DeliveryCircle™ Subscription Agreement
THIS SUBSCRIPTION AGREEMENT (this “Agreement”) is a binding agreement between DeliveryCircle LLC, a Delaware limited liability company (“DeliveryCircle”), and the entity on whose behalf you are accepting this Agreement (“Company”). This Agreement governs your use of DeliveryCircles proprietary mobile and web-based application and software interfaces known as DeliveryCircleTM (the “Platform”), which enables DeliveryCircle customers to send or receive local deliveries using independent contractor third party delivery drivers (“Independent Contractor Drivers”). Each of DeliveryCircle and Company may be referred to individually in this Agreement as a “Party” and together as the “Parties”.
BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; (C) REPRESENT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF COMPANY; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT COMPANY IS LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
SECTION 1. DELIVERY CIRCLE OBLIGATIONS.
(a) Access and Use. Subject to the terms and conditions of this Agreement and the DeliveryCircle Terms and Conditions made available on the Platform, as amended or restated by DeliveryCircle from time to time (the “Terms and Conditions”), which are incorporated herein by this reference, DeliveryCircle will provide Company with access to and use of the Platform through the DeliveryCircleTM mobile application and web-based application. Company may use the Platform solely to schedule, send and/or receive deliveries.
(b) Performance Objectives. DeliveryCircle will use commercially reasonable efforts to operate the Platform with the goal of facilitating delivery performance that meets or exceeds the following performance objectives:
Pick-up: Independent Contractor Drivers will pick up all orders within forty-five (45) minutes of being scheduled, unless an alternative pick up schedule is requested by Company at the time the order is placed.
Delivery Time: Independent Contractor Drivers will deliver all orders within +/- thirty (30) minutes of the projected delivery time as presented during order placement.
If DeliveryCircle reasonably anticipates a deviation from the pick-up or delivery time performance objectives, DeliveryCircle will use all commercially reasonable efforts to contact the Company in advance and will provide updated pick-up and delivery time estimates.
(c) Delivery Notification. Upon completion of a delivery, DeliveryCircle will cause the Platform to send an automated confirmation email to Company at the email address designated by Company. The confirmation email will include the recipients signature and any drop off documentation specified at the time the delivery is ordered. The email notification and associated documentation will be available through Companys Platform account for fifteen (15) days from the date the email was generated unless earlier deleted by Company. DeliveryCircle will store the email notification and associated documentation for archival purposes for a period of ninety (90) days from the date the email was generated, after which the email notification and associated documentation may be irretrievably deleted by DeliveryCircle.
(d) Insurance. DeliveryCircle will insure each uniquely scheduled delivery up to a maximum amount of five thousand dollars ($5,000.00), unless otherwise agreed to by the Parties in writing. Further, DeliveryCircle shall, at all times during the Term of this Agreement, maintain at its sole cost and expense at least the following types and amounts of insurance coverage: (i) Commercial General Liability with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate; (ii) Workers Compensation with a limit of no less than $1,000,000 per occurrence; and (iii) Commercial Automobile Liability with limits no less than $1,000,000 combined single limit.
SECTION 2. RESPONSIBILITIES OF COMPANY.
(a) Deliveries. Company will schedule all DeliveryCircle facilitated deliveries using the Platform.
(b) Missing/Lost Deliveries. Company will report all missing or lost deliveries within twelve (12) hours of the applicable scheduled pick up time by email to email@example.com.
(c) Protection of User Access IDs. Company will maintain, and will cause its employees, agents and contractors that Company authorizes to use the Platform on Companys behalf (“Authorized Users”) to maintain, user identifications and passwords issued to Company in strict confidence. Company is responsible for all activity occurring under its and its Authorized Users accounts. Company shall not access the Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
SECTION 3. TERM; TERMINATION.
(a) Term. The term of Agreement commences when Companys representative acknowledges acceptance and will continue in effect until terminated by DeliveryCircle or Company as set forth in this Section 3 (the “Term”).
(i) Company may terminate this Agreement by deleting its Platform account.
(ii) DeliveryCircle may terminate this Agreement at any time without notice for its convenience.
(iii) Each Party shall have the right to terminate this Agreement in the event the other Party breaches any provision hereof and the breaching Party fails to cure such breach no later than thirty (30) days after receiving written notice of default from the non-breaching Party.
(iv) Each Party shall have the right to terminate this Agreement upon written notice to the other Party in the event the other Party: (A) makes an assignment for the benefit of creditors, or petitions or applies to any tribunal for the appointment of a custodian, receiver, or trustee for all or a substantial part of its assets; (B) commences any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction whether now or hereafter in effect; or (C) has had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made, and which remains pending for a period of sixty (60) days or more.
(c) Effect of Termination. Upon termination or expiration of this Agreement:
(i) Company shall immediately cease use of the Platform and shall return or destroy all Confidential Information of DeliveryCircle in Companys possession or control; and
(ii) Company shall pay DeliveryCircle for all deliveries completed prior to the effective date of termination in accordance with the terms of this Agreement.
(d) Survival. Sections 3(c), 4(c) and 5 through 10 shall survive the expiration or termination of this Agreement for any reason.
SECTION 4. FEES AND PAYMENT.
(a) Delivery Fees. Company agrees to pay DeliveryCircles then-current rates for deliveries based on distance to destination, type of package, size, weight, type of vehicle required and other variables as determined by DeliveryCircle from time to time. Current delivery fees are available at DeliveryCircle.com under your profile. DeliveryCircle may increase its delivery fees at any time by providing thirty (30) days written notice to Company of such increase.
(b) Delivery Surcharges. Company is responsible for the following delivery surcharges. DeliveryCircle may increase delivery surcharges at any time by providing thirty (30) days written notice to Company of such increase.
(i) any tolls along the fastest route at the time of delivery;
(ii) any parking charges at pick up or drop off if loading/unloading zones are not available;
(iii) extra charges for items over the allowed weight for the selected delivery category;
(iv) if the designated receiver cannot be located at the designated delivery location and DeliveryCircle has to identify a new designated receiver; or if a receiver cannot be identified, the items will be returned to the pick-up location and a return delivery charge, equal to 100% of the original delivery charge will be applied;
(v) $0.35 per minute for wait times in excess of fifteen (15) minutes for a pick up or at the drop off; and
(vi) If an Independent Contractor Driver is asked to bring returns, then a return delivery will be added by the Independent Contractor Driver and the Company will be charged one additional delivery.
(c) Payment. All payments are made electronically via the DeliveryCircle payment gateway at the time the delivery is scheduled. All charges and fees will be billed to the credit card Company designates during the setup process. If Company wants to designate a different credit card or if there is a change in Companys credit card, Company must change its payment information online. This may temporarily delay Companys ability to make online payments and/or schedule deliveries while DeliveryCircle verifies your new payment information. Company represents and warrants that if Company is making online payments that (i) any credit card, debit card and bank account information Company supplies is true, correct and complete, (ii) charges incurred by Company will be honored by Companys credit/debit card company or bank, and (iii) Company will pay the charges incurred by Company in the amounts posted, including any applicable taxes. Company shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by DeliveryCircles net income.
SECTION 5. CONFIDENTIALITY>.
(b) Exclusions. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (i) information already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) information generally known to the public other than as a result of disclosure in violation of this Section 5; (iii) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information; and (iv) information developed by the Receiving Party independently and without reference to information provided by the Disclosing Party.
(c) Compelled Disclosures. Notwithstanding the requirements of this Section 5, the Receiving Party may disclose Confidential Information of the Disclosing Party as required or requested by a court of law or any governmental entity or agency, provided that the Receiving Party, unless prohibited by law, provides the Disclosing Party with reasonable prior notice to enable the Disclosing Party to seek a protective order or other confidential treatment of such information and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order, confidential treatment order or other similar remedy or the receipt of a waiver from the Disclosing Party, disclosure of the Disclosing Partys Confidential Information is required in order to avoid contempt proceedings, the Receiving Party may, without liability under this Agreement, disclose to the appropriate authority only that portion of the Disclosing Partys Confidential Information that, on the advice of legal counsel, it is required to disclose. Any of the Disclosing Partys Confidential Information disclosed as a result of a lawful requirement pursuant of this Section 5(c) does not automatically lose its status as “Confidential Information” by virtue of such disclosure and is still protected by the terms and conditions of this Agreement.
(d) Equitable Relief. Each Receiving Party acknowledges that the Confidential Information of the Disclosing Party is important, material and confidential, and gravely affects the successful conduct of the business of the Disclosing Party, and that any breach or threatened breach of this Section 5 would result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a Party to seek any other remedy or relief to which it may be entitled under law, each Receiving Party agrees that the Disclosing Party will be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance without any necessity to post a bond.
(e) Return of Confidential Information. Upon the Disclosing Partys request or upon any termination or expiration of this Agreement, the Receiving Party will promptly (i) return to the Disclosing Party or, if so directed by the Disclosing Party, destroy all tangible embodiments of the Disclosing Partys Confidential Information (in every form and medium); and (ii) permanently erase all electronic files containing any of the Disclosing Partys Confidential Information (except for any computer records or files that have been created pursuant to the Receiving Partys automatic archiving and back-up procedures and the removal of which is not technically reasonable). Notwithstanding the foregoing, the Receiving Party shall be permitted to retain the Disclosing Partys Confidential Information for its legal archives (subject to a continuing obligation of confidentiality), for compliance purposes, to enjoy its rights under this Agreement or as otherwise required by applicable laws.
SECTION 6. INTELLECTUAL PROPERTY RIGHTS.
(a) Intellectual Property Rights Defined. “Intellectual Property Rights” means all intellectual property and other similar proprietary rights, in any jurisdiction, including rights in and to (i) trade secrets, know-how and other confidential or non-public business information; (ii) original works of authorship and any copyrights and moral rights relating thereto; (iii) trademarks, service marks, trade dress and other indications of origin; and (iv) patents, invention disclosures, inventions and discoveries.
(b) Platform. All right, title and interest in and to the Platform, Delivery Data and all other data, information and content created by or made available by or on the Platform, including transactional and performance data related to use of the Platform, and all Intellectual Property Rights in any of the foregoing, are and shall remain exclusively with DeliveryCircle, its licensors and their respective successors and assigns. This Agreement and the conduct of the Parties in connection with this Agreement are not intended to, and shall not be construed to, convey any rights to Company or any third party under any Intellectual Property Rights of DeliveryCircle in any manner, including as a result of patent exhaustion, estoppel or implied license doctrines in any jurisdiction or any similar doctrine, whether by operation of law or otherwise. To the extent Company provides any verbal or written ideas or feedback to DeliveryCircle concerning the Platform (“User Feedback”), Company hereby assigns, transfers and conveys to DeliveryCircle, or its designee, all worldwide right, title, and interest in and to any and all User Feedback, including any ideas, inventions, discoveries, original works of authorship, findings, conclusions, concepts, and improvements in such User Feedback.
SECTION 7. DISCLAIMER OF WARRANTY.
(a) Platform. THE PLATFORM IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES. DELIVERYCIRCLE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
(b) Independent Contractor Drivers. Company hereby agrees that: (i) all drivers (including Independent Contractor Drivers) performing services by or on behalf of DeliveryCircle or you, are independent contractors and not DeliveryCircle agents or employees; (ii) IN NO EVENT WILL DELIVERY CIRCLE BE LIABLE OR RESPONSIBLE FOR SUCH INDEPENDENT CONTRACTOR DRIVERS MISTAKES, NEGLIGENCE, ACTS, OMISSIONS, MISCONDUCT, OR ANY PERSONAL INJURY OR DEATH CAUSED BY DRIVERS; AND (iii) DELIVERYCIRCLE DOES NOT OBTAIN OR PROVIDE INSURANCE FOR INDEPENDENT CONTRACTOR DRIVERS.
SECTION 8. LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) Limitation of Damages. IN NO EVENT SHALL DELIVERYCIRCLE OR ANY DELIVERYCIRCLE PERSONNEL (AS DEFINED BELOW) BE LIABLE TO COMPANY OR ANY OF ITS AFFILIATES OR TO COMPANYS OR ITS AFFILIATES OFFICERS, DIRECTORS, MANAGERS, EQUITY HOLDERS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY, “COMPANY PERSONNEL”) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, BREACH OF SECURITY, OR LOST OR DAMAGED DATA) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT, THE PLATFORM, OR ANY SERVICES RENDERED BY DELIVERYCIRCLE OR ANY DELIVERYCIRCLE PERSONNEL OR ANY INDEPENDENT CONTRACTOR DRIVERS, EVEN IF DELIVERYCIRCLE OR ANY DELIVERYCIRCLE PERSONNEL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitation of Liability. THE TOTAL AGGREGATE LIABILITY OF DELIVERYCIRCLE AND ANY DELIVERYCIRCLE PERSONNEL TO COMPANY AND COMPANY PERSONNEL FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF: (i) THE TOTAL FEES PAID BY COMPANY HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY; OR (ii) FIVE THOUSAND DOLLARS ($5,000).
(c) Company Indemnification. Company shall defend, indemnify and hold harmless DeliveryCircle, its affiliates and its and their officers, directors, managers, equity holders, employees, agents, contractors, suppliers and licensors (collectively, “DeliveryCircle Personnel”) against all costs, expenses, losses and damages (including reasonable attorneys fees and costs) incurred or awarded as a result of or in connection with claims of third parties (including Companys Authorized Users) against DeliveryCircle based on or arising directly or indirectly out of: (i) Companys or its Authorized Users use of the Platform; (ii) a breach by Company or any Company Personnel of any terms of this Agreement; (iii) Companys or any Company Personnels violation of any applicable laws or regulations; and/or (iv) any personal injury (including, without limitation, death) or property damage suffered or incurred by Delivery Circle Personnel or Independent Contractor Drivers in connection with any “in-home” delivery or pick-up requests (i.e., any delivery or pick-up request in which any Independent Contractor Driver or DeliveryCircle Personnel is requested (whether orally or pursuant to the Platform) to enter any personal residence or commercial real property owned or occupied by Company), whether any conditions, facts or circumstances causing such injury or damage are known or unknown.
SECTION 9. ARBITRATION.
(a) Any Claim arising out of or relating to this Agreement or in any way relating to the subject matter of this Agreement or the relationship between the Parties created by this Agreement (“Arbitrable Claims”), shall be settled by final and binding arbitration before a panel of three (3) arbitrators mutually agreed to by the Parties from a panel provided by the American Arbitration Association (“AAA”) administered by and conducted under the Commercial Rules of the AAA, and judgment upon the award by the applicable arbitrators may be entered in any court having jurisdiction.
(b) The arbitration will be conducted in Wilmington, Delaware, or, if the Parties agree within five (5) days after the demand for arbitration, at such other mutually agreed upon alternative venue. The Parties agree that the arbitration award and record, and information and documents not otherwise in the public domain that are used at or in connection with any arbitration between the Parties, shall not be disclosed to third parties by the arbitrators or the Parties without the prior written consent of each Party. The Parties further agree that the arbitration and any discovery taken shall be conducted as promptly as possible.
(c) Notwithstanding anything to the contrary, nothing in this Section 9 shall prohibit a Party from instituting proceedings in a state or federal court with jurisdiction over the Parties to: (i) compel arbitration in accordance with this Agreement to arbitrate; (ii) obtain orders to require witnesses to obey subpoenas issued by the arbitrators; (iii) seek injunctive relief, including temporary and preliminary injunctive relief, related to the breach of the other Partys confidentiality obligations under this Agreement or under the law; or (iv) secure confirmation or enforcement of any arbitration award rendered pursuant to this Agreement to arbitrate. Once selected, all questions relating to the validity, interpretation and provisional remedies, pending completion of the arbitration, shall be determined by the arbitrators.
(d) The arbitrators will have the power to award any legal or equitable remedy, including without limitation, specific performance, provided that the arbitrators shall adhere to the provisions of this Agreement for risk allocation and any shall strictly construe such limitations of remedies in accordance with applicable law.
(e) Each Party shall bear all of its own fees and costs of participating in the arbitration (e.g., filing, attorney and expert witness fees) and shall share equally the costs of the arbitration, including the arbitrators, court reporter and hearing room fees; provided, however, that, subject to Section 8, the prevailing Party in such arbitration shall be entitled to have all of its attorneys fees paid by the nonprevailing Party.
SECTION 10. GENERAL.
(a) Entire Agreement. This Agreement and the Terms and Conditions sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes any and all prior oral and written agreements, understandings and quotations relating thereto. No waiver, amendment, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the Parties. In the event of any conflict between this Agreement and the Terms and Conditions, this Agreement shall control. In the event of any conflict between this Agreement and the Terms and Conditions available on the Platform, this Agreement shall control. No inconsistent or additional terms of any Company purchase order will become part of this Agreement and DeliveryCircle hereby expressly rejects any and all such terms.
(b) Governing Law. This Agreement will be governed by, construed and enforced in accordance with the laws of the State of Delaware without regard for the conflict of law rules of any jurisdiction. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated by this Agreement.
(c) Severability. If any provision of this Agreement is invalid or unenforceable, such provision will be enforced only to the extent that it is not in violation of such law or is not otherwise unenforceable and all other provisions of this Agreement will remain in full force and effect.
(d) Waiver. The failure of a Party in any one or more instances to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms on any future occasion.
(e) Force Majeure. DeliveryCircle will not be responsible for any nonperformance or delay caused by acts of God, man-made or natural disasters, acts of terrorism, infectious disease, public utility interruptions, discontinuance of necessary products or unavailability of a service.
(f) Notices. Any notice that is required or permitted hereunder shall be deemed given only if delivered personally or by registered or certified U.S. mail, return receipt requested and postage prepaid, or by a nationally recognized overnight delivery service, addressed to the Parties at their respective addresses as follows:
If to DeliveryCircle:
111 Continental Drive Suite 102
Newark, DE 19713
Attn: Natalie Putnam, CEO
If to Company: At the physical address and/or email address specified by Company in its Platform account.
Notice of a change in address of one of the Parties shall be given in writing to the other Party as provided above, but shall be effective only upon actual receipt.
(g) Assignment of Agreement. Neither Party shall assign this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Partys consent to any Affiliate or in the event of a merger, acquisition, or sale of all or substantially all of its assets. “Affiliate” means any entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Party. For purposes of this definition, the term “control” means the power (or, as applicable, the possession or exercise of the power) to direct, or cause the direction of, the management, governance, or policies of a given entity, directly or indirectly, through any applicable means (whether through the legal, beneficial, or equitable ownership, of more than fifty percent (50%) of the aggregate of all voting or equity interests or securities of such entity, through partnership, or through some other form of ownership interest, by contract, or other applicable legal document, or otherwise).
(h) Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The reproduction of signatures by means of facsimile device or other electronic means shall be treated as though such reproductions are executed originals.
(i) Compliance with Laws; Export Regulations. Company shall not acquire, ship, transport, export or re-export the Platform or any part thereof, directly or indirectly, into any country in violation of any applicable law (including the United States Export Administration Act and the regulations promulgated thereunder) nor will Company use the Platform or any part thereof for any purpose prohibited by such laws or any other laws.
(j) Rules of Construction. Definitions contained in this Agreement apply to singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires. The terms “hereof,” “herein,” “hereby” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms “includes” and the word “including” and words of similar import shall be deemed to be followed by the words “without limitation.” Section and subsection references are to the Sections and subsections to this Agreement unless otherwise specified. Headings and captions herein are inserted for convenience, do not constitute a part of this Agreement, and shall not be admissible for the purpose of proving the intent of the Parties.
(k) Publicity Reference. DeliveryCircle may include Company in its general listing of Companys reference lists, press releases, success stories and other marketing materials.