BY LAW, DESCARTES AND ITS OFFICERS, MEMBERS, EMPLOYEES, AGENTS, LICENSORS, AFFILIATES, SUCCESSORS, AND ASSIGNS ARE NOT RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO AND USE OF SHIPRUSH WEB OR SHIPRUSH DESKTOP, ANY CONTENT OR INFORMATION CONTAINED WITHIN THEM, ANY CONTENT OR INFORMATION DELIVERED AS A RESULT OF USING THEM, OR ANY HYPERLINKED WEBSITE. YOUR SOLE REMEDY FOR A BREACH OF THESE TERMS OF USE BY DESCARTES, OR ANY DISSATISFACTION ARISING FROM OR RELATED TO SHIPRUSH WEB OR SHIPRUSH DESKTOP, IS TO STOP USING THEM. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF DESCARTES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.4. YOU AGREE NOT TO BRING ANY ACTION AGAINST DESCARTES OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR SHAREHOLDERS, REGARDLESS OF FORM (INCLUDING NEGLIGENCE), ARISING OUT OF ANY CLAIMED BREACH OF THE AGREEMENT OR TRANSACTIONS UNDER THE AGREEMENT OR IN ANY OTHER WAY RELATED TO THE AGREEMENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS FIRST ARISEN.
13.5. You agree to indemnify, defend, and hold harmless Descartes, and its officers, members, employees and agents, from and against any claims, demands, damages, and costs (including attorneys’ fees and costs) arising out of or related to one or more of the following: (i) the actual or alleged infringement by you of the intellectual or other proprietary rights of a third party as a result of the unauthorized use of ShipRush Web, ShipRush Desktop, or any related documentation; (ii) the actual or alleged violation by you of any law, statute, or regulation as a result of the unauthorized use of ShipRush Web or ShipRush Desktop; or (iii) the actual or alleged breach of any terms of these Terms of Use.
14. Termination of Agreement
14.1. You or Descartes may terminate your License for convenience upon sixty (60) days’ written notice. Descartes may terminate your License by sending you written notice by way of email or mail, at Descartes sole discretion, to the applicable email or mailing address in your Registration Information. You may terminate your License by: i) sending Descartes written notice of your intention to terminate to servicedesk@descartes.com; or ii) close your account through the account management feature available in ShipRush Web.
14.2. Furthermore, for ShipRush Web subscribers, in the event you do not log into your account for a continuous period of twelve (12) months, Descartes may, at its sole discretion, deem that to be equivalent to prior written notice and terminate your License.
14.3. On termination of your License: (i) Descartes may restrict your access to ShipRush Web if you are a ShipRush Web subscriber; (ii) limit the features or functionality of ShipRush Desktop or otherwise restrict your ability to use it; and (iii) Descartes may permanently delete some or all of your User Data or other information associated with your account stored in Descartes’ servers or within the ShipRush Desktop application.
14.4. Unless Descartes retention policy states otherwise, Descartes will delete your User Data stored within ShipRush Web or in ShipRush Desktop within thirty (30) days following the termination or expiration of your License, included if the termination is caused by your inactivity on the account as described in s. 14.2 above.
15. Support
15.1. You may open a support ticket with Descartes by emailing servicedesk@descartes.com or by visiting https://servicedesk.descartes.com.
15.2. Descartes will use commercially reasonable efforts to make available ShipRush Web or ShipRush Desktop, but explicitly does not warrant, represent, or guarantee that your access to ShipRush Web or ShipRush Desktop will be continuous, uninterrupted, or bug free.
15.3. For subscribers to ShipRush Web or ShipRush Desktop, Descartes reserves Sundays between 7:00AM Eastern to 11:00am Eastern to conduct preventative system and hardware maintenance. In certain limited cases, a larger window of 3:00am Eastern to 11:00am Eastern may be used. During that time period your access to ShipRush Web or certain features in ShipRush Desktop may not be available in whole or in part. Descartes will use commercially reasonable efforts to notify you of any expected disruption at least seventy-two (72) hours prior to any planned disruption. Notwithstanding those times, in the event Descartes reasonably determines that emergency maintenance is required outside of the maintenance time period described above, Descartes will use commercially reasonable efforts to provide as much advance notice as is practical.
16. Improvements and Suggestions
16.1. At the sole discretion of Descartes, Descartes may develop, and make available to you, changes, revisions, enhancements or modifications (each a “ShipRush Revision”) to ShipRush Web or ShipRush Desktop. Descartes is not obligated to develop any ShipRush Revision including without limitation modifying ShipRush Web or ShipRush Desktop to operate on new or modified systems, equipment or configurations. A ShipRush Revision may also eliminate a particular feature or functionality, though Descartes will engage commercially reasonable efforts to ensure overall functionality is not affected. Each ShipRush Revision will be classified at the sole discretion of Descartes (e.g. new version, new release, or new modification). Upon release, each ShipRush Revision will be deemed to be part of ShipRush Web or ShipRush Desktop, as applicable. You understand and agree that Descartes, in its sole discretion, may charge an additional fee to access and use the additional functionality of a ShipRush Revision, or any portion thereof.
16.2. You may submit feedback, suggestions, and ideas (collectively, “Suggestions”), either orally or in writing to anyone at Descartes, or anyone acting as an agent, reseller, consultant, or other party. You agree that your Suggestions are not private, proprietary, or confidential, and Descartes will not be deemed to have received any Suggestion in trust or under any other confidentiality obligation. Descartes is not obligated to, and makes no commitment to, treat or maintain any Suggestions you provide as confidential. You agree that all documents, materials and intellectual property submitted to Descartes as part of a Suggestion will become the property of Descartes, unless Descartes agrees otherwise in writing. No obligation is assumed or may be implied on the part of Descartes by virtue of its receipt or examination of a Suggestion including, without limitation, any obligation to use the Suggestion to compensate you for the Suggestion, or otherwise enter into an agreement with you.
17. Miscellaneous
17.1. Survival. The following sections of this Terms of Use, as well as any provision explicitly stated in your Order, are intended to survive the termination or expiration of these Terms of Use: 5.4 (Scan-Based-Return Labels); 6.4 (Automated Refund Requests); 11 (Ownership of Intellectual Property); 12 (Confidentiality Obligations); 13 (Disclaimer, Limitation of Liability and Indemnity); 14.3 (Termination of Agreement); 16.2 (Improvement and Suggestions);17.1 (Survival); 17.4 (Choice of Law; Venue; Attorney’s Fees; Severability); 17.5 (Entire Agreement).
17.2. Links or Pointers to Other Sites. Descartes makes no representations about any other web site that you may access through or from ShipRush Web or ShipRush Desktop. You acknowledge and agree that when you access a non-Descartes website, it is independent from Descartes and that Descartes has no control over that website including, without limitation, its content, terms of use and privacy policy. It is solely your responsibility to protect yourself against any destructive content such as viruses, worms and trojan horses, that may be present on that website.
17.3. Transfer of Rights. Except with the prior written consent of Descartes, you may not assign, transfer or sublicense your License or your rights and obligations under these Terms of Use, or any portion thereof, or grant a security interest in or over your rights to use ShipRush Web or ShipRush Desktop. Any unauthorized assignment, transfer, sublicense or security interest is void.
17.4. Choice of Law; Venue; Attorney’s Fees; Severability. These Terms of Use are entered into in the State of Delaware and shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law rules. Each party to these Terms of Use submits to the exclusive jurisdiction of the state and federal courts sitting in Wilmington, Delaware and, to the maximum extent permitted by law, waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any action to enforce these Terms of Use, the prevailing party is entitled to recovery of its costs and attorney fees. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, those provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect.
17.5. Entire Agreement. These Terms of Use along with any applicable Order constitute the entire agreement between Descartes and you pertaining to the subject matter of the Order. In its sole discretion, Descartes may modify these Terms of Use or any other document referenced in it by posting a revised version on the Descartes’ website. Your continued use of ShipRush Web or ShipRush Desktop will indicate your agreement to be bound by the modified Terms of Use or other such document as the case may be.
[End of Terms of Use.]