Terms of Service
VIA. DELIVERY TERMS OF SERVICE
These Terms of Service ("Terms") together with any Order Forms constitute a legally binding agreement (the "Agreement") between you and Via.Delivery Corporation, its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "Via.Delivery," "we," "us" or "our") governing your use of the Via.Delivery application (the "Via.Delivery App"), website, and technology platform (collectively, the "Via.Delivery Platform"). By entering into an Order Form, or accessing or using the Via.Delivery Platform, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Via.Delivery Platform. These Terms expressly supersede any prior agreements or arrangements with you regarding the use of the Via.Delivery Platform. Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the enforceability of any separately negotiated written agreements you may have with Via.Delivery.
IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND VIA. DELIVERY CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT (SEE APPENDIX A). PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH VIA. DELIVERY ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED IN APPENDIX A BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
1.0 Definitions
"Consumer" means a natural or legal person who purchases online the Products of the Shipper.
"Delivery Point" means those Outlets as determined by the Via.Delivery Platform as optimal for delivering Products to the Consumer based on the address of the Consumer's registration (or place of residence) and the location of Retailers' Outlets.
"Outlet" means a brick and mortar facility owned or operated by a Retailer.
"Pick Up Point" means those locations operated by Shipper for the pickup of Products as listed on an Order Form.
"Product" means those consumer products of Shipper listed on an Order Form.
"Retailer" means an organization or individual whose main activity is the sale of consumer products/services through one or more Outlets.
"Shipper" means the legal person or entity identified on an Order Form. Shipper may also be referred to as "you".
"Shipper Account" means an electronic service on the Via.Delivery Platform, located at https://via.delivery/, which allows the Shipper, after registering on it, to inform Via.Delivery information (data on Products and orders), receive information about the status of settlements with Via.Delivery, select and specify services offered by Via.Delivery, and such other actions as are made available on the Via.Delivery Platform.
"Via.Delivery Platform" means Via.Delivery's proprietary technology platform consisting of software, algorithms, databases and other information and content that performs digital logistics for the analysis, processing and distribution of consumer products through alternate delivery networks including distribution/replenishment centers responsible for delivery of merchandise to retail operations.
2.0 Services.
2.1 In order to use the digital logistics services available on the Via.Delivery Platform, you must register for and maintain a Shipper Account. You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain a Shipper Account. Registration for a Shipper Account requires you to submit to Via.Delivery certain information, such as your company name/entity, address, contact information including corporate address, phone numbers, emails and individuals as primary Shipper contacts , as well as at least one valid payment method supported by Via.Delivery. For more information regarding Via.Delivery's use of your l information, please see our Privacy Notice currently available at https://via.delivery/privacy_policy
2.2 Via.Delivery shall use commercially reasonable efforts to provide a range of services for the digital logistics of the Products through the Via.Delivery Platform. Such services include the delivery of Products ordered by Consumers from the Shipper to the Outlets of Retailers, and to make arrangements for the delivery of the Products to the Consumers. More specifically, use of the Via.Delivery Platform for digital logistics of Products involves: (a) receiving, organizing and analyzing the data received from the Shipper Account for each order (dimensions, weight, type of packaging, cost, buyer's address, etc.); (b) determination of the optimal delivery network for distribution to the Retailer's Outlet for each order sent; (c) determination of the route and estimated time of delivery of the Products from the Shipper to the Delivery Point; (d) determination of the permissible number of orders sent to Retailers, taking into account data including in transit, at Pick Up Points and at checkout areas of Retailers' Outlets; and (e) transmission of the results of the processed data to the Shipper for all orders sent, indicating the route and estimated time of cargo transport logistics, the location of Pick Up Points, distribution centers and retail outlets of Retailers; and (f) transmission of Shippers package details to carriers for pickup and visibility (Tender and ASN notification).
2.3 Products tendered to Via.Delivery shall be deemed tendered to Via.Delivery in its capacity as the owner and operator of the Via.Delivery Platform, a direct to consumer technology for digital logistics. For the avoidance of doubt, Via.Delivery is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Shipper acknowledges that the Via.Delivery Platform is not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b).
3.0 Independent Contractor. Via.Delivery is and shall be an independent contractor and not Shipper's employee, agent, or partner. Nothing in the Agreement shall be construed as creating or establishing an employment relationship between Shipper and Via.Delivery and any of Shipper's customers or partners. Via.Delivery is not authorized to make any representation, contract or commitment on Shipper's behalf. Via.Delivery shall have the exclusive right to control and direct the operation of the Via.Delivery Platform, including where, when, and how the Products will be provided to Outlets.
4.0 Via.Delivery Obligations and Responsibilities.
4.1 Via.Delivery agrees to: (a) provide the Shipper with access (login and password) to the Shipper Account; (b) provide the Shipper in a timely manner with the results of the processed data on all orders, indicating the route and estimated time of transport logistics of Products, location, contact details of key service provider representatives and (or) retail outlets of Retailers; (c) transfer in a timely manner information about the location of Products and the facts of transfer of Products to the Consumers.
4.2 Via.Delivery agrees that it is responsible for any loss or damage to properly packaged Products from the time of receipt from the Shipper at the Pick Up Point, until the Products are handed over to the Consumer at the Outlet, or returned to the Shipper.
5.0 Shipper Obligations and Responsibilities.
5.1 Shipper agrees to provide Via.Delivery, via the Shipper Account, complete, accurate and reliable information about the characteristics of the Products (dimensions, weight, type of packaging, cost, etc.), Pick Up Points, the address of registration (place of stay) of the Consumer from the Shipper.
5.2 Shipper agrees to maintain accurate, complete, and up-to-date information in its Shipper Account, including an email, valid phone number(s), address, billing contact and, if applicable, credit card. Shipper agrees that its failure to comply with these Terms, including, without limitation, failure to maintain accurate, complete, and up-to-date Account information, or having an invalid or expired credit card on file, may result in Shipper's inability to access or use the Via.Delivery Platform. Shipper is responsible for all activity that occurs under its Shipper Account. Shipper agrees to maintain the security and secrecy of its Shipper Account username and password at all times.
6.0 Products.
6.1 Dimensions. Properly packaged Products up to 50 lbs. are accepted for delivery with the following size restrictions:
• Any package measuring less than 108 inches in length.
• Any package measuring less than 165 inches in length and girth combined.
6.2 Packaging and Marking.
(a) Shipper agrees to comply with all applicable local, state and federal laws and regulations governing packing, packaging, marking and labelling of Products for all shipments, including, if applicable, the requirements of the Fair Packaging and Labeling Act and the Uniform Packaging and Labeling Regulation.
(b) All Products must be prepared and packed for safe transportation with ordinary care in handling in an express transportation environment. Products susceptible to damage as a result of conditions that may be encountered during transit such as changes in temperature or atmospheric pressure, or adverse pavement/road conditions must be adequately protected by proper packaging. Each shipment must be accompanied by a legible and durably marked description of the nature and quantity of the Products, and the name, address and ZIP code of the Consumer; such information can be provided via a QR code, bar code or via a Federal Express or other Via.Delivery supported third party carrier app.
(c) If a Product leaks, or is damaged due to inadequate packaging, the shipment will be returned to the Pick Up Point, if possible. If the Products cannot be returned because of leakage or damage due to faulty packaging, Shipper is responsible for, and will reimburse Via.Delivery for, all costs and fees of any type incurred in connection with the storage and/or disposal of the Products and the clean-up and remediation of any spill or leakage.
6.3 Refusal or Rejection of Products. Via.Delivery reserves the right, in its sole but reasonable discretion, to refuse or return any Products and may do so without liability. By way of example and not limitation, Via.Delivery may exercise this right if the Products: (a) may cause damage or delay to other shipments, property or personnel; (b) is likely to sustain damage or loss in transit because of improper packaging or otherwise; (c) appears to be damaged upon receipt at the Pick Up Point; (d) contains any prohibited items as listed on the Via.Delivery website; or (e) may jeopardize Via.Delivery's ability to provide service to other customers. Shipper acknowledges and agrees that Via.Delivery has no liability whatsoever for refusal or rejection of Products, so long as Via.Delivery's refusal or rejection is in good faith.
6.4 Perishables. Via.Delivery does not provide refrigerated shipping vehicles and will not be liable for Products that could be damaged by exposure to ordinary fluctuations in temperature. Perishable items shall be accepted solely at the Shipper's risk for damage.
7.0 Charges and Payment Terms.
7.1 Via.Delivery shall keep accurate records of Shipper's use of the Via.Delivery Platform. All applicable rates, tariffs and fees ("Charges"), and any special terms and conditions shall be set forth in the Order Form. Shipper understands that use of the Via.Delivery Platform will result in Charges. Shipper will provide Via.Delivery with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Via.Delivery. If Shipper provides credit card information, Shipper authorizes Via.Delivery to charge such credit card for all purchases.. Shipper hereby agrees that if the credit card is determined to be expired, invalid or otherwise not able to be charged, Via.Delivery may use a secondary payment method, if available. If agreed upon by Via.Delivery, payment for Charges may be made by wire transfer to an account designated by Via.Delivery to Shipper from time to time, or through automated clearing house ("ACH") transfers from the Shipper's designated account directly to Via.Delivery. Unless otherwise stated in the Order Form, Charges are due net seven (7) days from the invoice date, and invoices will be issued every two (2) weeks. Charges are final and non-refundable, unless otherwise determined by Via.Delivery. Charges may include other applicable fees, product return fees, cancellation fees, estimated or actual tolls, and/or surcharges. During the Term, Charges are subject to an annual increase which shall be mutually agreed upon in an amendment to an Order Form, a change order or other document signed by both parties. Unless otherwise set forth in an Order Form, a recap of invoices will be submitted by Via.Delivery on a monthly basis for use of the Via.Delivery Platform for the prior month. Terms of payment are net upon receipt of invoice.
7.2 Any late payment may, in Via.Delivery's sole discretion, accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Shipper is delinquent in payment, Via.Delivery may, upon written notice to Shipper require other assurances to secure Shipper's payment obligations hereunder.
7.3 All Charges are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the use of the Via.Delivery Platform, all of which Shipper will be responsible for and will pay in full, except for taxes based on Via.Delivery's net income.
8.0 Confidentiality.
8.1 As used herein, "Confidential Information" means all confidential information disclosed by a party (a "Disclosing Party") to the other party (a "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party will include the terms and conditions of the Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
8.2 Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (c) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.0 Term and Termination.
9.1 This Agreement shall commence upon execution by Shipper and Via.Delivery of the first Order Form and shall remain in full force and effect for twelve (12) months ("Initial Term"), unless terminated earlier by written notice of termination by a party sent to the other party at least sixty (60) days prior to the termination date. This Agreement will automatically renew after the Initial Term for additional consecutive one (1) year periods (each a "Renewal Term"), unless either party provides advance written notice of non-renewal at least sixty (60) days prior to the end of the Initial Term or any then-current Renewal Term. The Initial Term and any Renewal Terms are together referred to herein as the "Term."
9.2 Via.Delivery has the right to terminate this Agreement immediately in the event of repeated instances of providing incomplete and/or inaccurate data on the Products, Consumers and other information required by the Agreement by the Shipper to Via.Delivery, which is necessary to Via.Delivery for the provision of services; repeated violation of other terms of this Agreement.
10.0 Via.Delivery Technology.
10.1 All right, title and interest in and to Via.Delivery Technology (and all intellectual property rights throughout the world therein and thereto), and any suggestions or feedback provided by Shipper relating to the Via.Delivery Technology will remain solely with Via.Delivery. "Via.Delivery Technology" means the Via.Delivery Platform and any Via.Delivery technology, process, procedure or methodology used in the provision or performance of the Via.Delivery Platform, including any software (in source and object forms), APIs, tools, algorithms, user interface designs, architecture, libraries, objects and documentation, and any derivatives, improvements, enhancements or extensions of the foregoing.
10.2 Via.Delivery hereby grants to Shipper a nonexclusive, nontransferable, royalty free, limited right, during the term of this Agreement, to use the Via.Delivery Technology, which Shipper may gain access to through Shipper's use of the Via.Delivery Platform, solely for purposes of arranging for delivery of Shipper's Products to Consumers and no other purpose. Shipper agrees not to modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Via.Delivery Platform or any software used on or for the Via.Delivery Platform or cause others to do so.
11.0 Warranties.
11.1 By Via.Delivery. Via.Delivery represents and warrants that: (a) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder; (b) the operation of the Via.Delivery Platform for Shipper will not violate any applicable U.S. laws or regulations, or cause a breach of any agreements with any third parties; and (c) it will provide digital logistics services for the Products in a professional and workmanlike manner consistent with industry standards
11.2 By Shipper. Shipper represents and warrants that: (a) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder (including the right to provide Via.Delivery the Products, and personal information about its Consumers , for Via.Delivery to provide digital logistics services; (b) the performance of Shipper's obligations and the use of the Via.Delivery Platform by Shipper will not violate any applicable laws or regulations, or cause a breach of any agreements with third parties; and (c) it has obtained and will maintain all necessary permits, permissions, licenses and approvals relating to the possession, control and shipment of the Products.
11.3 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE 11, CUSTOMER'S USE OF THE VIA. DELIVERY PLATFORM IS AT CUSTOMER'S OWN RISK. VIA. DELIVERY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND SUBCONTRACTORS, DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VIA. DELIVERY DOES NOT WARRANT THAT THE VIA. DELIVERY PLATFORM WILL BE UNINTERRUPTED, ERROR FREE, TIMELY OR COMPLETELY SECURE.
11.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. VIA. DELIVERY DOES NOT AND CANNOT CONTROL THE FLOW OF: (A) TRAFFIC; OR (B) DATA TO OR FROM THE INTERNET. SUCH FLOWS DEPEND IN LARGE PART ON: (i) LOCAL WEATHER AND TRAFFIC CONDITIONS; AND (ii) THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, LOCAL WEATHER AND TRAFFIC CONDITIONS AND/OR ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT THE SERVICES (OR PORTIONS THEREOF). VIA. DELIVERY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, VIA. DELIVERY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
12.0 Indemnification.
12.1 By Via.Delivery. Via.Delivery will indemnify, defend and hold Shipper harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") resulting from any claim, suit, action, or proceeding (each, an "Action") brought by any third party against Shipper alleging: (a) any violation of or failure to comply with applicable U.S. laws, rules or regulations; (b) the infringement of a copyright, U.S. patent or trademark, or misappropriation of a trade secret relating to Shipper's authorized and proper use of the Via.Delivery Platform (but excluding any contributory infringement caused by Shipper separate and apart from Shipper merely using the Via.Delivery Platform in accordance with the terms of this Agreement); (c) personal injury or tangible property damage caused by the gross negligence or willful misconduct of Via.Delivery; or (d) any claim which if true, would constitute a breach of one or more of the warranties set forth in Section 11.1. This sets forth Via.Delivery's entire obligation, and Shipper's exclusive remedy for any claims of infringement of intellectual property by the Via.Delivery Platform.
12.2 By Shipper. Shipper will indemnify, defend and hold Via.Delivery harmless from and against any Losses resulting from any Action brought by any third party against Via.Delivery alleging: (a) any violation of or failure to comply with applicable laws, rules or regulations; (b) personal injury or tangible property damage caused by Shipper's gross negligence or willful misconduct; or (c) any claim which if true, would constitute a breach of the warranties set forth in Section 11.2.
12.3 Process. Each party's indemnification obligations hereunder shall be subject to: (a) the indemnifying party receiving prompt written notice from the indemnified party of the existence of any Action; (b) the indemnifying party being able to, at its sole option, control the defense of such Action; (c) the indemnified party receiving full cooperation of the indemnifying party in the defense thereof, at the indemnifying party's expense; and (d) the indemnified party not entering into any settlement or compromise of any such Action without the indemnifying party's express written permission.
13.0 Risk of Loss and Limitation of Liability.
13.1 Via.Delivery's maximum liability in connection with the pickup and delivery of that Product, including, but not limited to, any loss, damage, delay, misdelivery, non-delivery, misinformation, or any failure to provide information, relating to the affected Product is limited to One Hundred Dollars ($100). Shippers desiring cargo insurance, all risk insurance, or another form of insurance should purchase such insurance from an insurance carrier of its choice.
13.2 Via.Delivery will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any loss, damage, delay, misdelivery, non-delivery, misinformation or any failure to provide information, except only as may result from Via.Delivery's gross negligence or willful misconduct. Via.Delivery will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any loss, damage, delay, misdelivery, non-delivery, misinformation or failure to provide information caused by or resulting in whole or in part from: (a) the act, default or omission of any person or entity, other than Via.Delivery, including those of any local, state or federal government agencies; (b) the nature of the shipment, including any defect, characteristic or inherent vice of the shipment or the Products comprising the shipment; (c) Shipper's violation of any of these Terms; (d) Via.Delivery's compliance with Shipper's delivery instructions; (e) Shipper's failure to provide accurate information; (f) any shipment containing a prohibited item; or (g) loss or damage to any Product for which Via.Delivery has no record of in Shipper's Account.
13.3 VIA. DELIVERY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VIA. DELIVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES TO THE AGREEMENT. IN NO EVENT WILL VIA. DELIVERY'S TOTAL CUMULATIVE DAMAGES AND/OR OBLIGATIONS OF DEFENSE AND INDEMNITY EXCEED THE TOTAL AMOUNT RECEIVED BY VIA. DELIVERY FROM CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES AND/OR THIRD PARTY CLAIM.
14.0 Miscellaneous.
14.1 This Agreement will be governed by and interpreted in accordance with the laws of the State of California, excluding its conflict of law principals, and you hereby consent to the exclusive jurisdiction and venue of the state and federal courts in the County of San Francisco. This Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect.
14.2 Failure by a party to enforce any term of the Agreement shall not be deemed a waiver of future enforcement of that or any other term in the Agreement or any other agreement that may be in place between the parties.
14.3 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing: (a) either party may assign the Agreement in its entirety, without the consent of the other party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets; and (b) Via.Delivery may subcontract or delegate its obligations without the consent of Shipper, provided Via.Delivery remains liable for the performance of such obligations. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of the Agreement upon written notice to the assigning party. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.4 Shipper acknowledges and agrees that in consideration for the Charges extended to Shipper, Via.Delivery may: (a) issue one press release announcing Shipper as a customer upon execution of the Agreement; (b) use Shipper's name and logo on Via.Delivery's website; and (c) use the Shipper's name in Via.Delivery's sales, financing and investor materials.
14.5 The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
14.6 The section titles and numbering of the Agreement are displayed for convenience and have no legal effect.
14.7 Shipper acknowledges that Via.Delivery may: (a) compile statistical and other information related to the performance, operation and use of the Via.Delivery Platform; and (b) use data derived from the Via.Delivery Platform to create statistical analyses, improve the Via.Delivery Platform, for research and development and other purposes (clauses a and b are collectively referred to as "Platform Analyses"); however, Platform Analyses will not incorporate information in a form that could serve to identify Shipper or any Consumers. Shipper acknowledges and agrees that Via.Delivery retains all intellectual property rights in Platform Analyses.
14.8 Neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, including, but not limited to force majeure events such as acts of God, fire, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, perils of the air, public enemies, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotion, hazards incident to a state of war, local or national weather conditions, national or local disruptions in air or ground transportation networks (as determined solely by Via.Delivery), strikes or anticipated strikes (of any entity, including , but not limited to, other carriers, vendors or suppliers), natural disasters (earthquakes, floods and hurricanes are examples of natural disasters), epidemic, pandemic, conditions that present a danger to Via.Delivery personnel, and disruption or failure of communication and information systems (including, but not limited to, Via.Delivery systems), accidents, or fuel crises ("Force Majeure"), and any payment date or delivery date shall be extended to the extent of any delay resulting from any Force Majeure event.
14.9 Any notices, requests, or demands required or permitted herein, shall be in writing and mailed to the addresses set forth in the latest Order Form, provided however that either party may change its address by written notice to the other party.
14.10 This Agreement expresses the complete and exclusive statement of the understanding between the parties regarding the subject matter herein and supersedes any prior or contemporaneous written or oral proposals and agreements, representations or courses of dealing.
APPENDIX A
Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Via.Delivery on an individual basis in arbitration as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Via.Delivery, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Via.Delivery by someone else.
For the avoidance of doubt, this precludes you from bringing or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against Via.Delivery.
1. Agreement to Binding Arbitration Between You and Via.Delivery.
Except as expressly provided below in Section 2 below, you and Via.Delivery agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the Via.Delivery Platform at any time, (iii) losses or damages that you allege occurred in connection with your use of the Via.Delivery Platform, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv) your relationship with Via.Delivery, will be settled by binding arbitration between you and Via.Delivery , and not in a court of law. This Agreement survives after your relationship with Via.Delivery ends.
You acknowledge and agree that you and Via.Delivery are each waiving the right to a trial by jury or to bring or to participate as a plaintiff or class member in any class, purported class, collective, coordinated, consolidated, or representative proceeding.
This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third-parties, including but not limited to your spouses, heirs, third-party beneficiaries and assigns, where their underlying claims are in relation to your use of the Via.Delivery Platform. To the extent that any third party beneficiary to this agreement brings claims against the Parties; those claims shall also be subject to this Arbitration Agreement.
2. Exceptions to Arbitration.
Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the following claims: (i) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and/or (ii) injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Such claims may be brought and litigated in a court of competent jurisdiction by you on an individual basis only. On an individual basis means that you cannot bring such claims as a class, coordinated, consolidated, collective, or representative action against Via.Delivery. For the avoidance of doubt, this precludes you from bringing claims as or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multiplaintiff or joint action against Via.Delivery and no action brought by you may be consolidated or joined in any fashion with any other proceeding. Where your claims are brought and litigated to completion on such an individual basis in a court of competent jurisdiction, Via.Delivery agrees to honor your election.
The parties' agreement not to require arbitration in these limited instances does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided for in Section 1, which will continue to apply in court as well as in arbitration), or the enforceability of this Agreement as to any other controversy, claim or dispute.
3. Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a dispute, you and Via.Delivery agree that the arbitrator will decide that issue.
4. Process.
Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Via.Delivery each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice of the dispute must include the party's name, preferred contact information, a brief description of the dispute, and the relief sought. Notice to Via.Delivery must be sent to Via.Delivery Corporation Attn: Legal Department, 585 Glenwood Ave., Menlo Park, CA 94025. Neither party shall initiate arbitration until 30 days after the notice is sent. Engaging in this pre-arbitration dispute resolution and notification process is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal resolution process required by this paragraph.
Initiating Arbitration. In order to initiate arbitration, a party must provide the other party with a written Demand for Arbitration and file the Demand with AAA as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). A party initiating an arbitration against Via.Delivery must send the written Demand for Arbitration to Via.Delivery Corporation Attn: Legal Department, 585 Glenwood Ave., Menlo Park, CA 94025.
The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state where the arbitration is conducted. The Arbitrator will be selected by the parties from the AAA's National Roster of Arbitrators. If the parties are unable to agree upon an Arbitrator after a good faith meet and confer effort, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
5. Location and Procedure. Unless you and Via.Delivery otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed ten thousand dollars ($10,000), then the arbitration will be conducted solely on the basis of documents you and Via.Delivery submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
6. Arbitrator's Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party in arbitration you may seek an award of attorneys' fees and expenses to the extent permitted under applicable law.
7. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
8. Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason: (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
These Terms of Service ("Terms") together with any Order Forms constitute a legally binding agreement (the "Agreement") between you and Via.Delivery Corporation, its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "Via.Delivery," "we," "us" or "our") governing your use of the Via.Delivery application (the "Via.Delivery App"), website, and technology platform (collectively, the "Via.Delivery Platform"). By entering into an Order Form, or accessing or using the Via.Delivery Platform, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Via.Delivery Platform. These Terms expressly supersede any prior agreements or arrangements with you regarding the use of the Via.Delivery Platform. Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the enforceability of any separately negotiated written agreements you may have with Via.Delivery.
IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND VIA. DELIVERY CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT (SEE APPENDIX A). PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH VIA. DELIVERY ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED IN APPENDIX A BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
1.0 Definitions
"Consumer" means a natural or legal person who purchases online the Products of the Shipper.
"Delivery Point" means those Outlets as determined by the Via.Delivery Platform as optimal for delivering Products to the Consumer based on the address of the Consumer's registration (or place of residence) and the location of Retailers' Outlets.
"Outlet" means a brick and mortar facility owned or operated by a Retailer.
"Pick Up Point" means those locations operated by Shipper for the pickup of Products as listed on an Order Form.
"Product" means those consumer products of Shipper listed on an Order Form.
"Retailer" means an organization or individual whose main activity is the sale of consumer products/services through one or more Outlets.
"Shipper" means the legal person or entity identified on an Order Form. Shipper may also be referred to as "you".
"Shipper Account" means an electronic service on the Via.Delivery Platform, located at https://via.delivery/, which allows the Shipper, after registering on it, to inform Via.Delivery information (data on Products and orders), receive information about the status of settlements with Via.Delivery, select and specify services offered by Via.Delivery, and such other actions as are made available on the Via.Delivery Platform.
"Via.Delivery Platform" means Via.Delivery's proprietary technology platform consisting of software, algorithms, databases and other information and content that performs digital logistics for the analysis, processing and distribution of consumer products through alternate delivery networks including distribution/replenishment centers responsible for delivery of merchandise to retail operations.
2.0 Services.
2.1 In order to use the digital logistics services available on the Via.Delivery Platform, you must register for and maintain a Shipper Account. You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain a Shipper Account. Registration for a Shipper Account requires you to submit to Via.Delivery certain information, such as your company name/entity, address, contact information including corporate address, phone numbers, emails and individuals as primary Shipper contacts , as well as at least one valid payment method supported by Via.Delivery. For more information regarding Via.Delivery's use of your l information, please see our Privacy Notice currently available at https://via.delivery/privacy_policy
2.2 Via.Delivery shall use commercially reasonable efforts to provide a range of services for the digital logistics of the Products through the Via.Delivery Platform. Such services include the delivery of Products ordered by Consumers from the Shipper to the Outlets of Retailers, and to make arrangements for the delivery of the Products to the Consumers. More specifically, use of the Via.Delivery Platform for digital logistics of Products involves: (a) receiving, organizing and analyzing the data received from the Shipper Account for each order (dimensions, weight, type of packaging, cost, buyer's address, etc.); (b) determination of the optimal delivery network for distribution to the Retailer's Outlet for each order sent; (c) determination of the route and estimated time of delivery of the Products from the Shipper to the Delivery Point; (d) determination of the permissible number of orders sent to Retailers, taking into account data including in transit, at Pick Up Points and at checkout areas of Retailers' Outlets; and (e) transmission of the results of the processed data to the Shipper for all orders sent, indicating the route and estimated time of cargo transport logistics, the location of Pick Up Points, distribution centers and retail outlets of Retailers; and (f) transmission of Shippers package details to carriers for pickup and visibility (Tender and ASN notification).
2.3 Products tendered to Via.Delivery shall be deemed tendered to Via.Delivery in its capacity as the owner and operator of the Via.Delivery Platform, a direct to consumer technology for digital logistics. For the avoidance of doubt, Via.Delivery is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Shipper acknowledges that the Via.Delivery Platform is not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b).
3.0 Independent Contractor. Via.Delivery is and shall be an independent contractor and not Shipper's employee, agent, or partner. Nothing in the Agreement shall be construed as creating or establishing an employment relationship between Shipper and Via.Delivery and any of Shipper's customers or partners. Via.Delivery is not authorized to make any representation, contract or commitment on Shipper's behalf. Via.Delivery shall have the exclusive right to control and direct the operation of the Via.Delivery Platform, including where, when, and how the Products will be provided to Outlets.
4.0 Via.Delivery Obligations and Responsibilities.
4.1 Via.Delivery agrees to: (a) provide the Shipper with access (login and password) to the Shipper Account; (b) provide the Shipper in a timely manner with the results of the processed data on all orders, indicating the route and estimated time of transport logistics of Products, location, contact details of key service provider representatives and (or) retail outlets of Retailers; (c) transfer in a timely manner information about the location of Products and the facts of transfer of Products to the Consumers.
4.2 Via.Delivery agrees that it is responsible for any loss or damage to properly packaged Products from the time of receipt from the Shipper at the Pick Up Point, until the Products are handed over to the Consumer at the Outlet, or returned to the Shipper.
5.0 Shipper Obligations and Responsibilities.
5.1 Shipper agrees to provide Via.Delivery, via the Shipper Account, complete, accurate and reliable information about the characteristics of the Products (dimensions, weight, type of packaging, cost, etc.), Pick Up Points, the address of registration (place of stay) of the Consumer from the Shipper.
5.2 Shipper agrees to maintain accurate, complete, and up-to-date information in its Shipper Account, including an email, valid phone number(s), address, billing contact and, if applicable, credit card. Shipper agrees that its failure to comply with these Terms, including, without limitation, failure to maintain accurate, complete, and up-to-date Account information, or having an invalid or expired credit card on file, may result in Shipper's inability to access or use the Via.Delivery Platform. Shipper is responsible for all activity that occurs under its Shipper Account. Shipper agrees to maintain the security and secrecy of its Shipper Account username and password at all times.
6.0 Products.
6.1 Dimensions. Properly packaged Products up to 50 lbs. are accepted for delivery with the following size restrictions:
• Any package measuring less than 108 inches in length.
• Any package measuring less than 165 inches in length and girth combined.
6.2 Packaging and Marking.
(a) Shipper agrees to comply with all applicable local, state and federal laws and regulations governing packing, packaging, marking and labelling of Products for all shipments, including, if applicable, the requirements of the Fair Packaging and Labeling Act and the Uniform Packaging and Labeling Regulation.
(b) All Products must be prepared and packed for safe transportation with ordinary care in handling in an express transportation environment. Products susceptible to damage as a result of conditions that may be encountered during transit such as changes in temperature or atmospheric pressure, or adverse pavement/road conditions must be adequately protected by proper packaging. Each shipment must be accompanied by a legible and durably marked description of the nature and quantity of the Products, and the name, address and ZIP code of the Consumer; such information can be provided via a QR code, bar code or via a Federal Express or other Via.Delivery supported third party carrier app.
(c) If a Product leaks, or is damaged due to inadequate packaging, the shipment will be returned to the Pick Up Point, if possible. If the Products cannot be returned because of leakage or damage due to faulty packaging, Shipper is responsible for, and will reimburse Via.Delivery for, all costs and fees of any type incurred in connection with the storage and/or disposal of the Products and the clean-up and remediation of any spill or leakage.
6.3 Refusal or Rejection of Products. Via.Delivery reserves the right, in its sole but reasonable discretion, to refuse or return any Products and may do so without liability. By way of example and not limitation, Via.Delivery may exercise this right if the Products: (a) may cause damage or delay to other shipments, property or personnel; (b) is likely to sustain damage or loss in transit because of improper packaging or otherwise; (c) appears to be damaged upon receipt at the Pick Up Point; (d) contains any prohibited items as listed on the Via.Delivery website; or (e) may jeopardize Via.Delivery's ability to provide service to other customers. Shipper acknowledges and agrees that Via.Delivery has no liability whatsoever for refusal or rejection of Products, so long as Via.Delivery's refusal or rejection is in good faith.
6.4 Perishables. Via.Delivery does not provide refrigerated shipping vehicles and will not be liable for Products that could be damaged by exposure to ordinary fluctuations in temperature. Perishable items shall be accepted solely at the Shipper's risk for damage.
7.0 Charges and Payment Terms.
7.1 Via.Delivery shall keep accurate records of Shipper's use of the Via.Delivery Platform. All applicable rates, tariffs and fees ("Charges"), and any special terms and conditions shall be set forth in the Order Form. Shipper understands that use of the Via.Delivery Platform will result in Charges. Shipper will provide Via.Delivery with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Via.Delivery. If Shipper provides credit card information, Shipper authorizes Via.Delivery to charge such credit card for all purchases.. Shipper hereby agrees that if the credit card is determined to be expired, invalid or otherwise not able to be charged, Via.Delivery may use a secondary payment method, if available. If agreed upon by Via.Delivery, payment for Charges may be made by wire transfer to an account designated by Via.Delivery to Shipper from time to time, or through automated clearing house ("ACH") transfers from the Shipper's designated account directly to Via.Delivery. Unless otherwise stated in the Order Form, Charges are due net seven (7) days from the invoice date, and invoices will be issued every two (2) weeks. Charges are final and non-refundable, unless otherwise determined by Via.Delivery. Charges may include other applicable fees, product return fees, cancellation fees, estimated or actual tolls, and/or surcharges. During the Term, Charges are subject to an annual increase which shall be mutually agreed upon in an amendment to an Order Form, a change order or other document signed by both parties. Unless otherwise set forth in an Order Form, a recap of invoices will be submitted by Via.Delivery on a monthly basis for use of the Via.Delivery Platform for the prior month. Terms of payment are net upon receipt of invoice.
7.2 Any late payment may, in Via.Delivery's sole discretion, accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Shipper is delinquent in payment, Via.Delivery may, upon written notice to Shipper require other assurances to secure Shipper's payment obligations hereunder.
7.3 All Charges are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the use of the Via.Delivery Platform, all of which Shipper will be responsible for and will pay in full, except for taxes based on Via.Delivery's net income.
8.0 Confidentiality.
8.1 As used herein, "Confidential Information" means all confidential information disclosed by a party (a "Disclosing Party") to the other party (a "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party will include the terms and conditions of the Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
8.2 Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (c) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.0 Term and Termination.
9.1 This Agreement shall commence upon execution by Shipper and Via.Delivery of the first Order Form and shall remain in full force and effect for twelve (12) months ("Initial Term"), unless terminated earlier by written notice of termination by a party sent to the other party at least sixty (60) days prior to the termination date. This Agreement will automatically renew after the Initial Term for additional consecutive one (1) year periods (each a "Renewal Term"), unless either party provides advance written notice of non-renewal at least sixty (60) days prior to the end of the Initial Term or any then-current Renewal Term. The Initial Term and any Renewal Terms are together referred to herein as the "Term."
9.2 Via.Delivery has the right to terminate this Agreement immediately in the event of repeated instances of providing incomplete and/or inaccurate data on the Products, Consumers and other information required by the Agreement by the Shipper to Via.Delivery, which is necessary to Via.Delivery for the provision of services; repeated violation of other terms of this Agreement.
10.0 Via.Delivery Technology.
10.1 All right, title and interest in and to Via.Delivery Technology (and all intellectual property rights throughout the world therein and thereto), and any suggestions or feedback provided by Shipper relating to the Via.Delivery Technology will remain solely with Via.Delivery. "Via.Delivery Technology" means the Via.Delivery Platform and any Via.Delivery technology, process, procedure or methodology used in the provision or performance of the Via.Delivery Platform, including any software (in source and object forms), APIs, tools, algorithms, user interface designs, architecture, libraries, objects and documentation, and any derivatives, improvements, enhancements or extensions of the foregoing.
10.2 Via.Delivery hereby grants to Shipper a nonexclusive, nontransferable, royalty free, limited right, during the term of this Agreement, to use the Via.Delivery Technology, which Shipper may gain access to through Shipper's use of the Via.Delivery Platform, solely for purposes of arranging for delivery of Shipper's Products to Consumers and no other purpose. Shipper agrees not to modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Via.Delivery Platform or any software used on or for the Via.Delivery Platform or cause others to do so.
11.0 Warranties.
11.1 By Via.Delivery. Via.Delivery represents and warrants that: (a) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder; (b) the operation of the Via.Delivery Platform for Shipper will not violate any applicable U.S. laws or regulations, or cause a breach of any agreements with any third parties; and (c) it will provide digital logistics services for the Products in a professional and workmanlike manner consistent with industry standards
11.2 By Shipper. Shipper represents and warrants that: (a) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder (including the right to provide Via.Delivery the Products, and personal information about its Consumers , for Via.Delivery to provide digital logistics services; (b) the performance of Shipper's obligations and the use of the Via.Delivery Platform by Shipper will not violate any applicable laws or regulations, or cause a breach of any agreements with third parties; and (c) it has obtained and will maintain all necessary permits, permissions, licenses and approvals relating to the possession, control and shipment of the Products.
11.3 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE 11, CUSTOMER'S USE OF THE VIA. DELIVERY PLATFORM IS AT CUSTOMER'S OWN RISK. VIA. DELIVERY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND SUBCONTRACTORS, DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VIA. DELIVERY DOES NOT WARRANT THAT THE VIA. DELIVERY PLATFORM WILL BE UNINTERRUPTED, ERROR FREE, TIMELY OR COMPLETELY SECURE.
11.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. VIA. DELIVERY DOES NOT AND CANNOT CONTROL THE FLOW OF: (A) TRAFFIC; OR (B) DATA TO OR FROM THE INTERNET. SUCH FLOWS DEPEND IN LARGE PART ON: (i) LOCAL WEATHER AND TRAFFIC CONDITIONS; AND (ii) THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, LOCAL WEATHER AND TRAFFIC CONDITIONS AND/OR ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT THE SERVICES (OR PORTIONS THEREOF). VIA. DELIVERY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, VIA. DELIVERY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
12.0 Indemnification.
12.1 By Via.Delivery. Via.Delivery will indemnify, defend and hold Shipper harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") resulting from any claim, suit, action, or proceeding (each, an "Action") brought by any third party against Shipper alleging: (a) any violation of or failure to comply with applicable U.S. laws, rules or regulations; (b) the infringement of a copyright, U.S. patent or trademark, or misappropriation of a trade secret relating to Shipper's authorized and proper use of the Via.Delivery Platform (but excluding any contributory infringement caused by Shipper separate and apart from Shipper merely using the Via.Delivery Platform in accordance with the terms of this Agreement); (c) personal injury or tangible property damage caused by the gross negligence or willful misconduct of Via.Delivery; or (d) any claim which if true, would constitute a breach of one or more of the warranties set forth in Section 11.1. This sets forth Via.Delivery's entire obligation, and Shipper's exclusive remedy for any claims of infringement of intellectual property by the Via.Delivery Platform.
12.2 By Shipper. Shipper will indemnify, defend and hold Via.Delivery harmless from and against any Losses resulting from any Action brought by any third party against Via.Delivery alleging: (a) any violation of or failure to comply with applicable laws, rules or regulations; (b) personal injury or tangible property damage caused by Shipper's gross negligence or willful misconduct; or (c) any claim which if true, would constitute a breach of the warranties set forth in Section 11.2.
12.3 Process. Each party's indemnification obligations hereunder shall be subject to: (a) the indemnifying party receiving prompt written notice from the indemnified party of the existence of any Action; (b) the indemnifying party being able to, at its sole option, control the defense of such Action; (c) the indemnified party receiving full cooperation of the indemnifying party in the defense thereof, at the indemnifying party's expense; and (d) the indemnified party not entering into any settlement or compromise of any such Action without the indemnifying party's express written permission.
13.0 Risk of Loss and Limitation of Liability.
13.1 Via.Delivery's maximum liability in connection with the pickup and delivery of that Product, including, but not limited to, any loss, damage, delay, misdelivery, non-delivery, misinformation, or any failure to provide information, relating to the affected Product is limited to One Hundred Dollars ($100). Shippers desiring cargo insurance, all risk insurance, or another form of insurance should purchase such insurance from an insurance carrier of its choice.
13.2 Via.Delivery will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any loss, damage, delay, misdelivery, non-delivery, misinformation or any failure to provide information, except only as may result from Via.Delivery's gross negligence or willful misconduct. Via.Delivery will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any loss, damage, delay, misdelivery, non-delivery, misinformation or failure to provide information caused by or resulting in whole or in part from: (a) the act, default or omission of any person or entity, other than Via.Delivery, including those of any local, state or federal government agencies; (b) the nature of the shipment, including any defect, characteristic or inherent vice of the shipment or the Products comprising the shipment; (c) Shipper's violation of any of these Terms; (d) Via.Delivery's compliance with Shipper's delivery instructions; (e) Shipper's failure to provide accurate information; (f) any shipment containing a prohibited item; or (g) loss or damage to any Product for which Via.Delivery has no record of in Shipper's Account.
13.3 VIA. DELIVERY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VIA. DELIVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES TO THE AGREEMENT. IN NO EVENT WILL VIA. DELIVERY'S TOTAL CUMULATIVE DAMAGES AND/OR OBLIGATIONS OF DEFENSE AND INDEMNITY EXCEED THE TOTAL AMOUNT RECEIVED BY VIA. DELIVERY FROM CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES AND/OR THIRD PARTY CLAIM.
14.0 Miscellaneous.
14.1 This Agreement will be governed by and interpreted in accordance with the laws of the State of California, excluding its conflict of law principals, and you hereby consent to the exclusive jurisdiction and venue of the state and federal courts in the County of San Francisco. This Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect.
14.2 Failure by a party to enforce any term of the Agreement shall not be deemed a waiver of future enforcement of that or any other term in the Agreement or any other agreement that may be in place between the parties.
14.3 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing: (a) either party may assign the Agreement in its entirety, without the consent of the other party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets; and (b) Via.Delivery may subcontract or delegate its obligations without the consent of Shipper, provided Via.Delivery remains liable for the performance of such obligations. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of the Agreement upon written notice to the assigning party. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.4 Shipper acknowledges and agrees that in consideration for the Charges extended to Shipper, Via.Delivery may: (a) issue one press release announcing Shipper as a customer upon execution of the Agreement; (b) use Shipper's name and logo on Via.Delivery's website; and (c) use the Shipper's name in Via.Delivery's sales, financing and investor materials.
14.5 The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
14.6 The section titles and numbering of the Agreement are displayed for convenience and have no legal effect.
14.7 Shipper acknowledges that Via.Delivery may: (a) compile statistical and other information related to the performance, operation and use of the Via.Delivery Platform; and (b) use data derived from the Via.Delivery Platform to create statistical analyses, improve the Via.Delivery Platform, for research and development and other purposes (clauses a and b are collectively referred to as "Platform Analyses"); however, Platform Analyses will not incorporate information in a form that could serve to identify Shipper or any Consumers. Shipper acknowledges and agrees that Via.Delivery retains all intellectual property rights in Platform Analyses.
14.8 Neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, including, but not limited to force majeure events such as acts of God, fire, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, perils of the air, public enemies, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotion, hazards incident to a state of war, local or national weather conditions, national or local disruptions in air or ground transportation networks (as determined solely by Via.Delivery), strikes or anticipated strikes (of any entity, including , but not limited to, other carriers, vendors or suppliers), natural disasters (earthquakes, floods and hurricanes are examples of natural disasters), epidemic, pandemic, conditions that present a danger to Via.Delivery personnel, and disruption or failure of communication and information systems (including, but not limited to, Via.Delivery systems), accidents, or fuel crises ("Force Majeure"), and any payment date or delivery date shall be extended to the extent of any delay resulting from any Force Majeure event.
14.9 Any notices, requests, or demands required or permitted herein, shall be in writing and mailed to the addresses set forth in the latest Order Form, provided however that either party may change its address by written notice to the other party.
14.10 This Agreement expresses the complete and exclusive statement of the understanding between the parties regarding the subject matter herein and supersedes any prior or contemporaneous written or oral proposals and agreements, representations or courses of dealing.
APPENDIX A
Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Via.Delivery on an individual basis in arbitration as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Via.Delivery, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Via.Delivery by someone else.
For the avoidance of doubt, this precludes you from bringing or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against Via.Delivery.
1. Agreement to Binding Arbitration Between You and Via.Delivery.
Except as expressly provided below in Section 2 below, you and Via.Delivery agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the Via.Delivery Platform at any time, (iii) losses or damages that you allege occurred in connection with your use of the Via.Delivery Platform, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv) your relationship with Via.Delivery, will be settled by binding arbitration between you and Via.Delivery , and not in a court of law. This Agreement survives after your relationship with Via.Delivery ends.
You acknowledge and agree that you and Via.Delivery are each waiving the right to a trial by jury or to bring or to participate as a plaintiff or class member in any class, purported class, collective, coordinated, consolidated, or representative proceeding.
This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third-parties, including but not limited to your spouses, heirs, third-party beneficiaries and assigns, where their underlying claims are in relation to your use of the Via.Delivery Platform. To the extent that any third party beneficiary to this agreement brings claims against the Parties; those claims shall also be subject to this Arbitration Agreement.
2. Exceptions to Arbitration.
Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the following claims: (i) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and/or (ii) injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Such claims may be brought and litigated in a court of competent jurisdiction by you on an individual basis only. On an individual basis means that you cannot bring such claims as a class, coordinated, consolidated, collective, or representative action against Via.Delivery. For the avoidance of doubt, this precludes you from bringing claims as or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multiplaintiff or joint action against Via.Delivery and no action brought by you may be consolidated or joined in any fashion with any other proceeding. Where your claims are brought and litigated to completion on such an individual basis in a court of competent jurisdiction, Via.Delivery agrees to honor your election.
The parties' agreement not to require arbitration in these limited instances does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided for in Section 1, which will continue to apply in court as well as in arbitration), or the enforceability of this Agreement as to any other controversy, claim or dispute.
3. Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a dispute, you and Via.Delivery agree that the arbitrator will decide that issue.
4. Process.
Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Via.Delivery each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice of the dispute must include the party's name, preferred contact information, a brief description of the dispute, and the relief sought. Notice to Via.Delivery must be sent to Via.Delivery Corporation Attn: Legal Department, 585 Glenwood Ave., Menlo Park, CA 94025. Neither party shall initiate arbitration until 30 days after the notice is sent. Engaging in this pre-arbitration dispute resolution and notification process is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal resolution process required by this paragraph.
Initiating Arbitration. In order to initiate arbitration, a party must provide the other party with a written Demand for Arbitration and file the Demand with AAA as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). A party initiating an arbitration against Via.Delivery must send the written Demand for Arbitration to Via.Delivery Corporation Attn: Legal Department, 585 Glenwood Ave., Menlo Park, CA 94025.
The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state where the arbitration is conducted. The Arbitrator will be selected by the parties from the AAA's National Roster of Arbitrators. If the parties are unable to agree upon an Arbitrator after a good faith meet and confer effort, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
5. Location and Procedure. Unless you and Via.Delivery otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed ten thousand dollars ($10,000), then the arbitration will be conducted solely on the basis of documents you and Via.Delivery submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
6. Arbitrator's Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party in arbitration you may seek an award of attorneys' fees and expenses to the extent permitted under applicable law.
7. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
8. Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason: (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.