PRODUCT DELIVERY SERVICE AGREEMENT
This Business Alliance Agreement (this “Agreement”) between Charitable Adult Rides and Services (CARS), a California non-profit corporation (hereinafter “ON THE GO”) and _________________________ (hereinafter “AFFILIATE”), also referred to herein individually as a “Party” and collectively as the “Parties,” is entered into and effective upon the signatures of the parties below (“the Effective date”).
RECITALS
WHEREAS, ON THE GO has substantial know-how and experience in the provision of transportation platform services and logistics;
WHEREAS, AFFILIATE has significant and substantial know-how and experience in offering transportation and delivery related services;
WHEREAS, the Parties wish to establish a business alliance (the “Alliance”) to serve as a framework for co-operation between them, and to leverage each Party’s respective know-how and experience for the Parties’ mutual benefit;
WHEREAS, the Parties intend that the alliance will: (i) promote the further development of the business of ON THE GO and AFFILIATE; and (ii) facilitate the development and expansion of business between the parties;
NOW, THEREFORE, in consideration of the promises and mutual covenants hereinafter set forth, the Parties hereto hereby agree as follows:
This Agreement describes the AFFILIATE relationship (“Product Delivery Scheduling Services”) between ON THE GO and AFFILIATE.
It is mutually agreed upon and understood by ON THE GO and AFFILIATE that ON THE GO and AFFILIATE will work in a coordinated fashion for the fulfillment of Product Delivery Scheduling Services as described herein.
1. OBJECTIVES
ON THE GO shall assess and analyze the business of the Alliance, and provide recommendations on opportunities to improve the performance of and to expand the scope and activities of the alliance.
2. RELATIONSHIP OF PARTIES
This agreement does not create a joint venture, partnership, or principal-agent relationship between the parties, and nothing in this agreement may be used to imply such a relationship. Neither party has the right, power, or authority to obligate or bind the other in any manner unless authorized in writing by the other party in a specific instance. No employees of a party are under the control, management, or supervision of the other and are not intended to be employees of the other for purposes of any federal, state, or local laws or regulations including, but not limited to, those covering unemployment insurance, employment taxes, and workers’ compensation. Employees of one party are also not intended to be employees of the other party for purposes of fringe benefits provided to employees of the other party.
3. TERM
The term of this Agreement shall be effective for one (1) year from the Effective Date, unless terminated earlier as provided elsewhere in this Agreement. The Agreement may be extended by mutual written agreement of the parties no less than 30 days before the anniversary of the “Effective Date.”
4. MARKETING
The Parties agree to cooperate for the purpose of creating mutually acceptable marketing for Product Delivery Scheduling Services. Both Parties license use of their name, trademark and logo for the limited purposes associated with the activities associated with this Agreement and for no other purpose. In the event that ON THE GO markets, including advertising or public relations on behalf of AFFILIATE, content shall be approved in writing by AFFILIATE prior to implementation or subsequent modifications, reasonable consent not to be withheld by AFFILIATE.
5. ON THE GO’S SERVICES
ON THE GO will act on behalf of the Parties to provide the following services:
a. Software Platform. ON THE GO will provide a proprietary software platform to support: i) AFFILIATE’S clients requiring the delivery of meals or other products to and from designated destinations, and ii) AFFILIATE in obtaining client, usage, billing and other data and reports.
AFFILIATE may schedule product delivery services on-demand or in advance using the software platform.
i. Software Platform Responsibilities. ON THE GO will maintain and upgrade a user-friendly software platform that allows AFFILIATE and its clients to schedule product delivery and obtain related service data as follows:
1. ON THE GO, acting on behalf of the Parties, will arrange for product pick-up by a licensed and insured vendor of ON THE GO’s choosing that is available and also most appropriate in ON THE GO’s discretion.
2. ON THE GO will facilitate onboarding AFFILIATE and will provide ongoing technical support as needed.
3. AFFILIATE or its representative will set pick-up appointments in the ON THE GO platform at their own convenience at the earliest practicable time, unless otherwise delayed for reasons beyond the control of either party. Individual delivery requests or multiple delivery requests may be scheduled using the platform.
4. ON THE GO, acting on behalf of the Parties, will respond to deliver request queries and assist in resolving service issues, including, but not limited to, scheduling changes and cancellations for pre-arranged transportation needs.
5. The Parties agree that ON THE GO shall have the discretion to accept or reject any delivery requests.
6. AFFILIATE will be provided a service that responds to their growth and change as needed.
b. Technology Costs. ON THE GO will plan, upgrade and maintain scheduling software platform technology.
c. Growth/Change Costs. ON THE GO will work with AFILIATE as they grow their business and encounter change.
6. AFFILIATE’S RESPONSIBILITIES
a. Affiliate agrees to abide by and be bound by the 1) Lyft Commercial Terms Addendum, 2) Lyft Delivery Services Price Addendum, and 3) Lyft Delivery Claims Addendum, attached hereto as Exhibits 1, 2, and 3, and fully incorporated in this Agreement.
b. Emergency Contact. AFFILIATE will provide ON THE GO with an emergency contact for responding to problems.
7. FEES FOR SERVICES
The Parties agree to the following product delivery cost and fees:
a. Deposit. AFFILIATE will provide a deposit equal to two months of anticipated total fees OR provide credit card or payment information which will be promptly charged for the delivery fare and fees as incurred. Deposit funds can be increased based on actual results.
b. Set up fee. AFFILIATE will pay ON THE GO a one-time fee of $199 to initiate the service.
c. Fees. AFFILIATE will pay ON THE GO the total ride cost per meal/product delivery incurred by ON THE GO and a flat fee of $.53 cents per delivery unit for the first year. Parties to review the fee structure upon extension of the Agreement as provided herein. A delivery unit includes all packages delivered to an individual recipient at a single address at a specific delivery time. One delivery unit may include multiple packages.
8. INVOICING/REPORTING
The Parties agree that the following written reports shall be required and shared, to-wit:
a. Invoicing. ON THE GO will provide AFFILIATE an itemized monthly billing statement including the previous 30 days of scheduled product delivery incurred by AFFILIATE on or before the 10th of each month. AFFILIATE agrees to submit payment to ON THE GO based on a net 30-days basis from the receipt of said invoice(s) unless the fares and fees have been paid as incurred via credit card.
b. Reporting. ON THE GO will provide AFFILIATE secure access to pertinent data and information in real time. ON THE GO and AFFILIATE will collectively determine the required data to be provided to AFFILIATE. AFFILIATE will monitor and manage its delivery transportation administration.
9. INTELLECTUAL PROPERTY
This agreement does not give either party any ownership rights or interest in the other party’s trade name, trademarks, copyrights, patents, trade secrets, know-how, proprietary data, confidential information, or other intellectual property. Each party agrees to comply with the instructions of the other regarding the use of the other party’s intellectual property in the promotion of the other party’s product, including properly marking promotional material with the other party’s trademarks and copyrights and properly marking samples of products on which the other party holds one or more patents whether issued or pending.
10. INDEMNIFICATION
Each of the parties agrees to indemnify and hold harmless the other party and its agents and employees from and against all claims, demands, obligations, and liabilities of any nature whatsoever, and all related costs and expenses including reasonable attorney’s fees, resulting solely and directly from the indemnifying party’s breach of this agreement, negligence, or willful misconduct. No indemnification is required for any claim or liability resulting from the breach of this agreement by the party seeking indemnification or resulting from the negligence or misconduct of either the party seeking indemnification or a third party. Each party agrees to give the other prompt written notice of any claim or other matter as to which it believes this indemnification provision applies. The indemnifying party has the right to defend against any such claim with counsel of its own choosing and to settle or compromise such claim as it deems appropriate. Each party also agrees to cooperate with the other in the defense of any such claim or other matter.
a. Insurance. It is agreed that ON THE GO will maintain a policy of automobile insurance and general liability insurance in the amount of no less than $5,000,000 plus worker's compensation insurance and all other insurance required by law, with such carriers, coverage amounts, and deductibles as are commercially reasonable under the circumstances and shall name AFFILIATE as an additional insured under such policies. Proof of same shall be provided by ON THE GOwithin 30 days of executing the Agreement.
11. DUTIES AND RESPONSIBILITIES
a. Compliance with Laws. The Parties each agree they will comply with all applicable laws and regulations.
b. Mutual Disclosure. The Parties acknowledge the uncertainty of the results of engaging in this joint activity.
c. Inspection of Records. The Parties shall be entitled to inspect the relevant records of the other regarding this joint activity provided same is accomplished during normal business hours upon adequate notice.
d. Equipment. The Parties will work with third parties as may be necessary to provide the equipment that may be required.
e. Relationship. The Parties enter into this Agreement for the purpose of their mutual benefit. Neither party shall have the right to incur any obligation in the name of the other without prior consent to do so.
f. Confidentiality and Non-Disclosure. The Parties agree to keep the terms and conditions of this Agreement confidential and shall not disseminate this Agreement, nor any documents or reports related to this Agreement, to any other third party, other than such disclosures required for financial accounting purposes, or the Attorney General, Internal Revenue Service, or regulating authority. The Parties shall keep all written information received from the other as confidential information unless clearly labeled "non-confidential," unless such information otherwise becomes public as a result of the conduct of parties other than the Parties or is clearly intended to be used in advertising.
g. Respect for Goodwill. The Parties will conduct themselves at all times with due regard to the goodwill associated with their respective names.
h. Limitation of Liability. In no event shall either party be liable for any loss of profits, loss of revenues, special, incidental, indirect, speculative, exemplary or consequential damages arising from this agreement and irrespective of whether AFFILIATE or ON THE GO has advance notice or advance knowledge of the possibility of such damages. Any damage awarded or claimed shall be limited to out of pocket losses only. The foregoing shall not apply to the indemnification obligations set forth herein.
12. WARRANTIES OF THE PARTIES
Each of the Parties represents and warrants as follows:
12.1. Organization. It is a legal entity duly organized and validly existing under the laws of the jurisdiction of its incorporation, and has the corporate power and authority to enter into and perform this Agreement.
12.2. Authorization. It has taken all corporate action necessary for the authorization, execution, and delivery of this Agreement and for the performance of all of its obligations hereunder, and this Agreement when fully executed and delivered shall constitute a valid, legally binding, and enforceable obligation enforceable against it in accordance with its terms.
12.3. Government and Other Consents. Other than any licenses, permits, certifications, or authorizations which may be required in connection with the Alliance, no consent, authorization, license, permit, registration or approval of, or exemption or other action by, any Governmental Authority, or any other Person is required in connection with its execution, delivery and performance of this Agreement, or if any such consent is required, it has satisfied the applicable requirements.
12.4. Effect of Agreement. The execution, delivery and performance of this Agreement will not:
(i) violate its Articles of Incorporation, Bylaws or any provision of applicable law, (ii) violate any applicable judgment, order, writ, injunction or decree of any court, or (iii) result in the creation of any lien, pledge, mortgage, claim, charge or encumbrance upon any of its assets.
12.5. Litigation. There are no actions, suits or proceedings pending or, to its knowledge, threatened, against it before any governmental authority which questions its right to enter into or perform this Agreement or which question the validity of this Agreement.
13. TERMINATION OF AGREEMENT
This Agreement may be cancelled by either Party hereto: (a) upon either party's dissolution or liquidation; or (b) by either party with thirty (30) days prior written notice; or (c) at any time with the mutual written consent of the Parties. Upon termination, the Parties will share such information as may be required within thirty (30) days so that each party will have final and full accountings and distribution of confidential information as may be reasonably necessary.
14. DISPUTE RESOLUTION
All disputes between the Parties arising out of this Agreement shall be settled by the Parties amicably through good faith discussions upon the written request of any Party. In the event that any such dispute cannot be resolved thereby within a period of 20 days after such notice has been given, such dispute shall be finally settled by arbitration in San Diego, California at Judicate West, in accordance with the rules then in effect of CA Code of Civil Procedure 1141.10 et seq. The arbitrator shall have the authority to grant specific performance, and to allocate between the Parties the costs of arbitration in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses and attorney’s fees incurred in connection therewith. Judgment upon the award so rendered may be entered in the San Diego County Superior Court or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the state of California.
16. BINDING EFFECT
The provisions of this agreement are binding upon and will inure to the benefit of the successors and assigns of the parties.
17. SUCCESSORS AND ASSIGNS
Neither Party shall have the right to assign its rights or obligations under this Agreement without the express written consent of the other party. This Agreement shall inure to the benefit of, and shall be binding upon, such permitted assigns.
18. FULL AND COMPLETE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement among the Parties with regard to the subject matter hereof, and supersedes any other prior or contemporaneous oral or written understandings or agreements among the Parties hereto. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Parties expressly referring to this agreement and the terms to be waived.
19. NO WAIVER
No failure to exercise and no delay in exercising any right, power or privilege granted under this Agreement shall operate as a waiver of such right, power or privilege. No single or partial exercise of any right, power or privilege granted under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
20. SEVERABILITY
If any provision in this Agreement shall be found or be held to be invalid or unenforceable then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by any Party. In such event, the Parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly affects the Parties’ intent in entering into this Agreement.
21. FURTHER ASSURANCES
The Parties shall each perform such acts, execute and deliver such instruments and documents, and do all such other things as may be reasonably necessary to accomplish the transactions contemplated in this Agreement.
22. INDEPENDENT CONTRACTORS
The Parties are independent contractors. Nothing contained herein or done in pursuance of this Agreement shall constitute any Party the agent of any other Party for purposes of entering into legal contracts or otherwise exercising legal rights on behalf of any other Party.
23. NO BENEFICIARIES
Nothing herein express or implied, is intended to or shall be construed to confer upon or give to any person, firm, corporation, or legal entity, other than the Parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts and such counterparts may be exchanged by the Parties by facsimile or other electronic means. Each counterpart shall constitute an original instrument, but all such separate counterparts shall constitute only one and the same instrument.
25. NOTICES AND OTHER COMMUNICATIONS
Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing and shall be provided by one or more of the following means and shall be deemed to have been duly given: (a) if delivered personally, when received, (b) if transmitted by e-mail, on the date of transmission with receipt of a transmittal confirmation, or (c) by Certified U.S. Mail, postage prepaid, return receipt required and shall be deemed sufficiently given as specified herein.
EXHIBIT C-l
LYFT.INC.
MERCHANT COMMERCIAL TERMS
Products and Delivery Requests:
Products. All Products requested for Delivery Services under this Agreement are suitable for transportation and handling by members of the general public without any specialized training. All Products shall be free from any hazardous material; illegal items; or bio-waste. Partner acknowledges and agrees, on behalf of itself and each Merchant, that it is responsibility of each Merchant to determine whether the Delivery Services is the appropriate method of delivery for any Delivery Requests made under this Agreement, including whether such Delivery Services are in compliance with any applicable laws.
Batched and Pre-Defined Delivery Requests. Merchants can submit two types of Delivery Requests: (a) batched requests and (b) pre-defined requests. A "Batched Delivery Request" means a Merchant submits incremental Delivery Requests with pick-up and drop-off times, and requests that Lyft batch the Delivery Requests on efficient routes. A "Pre-Defined Delivery Request” means a Merchant submits a single or multi-stop Delivery Request without a specified drop-off time. All Delivery Services Fees for Batched Requests and Pre-Defined Requests shall be in accordance with Exhibit C-2.
Merchant SLA. All pricing as set forth in Exhibit C-2, assumes the following: Driver pick-up for each Batched Delivery Request or Pre-Defined Delivery Request does not exceed five (5) minutes and each individual delivery does not exceed two (2) minutes. For clarity, the flrve (5) minute and two (2) minute time period begins when the Driver exits the vehicle and ends when the Driver enters the vehicle. Partner will be charged the Partner Rate Card amount and any fees (as further described in Exhibit C-2) for additional time resulting from: (i) a delay in having the Batched Delivery Request or Pre-Defined Delivery Request ready for the Driver upon pick-up; (ii) an individual delivery resulting from the delay of a Customer to complete the receipt and/or acceptance of the Product(s); (iii) inaccurate Customer address or delivery instructions; or (iv) Driver's teturn route to Merchant to drop-off any unsuccessful Delivery Request.
Delivery Limitations. Partner acknowledges and agrees, on behalf of itself and each Merchant, that all Products for Delivery Services must be able to fit into a vehicle approved on the Lyft Platform, not to exceed more than 50lbs for each individual package, bag or box included with the delivery, but under no circumstances shall the total collective weight for all packages for a single delivery exceed l00lbs. An approved vehicle on the Lyft Platform may not include: SUVs, Mini-Vans, Vans, Trucks or vehicles supporting more than four (4) passengers, special needs vehicles, or vehicles designed or authorized to transport special equipment.
No Contact Delivery. If a Merchant requests no contact delivery, Partner acknowledges and agrees, on behalf of itself and each Merchant, that Merchant will inform Customers that Drivers have been instructed not to have any contact at the time of drop off. All items required to be delivered without Customer contact will be left at the Customer's front door and will not, in any event, be handed from Driver to Customer. For Delivery Services to Customers that are businesses, deliveries will be left inside the Customer's place of business at a location noted in the Delivery Request.
No Interstate Delivery. Partner acknowledges and agrees, on behalf of itself and each Merchant, that the Lyft Platform is not intended to be used in interstate commerce. Partner represents and warrants, on behalf of itself and each Merchant, that a Merchant will not submit Delivery Requests for deliveries that cross state lines.
Complaints and Delivery Claims. Partner acknowledges and agrees, on behalf of itself and each Merchant, that Lyft is only responsible for facilitating the delivery of Products to Merchants' Customers. Partner and/or each Merchant is responsible for any Customer complaints regarding the Products, including, but not limited to, complaints regarding the nature, quality, content and packaging of the Products delivered to Customer. Partner agrees not to refer any Customer complaints to Lyft unless such complaint involves Lyft's Delivery Services. In the event Customer fails to receive Proof of Delivery from a Driver or if the Products are destroyed or damaged during the Delivery Service, Partner may
EXHIBIT C-2
LYFT.INC.
DELIVERY SERVICES PRICING ADDENDUM
1. Pricing
Pricing is based upon the Partner Rate Card + Primetime + Tolls * Taxes (*PPTT") (subject to Merchant SLAs as described in Exhibit A). The "Partner Rate Card" means the base fare plus the time and distance fees for Delivery Services for each Market (as outlined in Exhibit A). Partner Rate cards will be provided to Partner and/or a Merchant prior to launching the Delivery Services in each Market.
a. Upfront Price: If a Merchant submits a Delivery Request for a Pre-Defined Route, the Lyft Delivery API will provide upfront price based upon PPTT ("Upfront Price"). Provided that there are no Price Adjustments or Returns, the Partner will be invoiced for the Upfront Price for each Pre-Defined Delivery Request. In the event a Merchant does not include an individual delivery as part of the Delivery Request, the Partner will still be invoiced the full Upfront Price amount.
b. Maximum Price: If a Merchant submits a Batched Delivery Request and sets a maximum price for all Delivery Requests that are not for a Pre-Defined Route ("Max Price"), Lyft will only dispatch Delivery Requests that are at or below the Max Price set by the Merchant. Provided that there are no Price Adjustments or Returns, Partner will be invoiced for at or below the Max Price for each Batched Delivery Request. In the event a Merchant does not include an individual delivery as part of the Delivery Request, the Partner will still be invoiced the full Max Price amount.
2. Price Adjustments
The Upfront Price and/or Max Price may be adjusted based upon any missed Merchant SLAs (as further outlined in Exhibit A). Any price adjustments shall be in accordance with PPTT for an applicable Market, including any applicable cancellation fees, taxes, tolls or other fees. Any applicable price adjustments will be reflected in the final price at the end of the completed Batched or Pre-Defined Delivery Request.
3. Cancellation Fees
A Merchant may cancel a Pre-Defined Delivery Request within two (2) minutes after the Driver accepts the Delivery Request. Any cancellations after the two (2) minute grace period, Partner will be charged a cancellation fee of $5-$10 (depending on the Market). Additionally, Partner will be charged a flat rate cancellation of $5-$10 (depending on the Market) in the event a Merchant does not have the Delivery Request ready when the Driver arrives at the pick-up time (this assumes that the Merchant cannot provide the Driver with the Delivery Request within five (5) minutes of the Driver's arrival for pick-up). A Merchant cannot cancel an individual delivery that is included in a Batched Ride Request once the individual delivery is included in the Batched Ride Request. Individual rides are generally included in a Batched Ride Request two (2) hours before the designated pick-up time.
4. Returns
Partner will be responsible for any additional miles and minutes accrued for any return of an unsuccessful Delivery Request based on PPTT (each a "Return").
EXHIBIT C-3
LYFT, INC.
DELIVERY CLAIMS ADDENDUM
1. Claim for Loss. If Merchant submits a Delivery Request, the Driver accepts the Delivery Request, the Driver picks-up the Product and while the Product is in the Driver's possession is subsequently:: (a) damaged, (b) destroyed, or (c) does not arrive at the drop off location and the Driver has failed to provide Proof of Delivery, you may submit a claim for reimbursement via a method to be mutually determined and subject to the conditions outlined below (each a "Delivery Claim" or collectively, the "Delivery Claims").
2. Filing a Claim. Merchant should file a Delivery Claim within forty-eight (48) business hours of the delivery event resulting in the loss, damage, or no Proof of Delivery. All Delivery Claims must include the supporting information or documentation outlined below to allow Insurance Partners (as defined below) to complete their investigation.
3. Supporting Information or Documentation. For Lyft to process a Delivery Claim, Lyft requires the following information: (a) Delivery Request Date (b) Pick-Up and Drop-Off (c) Description of the Product, including pictures of the Product from different angles (d) Description of the damage or destruction (e) The value of the loss, damage, or package not delivered, including repair estimates for damaged Products.
4. What is Considered Damaged or Destroyed. A Product is considered damaged if the Product is able to be repaired so it can be used for its intended purpose. A Product is considered destroyed if the Product cannot be repaired or cannot be used in any way for its intended purpose.
5. Claims for No Proof of Delivery. If Merchant submits a Delivery Request, that is accepted by a Driver, the Driver picks up the Products for delivery, but the Customer does not receive the package and neither Merchant nor the Customer receives Proof of Delivery, Merchant can submit a Delivery Claim for reimbursement of the full value of the Products that were not received.
6. Next Steps. Each Claim will be submitted to Lyft insurance partners (each an “Insurance Partner" or collectively, the "Insurance Partners") to conduct an investigation. The Insurance Partner will make multiple attempts to reach out to Merchant and Lyft during the first forty-eight (48) business hours from the date of the Delivery Claim submission. Insurance Partners will be responsible for resolving any Delivery Claim, including any negotiated settlement amount.
7. Claims Lvft does not Support. Lyft does not support any Delivery Claims that relate to the following (a) quality, (b) quantity, (c) safety, (d) use, (e) damage or destruction of fragile items or prepared foods due to packaging, (f) storage or (g) resulting illness or injury, including death, resulting from the (a) - (f). Additionally, Lyft will not cover Delivery Claims for (i) damage or destruction to Products occurring after Delivery, (ii) No Contact deliveries or stolen deliveries where Proof of Delivery is provided, or (iii) perishable foods that are frozen, melted, spoiled or deteriorated.
Amendment to Delivery Services Agreement Lyft Legal, July 2020