FBS Terms of Service
This section contains the Dropit FBS Terms Terms of Service
FBS Terms of Service
Last Updated: January 19, 2023
These Terms of Service (these “Terms”) form a binding legal agreement between Dropit for America, Inc., a Delaware corporation with offices at 11801 Domain Blvd, 3rd Floor, Austin, TX 78758 (“Dropit”) and Customer. “Customer” means the customer that has executed an order form or similar transaction document with Dropit (“Order”) for access to Dropit’s fulfill-by-store (FBS) technology solution. Each Order incorporates these Terms and together they form this “Agreement.” By entering into an Order, Customer agrees to be bound by this Agreement.
- Definitions. Unless otherwise defined in these Terms, capitalized terms have the meanings given below:
“Affiliate” means any entity controlling, controlled by, or under common control with a party.
“Connected Systems” means any non-Dropit systems or databases (such as inventory and order management, e-commerce, and POS systems) which are connected to the Solution at Customer’s request to enable full functionality.
“Documentation” means any user guides, manuals, and other documentation that may be published by Dropit from time to time regarding the Products and/or Platform, as applicable.
“Effective Date” means the Effective Date stated in the Order (or, if none, the date both parties have executed the Order).
“IP Rights” means any rights under patent, copyright, trade secret, trademark, or other intellectual or industrial property laws worldwide.
“Platform” means Dropit’s hosted software platform that powers the fulfill-by-store service.
“Products” means the scanners, printers, smart security tape, and other consumables, hardware, equipment, and products provided by Dropit to Customer hereunder, as described in the Order.
“Services” means any implementation, consulting, training, or other professional services provided by Dropit to Customer hereunder, as described in the Order.
“Solution” means, collectively, the Platform and the Products.
“Updates” means any updates, upgrades, modifications, or improvements to the Products or Platform.
- Platform and Products.
- Orders. Orders are non-cancellable and non-refundable except as expressly set forth therein or herein. Either party may from time to time propose change orders with respect to the scope of an Order, which will only take effect upon mutual execution by both parties. In the event of any conflict or inconsistency between a provision in the body of this Agreement and an Order, the provision in the Order will govern.
- Product Lease or Purchase. Unless expressly indicated in the Order, and excluding consumables: (a) Products are licensed and leased (not sold) to Customer for the duration of the Order; (b) Dropit retains title to the Products; (c) Customer will be responsible for returning the Products to Dropit’s designated address, at Customer’s expense, at the end of the lease period; and (d) Customer will be responsible for the cost to replace or repair any lost or damaged Products. If the Order indicates a Product is being purchased (not leased) by Customer, then title and risk of loss will transfer to Customer upon the later of delivery of the Product to Customer, or receipt by Dropit of all amounts due from Customer for such Product purchase.
- Product Delivery, Use, and Care. Dropit will deliver all Products to Customer’s address set forth in the Order. Unless otherwise stated in the Order, Customer will bear all applicable shipping and insurance charges, taxes, duties, and similar charges that may be assessed against the Products in connection with delivery to Customer. Delivery times in an Order are estimates and not binding commitments. Customer will use and maintain the Products in accordance with the Documentation.
- Platform Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Dropit grants Customer a non-sublicensable and non-transferable right to access and use the Platform during the Term, in accordance with the Documentation, solely for its internal operations.
- Users and Accounts. Customer is solely responsible for ensuring that its users’ login credentials (usernames and passwords) remain secure and confidential and will notify Dropit immediately if it suspects any unauthorized use of any user account. Customer will be responsible for disabling access of any former authorized users (e.g., upon termination of an employee or otherwise). Customer is responsible for the acts and omissions of its employees, personnel, and other users that it allows to access the Solution.
- Updates. Customer acknowledges that it is entering into this Agreement on the basis of the Solution as it exists today, and not in reliance upon any requested or anticipated Updates, regardless of whether or not included on any Dropit “roadmap” or similar plans. Dropit may develop and deploy Updates, including without limitation to modify, add, or remove Platform functionality, at any time in its sole discretion, with or without notice to Customer.
- Connected Systems. Customer is responsible for ensuring it provides access to any necessary Connected Systems and that it has the necessary rights and authority to grant such access and transmit related data to the Platform. Dropit is not responsible for the operation of, or accuracy of data from, any Connected Systems, and Customer elects to connect and use any Connected Systems at its own risk. Customer acknowledges that the Platform may not function correctly or completely if relevant Connected Systems are not made accessible.
- Add-Ons. Dropit may offer optional add-ons or modules to enhance the features or functionality of the Solution (“Add-Ons”). Customer’s use of any such Add-Ons may be subject to additional charges and terms and conditions (“Add-On Specific Terms”), as indicated by Dropit at the time Customer is presented the option to use such Add-Ons. The Add-On Specific Terms are incorporated into this Agreement upon Customer’s use of the applicable Add-On. In the event of any conflict between these Terms and the Add-On Specific Terms, the Add-On Specific Terms will govern solely as relates to the corresponding Add-On.
- Services. Dropit will provide basic technical support at no additional charge. Dropit will provide additional Services to the extent set forth in the Order. Customer will be responsible for providing all access to Customer’s facilities, systems, and personnel to enable Dropit’s provisions of such Services.
- Fees and Payment.
- Fees. The fees will be as set forth in the Order. Unless otherwise stated in the Order: (a) any fixed one-time fees will be invoiced upon the Effective Date; (b) any variable one-time fees will be invoiced monthly in arrears; and (c) any recurring fees will be invoiced annually in advance. All fees are in USD unless otherwise stated in the Order, and are non-cancelable and non-refundable unless otherwise set forth herein. Beginning 12 months after the Effective Date, Dropit may change its fees annually by up to 5% or the increase in the CPI (All Urban Consumers) as reported by the US Bureau of Labor Statistics, whichever is greater, by providing notice to Customer.
- Revenue Share. If the Order provides for a revenue share based on sales processed through the Solution, Customer will: (a) be responsible for processing such sales and payments; (b) maintain commercially reasonable records regarding such sales and payments; and (c) provide Dropit access to relevant Connected Systems such that Dropit can accurately track such sales and payments and the corresponding revenue share. Dropit will invoice Customer for the revenue share monthly in arrears (unless another frequency is stated in the Order), based on the information available to it. Once per 12 months, Customer will allow Dropit or its designated representatives to examine Customer’s relevant books and records to verify the proper calculation and payment of the revenue share (and will rectify any underpayment within 30 days from Dropit’s notification of the same).
- Expenses. If Customer orders any Services, in addition to the applicable Service fees stated in the Order, Customer will reimburse Dropit’s travel and other expenses incurred in connection with the performance of such Services (at actual, documented cost).
- Payment and Taxes. Customer will pay Dropit all invoiced amounts within 30 days from receipt of the invoice. A late payment charge of 1.5% per month, or the maximum rate allowed by law (whichever is less), will be added to all overdue amounts. All fees are exclusive of, and Customer is solely responsible for payment of, all applicable value-added, sales, use, right of use and other taxes and all applicable export and import fees, customs duties, and similar charges (other than taxes based on Dropit’s net income) arising from the transactions hereunder. If Customer claims a tax exemption, it will provide an exemption certificate to Dropit and indemnify Dropit for any claims from a taxing authority arising from such purported exemption.
- Term and Termination.
- Term. The Agreement commences on the Effective Date and, unless terminated earlier, will continue for the initial term set forth in the Order (“Initial Term”). Unless otherwise set forth in the Order, after the Initial Term the Agreement will automatically renew for successive renewal periods of equal duration as the Initial Term (each, a “Renewal Period” and together with the Initial Term, the “Term”) unless either party provides written notice of non-renewal at least 90 days prior to the end of the then-current Initial Term or Renewal Period
- Termination. Either party may terminate this Agreement: (a) upon 30 days’ prior written notice to the other party of a material breach of this Agreement, if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Suspension. Dropit may suspend Customer’s access to the Platform if Dropit determines in good faith that: (a) Customer has materially breached Section 5 (Proprietary Rights) or failed to pay any amounts when due; or (b) such suspension is necessary to avoid possible harm to its, Customer’s, or any third party’s property, systems, or information. Dropit will notify Customer of the suspension and reason therefor as soon as commercially practicable, and will use commercially reasonable efforts to reinstate Customer’s access as soon as the underlying issue has been remedied to Dropit’s reasonable satisfaction.
- Effect of Termination. Upon the expiration or termination of this Agreement, Customer’s rights to use the Solution will immediately end, and Customer will within 30 days (a) return all leased Products to Dropit’s designated address, at Customer’s own expense; and (b) destroy all copies of Documentation in its possession or control. The provisions of Sections 2.2, 4.4, 5, 6, 7, 8, 9.3, 10, and 11 will survive the expiration or termination of this Agreement. Termination or expiration of this Agreement will not affect any already-accrued obligations or liabilities (including Customer’s obligation to pay any accrued fees).
- Proprietary Rights.
- Ownership. Dropit and its licensors own the Solution and Documentation and retain ownership of all right, title, and interest thereto (including all IP Rights therein). This Agreement does not transfer any right, title, or interest in the IP Rights in the Solution or Documentation to Customer except for the limited licenses expressly granted herein. Any Updates prepared by Dropit, jointly or alone, whether paid or not, will be the sole property of Dropit, and for avoidance of doubt Customer hereby assigns any right, title, or interest it may otherwise have in any such Updates to Dropit.
- Feedback. To the extent Customer provides any suggestions, recommendations, or other feedback regarding the Solution or any possible improvements thereto (collectively, “Feedback”), Customer hereby assigns and will automatically assign any IP Rights in such Feedback to Dropit and Dropit will be entitled (but not obligated) to use such Feedback in any manner it deems appropriate to improve its offerings without any right of attribution or compensation to Customer.
- Acceptable Use. Customer will not, and will ensure its users do not, directly or indirectly: (a) sell, lease, license, sublicense, or otherwise make available the Solution or Documentation to any third party; (b) pledge, loan, mortgage, or attempt in any other manner to dispose of the Products or to permit any liens, encumbrances, or legal process to be incurred or levied on the Products; (c) decompile, disassemble, or reverse engineer the Solution, or attempt to access a Product’s internal components or firmware or the Platform’s source code; (d) create derivative works or write or develop any products or software based upon the Solution, or use the Solution to develop any competing product or service; (e) alter or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Solution or Documentation; (f) upload, transmit, or submit any viruses, malware, or other malicious code or harmful materials to the Platform, or otherwise interfere with the operation of the Platform; (g) attempt to bypass any security measures or gain any unauthorized access to the Platform or any part thereof, or Dropit’s or any third party’s systems or information; (h) use the Solution to conduct benchmarking, competitive analysis, or penetration testing; (i) impersonate any person or entity, or provide any false or misleading information or any information it does not have the right to provide; or (j) use the Solution in an unlawful manner or for any unlawful purpose.
- Definition. “Confidential Information” means any non-public information provided by one party (“Discloser”) to the other party (“Recipient”) hereunder that is either conspicuously identified as confidential or proprietary or should be reasonably understood to be confidential based on the nature of the information or circumstances of the disclosure. Without limiting the generality of the foregoing,
Dropit’s Confidential Information includes any non-public Documentation and any non-public information regarding the features, functionality, and performance of the Solution, and Customer’s Confidential Information includes the Customer Data (as defined below). Confidential Information does not include information that: (a) is already known to Recipient without obligation of confidentiality prior to its disclosure by Discloser; (b) is in or enters the public domain through no fault of the Recipient; (c) is or was lawfully received by Recipient from a third party without confidentiality obligations; or (d) was independently developed by Recipient without access to the Confidential Information, as established by written documentation.
- Protection. Recipient will only use Confidential Information to perform its obligations or exercise its rights under this Agreement. Recipient will not disclose Confidential Information to any individuals or entities except for its and its Affiliates’ officers, employees, agents, and representatives who have a need to know such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein. Recipient will maintain the Confidential Information in confidence using the same degree of care as it uses to protect its own similar information (but no less than reasonable care) and will be liable for any unauthorized use or disclosure of the Confidential Information, including by any of its personnel. The protections set forth herein will continue to apply to any Confidential Information disclosed during the Term for the greater of five years, or so long as such Confidential Information is protected as a trade secret under applicable law.
- Compelled Disclosure. If Recipient is legally required to disclose any Confidential Information of Discloser, Recipient will, if legally permitted, provide Discloser with prompt written notice sufficient to allow it an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then Recipient may produce only such Confidential Information as is required by the court order or governmental action.
- Return or Destruction. At Discloser’s request upon termination of this Agreement, Recipient will promptly return or destroy all Confidential Information (including any copies thereof) in its possession or control, except that Recipient may retain: (a) any copies required to be retained under applicable law and (b) copies in backup or archive media created in the ordinary course of business; provided in each case that the obligations of confidentiality hereunder will continue to apply to such retained copies.
- Remedies. Each party agrees that the other party may have no adequate remedy if there is a breach or threatened breach of this Section 6 and, accordingly, that the non-breaching party will be entitled to seek injunctive or other equitable relief to prevent or remedy such a breach in addition to any legal remedies available to that party.
- Customer Data. “Customer Data” means any data, including Personal Information (as defined below) submitted by Customer to the Platform. Customer Data is owned by the Customer. Dropit will use commercially reasonable physical, technical, and administrative safeguards designed to protect Customer Data in its possession or control from any unauthorized use or disclosure.
- Personal Data Definitions. “Applicable Privacy Law” means any data protection or privacy laws applicable to the Personal Information processed by Dropit hereunder, which may include without limitation the California Consumer Privacy Act of 2018 (“CCPA”), the California Privacy Rights Act (“CPRA”), and the EU or UK versions of the General Data Protection Regulation (“GDPR”). “Personal Information” means any information that: (a) identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household; or (b) is otherwise subject to any Applicable Privacy Law.
- Data Requests; Cooperation. If Dropit receives a request for access or deletion from an individual regarding Personal Information that Dropit processes on behalf of Customer, it will notify Customer accordingly. Customer will be responsible for handling such requests, but Dropit will provide commercially reasonable assistance to Customer as necessary for Customer to respond to such requests. Each party will provide all reasonable cooperation requested by the other party to facilitate such other party’s compliance with Applicable Privacy Laws in connection with the subject matter of the Agreement. In the event of a change in Applicable Privacy Laws, the parties will negotiate in good faith and agree to new or amended terms to accommodate such changes and maintain compliance.
- Anonymous Data. “Anonymous Data” means technical information regarding Solution usage or performance, or other information (including Personal Information) that has been aggregated or otherwise anonymized, in each case that cannot be reasonably used to identify any individual (“Anonymous Data”). Dropit may collect, use, and disclose Anonymous Data in any manner it deems useful, provided that any disclosure of Anonymous Data is done in a manner that does not permit the identification of Customer in relation to such Anonymous Data.
- Backups. Dropit will not be responsible for any loss, destruction, alteration or disclosure of Customer Data, and Customer should make its own backups of important Customer Data. In the event of any loss or damage to Customer Data in Dropit’s possession, Dropit’s sole responsibility will be to use commercially reasonable efforts to restore the latest backup of such Customer Data maintained by Dropit in accordance with its standard archiving procedure.
- By Dropit. Dropit will indemnify, defend, and hold Customer harmless from and against any losses, liabilities, damages, fees, costs, and expenses (including reasonably attorneys’ fees) (collectively, “Losses”) it incurs in connection with a third-party claim to the extent arising out of any allegation that the Solution infringes any third party’s IP Rights. Dropit will have no obligation for any claims arising out of: (a) misuse or modification of the Solution (other than by Dropit); (b) combination of the Solution with any Customer Data or other components not provided by Dropit; or (c) Dropit’s conformance with Customer’s specific requirements or instructions. If a third-party claim of infringement is threatened or occurs, in addition to its obligations above in this paragraph, Dropit may seek to mitigate damages by modifying the Solution to be non-infringing, obtaining a license for Customer to use the Solution, or (if neither of the foregoing are commercially feasible) terminating this Agreement and refunding to Customer any unused, prepaid fees. The provisions of this Section 8.1 set forth Dropit’s exclusive liability, and Customer’s exclusive remedy, for any third-party claims of infringement.
- By Customer. Customer will indemnify, defend, and hold Dropit harmless from and against any Losses it incurs in connection with a third-party claim to the extent arising out of Customer’s use of the Platform, other than claims Dropit has indemnified under Section 8.1.
- Indemnification Procedures. The party seeking indemnification hereunder will: (a) give the indemnifying party prompt written notice of the claim (provided that no delay will affect the indemnifying party’s obligations except to the extent materially prejudicial to it); (b) give the indemnifying party control of the defense and settlement of the claim; and (c) cooperate with the indemnifying party in defending or settling such claim, at the indemnifying party’s expense. The indemnified party will have the right to participate at its own expense in the defense and settlement of any claim. Neither party will enter into any settlement that adversely affects the rights or interests of the other party without such party’s prior written consent, not to be unreasonably withheld.
- Warranties and Disclaimers.
- Mutual Warranties. Each party represents and warrants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation or organization; (b) it has full power and authority under applicable laws, rules or regulations to enter into and perform its obligations and engage in the activities contemplated under this Agreement; and (c) its entry into this Agreement and performance hereunder will not conflict with or violate any agreement or obligation it has to any third party.
- Additional Dropit Warranties. Dropit represents and warrants that: (a) the Solution will materially conform with the Documentation when used in accordance with the Documentation; and (b) any Services will be performed in a professional and workmanlike manner. For any breach of the above warranties, Dropit’s sole obligation and Customer’s sole remedy will be for Dropit to promptly and at no charge repair or replace the affected Solution components, or re-perform the applicable Services (or, if the foregoing is not commercially feasible, for Dropit to terminate the affected Order(s) and refund any prepaid unused fees). This warranty will be null and void if Customer has modified the Solution or used it in violation of this Agreement or the Documentation.
- Disclaimers. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, DROPIT PROVIDES THE SOLUTION, DOCUMENTATION, AND SERVICES “AS IS” AND “AS AVAILABLE” AND MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING ANY OF THE FOREGOING, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. DROPIT DOES NOT GUARANTEE THAT THE PLATFORM, DOCUMENTATION, OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. DROPIT DOES NOT GUARANTEE ANY PARTICULAR RESULTS FROM USE OF THE SOLUTION AND IS NOT RESPONSIBLE FOR ANY ACTIONS TAKEN BY CUSTOMER BASED ON USE OF THE SOLUTION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR FILES, OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES, REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION THAT MAY BE ASSERTED AND WHETHER OR NOT ALERTED TO THE POSSIBILITY OF SUCH DAMAGES; OR (B) TOTAL AMOUNT IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO DROPIT UNDER THE ORDER IN THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM. THIS PARAGRAPH WILL NOT LIMIT A PARTY’S LIABILITY FOR BREACHES OF SECTION 5.3 (ACCEPTABLE USE) OR 6 (CONFIDENTIALITY), OR ITS OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION).
- GENERAL PROVISIONS
- Force Majeure. Except for payment obligations, neither party will be liable for any delays or failures to perform to the extent due to a cause beyond such party’s reasonable control, which may include natural disasters or acts of God, strikes or work stoppages, acts of war or terrorism, telecommunications disruptions, pandemics or epidemics, quarantines, or other government orders.
- Relationship. The parties are independent contractors, and nothing herein will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
- Publicity. Dropit may include Customer’s names and logos in its customer lists on its website and other properties or materials. If requested by Dropit, Customer will consent to and provide reasonable cooperation in Dropit’s preparation of a joint press release and/or case study regarding Customer’s use of the Solution. Neither party will make any other use of the other party’s names or logos without the prior written consent of such other party.
- Assignment. Neither party may assign or transfer its rights or obligations hereunder without the other party’s prior written consent (not to be unreasonably withheld). Notwithstanding the foregoing, Dropit may assign and transfer this Agreement in its entirety to any Affiliate or the surviving or successor entity in the event of a merger, stock sale, or sale of substantially all assets related to the FBS offering. Subject to the foregoing, this Agreement will be for the benefit of, and binding upon, each party’s permitted successors and assigns.
- Governing Law; Mandatory Arbitration. This Agreement will be governed by the laws of the State of Delaware, without regard to its conflicts of law rules. Any dispute arising out of this Agreement will be settled exclusively through binding arbitration administered in Wilmington, Delaware by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and the Expedited Procedures set forth therein, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened misappropriation of IP Rights or breach of confidentiality. The prevailing party in any such dispute will be entitled to recover its reasonable attorney’s fees and costs.
- Notices. Notices will be in writing and addressed as set forth in the Order. Notices will be considered as properly received: (a) when delivered, if delivered in person; (b) one business day after dispatch, if dispatched by an overnight delivery service that provides signed acknowledgment of receipt; or (c) three business days after deposit in the U.S. Mail, if sent by certified or registered first class mail, postage prepaid, return receipt requested. A party may change its address by providing written notice to the other party.
- Severability. If any provision hereof is held illegal or unenforceable, that provision will be limited or eliminated only to the extent necessary for this Agreement to otherwise remain in full force and effect.
- Entire Agreement; Amendments; Waivers. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any prior agreements, oral or written, between the parties regarding the subject matter. Subject to Section 11.9, no amendments, modifications or changes will be effective unless they are in a writing signed by authorized representatives of the parties. No waiver of a breach of any provision of this Agreement by either party will constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver will be effective unless made in writing and signed by a duly authorized representative of the waiving party.
Updates to Terms. Dropit may revise these Terms from time to time, and will publish any updated version on its website. Any such updates will take effect upon posting. Notwithstanding the foregoing, Dropit will give Customer at least 30 days prior notice (through Platform messages, by emailing the primary email contact registered in Customer’s account, or in writing) of any changes to these Terms which could reasonably be expected to have a materially adverse effect on Customer, in which case Customer will have the right to opt out of such changes until the next renewal date by giving written notice of such election no more than 30 days from receipt of the notice from Dropit.