By executing a Services Schedule (defined below) the Delivery Provider identified on such Services Schedule (“Delivery Provider,” as further defined below) agrees to the terms and conditions set forth below (the “Terms and Conditions”), which, together with the terms of the Services Schedule entered into between such Delivery Provider and Nash Technologies, Inc. (“Nash”), constitute the “Delivery Agreement” and govern Delivery Provider’s fulfillment of Orders and access to and use of the Platform (as each is defined below).
“Accepted Order” has the meaning specified in Section 2(B) below.
“Customer” means a customer of Nash that places an Order via the Nash Platform.
“Delivery Provider” means the individual or entity that has executed a Services Schedule and will fulfill Orders in accordance with the terms of this Delivery Agreement.
“Goods” means the items described in an Order that will be delivered to the Recipient in accordance with this Delivery Agreement.
“Nash API” means the Nash application programming interface that allows Delivery Provider to exchange information with Nash and, if applicable, customers.
“Nash Platform” means the Nash API and any related Nash technology made available by Nash to Delivery Provider under this Delivery Agreement (including any mobile application and web-based platform, if and when developed and made available by Nash) designed to facilitate access by Customers to delivery fleets (including Delivery Provider) and to enable Delivery Provider to submit and receive information regarding Orders and related Goods.
“Order” means a delivery instruction placed by Customer via the Nash Platform that is eligible to be fulfilled by Delivery Provider, which instruction will include the name and location of the Recipient, relevant contact information, and other information necessary to fulfill the Order.
“Party” means either Nash or Delivery Provider, as applicable, and “Parties” means Nash and Delivery Provider collectively.
“Recipient” means the individual or entity to which the Goods subject to an Order will be delivered.“Services Schedule” means a separate document executed by Nash and Delivery Provider that specifies certain terms and conditions applicable to Delivery Provider’s fulfillment of Orders (e.g., certain fees, term and renewal, cancellation and refund policies, applicable territories).
2) Nash Responsibilities
A. Nash Platform. Nash will make the Nash Platform available and will permit Delivery Provider to access the Nash Platform, including the Nash API, in order to view Orders, submit requests to fulfill such Orders, and, if the applicable Customer selects Delivery Provider via the Platform to fulfill an Order or Orders (each, an “Accepted Order”), track and manage such Order or Orders, in each case in accordance with this Delivery Agreement (including the applicable Services Schedule) and the then-current Nash policies specified on the Nash Platform.
B. Support. Nash will provide its standard technical support with respect to the Nash Platform during Nash’s normal business hours, which support may be provided via an online portal, telephone, or other means determined by Nash.
C.Integration. If and as specified on the applicable Services Schedule, Nash will cooperate with Delivery Provider to integrate Delivery Provider’s systems with the Nash API and other elements of the Nash Platform as described on such Services Schedule.
3) Delivery Provider Responsibilities
A. Information. Delivery Provider will provide to Nash, and to the applicable Customer or Recipient if and as necessary in connection with an Order, the information required under the applicable Services Schedule as well as any information required for Delivery Provider to register with or otherwise interact with the Nash Platform and fulfill Accepted Orders (“Delivery Provider Information”). Delivery Provider will ensure that Delivery Provider Information is complete and accurate and that Delivery Provider has obtained all necessary consents and permissions from third parties necessary to provide the Delivery Provider information to Nash or the applicable Customer or Recipient and permit Nash and the applicable Customer and Recipient to use the Delivery Provider Information in accordance with this Delivery Agreement.
B. Order Fulfillment. Delivery Provider will fulfill all Accepted Orders in accordance with the terms specified by the applicable Customer via the Platform for such Order, the terms of the applicable Services Schedule (including any applicable cancellation, refund, delivery-time, and proof-of-delivery requirements, territory restrictions, and other terms and requirements specified on such schedule), and the other terms of this Delivery Agreement. In the event of a conflict between the terms of this Delivery Agreement (excluding a Services Schedule) and the express terms of a Services Schedule, the conflicting terms specified on such Services Schedule shall govern to the extent of such conflict.
C. Services Schedule Terms Generally. In addition to any terms on a Services Schedule that are applicable to the fulfillment of Orders, Delivery Provider shall comply with all other terms specified on a Services Schedule, including, if applicable, insurance and payment method requirements and refund obligations with respect to late deliveries. Any remedies specified on a Services Schedule (e.g., cancellation fees) will be Delivery Provider’s sole and exclusive remedy with respect to the event or action giving rise to such remedies.
D. Delivery Provider Equipment. Delivery Provider shall acquire and maintain all equipment and other items, including vehicles, used by Delivery Provider to interact with the Nash Platform and fulfill Accepted Orders (“Delivery Provider Equipment”). Delivery Provider shall be solely responsible for the cost to acquire, maintain and otherwise operate any Delivery Provider Equipment and neither Nash nor any Customer shall have any responsibility with respect to Delivery Provider Equipment.
E. Insurance. Delivery Provider shall procure and maintain continuously during the term of this Delivery Agreement and for at least one (1) year thereafter the following types of insurance with the following minimum coverage amounts: (i) commercial general liability insurance, including blanket contractual coverage, for bodily injury and property damage in the amount of US$1,000,000 combined single limit per occurrence and US$2,000,000 in the general aggregate; (ii) workers' compensation with coverages as required under applicable law; (iii) automobile liability insurance covering owned, non-owned, and hired automobiles in the amount of US$1,000,000 combined single limit; and (iv) umbrella (excess) liability with limits no less than US$1,000,000. Upon Nash’s request Delivery Provider shall provide certificates and other evidence of the insurance coverages described above.
F. Non-Solicitation. During the term of this Delivery Agreement and for 1 year thereafter, Delivery Provider shall not initiate or accept any delivery engagements with any Customer for whom Delivery Provider has provided delivery services with respect to an Accepted Order during the term of this Delivery Agreement.
G. Compliance with Laws. Delivery Provider, including any drivers engaged by Delivery Provider to fulfill orders, will comply with all applicable federal, state and local laws, rules, regulations and ordinances in connection with the fulfillment of Orders and the performance of the Delivery Agreement.
A. Fees. Nash will pay Delivery Provider the fees set forth on the applicable Services Schedule (or the fees otherwise agreed in a writing executed by the Parties with respect to a specific Customer or Order or categories of Customers or Orders) with respect to Accepted Orders delivered by Delivery Provider in accordance with this Delivery Agreement, subject in all cases to Nash having received payment from the Customer with respect to the Accepted Orders for which the fees are due. Delivery Provider shall provide all information as necessary to enable Nash to remit payment in accordance with the Services Schedule. Delivery Provider must notify Nash of any dispute regarding Nash’s payment or nonpayment of any amounts due under a Services Schedule within 30 days after the due date for the applicable payment.
B. Taxes. Delivery Provider shall be responsible for all taxes, duties, and other governmental charges on the amounts paid to Delivery Providers in connection with this Delivery Agreement and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.
5) Term and Termination
A. Term. This Delivery Agreement will be coterminous with and will apply to any active Services Schedules.
B. Termination. Nash may terminate any Services Schedule and the related terms of this Delivery Agreement for any reason upon 10 days written notice. Either Party may terminate a Services Schedule and the related terms of this Delivery Agreement if the other Party breaches such Services Schedule and does not cure such breach within 15 days after the terminating Party provides notice of such breach to the other Party.
C. Effect of Termination. Upon expiration or termination of the Agreement for any reason: (i) the Receiving Party will promptly return to the Disclosing Party (as each such term is defined in Section 8(A) below) or destroy all Confidential Information disclosed by or on behalf of the Disclosing Party in connection herewith, in the manner instructed by the Disclosing Party; (ii) Delivery Provider will complete any outstanding Accepted Orders (unless otherwise directed by Nash) and Delivery Provider will cease all access to and use of the Nash Platform; (iii) Nash shall pay Delivery Provider any outstanding fees with respect to Accepted Orders that have been completed by Delivery Provider in accordance with this Delivery Agreement; (v) this Section 5(C) and Sections 3(E), 6(E) and 7 through 13 of this Delivery Agreement will survive any such expiration or termination and continue in full force and effect (for the period contemplated thereby, to the extent applicable).
6) Access and Ownership
A. License. Nash grants to Delivery Provider during the term of the applicable Services Schedule a non-exclusive, non-transferable license to access the Nash Platform solely to review Orders, fulfill Accepted Orders, and otherwise perform its obligations under this Delivery Agreement.
B. Certain Restrictions. Delivery Provider will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Nash Platform; (ii) modify, copy, or create derivative works based on the Nash Platform or any part, feature, function or user interface thereof; (iii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Nash Platform; (iv) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Nash Platform; (v) use the Nash Platform in any manner or for any purpose that violates any law or regulation; and (vi) use the Nash Platform for a reason other than as specifically provided or intended under this Delivery Agreement.
C. Modifications. Nash reserves the right, at any time, to modify, suspend, or discontinue the Nash Platform or any part thereof with or without notice. You agree that Nash will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Nash Platform or any part thereof.
D. Suspension. Nash may suspend Delivery Provider’s access to all or a portion of the Nash Platform (including the Nash API) in the event Delivery Provider violates this Delivery Agreement or uses the Nash Platform in a manner that does or could cause harm to Nash, Customers, Recipients or other third parties. Nash will use reasonable efforts to notify Delivery Provider of any such suspension.
E. Ownership. Nash owns all right, title, and interest in and to the Nash Platform. Neither Nash nor Delivery Provider shall obtain any ownership right in any Goods under this Delivery Agreement.
7) Confidential Information
A. Definition. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a Party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Delivery Agreement. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Delivery Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
B. Use and Disclosure. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Delivery Agreement; (ii) except subject to its compliance with Section 7(C), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Delivery Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
C. Compelled Disclosures. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 7 and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
Delivery Provider shall indemnify, and hold Nash and its Customers harmless from and against, and shall pay and reimburse, all losses, liabilities, damages, fines, costs and expenses, including reasonable attorney’s fees, arising out of or related to Delivery Provider’s performance or breach of this Delivery Agreement, Delivery Provider Information, or any loss of, damage to, or delay regarding the delivery of Goods in the possession of Delivery Provider (including its employees, subcontractors or independent contractors), including liability arising from personal injury (including death), property damage and Delivery Provider’s possession, use, maintenance, custody or operation of the Delivery Provider equipment.
NASH WILL USE REASONABLE EFFORTS TO MAKE THE NASH PLATFORM AVAILABLE DURING THE TERM OF THIS DELIVERY AGREEMENT. EXCEPT AS SPECIFIED IN THE PREVIOUS SENTENCE, THE NASH PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." NASH EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. DELIVERY PROVIDER ACKNOWLEDGES AND AGREES THAT NASH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, LOSS OF GOODS, ACTS OR OMISSIONS OF CUSTOMERS OR RECIPIENTS, INCORRECT CUSTOMER OR RECIPIENT INFORMATION, INCORRECT DELIVERY PROVIDER INFORMATION, OR ANY CLAIMS, DAMAGES, PENALTIES OR OTHER LIABILITIES CAUSED BY OR RESULTING FROM ANY OF THE FOREGOING.
DELIVERY PROVIDER ACKNOWLEDGES AND AGREES THAT THE NASH PLATFORM MAY BE UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS AND DELIVERY PROVIDER AGREES THAT NASH WILL HAVE NO LIABILITY ARISING FROM ANY SUCH INTERRUPTIONS AND THAT NASH IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY COMMUNICATIONS NETWORK OR SERVICE OR ANY OUTAGES OR OTHER FAILURES OF ANY THIRD PARTY HOSTING PROVIDERS OR OTHER PROVIDERS OF INFORMATION TECHNOLOGY SERVICES.
10) Limitation of Liability
IN NO EVENT WILL NASH BE LIABLE TO DELIVERY PROVIDER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE LIKE WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NASH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NASH’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE UNDER THIS DELIVERY AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY.
11) Relationship of the Parties
A. Platform Only. The Nash Platform is a web-based technology that connects Customers and delivery providers as described in this Delivery Agreement. Nash is not a Broker, Freight Forwarder, Motor Delivery Provider or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Delivery Provider Safety Administration or in any other similar rules or regulations or by any other governmental body. Delivery Provider acknowledges that the services provided by Nash are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b) or any similar statute or regulation.
B. Independent Contractor. Delivery Provider and Nash agree they are independent businesses whose relationship is governed by this Delivery Agreement. Nothing in this Delivery Agreement or the Parties’ relationship or related transactions shall create or be construed as creating an agency, fiduciary or joint venture relationship between Nash and Delivery Provider. This Delivery Agreement does not make Delivery Provider an agent, legal representative, joint venture, or partner of Nash for any purpose. Delivery Provider understands and agrees that it is and will act as an independent contractor and is in no way authorized to make any contract, warranty or representation on behalf of Nash or to create any obligation express or implied on behalf of Nash. It is expressly agreed and understood that Delivery Provider shall not be considered under this Delivery Agreement as having any employment status with Nash, or as being entitled to any plans, distributions, or benefits extended by Nash to its employees.
12) Modifications to this Delivery Agreement
Delivery Provider agrees that Nash may modify the terms of this Delivery Agreement from time to time. In the event Nash makes any material changes to the Delivery Agreement, Nash will notify Delivery Provider by electronic mail, or other means of communication. Any changes to this Delivery Agreement will be effective upon the earlier of (i) the date Delivery Provider accepts the new terms by using the Nash Platform after receipt of the foregoing notice or otherwise or (ii) 30 calendar days following your receipt of such notice.
13) Dispute Resolution
Any dispute, claim or controversy arising out of or relating to this Delivery Agreement, including any breach, termination, enforcement, interpretation or validity thereof, shall be determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California exclusive of conflict or choice of law rules. The parties acknowledge that this Delivery Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
This Delivery Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof supersedes all prior agreements and communications of the Parties, oral or written, with respect to such subject matter. Delivery Provider may not (i) subcontract or otherwise delegate any of its obligations under this Delivery Agreement or (ii) assign this Delivery Agreement in whole or in part without Nash’s prior written consent. Subject to the foregoing, this Delivery Agreement is binding upon, and inures to the benefit of, the permitted successors and assigns of each Party.