Terms of Service

1. Definitions

Capitalized terms have the meanings given below or where otherwise defined in this Agreement.

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than fifty percent (50%) of the voting interests of the subject entity.

1.2 “Confidential Information” means all information disclosed by one party to the other, whether in writing or orally, that is designated as confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure, including the terms, conditions, and pricing of this Agreement.

1.3 “Customer Data” means all data, content, and information submitted to the FulfillPros Service by or on behalf of Customer or its Users, including Order Data.

1.4 “FulfillPros Service” means the web-based applications, integrations, APIs, and related tooling made available by ETechSphere and identified in an Order Form or in the plan selected at registration.

1.5 “Order Data” means order records transmitted to the FulfillPros Service from a Connected Channel and routed to a 3PL Partner, including customer name and shipping address, as further described in the Privacy Policy.

1.6 “Connected Channel” means an eCommerce storefront, marketplace, ERP, or other order source that Customer connects to the FulfillPros Service.

1.7 “3PL Partner” means a third-party logistics provider, warehouse operator, or other fulfillment provider that Customer engages or that engages Customer, whether discovered through the FulfillPros marketplace or connected independently.

1.8 “Order Form” means an ordering document or online registration flow specifying the FulfillPros Service, plan, quantities, Fees, and Subscription Term, which incorporates this Agreement by reference.

1.9 “Professional Services” means consulting, implementation, custom integration, migration, or other technical services performed by ETechSphere, as described in an Order Form or statement of work.

1.10 “Support Services” means the support included with the FulfillPros Service, as described in the Service Availability and Support terms.

1.11 “Subscription Term” means the period identified in an Order Form during which Users are authorized to access the FulfillPros Service.

1.12 “Users” means individuals authorized by Customer to use the FulfillPros Service, which may include Customer’s employees, contractors, Affiliates, and 3PL Partner personnel acting on Customer’s behalf.

2. Provision of the FulfillPros Service and Support Services

2.1 Provision of the service

Subject to the terms of this Agreement and payment of all Fees, ETechSphere grants Customer a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the FulfillPros Service during the Subscription Term solely for Customer’s internal business purposes. Customer’s purchase is not contingent on the delivery of any future functionality or feature, nor on any public statement regarding future functionality. Customer is responsible for its Users’ compliance with this Agreement.

2.2 Support and service levels

ETechSphere will provide Support Services and will use commercially reasonable efforts to make the FulfillPros Service available in accordance with the Service Availability and Support terms, which set out target availability, maintenance windows, severity definitions, and target initial response times. Enhanced availability commitments or service credits, if any, apply only where expressly stated in an Order Form.

2.3 Users

User seats are named and may not be shared. Customer may reassign a User seat to a replacement individual when the original User no longer requires access. Customer may add Users during a Subscription Term at the rates set out in the applicable Order Form, prorated for the remainder of the then-current term.

2.4 Marketplace and 3PL Partner relationships

ETechSphere is a technology platform. ETechSphere does not warehouse, handle, pick, pack, ship, or take title to any goods, and is not a carrier, freight forwarder, customs broker, or fulfillment provider. Where Customer discovers, evaluates, or contracts with a 3PL Partner through the marketplace or directory, the resulting fulfillment relationship — including rates, service levels, liability for loss or damage, insurance, and claims — is solely between Customer and that 3PL Partner. Listings, capability data, and performance information displayed in the marketplace are supplied by the listed party, and ETechSphere does not guarantee their accuracy or the performance of any 3PL Partner or brand.

3. Restrictions and responsibilities

3.1 Customer responsibilities

Customer will prevent unauthorized access to and use of the FulfillPros Service, maintain the security of account credentials and API keys, and notify ETechSphere promptly of any suspected unauthorized access. Customer is responsible for the accuracy, quality, integrity, and legality of Customer Data, for obtaining all rights and consents necessary for ETechSphere to process it (including with respect to Order Data originating from Connected Channels), and for its use of the results the FulfillPros Service produces.

3.2 Restrictions

Customer will not, and will not permit any third party to:

• reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or algorithms of the FulfillPros Service, except to the extent that restriction is prohibited by law;
• modify, translate, or create derivative works based on the FulfillPros Service;
• sell, resell, rent, lease, sublicense, distribute, or use the FulfillPros Service on a timesharing or service-bureau basis;
• remove or obscure any proprietary notice, mark, or attribution;
• use the FulfillPros Service to store or transmit malicious code, infringing material, or unlawful content, or to send unsolicited commercial messages;
• interfere with or disrupt the integrity or performance of the FulfillPros Service, or attempt to gain unauthorized access to it or to related systems or networks;
• scrape, harvest, or systematically extract marketplace or directory data, or use automated means to access the FulfillPros Service other than through documented APIs and within published rate limits;
• benchmark the FulfillPros Service for publication, or use it to build a competing product or service.

3.3 Export control and sanctions

Each party represents that it is not, and is not owned or controlled by, a party identified on any list of restricted or denied parties maintained by a government authority. Customer will not access or use the FulfillPros Service in, or provide access to any person located in, an embargoed jurisdiction, and will comply with all applicable export control, sanctions, and anti-corruption laws.

3.4 Equipment and connectivity

Customer is responsible for obtaining and maintaining the equipment, software, network connectivity, and third-party accounts required to access the FulfillPros Service, including Connected Channel and warehouse management system accounts, and for all costs associated with them.

4. Proprietary rights

4.1 Customer Data

As between the parties, Customer owns all right, title, and interest in and to Customer Data. Customer grants ETechSphere a non-exclusive, non-transferable, worldwide right and license to host, copy, process, transmit, and display Customer Data solely as necessary to provide, secure, and support the FulfillPros Service, including transmitting Order Data to the 3PL Partners Customer selects. ETechSphere processes personal information within Customer Data in accordance with the Privacy Policy and any executed data processing agreement.

4.2 FulfillPros Service

ETechSphere retains all right, title, and interest in and to the FulfillPros Service, including all software, documentation, integrations, models, and improvements, and all intellectual property rights in them. No rights are granted to Customer other than those expressly set out in this Agreement.

4.3 Feedback

If Customer or its Users provide suggestions, enhancement requests, or other feedback regarding the FulfillPros Service, ETechSphere may use it without restriction, and Customer grants ETechSphere a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to do so.

4.4 Usage data

ETechSphere may collect and analyze aggregated and de-identified data regarding the configuration, performance, and use of the FulfillPros Service, and may use that data to operate, improve, and support the FulfillPros Service and for ETechSphere’s other lawful business purposes. ETechSphere will not disclose such data in a form that identifies Customer, its Users, or any individual.

5. Confidentiality

5.1 Ownership of Confidential Information

Each party’s Confidential Information remains its sole property. ETechSphere’s Confidential Information includes non-public information about the features, functionality, security architecture, roadmap, and performance of the FulfillPros Service. Customer’s Confidential Information includes Customer Data and other non-public information Customer provides.

5.2 Obligations and exceptions

The receiving party will use the disclosing party’s Confidential Information only to perform under this Agreement, will not disclose it to third parties other than to employees, Affiliates, and advisors with a need to know who are bound by comparable obligations, and will protect it using at least the same degree of care it uses for its own confidential information of like importance, and in no event less than reasonable care. These obligations do not apply to information that is or becomes publicly available through no fault of the receiving party, was rightfully known to the receiving party without restriction before disclosure, is rightfully received from a third party without restriction, or is independently developed without use of the disclosing party’s Confidential Information. If the receiving party is legally compelled to disclose Confidential Information, it will, where lawful, give prompt notice and reasonable assistance so the disclosing party may seek protective treatment.

6. Payment of fees

6.1 Fees and payment terms

Customer will pay the fees described in the applicable Order Form (“Fees”). Except as otherwise stated in an Order Form, Fees are invoiced in advance and are due net fifteen (15) days from the invoice date, and self-service subscriptions are charged to the payment method on file at the start of each billing period. Fees are based on the plan and quantities purchased rather than on actual usage, and subscriptions may not be decreased during a Subscription Term. Usage-based charges, including per-order fees and overage above a plan’s included order volume, are invoiced in arrears at the rates in the applicable Order Form or on the pricing page.

Except as expressly provided in this Agreement, Fees are non-cancelable and non-refundable. Customer must notify ETechSphere of any billing dispute within fifteen (15) days of the invoice date; undisputed amounts remain payable. Unpaid amounts accrue a finance charge of one and one-half percent (1.5%) per month, or the maximum permitted by law if lower, plus costs of collection. ETechSphere may suspend the FulfillPros Service if any undisputed amount remains unpaid ten (10) days after written notice.

6.2 Taxes

Fees are exclusive of all taxes, levies, and duties (“Taxes”). Customer is responsible for all Taxes associated with its purchases other than taxes based on ETechSphere’s net income or property. If ETechSphere is legally required to collect Taxes, they will be invoiced to Customer unless Customer provides a valid exemption certificate.

7. Term and termination

7.1 Term of agreement

This Agreement begins on the Effective Date and continues until all Subscription Terms have expired or been terminated.

7.2 Subscription term and renewal

Each Subscription Term is as specified in the applicable Order Form, and renews automatically for successive periods of equal length (or one year, whichever is shorter) unless either party gives written notice of its intent not to renew at least thirty (30) days before the end of the then-current term. Fees for a renewal term may increase by up to five percent (5%) over the prior term unless otherwise agreed in writing; ETechSphere will give at least thirty (30) days’ notice of any larger increase.

7.3 Termination for cause and effect

Either party may terminate this Agreement or an affected Order Form if the other party materially breaches and fails to cure the breach within thirty (30) days after written notice. ETechSphere may suspend access immediately where continued access presents a security risk, violates law, or may adversely affect the FulfillPros Service or other customers.

On expiration or termination, Customer’s right to access the FulfillPros Service ceases, all amounts accrued become immediately due, and Customer must discontinue all use. ETechSphere will make Customer Data available for export for thirty (30) days after the effective date of termination, after which it may be deleted in accordance with the retention periods in the Privacy Policy. Order records held by a 3PL Partner or a Connected Channel are controlled by those parties and are not deleted by ETechSphere.

7.4 Survival

Sections 1 (Definitions), 3.2 (Restrictions), 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payment of Fees, as to amounts accrued), 7.3 and 7.4, 8.2 (Disclaimer), 9 (Indemnity), 10 (Limitation of Liability), and 11 (Miscellaneous) survive expiration or termination.

8. Warranty and disclaimer

8.1 Warranties

Each party represents and warrants that it is duly organized and validly existing, and that this Agreement is enforceable against it. ETechSphere warrants that it will provide the FulfillPros Service using reasonable efforts consistent with prevailing industry standards, and will perform any Professional Services in a professional and workmanlike manner. Customer’s exclusive remedy and ETechSphere’s entire liability for breach of this warranty is re-performance or, if ETechSphere cannot substantially correct the non-conformity in a commercially reasonable manner, termination of the affected subscription and a refund of prepaid unused Fees for the terminated portion of the Subscription Term.

8.2 Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, THE FULFILLPROS SERVICE, THE SUPPORT SERVICES, AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ETECHSPHERE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ETECHSPHERE DOES NOT WARRANT THAT THE FULFILLPROS SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT IT WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ANY CONNECTED CHANNEL, WAREHOUSE MANAGEMENT SYSTEM, OR 3PL PARTNER WILL PERFORM AS EXPECTED.

9. Indemnity

9.1 By ETechSphere

ETechSphere will defend Customer against any third-party claim alleging that the FulfillPros Service, as provided and used in accordance with this Agreement, infringes a United States patent or copyright or misappropriates a trade secret, and will indemnify Customer against damages and costs finally awarded or agreed in settlement. If the FulfillPros Service becomes, or ETechSphere believes it may become, the subject of such a claim, ETechSphere may procure the right for Customer to continue using it, modify or replace it so it is non-infringing, or terminate the affected subscription and refund prepaid unused Fees. ETechSphere has no obligation for claims arising from Customer Data, from modifications not made by ETechSphere, from combination with products or services not provided by ETechSphere, or from use in breach of this Agreement.

9.2 By Customer

Customer will defend ETechSphere against any third-party claim arising out of Customer Data, Customer’s use of the FulfillPros Service in breach of this Agreement or applicable law, or Customer’s relationship with a 3PL Partner or Connected Channel, and will indemnify ETechSphere against damages and costs finally awarded or agreed in settlement.

9.3 Procedure

The indemnified party must promptly notify the indemnifying party of the claim, give it sole control of the defense and settlement (provided that no settlement imposing liability or admission on the indemnified party may be made without consent), and provide reasonable cooperation at the indemnifying party’s expense.

10. Limitation of liability

EXCEPT FOR LIABILITY ARISING FROM BODILY INJURY, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, CUSTOMER’S PAYMENT OBLIGATIONS, OR A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY, OR DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT.

SUBJECT TO THE SAME EXCEPTIONS, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO ETECHSPHERE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THESE LIMITATIONS APPLY REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

ETechSphere is not liable for loss, damage, delay, shrinkage, misdelivery, or non-delivery of physical goods, or for any act or omission of a 3PL Partner, carrier, or Connected Channel. Claims of that nature lie against the party that handled the goods.

11. Miscellaneous

11.1 Entire agreement. This Agreement, together with all Order Forms and the documents incorporated by reference, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, and understandings on the subject. Any terms in a Customer purchase order or vendor portal are void and of no effect.

11.2 Independent contractors. The parties are independent contractors. This Agreement creates no partnership, franchise, joint venture, agency, fiduciary, or employment relationship.

11.3 Notices. Notices must be in writing and are effective on receipt when delivered by overnight courier or certified mail, or on confirmed transmission when sent by email to the addresses on the Order Form. Legal notices to ETechSphere must be sent to ETechSphere Inc., 2150 E Lake Cook Rd, Suite 900, Buffalo Grove, IL 60089, or by email to [email protected].

11.4 Amendments. Any amendment must be in writing and executed by authorized representatives of both parties, except that ETechSphere may update this Agreement for new Subscription Terms and will post the updated version with a revised “Last updated” date.

11.5 Assignment. Neither party may assign this Agreement without the other’s prior written consent, not to be unreasonably withheld, except that either party may assign it without consent to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets, on notice to the other party.

11.6 No third-party beneficiaries. This Agreement is for the benefit of the parties and their permitted successors and assigns only, and confers no rights on any other person, including any 3PL Partner or shopper.

11.7 Non-solicitation. During the term and for two (2) years afterward, Customer will not solicit for employment or engagement any ETechSphere personnel who performed Professional Services for Customer, without ETechSphere’s written consent. General advertising not targeted at such personnel is not a breach of this section.

11.8 Publicity. ETechSphere may identify Customer as a customer and use Customer’s name and logo on its website and in sales materials. Any press release or case study requires Customer’s prior written approval, and Customer may withdraw consent to further use on written notice.

11.9 Severability. If any provision is held unenforceable, it will be limited or eliminated to the minimum extent necessary and the remainder of this Agreement will remain in full force.

11.10 Waiver. No waiver is effective unless in writing and signed by the waiving party, and applies only to the matter specified. Delay or failure to exercise a right is not a waiver of it.

11.11 Force majeure. Neither party is liable for delay or failure to perform (other than payment obligations) caused by circumstances beyond its reasonable control, including acts of God, war, terrorism, riots, floods, epidemics, labor disputes, and failures of utilities, carriers, or third-party networks. If the condition continues for more than ninety (90) days, either party may terminate the affected Order Form on thirty (30) days’ notice.

11.12 Governing law and venue. This Agreement is governed by the laws of the State of Illinois, without regard to its conflict of law rules, and excluding the UN Convention on Contracts for the International Sale of Goods. The state and federal courts located in Chicago, Illinois have exclusive jurisdiction, and each party consents to personal jurisdiction there and waives any right to a jury trial. The prevailing party in any action to enforce this Agreement is entitled to recover its reasonable costs and attorneys’ fees.

11.13 U.S. Government end users. The FulfillPros Service is a “commercial item” as defined in 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation.” Government end users acquire only the rights set out in this Agreement.

11.14 Counterparts. An Order Form may be executed in counterparts, including by electronic signature or transmitted copy, each of which is deemed an original and all of which together constitute one instrument.

Questions about this Agreement may be sent to [email protected] or through our contact form.