IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
I. SERVICE TERMS
- Overview. The Payload Platform is provided by Payload to enable registered users to create requests or offers of services and to connect with other registered users who wish to use such services. Access to the Payload Platform and use of its functionality to order and manage transactions is subject to payment of the applicable fees and compliance with the terms of this Agreement.
- Phase 1. If you subscribe to use the Payload Services on a pilot basis, you will be permitted to do so for the period indicated by Payload and for the agreed upon geographical area.
- Contracting through the Payload Services. Through the capabilities of the Payload Services, Clients will be able to create, manage, and track orders with Service Providers. If you use the Payload Services on a trial basis, during the pilot period, orders created are still binding and the agreement of an order constitutes a binding legal contract between the applicable Client and Service Provider. If you create or respond to an order request through the Payload Platform, you are agreeing to the terms of the order and to contracting on the terms of the Payload Platform. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE PAYLOAD SERVICES, INCLUDING, WITHOUT LIMITATION, ANY FEES FOR ORDERS PLACED FOR DELIVERY OF GOODS WITH SERVICE PROVIDERS THROUGH THE PAYLOAD PLATFORM.
Registering to use the Payload Services. To use the Payload Services, you must first register to create an account and a password. You are responsible for all activity that takes place on your account. Please choose a strong password for your account and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your account.
- Important Terms for Users
- License to Access and Use Payload Platform. Payload grants you a limited, non-exclusive, non-transferable, internal, Non-Sublicense able (except to your subcontractors and agents who require access to provide services on your behalf and have agreed to be bound by the terms of this Agreement) license to access and use the Payload Services and the Payload Platform. You will be responsible for all acts and omissions of your subcontractors and agents. Your right to use the Payload Services and the Payload Platform is limited by all terms and conditions set forth in this Agreement. Use of the Payload Services and the Payload Platform after termination of Phase 1 will be on the commercial terms offered by Payload.
- Orders. All orders are concluded with the party either requesting services (“Client”) or providing services (“Service Provider”). Payload is not a party to any order created, managed or fulfilled through the Payload Platform.
- Payments. Payment terms for use of the Payload Services as between Clients and Service Providers for each transaction are set out in the Client and Service Provider Standard Form Contract. Further invoicing terms are set out in Part III below.
- Restrictions on Use of the Payload Services. Payload may impose certain limitations on the use of the Payload Services, including, but not limited to restricting the number of accounts you may register. You agree to use the Payload Services and Payload Platform only for purposes as permitted by these Terms and not to use the Payload Services for any purpose prohibited by applicable law or regulation. Payload reserves the right to reasonably modify or impose reasonable limitations on the use of the Payload Services and Payload Platform, if in the case of any modifications or limitation that might affect your Use of the Payload Services and/or the Payload Platform, we will provide notice to you. We will have the right to terminate the Agreement upon thirty (30) days prior written notice to you. In using the Payload Services and/or Payload Platform you shall not:
- intentionally or unintentionally violate any applicable local, state, provincial, national, or international law or regulation, including without limitation using the capabilities of the Payload Platform to transmit any unlawful content, to harass or intimidate others, to spam third parties or to impersonate anyone else;
- license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Payload Services (except for the creation and fulfilment of orders as permitted herein); or
- modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Payload Platform or any software provided by us.
- Representations and Warranties. You represent, warrants and covenants that you are or represent a company that: (i) is in good standing under the laws of the jurisdiction of incorporation or organization and is duly qualified to transact business in each jurisdiction where qualification is required; (ii) has the full power and authority to enter into and perform its obligations under this Agreement to make a contract; (iii) all information provided by you to Payload and/or to other users of the Payload Services shall be complete and accurately represent your ability to be bound by the terms hereof and of any agreed order; (iv) if you are a Client submitting a request for services it is for your own account and not for purposes of resale; and (v) no information provided by you shall be fraudulent or contain any misrepresentation.
- Indemnification. You agree to defend, indemnify and hold Payload, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any content you submit, post, transmit, or otherwise make available through the Payload Services; (b) your use of the Payload Services in breach of the terms of this Agreement; or (d) your violation of any rights of another or failure to adhere to and perform your obligations under an order and contract with another user on the Payload Platform. This obligation shall survive the termination or expiration of these Terms and/or your use of the Payload Services. Payload shall, at its own expense, defend you in any action, suit or proceeding by a third party alleging that the Payload Services and/or the Payload Platform infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold you harmless from and against any settlement amounts agreed in writing by Payload and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against you by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Payload, (i) you shall notify Payload promptly in writing upon becoming aware of all pending IP Claims; (ii) you shall give Payload sole control of the defense and settlement of such IP Claims; (iii) you shall cooperate fully with Payload in the defense or settlement of such IP Claims; and (iv) you shall not settle any IP Claims without Payload’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto. In the event of any IP Claim or any threat thereof, Payload may terminate your use of the Payload Services and/or the Payload Platform upon five (5) days written notice to you.
II. DATA & IP TERMS
- Personal Information. When you register to use the Payload Services and through your use of the Payload Services and Payload Platform we will have access to certain personal information and device data such as the names of personnel who have created accounts, delivery driver names, agents and contact information for persons involved in delivering on orders created through the Payload Platform. This personal information is used solely for managing and delivering the Payload Services. We do not rent or sell customer lists. It is the obligation of the Client and Service Provider to ensure that any personnel or contractors whose personal information is stored by the Payload Platform are aware of the Payload data policies and that appropriate consent is obtained.
- License to PAYLOAD. Except for material we may license to you, PAYLOAD does not claim ownership of the materials and/or content you submit to the Payload Platform such as order requirements and the details contained therein (“Content”). However, by using the Payload Services you grant to Payload a worldwide, royalty-free, non-exclusive license to collect, use and store such Content solely for providing the Payload Services. Said license will terminate within a commercially reasonable time after you or Payload terminate your account however such information may be retained by Payload, subject to maintaining confidentiality, if required in connection with audits or regulatory reviews.
- Payload IP Rights. The Payload Platform, and the information which it contains and which we make available via the Platform, is the property of Payload and its affiliates and licensors, and is protected from unauthorized copying and dissemination by copyright law, trademark law, international conventions and other intellectual property laws. Payload product or service names or logos appearing in the Payload Platform are either trademarks or registered trademarks of Payload Technologies, Inc. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of Payload’s trademark or other intellectual property rights concerning that name or logo. All other product names are trademarks or registered trademarks of their respective owners.
III. PAYMENT TERMS
- Fees Generally. Payload will charge for use of the Payload Platform and Payload Services which will be a portion of each transaction completed through the Payload Platform. The fees set out in this Part III may be updated or changed by Payload from time to time through an update on the Payload Platform and/or to these terms. Such revised fees will take effect from the date indicated and will apply to any orders or tickets placed after the effective date of the change.
- Transaction Fees. Upon completion of Phase 1 the client will be responsible for paying Payload agreed upon transaction percentage fee of any transaction value of orders and approved tickets carried out through the Payload Platform or transactions concluded through manual paper tracking methods where a transaction was originated with the Payload Services and Payload Platform. The transaction fee will be calculated on the value of the pro-forma invoice available through the Payload Platform. For transactions concluded outside of the Payload Platform, the parties will provide accurate reporting of all related orders and tickets (including any evidence of changes from initial orders created through the Payload Platform). All transaction fees will be due and payable within 30 days of the invoice date.
- Right to Audit. You hereby agree and acknowledge that Payload and its authorized representatives shall have the right to audit, to examine, and to make copies of or extracts from all financial and related records (in whatever form they may be kept, whether written, electronic, or other) relating to or pertaining to all transactions, sales or purchases kept by or under the control of users of the Payload Services. Such records shall include, but not be limited to, accounting records, files (including proposals of successful and unsuccessful orders and tickets, etc.); purchase records supported by invoices; ledgers; cancelled checks; deposit slips; bank statements; journals; contract amendments and change order files; back-charge logs and supporting documentation; memoranda; and correspondence. You shall provide Payload and its designated independent third party auditor with access to your facilities, records and personnel as may be reasonably requested by Payload for confirming proper payment of transaction fees to Payload hereunder. You agree to pay any payment shortfall identified in such an audit. Further, in the event such audit identifies a payment shortfall in excess of five percent agreed payment terms or more of the amounts due from you to Payload in the audited period, then you shall pay Payload’s costs of such audit.
- Payment Terms. (a) All fees are due within thirty (30) days after receipt of an invoice; (b) Taxes: Any applicable taxes are in addition to this quote; (c) Any additional consulting services, travel, installation, training and expenses: will be invoiced separately in the month in which they
- Definition of Confidential Information. As used in these Terms, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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, including business and marketing plans, technology and technical information, product designs and business processes of each of the parties and your data submitted to the Payload Services and/or Payload Platform. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission.
- Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with 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.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
V. TERM AND TERMINATION
- Termination by You. You may terminate your account and/or stop using the Payload Services at any time but will be required to fulfil your obligations to any other user such as any Service Provider with whom you have contracted through the Payload Services.
- Termination by Payload. Payload may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Payload Services and Payload Platform. Cause for such termination shall include, but not be limited to: (a) violations of the Terms or any other policies or guidelines that are referenced herein and/or posted on the Payload Services or Payload Platform; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Payload Services or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) where provision of the Payload Services or the Payload Platform to you is or may become unlawful; (f) unexpected technical or security issues or problems; or (g) your participation in fraudulent or illegal activities. Any such termination or suspension shall be made by Payload in its sole discretion, and Payload will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Payload Services or Payload Platform.
- Effect of Termination. On termination, you will lose all access to the Payload Services and any portions thereof, including, but not limited to, your account. You will have access to your data for a limited period of thirty (30) days after the termination of this Agreement, to give you an opportunity to download a copy of such data. Thereafter, Payload will be entitled to delete your data.
VI. IMPORTANT DISCLAIMERS AND SERVICE LIMITATIONS
- THE PAYLOAD SERVICES IS PROVIDED “AS IS.” PAYLOAD SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE SERVICE AND PAYLOAD SERVICES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PAYLOAD OR THROUGH OR FROM THE PAYLOAD SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- PAYLOAD WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THE PAYLOAD SERVICES AND WILL NOT BE RESPONSIBLE FOR ANY CHARGES RELATING TO ORDERS WHICH YOU INCUR IN YOUR USE OF THE PAYLOAD SERVICES. UNDER NO CIRCUMSTANCES WILL PAYLOAD BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE PLATFORM, INCLUDING WITHOUT LIMITATION THE WEBSITE, AND INFORMATION IN ANY CONTENT ON THE PLATFORM. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE ON THE PLATFORM. YOUR ARE RESPONSIBLE FOR SEEKING THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT.
- UNDER NO CIRCUMSTANCES SHALL PAYLOAD BE LIABLE FOR ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE PAYLOAD SERVICES OR THE PAYLOAD PLATFORM AT ANY TIME (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES, OR (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE PAYLOAD SERVICES. NOTWITSTANDING THE FOREGOING, PAYLOAD WILL REMAIN RESPONSIBLE FOR ANY BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT BY PAYLOAD AND FOR ANY VIOLATIONS OF PERSONAL INFORMATION PROTECTION LAWS BY PAYLOAD.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT FOR ANY BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT BY PAYLOAD AND EXCEPT FOR ANY VIOLATIONS OF PERSONAL INFORMATION PROTECTION LAWS BY PAYLOAD, PAYLOAD’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT WILL AT ALL TIMES BE LIMITED. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY THE APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT SERVICELY TO YOU.
VII. General TERMS
- Access to Your Account and Content. You acknowledge and agree that Payload may access, use, preserve and/or disclose your account information and content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Payload, other users or the public as required or permitted by law.
- Changes to the Payload Platform. The Payload Platform and Payload Services are subject to change from time to time. Payload reserves the right to modify, suspend or stop the use of the Payload Platform (or any part thereof), either temporarily or permanently, at any time or from time to time, with notice to you. Without limiting the foregoing, Payload may provide notice of any such changes to the Platform by posting them on the website. You agree that Payload shall not be liable to you or any third party for any modification or cessation of the Platform. You acknowledge that Payload has no express or implied obligation to provide, or continue to provide, the Platform, or any part thereof, now or in the future; and in addition, Payload may at any time, upon prior notice as required by applicable law, institute charges or subscription fees for the Payload Services.
- Availability of Products and Services Mentioned. Service descriptions, specifications, and availability are subject to change. Information that Payload publishes on the Payload Platform may contain references or cross references to products or services that are not currently available as services are dependent on the Service Providers who wish to offer such services through the Payload Platform.
- Insurance. Throughout the Term, PAYLOAD shall maintain, at its sole cost and expense, cyber liability insurance coverage (or the equivalent thereof) with limits no less than five million dollars ($5,000,000) in the aggregate for all claims each policy year, which shall name Customer as an additional insured. (a) Worker’s Compensation in accordance with the statutory requirements of each state in which the Services are to be performed and any other state or province in which Payload operates. (b) Employer’s Liability Insurance of not less than $1,000,000 each accident for bodily injury by accident, and $1,000,000 each employee and policy limit for bodily injury by disease. (c) Commercial General Liability Insurance in a combined single limit of $2,000,000 per occurrence and $4,000,000 in the aggregate, including products/completed operations, contractor’s liability coverage, bodily injury or death of persons, and/or loss of or damage to property of parties other than Payload. (d) Automobile Insurance (owned, non-owned or hired) in a combined single limit of $1,000,000 per accident for bodily injury and property damage liability. (e) Errors & Omissions Insurance in the amount of $2,000,000 per occurrence and $4,000,000 in the aggregate.
- Jurisdictional Availability. Payload makes no representation that the Payload Services are appropriate or available for use in any specific jurisdiction. Those who choose to access the Payload Platform do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
- Feedback. We welcome your suggestions, comments and feedback on the Payload Services and the Payload Platform more generally (“Feedback”) especially during this phase as it helps us to improve the product and our services. If you provide us with Feedback you agree that: (a) we are not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not confidential or proprietary information belonging to you or any third party and you have all of the necessary rights to disclose the Feedback to us; (c) Payload (including its successors and assigns) may freely use Feedback without any restrictions for its purposes but not with the general public unless otherwise agreed in advance; and (d) you are not entitled to receive any compensation or re-imbursement of any kind.
- Export Control. Use of the Payload Services to order and supply services across borders may be subject to the export and import laws of Canada and other countries. You agree to comply with all applicable export and import laws and regulations in your use of the Payload Services. You also agree that you will not use the Payload Services for any purposes prohibited by Canadian law.
- Notices. Payload may provide you with notices regarding the Payload Services, including changes to these Terms, by email or by postings on the Payload Platform or by email to your account.
- Governing Law & Disputes. This Agreement shall be governed by the laws of the Province of Alberta, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. The courts of the Province of Alberta shall have jurisdiction over any legal action or proceeding arising out of or relating to these Terms, the Service or the Payload Services and you consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that you may have or that may hereafter arise to contest such jurisdiction of such courts. The parties waive any right to a jury trial with respect to any action brought in connection herewith. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. You agree that any claim or cause of action arising out of or related to these Terms or the use of the Payload Services must be filed within one (1) year after the cause of action arose or be forever barred.
- Entire Agreement. These Terms (together with the Payload Client and Service Provider Services Agreement) constitute the entire agreement governing use of the Payload Services and Payload Platform. We reserve the right to modify or change the Payload Services at any time without notice or liability to you. These Terms shall not be modified except by a new posting of these Terms by Payload. If any part of these Terms is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. Our failure to exercise or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision. You may not assign any part of these Terms or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without our prior written consent.
- Questions/Contact. If you have any questions about these Terms or if you wish to receive any additional information, provide feedback or raise any concerns in relation to the Payload Services or the Payload Platform, please contact us at: firstname.lastname@example.org.