Terms and Conditions

1. Compliance Testing.

1.1 Purpose. Developer agrees to submit its shipping application(s) for which it is seeking approval under the UPS Developer Compliance Program (the “Application(s)”) to Tescom for the purpose of conducting all necessary testing to determine whether all of Developer’s Applications are in compliance with the UPS Requirements (defined below) (the “Compliance Testing”). The “UPS Developer Compliance Program” means the program for testing Developers’ Applications to confirm compliance with the UPS Requirements. This Agreement shall govern the Compliance Testing for the Applications identified on Exhibit A hereto and submitted to Tescom for testing in connection with the UPS Developer Compliance Program within ninety (90) days of Developer’s agreement to this Agreement.

1.2 Website Registration. Developer must register its Application(s) via a website designated by Tescom (the “Website”). Tescom will provide Developer with a password protected, non-public URL address for the Website (“Website URL”). Developer will be provided with a password (“Password”) to access the Website and register its Application(s). Developer shall use the Website URL and Password only to access and use the Website for purposes of participating in the Compliance Testing. The Website URL and the Password are all Confidential Information (defined below) of UPS, and Developer shall not disclose any such information to any third party (other than Tescom) for any reason whatsoever and Developer shall use such information only for the purposes expressly stated herein.

1.3 Submission Criteria and Test Guides. Developer must submit all information, data, documents, Application(s) and other materials designated by UPS that are necessary to successfully complete the Compliance Testing (the “Submission Criteria”) to Tescom. Developer understands that Compliance Testing will not begin until Tescom receives all of the Submission Criteria.

In order to successfully complete the Compliance Testing, Developer and the Submission Criteria submitted by Developer must meet those requirements set forth in the test guides (“Test Guides”), which outline the testing requirements developed by UPS (“UPS Requirements”). The Test Guides, the types of Submission Criteria, the use cases, the UPS Requirements and any and all reports provided to Developer are all Confidential Information of UPS, and Developer shall not disclose any such information to any third party (other than Tescom) for any reason whatsoever and Developer shall use such information only for the purposes expressly stated herein.

1.4 Limited Use of Application. Tescom will only use the Submission Criteria provided by Developer for purposes of completing the Compliance Testing of Developer’s Application(s), which will include the following: (i) verification of submission of all Submission Criteria; (ii) verification of output variables of the use cases; (iii) verification of compliance of Developer’s Application(s) and website with the UPS Requirements; (iv) if applicable, verification of appropriate implementation of any and all UPS Online Tools into Developer’s Application; (v) verification of shipping screens, drop down menus, help screens, address book (if applicable), set-up screens, reports and administration’s compliance with the UPS Requirements; and (vi) any other testing requested by UPS. As part of the Compliance Testing, Tescom will print and file screen shots of all Applications and the Developer’s website screens that reference (a) UPS, (b) any UPS trademark, service mark or logo, and (c) UPS products, services features, and functionality.

1.5 Passing/Failing Compliance Testing. All determinations of whether Developer’s Application(s) have successfully passed the Compliance Testing and are approved are subject to UPS’s final approval. If Developer’s Application(s) successfully pass the Compliance Testing, subject to UPS’s approval, Tescom will notify Developer. If the Developer’s Application(s) fail the Compliance Testing, Tescom will provide a written explanation, subject to UPS’s approval, to the Developer. Once all deviations from the Test Guides identified in such written explanations are corrected by Developer, Tescom will resume the Compliance Testing.

The Compliance Testing and any approval provided in connection with such Compliance Testing shall only be valid for the version of Developer’s Application(s) submitted to Tescom for testing.

1.6 Completion of Compliance Testing. Tescom will return the Application(s) to Developer upon the completion of Compliance Testing, unless the Application(s) do not pass the Compliance Testing and additional testing is required. Compliance Testing will be completed within ten (10) days from the date on which Developer submits its Application(s), with the exception of delays due to causes beyond the control of Tescom, such as a failed Compliance Test or a Developer code fix.

1.7 Resubmission of the Application. Regardless of whether Developer’s Application(s) have passed the Compliance Testing and been approved, if UPS reasonably determines that the Application(s) are not in compliance with the UPS Requirements, Developer agrees that it may be required to resubmit its Application(s) to Tescom for additional testing and re-approval at Developer’s own cost and expense.

1.8 Audits. Developer’s Application(s) will be subject to two (2) audits each year, which will be at least four (4) months apart from one another (“Audits”). The Audits will include a review of Developer’s website and the identification of any modifications to Developer’s web pages including, but not limited to, changes in the description of Developer’s relationship with UPS, its business model, and its Application(s) that were submitted during the initial Compliance Testing. In addition as part of the Audit process, Developer will respond to a questionnaire conducted by Tescom in order to determine whether Developer’s Application(s) are in compliance with the UPS Requirements. If any modifications or changes are detected during an Audit, Developer agrees that it may be required to resubmit its Application(s) to Tescom for additional testing and re-approval.

1.9 Cooperation. Developer agrees to provide Tescom with all necessary information, support and co-operation that may reasonably be required to enable Tescom to carry out the Compliance Testing.

2. Confidentiality.

2.1 During the term of this Agreement and thereafter, the parties shall not use, disclose or permit any person access to any Trade Secrets of the other party or UPS, except as permitted in connection with its performance hereunder. During the term and for a period of five (5) years thereafter, except as otherwise mandated by law, neither party shall use, disclose, or permit any person access to any Confidential Information of the other party or UPS, except as permitted in connection with its performance hereunder. Without limitation of the foregoing, each party agrees that this Agreement and its terms and conditions are Confidential Information. Each party acknowledges that if it breaches this Section, the other party may have no adequate remedy at law available to it, may suffer irreparable harm, and will be entitled to seek equitable relief. “Confidential Information” means any information or material, other than Trade Secrets, that is of value to the disclosing party and is not generally known to third parties, or the disclosing party obtains from any third party which the disclosing party treats as proprietary whether or not owned by the disclosing party. Confidential Information shall not include information that the receiving party can show is: (i) known by the receiving party at the time of receipt from the disclosing party and not subject to any other nondisclosure agreement between the parties; (ii) now, or which hereafter becomes, generally known to the public through no fault of the receiving party; (iii) otherwise lawfully and independently developed by the receiving party without reference to Confidential Information of the disclosing party; or (iv) lawfully acquired by the receiving party from a third party without any obligation of confidentiality. “Trade Secret” means any information of the disclosing party which is not commonly known by or available to the public, which (a) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

3. Indemnification.

3.1 The Developer and Tescom shall indemnify, protect and hold each other harmless against any and all liabilities, obligations, judgments, costs and expenses imposed on or incurred by Tescom attributable to any act or omission of Developer, or incurred by Developer attributable to any act or omission of Tescom.

3.2 Neither Tescom nor UPS has any obligation under this Agreement to guarantee, warrant, or endorse Developer’s Application(s), products or the usage of such products.

3.3 Developer agrees that UPS and Tescom have no obligation under this Agreement to indemnify either party.

4. Liability.

4.1 The Compliance Testing process does not imply that either UPS or Tescom endorses or warrants Developer’s Application(s) or the usage of such application(s). THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

4.2 In no event shall Tescom’s liability to Developer for damages of any nature exceed the lesser of the total charges paid or payable for services during one (1) year period under this Agreement immediately preceding the actions that gave rise to such liability.

Developer agrees that neither Tescom or UPS shall be liable for any special, incidental, indirect or consequential damages or for the loss of profit, revenue, or data even if Tescom or UPS shall have been advised of the possibility of such potential loss or damage.

No action arising out of the performance of service under this Agreement may be brought by either party more than one (1) year after the cause of action arises, except that an action for non-payment may be brought within two (2) years of the date of the last payment made hereunder.

4.3 Tescom shall not be liable to Developer for any loss of data, howsoever caused (whether before or after termination of this Agreement) or for the reinstatement of the same.

4.4 Developer acknowledges and agrees that UPS has no obligation or liability to Developer pursuant to this Agreement. As a result, Developer may not seek recourse against UPS hereunder, whether for a refund of fees or for any claim of damages or loss whatsoever, including but not limited to claims arising by reason of UPS’s refusal to approve Developer’s Application(s).

5.1 Tescom will charge Developer for the Compliance Testing based on the type of testing needed. Standard rates are as follows:

UPSlink/EMT (US Origin including Puerto Rico) - $3195

UPSlink/EMT (Global certification, 5 origins) - $8575

UPS Digital Access Program, including API/DK with Rates & Services - $3650

UPS Developer Kit with Rates & Services - $3150

UPS Developer Kit without Rates & Services - $2050

Other API's and add-ons will be quoted on request

These flat rates include the initial testing cycle and up to two re-tests in case of failures. Rates may vary depending on application complexity. Rates will be quoted before start of testing.

5.2 Tescom will invoice Developer for time spent on the Compliance Testing after Compliance Testing commences. All Tescom invoices are due net-10 days from the date of invoice.

5.3 Statements by Tescom as to the total charges which may be involved in completing the Compliance Testing are supplied as estimates only and, while all reasonable efforts are made to ensure their accuracy, no liability will be accepted in respect thereof.

6. Term and Termination.

6.1 Term. The term of this Agreement shall be coterminous with the term of the UPS ReadyTM Vendor Agreement entered into between Developer and UPS.

6.2 Termination. Developer may terminate this Agreement for convenience at any time upon fifteen (15) days written notice. Tescom may terminate this Agreement, without liability, upon UPS’s instructions by giving fifteen (15) days written notice to Developer. Upon any termination of this Agreement, Developer shall pay Tescom for all services performed by Tescom up to the date of termination.

7. Miscellaneous.

7.1 Third-Party Beneficiary. Developer and Tescom acknowledge that UPS is an intended third-party beneficiary of this Agreement; therefore, UPS may act on its own to enforce the terms and conditions of this Agreement.

7.2 Severability of Provisions. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.

7.3 Amendment. This Agreement may not be modified or amended except by a writing signed by authorized representatives of the parties to this Agreement.

7.4 Survival. Sections 1.2 and 1.3 (with respect to the Confidential Information) and Sections 2, 3, 4 and 7 shall survive the expiration or termination of this Agreement.

7.5 Entire Agreement. This Agreement and any exhibits attached hereto constitute the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous representations, understandings and agreements related thereto, all of which are merged in this Agreement.