Last Updated: August 25, 2023
Welcome, and thank you for your interest in Local Express Inc. (“Local Express”). These Terms of Service (this “TOS” and, together with all Order Forms (defined below), the “Agreement”) contains the terms by which Local Express will provide Merchant (defined below) and its customers with access to a Merchant-specific version of certain of Local Express’ proprietary systems and technology and related services so that Merchant’s customers may order merchandise from Merchant and receive it via Local Express. These Terms of Service are a legally binding contract between Merchant and Local Express.
BY ACCEPTING THE AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THE AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) ANY SERVICES (DEFINED BELOW) OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THE AGREEMENT, YOU: (A) AGREE TO THE AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Merchant”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND MERCHANT TO THE AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE AGREEMENT, YOU MUST NOT ACCEPT THE AGREEMENT AND MAY NOT USE ANY LOCAL EXPRESS TECHNOLOGY OR RECEIVE ANY SERVICES.
1. STRUCTURE; DEFINITIONS
1.1. Products and Services; Order Forms. The Agreement applies to Merchant’s use of the Local Express Technology as expressly identified in a quote, order form, statement of work, or other ordering document that (a) is signed by, or otherwise expressly agreed to by, Local Express and Merchant and (b) expressly references and incorporates this TOS (each, an “Order Form”). Each Order Form is subject to the terms of, and is deemed incorporated into, the Agreement. The effective date of each Order Form is the “Order Form Effective Date.” If not otherwise specified on the applicable Order Form, the Order Form Effective Date is the date the Order Form is agreed to by Merchant.
1.2. Order of Precedence. Any conflict between an Order Form, the terms of any exhibit, annex, or similar ancillary terms incorporated into an Order Form or this TOS, or this TOS will be resolved according to the following order of precedence: (1) the Order Form, (2) the terms of any exhibit, annex, or similar ancillary terms, and (3) this TOS.
1.3. Definitions
a. “Customer” means any customer of Merchant using the Merchant-Branded Platform.
b. “Customer Data” means any data or information other than Merchant Data that is collected, generated, or derived by Local Express that identifies a Customer or consists of Personal Information of such Customer.
c. “Documentation” means user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files) that are provided by Local Express to Merchant in connection with Merchant’s use of the Services.
d. “Local Express Online Office” means the online management console of Local Express an instance that is accessible on the web and mobile devices and is specific to Merchant.
e. “Local Express Platform” means the online proprietary system developed and owned by Local Express for the placing and processing of end-user purchases for merchandise sold by third-party merchants.
f. “Local Express Technology” means, generically or together, the Local Express Platform, the Local Express Online Office, the Merchant-Branded Platform (excluding any Merchant Marks), and Documentation.
g. “Master Merchandise File” means a master file for each Merchant Location containing all information relevant to Merchandise to be featured on the Merchant-Branded Platform, including a description, the item number, sizing information, image, logos, and pricing (both regular and promotion prices) for each Merchandise on offer, along with the details for any promotional specials that Merchant desires to be promoted on the Merchant-Branded Platform.
h. “Merchandise” means any item of merchandise offered for sale or sold by Merchant.
i. “Merchandise Order” means the purchase of, or commitment to purchase, Merchandise via the Merchant-Branded Platform in a single transaction (i.e., all of the Merchandise is paid for by the applicable Customer in one transaction) from a single Merchant Location (i.e., all of the Merchandise is located at one Merchant Location).
j. “Merchant-Branded Platform” means a Merchant-specific version of the Local Express Platform that: (a) has been white-labeled, custom-developed or otherwise modified and branded with Merchant Marks; (b) features an assortment of Merchandise; (c) supports the placing and processing of Merchandise Orders by Customers; and (d) is, or will be made, available via Merchant’s website and, if requested by Merchant, as a mobile application.
k. “Merchant Data” means the Merchant Materials and any other data or information provided by Merchant to Local Express in connection with the Agreement.
l. “Merchant Location” means any physical retail grocery store location operated by Merchant and identified below Merchant’s signature to the Agreement.
m. “Merchant Marks” means any logos, service marks, trademarks, or trade or corporate names of the Merchant.
n. “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked with a particular individual or household, which is provided by Merchant to, or which is collected on behalf of Merchant by, Local Express to provide Services pursuant to this Agreement.
o. “Services” means the services described in Section 2.
2. SERVICES
2.1. Merchant-Branded Platform. On or immediately after the effective date of the applicable Order Form, Merchant will provide Local Express with complete and accurate Master Merchandise File, Merchant Marks and all other materials and information to be incorporated into the Merchant-Branded Platform (collectively, “Merchant Materials”) as requested by, and in the format specified by, Local Express. Using the Merchant Materials, Local Express will develop the Merchant-Branded Platform and, during the Term, will also operate and provide ongoing basic support services in connection with it.
2.2. Local Express Online Office. Promptly following the effective date of the applicable Order Form, Local Express will provide login credentials to Merchant for Merchant to access the Local Express Online Office. Merchant is solely responsible for maintaining the confidentiality of its login credentials. Through the Local Express Online Office, Merchant is also solely responsible for updating the Master Merchandise File as applicable to reflect current and accurate pricing and promotional information, and Local Express will not be liable for any failure by Merchant to update the Master Merchandise File.
2.3. Rights Grant by Merchant. Merchant hereby grants to Local Express a worldwide, nonexclusive, perpetual license to use, reproduce, modify, distribute and make derivative works of the Merchant Materials as necessary to provide the Services and otherwise operate, maintain, develop, and improve the Local Express Technology; provided that any use of Merchant Marks will be during the Term only and subject to Section 3.1.
2.4. Subscription to Merchant-Branded Platform and Local Express Online Office. Subject to the terms and conditions of the Agreement, Local Express grants Merchant a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to the following, on a subscription basis (the “Subscription”): (a) access and use the Merchant-Branded Platform solely to receive, process and fulfill Merchandise Orders and communicate with Customers in connection with such Merchandise Orders; (b) use the Local Express Online Office in order to perform other administrative functions permitted under the Agreement, in each case, solely in connection with Merchandise Orders and Merchant’s business operations; and (c) reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Merchant’s use of the Services in accordance with this Agreement.
2.5. API. If an Order Form indicates that Merchant will receive access to an application programming interface, or if Local Express provides credentials to Merchant that enable Merchant to access a Local Express-provided application programming interface in connection with any Local Express Technology (each, an “API”), then Local Express hereby grants Merchant a non-exclusive, non-transferable and non-sublicensable right and license under Local Express’ rights in that API to access and use such API solely (a) for the Order Form Term (defined below) and (b) in accordance with all applicable Documentation and the restrictions set forth in the Agreement (including the applicable Order Form). Without limiting the foregoing, Merchant will comply with any volume or other usage-based restrictions described in the Order Form or Documentation.
2.6. Merchandise Order Processing and Delivery. All Merchandise Orders will be processed through a third-party payment processor mutually agreed to by the parties (the “Third-Party Payment Processor”). Merchant will be responsible for (a) managing and contracting with the Third-Party Payment Processor, (b) updating the Local Express Online Office with the initial and any subsequent Third-Party Payment Processors, and (c) processing all Merchandise Orders through the Merchant-Branded Platform, including the processing of Customer payments. Merchant acknowledges and agrees that Local Express will select third party delivery service providers for deliveries, and Merchant shall be responsible for the costs of such third party delivery service providers. Upon receipt of a Merchandise Order from Merchant or a Customer, Local Express will, either directly or indirectly through third-party delivery service providers, pick up the Merchandise purchased in such Merchandise Order from the Merchant Location and deliver that Merchandise to the Customer that purchased such Merchandise (the “Delivery Services”). Merchant is solely responsible for maintaining accurate prices for Merchandise (including any applicable taxes), and Merchant will bear all risk, liability, and responsibility for any inaccuracy in the pricing of or non-conformity or defect in any Merchandise, including, without limitation, any issues regarding fulfillment of the order – e.g., packing the bag, maintaining the appropriate temperature of the goods, fully complying with applicable laws, applying best industry practices to ensure the safety of the food, using best efforts to select quality items that are neither spoiled nor expired – and such other requirements that Local Express may request (collectively “Order Fulfillment Requirements”).
2.7. Customer Service Responsibilities. Merchant will be solely responsible for all Merchandise and all customer service issues relating to Merchandise, the Merchant-Branded Platform, and the processing and packing of Merchandise at any Merchant Location and Local Express will be solely responsible for all Delivery Services-related issues relating to Merchandise Orders from any Merchant Location to Customers in accordance with the “Delivery Parameters & Refund Matrix” available at https://localexpress.io/delivery-matrix (the “Delivery Parameters & Refund Matrix”). Merchant agrees and acknowledges that the success of the Services and the reputation of Local Express depend on Merchant processing and packing all Merchandise Orders in a professional and timely manner including in accordance with all applicable Order Fulfillment Requirements and picking up Merchandise by the applicable Customer in-store or curbside pick-up as requested by Local Express. During the Term, Merchant will timely process and pack all Merchandise Orders by Customers and will maintain a sufficient number of trained employees to provide a high level of customer service to Customers and as needed to otherwise fulfill its obligations under the Agreement.
2.8. Third Party Products. To the extent that the Services include or are accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Local Express provides to Merchant or that is otherwise identified in the Documentation as being required to use properly the Services (“Third-Party Products”), the Third-Party Products and their use by Merchant are subject to all license and other terms that accompany such Third-Party Products. Merchant will abide by and comply with all such terms.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. Ownership; Rights Reserved. With the sole exception of Merchant Marks, Local Express owns the Merchant-Branded Platform and all other work product that Local Express creates or develops under the Agreement. Except as expressly set forth in the Agreement, neither party assigns any right, title, or interest in, or grants any licenses under, any patent, copyright, trade secret, trademark, or other intellectual property right of such party, whether by implication, estoppel, or otherwise. Neither Merchant nor any Customer will have any rights to the Local Express Technology, except as expressly granted in the Agreement, and Local Express will have no rights to the Merchant Materials, except as expressly granted in the Agreement.
3.2. Use Restrictions. Except as otherwise expressly provided in the Agreement or to the extent such restrictions are impermissible pursuant to applicable law, Merchant will not, and will not permit or authorize third parties to: (a) modify, reproduce, translate, enhance, disassemble, decompile, reverse engineer or create derivative works of any portion of the Local Express Technology; (b) rent, lease, or otherwise permit third parties (or other persons not authorized by the Agreement) to use any portion of the Local Express Technology; (c) use the Local Express Technology for any benchmarking activity or in connection with the development of a competitive product; or (d) circumvent or disable any security or other technological features or measures of any portion of the Local Express Technology.
3.3. Protection Against Unauthorized Use. Merchant will use its best efforts to prevent any unauthorized use of the Local Express Technology and immediately notify Local Express in writing of any unauthorized use that comes to Merchant’s attention. If there is an unauthorized use by anyone who obtained access to the Local Express Technology directly or indirectly through Merchant, the merchant will take all steps reasonably necessary to terminate the unauthorized use. Merchant will cooperate and assist with any actions taken by Local Express to prevent or terminate unauthorized use of any Local Express Technology.
3.4. Business Practices. Merchant’s use of the Merchant-Branded Platform and any other Local Express Technology will comply with all applicable laws and regulations, and Merchant will refrain from any unethical conduct or any other conduct that may tend to damage the reputation of Local Express. Except as provided in the Agreement, Merchant will not make or publish any representations, warranties, guarantees, or commitments on behalf of Local Express concerning any matter whatsoever. Merchant will ensure that all of the employees of Merchant that use the Merchant-Branded Platform and any other Local Express Technology are fully trained with respect to its use.
3.5. Feedback. Merchant grants to Local Express a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into the Local Express Technology, any suggestions, enhancement requests, recommendations, or other feedback provided by Merchant to Local Express.
4. DATA
4.1. Collection of Customer Data. Merchant owns all right, title and interest in and to all Customer Data. Merchant agrees and acknowledges that the Merchant-Branded Platform automatically logs all user activity conducted on it, and, as a result, Local Express may come into possession of Customer Data. Merchant grants Local Express a non-exclusive, worldwide, royalty-free, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (a) during the Term, for the purpose of exercising Local Express’ rights and performing its obligations under the Agreement (including managing Delivery Services, running promotional campaigns, personalizing a Customer’s experience, and improving the Merchant-Branded Platform and a Customer’s experience on it) and (b) in perpetuity, in a form that does not identify Merchant or any Customer as the source thereof, for its business purposes, including to develop and improve Local Express’ products and services. Merchant represents and warrants that Merchant has all rights necessary to grant Local Express the licenses set forth in this Section 4.1 and to enable Local Express to exercise its rights under the same without violation or infringement of the rights of any third party. As between the parties, Local Express owns all right, title, and interest, including all intellectual property rights, in and to the Local Express Technology and any improvements to any of its products or services made as a result of Local Express’ use, processing, or generation of Customer Data.
4.2. Merchant Data. Merchant owns all right, title and interest in and to the Merchant Data. Merchant grants Local Express a perpetual, nonexclusive, royalty-free, transferable, sublicensable, worldwide license to store, process, and otherwise use the Merchant Data in connection with the provision of the Services or Local Express’ internal business. Local Express will not disclose the Merchant Data to any third party (other than subcontractors as permitted under the Agreement), except that Local Express may disclose, use and analyze Merchant Data in an aggregated or anonymous, de-identified form (i.e., in a form that cannot be used itself to identify Merchant or Customers) including, without limitation, to improve the quality of service and improving Local Express’ platform technology.
4.3. Compliance with privacy laws. Local Express makes the following additional commitments, representations, and warranties to Merchant:
a. Local Express will only process Customer Data and Personal Information on behalf of, and as service provider of, Merchant, and not collect, retain, use, or disclose that data for any purpose other than to perform Local Express’s obligations under the Agreement, or as permitted under the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”) In no event will Local Express “sell” (as defined by the CCPA) any such Personal Information.
b. Local Express will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal Information available for Local Express’s own commercial purposes in a way that does not comply with the CCPA.
c. Local Express will limit Personal Information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose to the extent Merchant is a Clover Customer and in connection with Services provided by Local Express to Merchant through the Clover App Market. “Clover Customer” means a customer of Local Express that has obtained rights to the Local Express Platform via the Clover App Market.
4.4. Consumer rights – assistance with requests. Local Express will reasonably cooperate and assist Merchant with responding to verifiable consumer requests regarding Personal Information, taking into account, the nature of Local Express’s processing, and the information available to Local Express. Local Express will make available to Merchant, in a manner consistent with the functionality of the Services and Local Express’s role as a service provider of Personal Information of consumers, the ability to fulfill consumer requests to exercise their rights under the CCPA.If Local Express receives a request from a consumer to exercise one or more of its rights under the CCPA in connection with Personal Information collected through provision of the Services, Local Express will redirect the consumer to make its request directly to Merchant. Merchant will be responsible for responding to any such request including, where possible, by using the functionality of the Services. Local Express will provide commercially reasonable assistance with Merchant’s response to such a consumer request. Local Express will notify Merchant without undue delay if it receives any complaint or claim that the Services provided to Merchant as a Clover Customer do not comply with the CCPA.
5. FEES AND PAYMENT TERMS
5.1. Merchant Fees. Merchant will pay Local Express the fees set forth on the applicable Order Form (“Merchant Fees”), which may include the following (each as defined below): (a) Integration Services Fees; (b) Subscription Fees; (c) Transaction Fees; (d) Delivery Services Fees; (e) Merchandise Update Fees; and (f) New Location Fees.
5.2. Integration Fees. Merchant will pay Local Express fees for the development and setup of the following at the rate specified on the Order Form or otherwise specified by Local Express (the “Integration Services Fees”): (a) a web-version of the Merchant-Branded Platform and (b) each mobile version of the Merchant-Branded Platform, if requested by Merchant. Merchant must pay to Local Express a fee for every new mobile version of the Merchant-Branded Platform that Merchant requests Local Express develop and set up.
5.3. Subscription Fees. During the Subscription Period, Merchant will pay a subscription fee on a monthly basis (or on such other basis as specified in the Order Form or agreed to by Local Express) for the rights specified in Section 2.4 (regardless of whether the Merchant-Branded Platform is live and able to process Merchandise Orders) (the “Subscription Fees”). Subscription Fees will be prorated for the then-current calendar month for the first and last month of the Order Form Term (defined below).
5.4. Merchandise Order Processing Fees. Merchant shall pay Local Express transaction fees equal to a percentage (as specified on the Order Form or otherwise specified by Local Express) of each Merchandise Order processed through the Merchant-Branded Platform (the “Transaction Fees”).
5.5. Delivery Services Fees. Local Express provides the Delivery Services through a number of third-party delivery service providers. To the extent such providers increase the fees payable by Local Express for such services, Local Express will pass on those additional fees to Merchant, which shall be deemed accepted by Merchant on the date that is 30 days after Local Express provides Merchant with notice of such increased delivery service fee. Merchant shall pay Local Express, either directly or indirectly by passing such costs on to Customers, for Delivery Services at the rate specified on the Order Form or otherwise specified by Local Express (the “Delivery Services Fees”). These fees will be payable to Local Express subject to the Delivery Parameters & Refund Matrix.
5.6. Merchandise Update Fees. Merchant may from time to time use the Local Express Online Office to add, remove, alter or otherwise update Merchandise on the Merchant-Branded Platform. Merchant may also from time to time request Local Express update artwork for certain Merchandise or modify Merchandise on the Merchant-Branded Platform, which request Local Express may accept or reject in its sole discretion. If Local Express accepts Merchant’s request, then Merchant will pay Local Express for such request at the rate specified on the Order Form or otherwise specified by Local Express (the “Merchandise Update Fees”).
5.7. New Merchant Location Fees. Merchant may from time to time use the Local Express Online Office to request Local Express add a new Merchant Location to this Agreement. Local Express may accept such request in its sole discretion. If Local Express accepts Merchant’s request, then Merchant will pay Local Express for such addition at the rate specified on the Order Form or otherwise specified by Local Express (the “New Location Fees”).
5.8. Payment Terms. Local Express will invoice Merchant monthly for any Merchant Fees due to Local Express in respect of each calendar month (unless other payment terms are specified on the applicable Order Form, in which case, such other payment terms apply). Merchant will pay each invoice in full within 15 days of the date of each such invoice by (a) wire transfer to a bank account designated by Local Express, (b) delivery to Local Express of a bank check immediately payable to Local Express and drawn on a U.S. bank account with sufficient funds, (c) authorizing Local Express to charge Merchant’s credit card or other account based on information provided by Merchant to Local Express through the Local Express Online Office or (d) such other payment method approved in advance by Local Express.
5.9. Late Payments. If Merchant fails to make a payment to Local Express when due, (a) Local Express may suspend performance of its Services and (b) such unpaid amount will be increased by interest equal to the lesser of 1.5% of the unpaid balance per calendar month or the highest rate permitted by applicable law, determined and compounded daily from the date such payment is due, in each case, until the date such payment is paid to Local Express; provided, however, that with respect to subsection (b) Local Express will not charge Merchant interest on any past due amount unless Local Express has first given Merchant written notice of Local Express’ intent to charge interest and Merchant fails to pay such past due amounts within 10 days of receipt of such notice. Merchant will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Local Express to collect any amount that is not paid when due. Amounts due from Merchant under the Agreement may not be withheld or offset by Merchant against amounts due to Merchant for any reason.
5.10. Taxes. Merchant Is responsible for and will pay all taxes and other governmental charges on the Merchant-Branded Platform and in connection with Merchandise Orders, and all transactions and payments made through the Merchant-Branded Platform or made pursuant to the Agreement, except for government taxes imposed on the net income, personnel, or real property of Local Express.
6. TERM AND TERMINATION
6.1. Term. The Agreement will remain in effect until terminated in accordance with this Section 6 (the “Term”).
6.2. Order Form Term. Unless earlier terminated in accordance with the Agreement or the applicable Order Form, the term of each Order Form will commence on the Order Form Effective Date and continue for one year thereafter (or, if different, the initial term specified in such Order Form) (“Initial Order Form Term”). Unless either party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Order Form will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Form Term or such other length of Renewal Term period as stated on the Order Form (the Initial Order Form Term and each Renewal Term, if any, collectively, the “Order Form Term” of such Order Form). Notice of non-renewal of an Order Form must be provided by a party at least 30 days prior to the end of the Initial Order Form Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order Form). Renewal of any Order Form may be conditioned on and subject to Merchant’s agreement to changes to the Agreement. Termination of the Agreement will terminate all Order Form Terms then in effect unless otherwise specified on the applicable Order Form.
6.3. Local Express acknowledges that its access to Local Express Technology (or certain features thereof) may be automatically disabled upon expiration of the applicable Order Form Term.
6.4. Notice of Breach. If either Local Express or Merchant breaches the Agreement or an Order Form, then the non-breaching party may give the breaching party written notice of the breach (including a statement of the facts relating to the breach, the provisions of the Agreement that are in breach, and the action required to cure the breach) and of the non-defaulting party’s intention to terminate the Agreement or the applicable Order Form pursuant to Section 6.3 if the breach is not cured within 30 days after the breaching party’s receipt of such notice (or such later date as may be specified in such notice).
6.5. Termination for Breach. If the breaching party fails to cure a material breach specified in any notice under Section 6.2 within 30 days after receipt of notice (or such later date as may be specified in such notice), then the non-breaching party may terminate the Agreement or one or more Order Forms by giving the breaching party written notice of termination. If Merchant fails to timely pay any fees due to Local Express under the Agreement, Local Express may, without limitation to any of its other rights or remedies, suspend access of Merchant to the Local Express Technology and the performance of any Services until Local Express receives all undisputed amounts due. Notwithstanding the foregoing, Local Express may immediately terminate the Agreement or one or more Order Forms upon notice to Merchant if Local Express reasonably believes that Merchant has made or distributed any unauthorized copies of any Local Express Technology, has violated Section 3.2, has attempted to assign or sublicense any right granted by the Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Local Express’ intellectual property rights, including rights in and to any Local Express Technology.
6.6. Bankruptcy. Local Express and Merchant may terminate the Agreement immediately upon written notice to the other party if the other party files a petition in bankruptcy; ceases to do business in the ordinary course or becomes insolvent or otherwise unable to pay its debts when due; is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days; has a receiver, bankruptcy trustee, or similar official appointed to handle its assets or affairs; or makes any assignment for the benefit of creditors.
6.7. Post-Termination Obligations. If the Agreement expires or is terminated for any reason, the following obligations will survive such expiration or termination: (a) any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the expiration or termination; (c) Sections 1, 2.3, 3, 4, 5, 6.7, 7.3, 8, 9, 10 and 11; and (d) all provisions in the annexes and exhibits to the Agreement that, by their nature, are intended to survive. Merchant will provide Local Express with a written certification signed by an authorized Merchant representative certifying that all use of Local Express Technology by Merchant has been discontinued.
7. WARRANTIES AND DISCLAIMER
7.1. Mutual Warranties. Each party represents and warrants to the other that the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms.
7.2. Merchant Warranty. Merchant represents and warrants to Local Express and covenants that: (a) it has, and at all times during the Term, will have, due authorization, clearance, and all other rights necessary (including any third-party licenses) to provide the Merchant Materials to Local Express and for the use of the Merchant Materials by Local Express as contemplated under the Agreement; (b) the Merchant Materials will not contain any pornography and are not violent, obscene, indecent, defamatory, libelous, threatening or harassing, or contrary to applicable law; (c) it will not use any Local Express Technology in a manner that unreasonably harms the goodwill or reputation of Local Express; and (d) it will not make or publish any representations, warranties, or guarantees on behalf of Local Express concerning Merchandise and Merchandise Orders made through the Merchant-Branded Platform.
7.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, LOCAL EXPRESS MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. LOCAL EXPRESS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. LOCAL EXPRESS DOES NOT WARRANT THAT THE MERCHANT-BRANDED PLATFORM OR ANY OTHER LOCAL EXPRESS TECHNOLOGY IS OR WILL BE ERROR-FREE OR THAT OPERATION OF THE MERCHANT-BRANDED PLATFORM OR ANY OTHER LOCAL EXPRESS TECHNOLOGY WILL BE SECURE OR UNINTERRUPTED. LOCAL EXPRESS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON MERCHANT’S USE OF THE MERCHANT-BRANDED PLATFORM OR ANY OTHER LOCAL EXPRESS TECHNOLOGY, UNLESS SUCH USE IS IN COMPLIANCE WITH LOCAL EXPRESS DIRECTION, GUIDANCE OR RECOMMENDATION.
8. INDEMNIFICATION
8.1. Defense. Merchant will indemnify and, at Local Express’ option, defend Local Express and its employees, directors, agents, and representatives from any actual or threatened third-party claim arising out of or based upon Merchant’s fulfillment of Merchandise Orders or negligence, violation of applicable law, or breach of the Agreement, in each case only if Local Express (i) gives Merchant prompt written notice of the claim, (ii) grants Merchant complete control over the defense and settlement of the claim (provided, however, that Merchant will not without the consent of Local Express agree to any settlement that admits fault by Local Express or requires Local Express to pay money) and (iii) provides such information and assistance with the defense and settlement of the claim as Merchant may reasonably request.
8.2. Indemnification. The indemnifying party will indemnify the indemnified party specified in Section 8.1 above against: (a) all damages, costs, and attorneys’ fees finally awarded against the indemnified party in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by the indemnified party in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without the indemnifying party’s consent after the indemnifying party has accepted the defense of such claim); and (c) if any proceeding arising under Section 8.1 is settled, the indemnifying party will pay any amounts to any third party agreed to by the indemnifying party in settlement of any such claims. This Section 8.2 will apply regardless of any insurance coverage held by the indemnified party.
9. LIMITATIONS OF LIABILITY
9.1. Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, LOCAL EXPRESS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO MERCHANT FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO ANY MERCHANDISE ORDER, THE MERCHANT-BRANDED PLATFORM, LOCAL EXPRESS TECHNOLOGY, OR ANY OTHER MATTER CONTEMPLATED UNDER THE AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF LOCAL EXPRESS IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL LOCAL EXPRESS BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, LOCAL EXPRESS TECHNOLOGY.
9.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL LOCAL EXPRESS’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE AGGREGATE MERCHANT FEES PAID OR PAYABLE TO LOCAL EXPRESS BY MERCHANT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE ACTS OR CIRCUMSTANCES FROM WHICH SUCH LIABILITY AROSE.
9.3. Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LOCAL EXPRESS UNDER THE AGREEMENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. ALL SUCH LIMITATIONS, DISCLAIMERS, AND EXCLUSIONS (INCLUDING THIS SECTION 9) WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE AGREEMENT.
10. CONFIDENTIALITY
10.1. Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party (the “Receiving Party”) during the Term and that such party knows or has reason to know is confidential, proprietary, or trade secret information of another party (such other party, the “Disclosing Party”); except that Confidential Information does not include any information that (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with the Agreement; (b) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; (c) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes publicly known through no fault or action of the Receiving Party.
10.2. Restricted Use and Nondisclosure. During and after the Term, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information solely to perform Receiving Party’s obligations and exercise Receiving Party’s rights under the Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless such third party must access the Confidential Information to perform in accordance with the Agreement and such third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 11; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
10.3. Required Disclosure. If Receiving Party is required by law or judicial process to disclose Confidential Information, such Receiving Party must give prompt written notice to the Disclosing Party of such requirement before such disclosure and, upon Disclosing Party’s request, provide reasonable assistance to the Disclosing Party in obtaining a protective order.
10.4. Return of Materials. Upon the termination or expiration of the Agreement, each Receiving Party will upon Disclosing Party’s request deliver to the Disclosing Party or destroy all of Disclosing Party’s Confidential Information that such Receiving Party may have in its possession or control.
11. GENERAL
11.1. Governing Law. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without regard to the conflict of laws principles thereof.
11.2. Dispute Resolution. Any dispute between the parties arising out of or in connection with the Agreement or any breach thereof will be settled by arbitration in Los Angeles County, California, by a single arbitrator chosen and acting in accordance with the rules of the American Arbitration Association. The award rendered by the arbitrator will be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for equitable or injunctive relief.
11.3. Relationship. Local Express is an independent contractor (and not an agent or representative of Merchant) in the performance of the Agreement. The Agreement does not, and will not be interpreted or construed to, create or evidence any association, joint venture, partnership, or franchise between the parties; impose any partnership or franchise obligation or liability on either party; or prohibit or restrict Local Express from performing any services for any third party or providing any products to any third party. Local Express may use the name, brand, or logo of Merchant (or Merchant’s parent company) solely for the purpose of identifying Merchant as a customer of Local Express on Local Express’ website, brochures, or other promotional materials, or as part of a list of Local Express’ customers in a press release or other public relations materials. Any such limited use by Local Express shall include proper attribution to Merchant or its parent company of any trademark or logo of Merchant or its parent company, and shall in no way suggest that Local Express is affiliated with, or speaking on behalf of, Merchant or Merchant’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Merchant shall require mutual approval in writing prior to public dissemination thereof.
11.4. Assignability. Local Express may assign its rights, duties, and obligations under the Agreement without restriction and without Merchant’s consent. Merchant may not assign its right, duties, or obligations under the Agreement without the Local Express’ prior written consent, which consent will not be unreasonably withheld or delayed.
11.5. Subcontractors. Local Express may utilize one or more subcontractors or other third parties to perform its duties under the Agreement as long as Local Express remains responsible for all of its obligations under the Agreement.
11.6. References. Local Express may request of Merchant, and Merchant is not obligated to agree to, but will consider in good faith, Local Express’ request to:(a) make one or more representatives reasonably available for reference inquiries from potential Local Express customers, Merchants, and investors; (b) permit Local Express to create and publish a case study describing in general terms the nature of Merchant’s use of the Local Express Platform; or (c)permit Local Express to issue and publish a press release containing a quotation from a representative of Merchant announcing that Merchant and Local Express have entered into the Agreement.
11.7. Notices. Any notice required or permitted under the terms of this Agreement or required by law (each, a “Notice”) must be provided in writing to the other party at the address specified on the Order Form through one of the following methods: (a) in person; (b) by certified or registered mail, or air mail, as appropriate, return receipt requested; (c) by nationally recognized overnight courier service; or (d) via email (and, if receipt is not confirmed within 2 business days, supplemented by one of the methods specified in (a), (b), or (c) of this section). Notices will be considered to have been given (1) at the time of actual delivery in person, (2) three business days after deposit in the mail as set forth above, (3) one business day after delivery to an overnight courier service, or (4) for email, the earlier of the date receipt is acknowledged by recipient and the date the supplemental Notice would otherwise be deemed given in accordance with this section. Either party may change its address for Notice by providing Notice of the change in accordance with this section. If an individual named as the recipient for Notices to a party ceases to work in the role specified or ceases to work for a party and that party fails to notify the other party of an alternative individual, delivery of Notices marked to the attention of an individual in the same or equivalent role at that party is deemed compliant with the Notice obligations.
11.8. Force Majeure. Local Express will not be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any natural disaster, fire, earthquake, flood, weather condition, epidemic, acts of war or terror, civil disorder or disturbance, explosion, sabotage, technology attacks, governmental action or prohibition, failure of power, transportation, or communication systems, or any other cause or condition beyond Local Express’ reasonable control, so long as Local Express uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
11.9. Waiver. The waiver by a party of any breach of any provision of the Agreement does not waive any other breach. The failure of a party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
11.10. Severability. If any provision of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect, and the parties agree to replace such illegal, unenforceable, or invalid provision with a legal, enforceable, and valid provision that affects the original intent of the parties with respect to such provision.
11.11. Interpretation. The parties have had an equal opportunity to participate in the drafting of the Agreement. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in the Agreement have been inserted for identification and reference purposes only and will not be used to construe or interpret the Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document, or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include,” “includes” or “including” are used in the Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in the Agreement, they will be deemed references to the Agreement as a whole and not to any particular article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
11.12. Amendment. The Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. No employee, agent, or other representatives of Local Express has any authority to bind Local Express with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in the Agreement. Local Express will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to the Agreement (whether or not it would materially alter the Agreement) that is proffered by Merchant in any receipt, acceptance, confirmation, correspondence, purchase order, or otherwise, unless Local Express specifically agrees to such provision in writing and signed by an authorized agent of Local Express.
11.13. Entire Agreement. The Agreement, including all Order Forms, exhibits and annexes expressly referred to by or incorporated by reference into the Agreement, is the final and complete expression of the agreement between these parties regarding the subject matter of the Agreement. The Agreement supersedes, and the terms of the Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into the Agreement, except that the Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to the Agreement being executed.
11.14. Counterparts. The Agreement and any signed agreement or instrument entered into in connection with the Agreement, and any amendments hereto or thereto may be executed in two or more counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a fax machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto will raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent that such defense relates to lack of authenticity.
