Terms of Service - Deliv

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Terms of Service

These Terms of Service (“Terms”) govern the use of the services offered by Deliv, Inc. (“Deliv”) at www.deliv.co (and any related or affiliated subdomains), and/or mobile applications (collectively, the “Site”). Your use of the Site constitutes your acceptance of and agreement to these Terms, the welcome kit that will be emailed to you following your registration and acceptance of these Terms describing the fees, policies and other terms applicable to delivery (the “Welcome Kit”), the Deliv Privacy Policy at https://www.deliv.co/deliv-privacy-policy/ and your representation that you are a bona fide legal entity or individual 21 years of age or older. If you object to anything in these Terms, the Privacy Policy or the Welcome Kit, do not use the Site. The Privacy Policy and the Welcome Kit are incorporated by reference into these Terms. The completed online sign up form and these Terms, the Privacy Policy and the Welcome Kit together are hereinafter referred to as the “Agreement.” As used in these Terms, “You” or “Customer” shall mean the individual or entity that completed the online sign up form.

1.0 Use of the Site.

1.1 Your Account.  If You are a corporation or other bona fide legal entity – or if you are an individual and over twenty-one (21) years of age – and opt to register on the Site, then as our customer, You will have an email address/username and password for your Customer account. You are responsible for maintaining the confidentiality of your account, username and/ or password and for restricting access to authorized Customer personnel. You accept responsibility for all activities that occur under your account or password. You will provide only current, complete, accurate and truthful information. If You are accessing and using the Site on behalf of another individual or entity, then you represent that you have the authority to bind that person or entity as the principal to these Terms, and to the extent you do not have such authority you agree to be bound to these Terms and to accept liability for harm caused by any wrongful use of the Site resulting from such access or use. Deliv reserves the right to refuse service and/or terminate accounts without prior notice if these Terms are violated or if we decide, in our sole discretion, that it would be in our best interests to do so.

1.2 Limited License. Deliv grants Customer a limited, revocable license to access and make use of the Site in accordance with these Terms. This license does not include, and Customer is expressly prohibited from: (a) creating derivative works using the Site or its contents; (b) using data mining tools, bots, or similar data gathering techniques and tools; (c) framing or using framing techniques to enclose any Site content without Deliv’s express written consent; and (d) using any meta tags or any other “hidden text” that uses the Deliv name or any Deliv trademarks or services mark.

2.0 Performance and Nature of Services.

2.1 Deliv shall use commercially reasonable efforts to provide its technology platform to enable You to offer same day delivery services to your customers in accordance with the Welcome Kit (the “Services”). Deliv may change or discontinue the Services at any time without notice, but any change shall only apply to You prospectively after the effective date of the change. You acknowledge and agree that: (a) the Services may be performed by or on behalf of Deliv; and (b) for quality assurance and training purposes, communications between You and your personnel and Deliv personnel may be monitored and/or recorded.

2.2 Merchandise You tender to Deliv shall be deemed tendered to Deliv in its capacity as a business-to- business web based technology platform for same day delivery services. Deliv reserves the right to engage independent contractors to provide certain Services. For the avoidance of doubt, Deliv is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Customer acknowledges that the Services are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b).

3.0 Independent Contractor.

Deliv is and shall be an independent contractor and not Customer’s employee, agent, or partner. Deliv has the right to be employed by, contract with or otherwise perform the same or similar services for other individuals or entities. Deliv is solely responsible for paying all taxes, insurance and any other cost required by applicable U.S. law.

4.0 Background Checks.

Deliv shall ensure that all personnel providing any Services who are responsible for the delivery or control of Merchandise will have had a criminal background check.

5.0 Merchandise.

5.1 Packaging and Marking.
(a) Customer agrees to comply with all applicable local, state and federal laws governing packing, packaging, marking and labelling of Merchandise for all shipments. (b) All Merchandise must be prepared and packed for safe transportation with ordinary care in handling in an express transportation environment. Merchandise susceptible to damage as a result of conditions that may be encountered during transit such as changes in temperature or atmospheric pressure, or adverse pavement/road conditions must be adequately protected by proper packaging. Each shipment must be accompanied by a legible and durably marked description of the nature and quantity of the Merchandise, and the name, address and ZIP code of the recipient. (c) If Merchandise leaks, or is damaged due to inadequate packaging, the shipment will be returned to the Customer pickup point, if possible. If the Merchandise cannot be returned because of leakage or damage due to faulty packaging, Customer is responsible for, and will reimburse Deliv for, all costs and fees of any type incurred in connection with the storage and/or disposal of the Merchandise and the clean-up and remediation of any spill or leakage.

5.2 Refusal or Rejection of Merchandise. Deliv reserves the right, in its sole but reasonable discretion, to refuse, hold or return any Merchandise and may do so without liability. By way of example and not limitation, Deliv may exercise this right if the Merchandise: (a) may cause damage or delay to other shipments, property or personnel; (b) is likely to sustain damage or loss in transit because of improper packaging or otherwise; (c) appears to be damaged upon pickup at Customer’s site; (d) contains any prohibited items; or (e) may jeopardize Deliv’s ability to provide service to other customers. Customer acknowledges and agrees that Deliv has no liability whatsoever for refusal or rejection of Merchandise, so long as Deliv’s refusal or rejection is in good faith.

5.3 Perishables. Deliv does not provide refrigerated shipping vehicles and will not be liable for Merchandise that could be damaged by exposure to ordinary fluctuations in temperature. Perishable items shall be accepted solely at the Customer’s risk for damage, regardless of whether the package was delivered on time.

6.0 Confidentiality.

6.1 As used herein, “Confidential Information” means all confidential information disclosed by a party (a “Disclosing Party”) to the other party (a “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. Confidential Information of each party will include the terms and conditions of the Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

6.2 Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (c) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.0 Privacy.

7.1 Deliv shall comply with all U.S. privacy and data protection laws and regulations applicable to it and the Services. Deliv shall only use any protected personal information that Customer supplies for purposes that are necessary to perform the Services, and shall not use such information for any other purpose.

7.2 Customer shall comply with all privacy and data protection laws and regulations applicable to it, including, without limitation, the collection and disclosure to Deliv of Customer’s customers’ personal information.

8.0 Rates and Charges and Payment.

8.1 Deliv shall keep accurate records of the Services. The fees for the Services are described in the Welcome Kit. If any travel or related expenses (other than the normal expenses of delivery of Customer’s Merchandise), are required to perform the Services, such expenses must be pre-approved by Customer in writing.

8.2 Invoices will be submitted by Deliv for payment on a monthly basis for Services performed the prior month. Terms of payment are net thirty (30) days.

8.3 Any undisputed payment, or portion thereof, not received within thirty (30) days of the invoice date may, in Deliv’s sole discretion, accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in payment, Deliv may suspend providing the Services until Customer is current, and upon written notice to Customer, modify the payment terms to require full payment before the provision of any additional Services or require other assurances to secure Customer’s payment obligations hereunder.

8.4 All fees for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Deliv’s net income.

9.0 Deliv Technology.

All right, title and interest in and to the Site and Deliv Technology (and all intellectual property rights throughout the world therein and
thereto), and any suggestions or feedback provided by Customer relating to the Deliv Technology will remain solely with Deliv. “Deliv Technology” means any Deliv technology, process, procedure, content or methodology used in the operation of the Site or the performance of the Services, including any Deliv software (in source and object forms), APIs, tools, algorithms, user interface designs, architecture, libraries, objects and documentation, and any derivatives, improvements, enhancements or extensions of the foregoing. Customer agrees not to modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble the Deliv Technology (or any portion thereof), s or cause others to do so.

10.0 Term and Termination.

10.1 This Agreement will commence on the first day after: (a) You click on the “I accept” button; and (b) Deliv receives your completed online registration form and Welcome Kit; and will remain in full force and effect for twelve (12) months, after which this Agreement will automatically renew for additional consecutive one (1) year periods (each a “Renewal Term”), unless either party provides advance written notice of non- renewal at least ninety (90) days prior to the end of the Initial Term or any then-current Renewal Term. The Initial Term and any Renewal Terms are together referred to herein as the “Term.”

9.2 The Agreement may be terminated by either party upon thirty (30) days advance written notice, with or without cause.

9.3 Expiration or earlier termination of the Agreement shall not affect any amounts due under this Agreement that exist as of the date of such expiration or termination and a party shall have thirty (30) days in which to make payment to the other party for any amounts then owing in accordance with these Terms. Settling of accounts in the manner set forth in the foregoing sentence and termination of this Agreement shall be the exclusive remedy of the parties for breach of this Agreement, except for a breach of Section 6.0 (Confidentiality), 12.0 (No Poaching) or 13.0 (Indemnification).

9.4 Sections 6.0 (Confidentiality), 10.4, 12.0 (No Poaching), 13.0 (Indemnification), 15.0 (Declared Value and Limitation of Liability), 16.0 (Dispute Resolution) and 17.
0 (Miscellaneous) of this Agreement shall survive the expiration or any earlier termination of this Agreement.

11.0 Warranties.

11.1 By Deliv. Deliv represents and warrants that: (a) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder; (b) its operation of the Site and the performance of the Services for Customer will not violate any applicable U.S. laws or regulations, or cause a breach of any agreements with any third parties; and (c) it will perform the Services in a professional and workmanlike manner consistent with industry standards

11.2 By Customer. Customer represents and warrants that: (a) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder (including the right to provide Deliv the Merchandise, and personal information about its customers, for Deliv to perform the Services; (b) the performance of Customer’s obligations and the use of the Site and Services by Customer and Customer’s customers will not violate any applicable laws or regulations, or cause a breach of any agreements with third parties; and (c) it has obtained and will maintain all necessary permits, permissions, licenses and approvals relating to the possession, control, and delivery of the Merchandise.



12.0 No Poaching.

During the Term and for a period of six (6) months following the expiration or any earlier termination of the Agreement, Customer agrees not to hire, solicit or entice any person Deliv engages to provide the Services as a result of Customer’s use of the Site, to perform any delivery service whatsoever for Customer in replacement of any delivery service that could be provided to Customer through Customer’s use of the Site.

13.0 Indemnification.

13.1 By Deliv. Deliv will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against Customer alleging: (a) any violation of or failure to comply with applicable U.S. laws, rules or regulations; (b) the infringement of a copyright, U.S. patent or trademark, or misappropriation of a trade secret relating to the delivery or use of the Service(s) (but excluding any contributory infringement caused by Customer separate and apart from Customer merely using the Service(s) in accordance with the terms of this Agreement); (c) personal injury or tangible property damage caused by the gross negligence or willful misconduct of Deliv; or (d) any claim which if true, would constitute a breach of one or more of the warranties set forth in Section 11.1. This sets forth Deliv’s entire obligation, and Customer’s exclusive remedy for any claims of infringement of intellectual property by the Service.

13.2 By Customer. Customer will indemnify, defend and hold Deliv harmless from and against any Losses resulting from any Action brought by any third party against Deliv alleging: (a) any violation of or failure to comply with applicable laws, rules or regulations; (b) personal injury or tangible property damage caused by Customer’s gross negligence or willful misconduct; or (c) any claim which if true, would constitute a breach of the warranties set forth in Section 11.2.

13.3 Process. Each party’s indemnification obligations hereunder shall be subject to: (a) the indemnifying party receiving prompt written notice from the indemnified party of the existence of any Action; (b) the indemnifying party being able to, at its sole option, control the defense of such Action; (c) the indemnified party receiving full cooperation of the indemnifying party in the defense thereof, at the indemnifying party’s expense; and (d) the indemnified party not entering into any settlement or compromise of any such Action without the indemnifying party’s express written permission.

14.0 Insurance.

Deliv shall, at its sole expense, maintain during the Term of this Agreement the following insurance, which shall be obtained through insurance companies rated “A-/VII” or better by the then current edition of Best’s Insurance Reports published by A.M. Best Company.

14.1 Workers’ Compensation Insurance for all states in which employees are providing Services , and Employer’s Liability Insurance with limits of liability of at least $100,000 per accident or disease and $500,000 aggregate by disease.

14.2 Commercial General Liability Insurance including but not limited to, premises/operations, contractual, personal and advertising injury, and products/completed operations liabilities, with limits of at least $2,000,000 per occurrence for bodily injury and property damage combined.

14.3 Motor Vehicle Liability Insurance including coverage for all owned, non-owned and hired vehicles with limits of at least $2,000,000 per occurrence for bodily injury and property damage combined.

14.4 Limits of liability for Commercial General Liability and Motor Vehicle Liability may be satisfied with an umbrella excess liability policy.

14.5 Cargo Legal Liability Insurance. Coverage for all damage to Merchandise with limits up to $100,000 per vehicle conveyance or shipment.

14.6 Crime Protection Insurance. Coverage for theft or damage to Merchandise due to crime with limits up to $50,000 per vehicle conveyance or shipment.

15.0 Declared Value and Limitation of Liability.

15.1 The declared value of any Merchandise represents Deliv’s sole and maximum liability in connection with the pickup and delivery of that Merchandise, including, but not limited to, any loss, damage, delay, misdelivery, non-delivery, misinformation, any failure to provide information, or misdelivery of information relating to the affected Merchandise. Customer assumes all risk of any loss in excess of the declared value. Customer may transfer this risk to an insurance carrier of its choice through the purchase of insurance.

15.2 Deliv will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any loss, damage, delay, misdelivery, non-delivery, misinformation or any failure to provide information, except only as may result from Deliv’s gross negligence or willful misconduct. Deliv will not be liable for, nor will any adjustment, refund or credit of any kind be given as a result of, any loss, damage, delay, misdelivery, non-delivery, misinformation or failure to provide information caused by or resulting in whole or in part from: (a) The act, default or omission of any person or entity, other than Deliv or its independent contractors, including those of any local, state or federal government agencies; (b) The nature of the shipment, including any defect, characteristic or inherent vice of the shipment or the Merchandise comprising the shipment; (c) Customer’s violation of any of these terms and conditions; (d) Deliv’s compliance with Customer’s verbal or written delivery instructions; (e) Erasure of data from or the loss or irretrievability of data stored on magnetic tapes, files or other storage media, or erasure or damage of photographic images or soundtracks from exposed film; (f) Failure to provide accurate delivery information; (g) Any shipment containing a prohibited item; (h) Damages indicated by any shockwatch, tiltmeter or temperature instruments; (i) Shipments released without obtaining a signature if a signature release is on file; or (j) Loss or damage to any package for which Deliv has no record of receipt. 15.3 DELIV SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DELIV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES TO THE AGREEMENT. IN NO EVENT WILL DELIV’S TOTAL CUMULATIVE DAMAGES AND/OR OBLIGATIONS OF DEFENSE AND INDEMNITY EXCEED THE TOTAL AMOUNT RECEIVED BY DELIV FROM CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES AND/OR THIRD PARTY CLAIM.

16.0 Dispute Resolution.

The Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. The Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief, any dispute, claim or controversy arising out of or relating in any way to this Agreement or the interpretation, application, enforcement, breach, termination or validity thereof (including any claim of inducement of this Agreement by fraud and including determination of the scope or applicability of this agreement to arbitrate) or its subject matter (collectively, “Disputes”) shall be determined by binding arbitration before one arbitrator. The arbitration shall be administered by JAMS conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules. Notwithstanding anything to the contrary in this Agreement, the Federal Arbitration Act shall govern the arbitrability of all Disputes. The arbitration shall be held in Santa Clara County, California, and it shall be conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator shall have authority to award compensatory damages only and shall not award any punitive, exemplary, or multiple damages, and the parties waive any right to recover any such damages. Judgment on any award in arbitration may be entered in any court of competent jurisdiction.  Notwithstanding the above, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.  To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

17.0 Miscellaneous.

17.1 If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect.

17.2 Failure by a party to enforce any term of the Agreement shall not be deemed a waiver of future enforcement of that or any other term in the Agreement or any other agreement that may be in place between the parties.

17.3 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing: (a) either party may assign the Agreement in its entirety, without the consent of the other party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets; and (b) Deliv may subcontract or delegate its obligations without the consent of Customer, provided Deliv remains liable for the performance of such obligations. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of the Agreement upon written notice to the assigning party. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

17.4 Customer acknowledges and agrees that Deliv may: (a) issue one press release announcing Customer as a customer; (b) issue one press release upon rollout (i.e. “go-live”) of the Services; (c) use Customer’s name and logo on Deliv’s website; and (d) use the Customer’s name in Deliv’s sales, financing and investor materials.

17.5 The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. The section titles and numbering of the Agreement are displayed for convenience and have no legal effect.

17.6 Customer acknowledges that Deliv may compile data and usage information that has been stripped of all personally identifiable information and may use, (both during and after the Term), such data to determine and report traffic history, usage patterns, improve the Services and for other purposes, provided that such use shall not identify Customer or Customer’s customers.

17.7 Neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, including, but not limited to force majeure events such as acts of God, fire, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, local or national weather conditions, disruptions in air or ground transportation, strikes or anticipated strikes (of any entity, including, but not limited to, other carriers, vendors or suppliers), natural disasters (earthquakes, floods and hurricanes are examples of natural disasters), conditions that present a danger to Deliv personnel, and disruption or failure of communication and information systems (including, but not limited to, Deliv systems), accidents, or fuel crises (“Force Majeure”), and any delivery of Services shall be extended to the extent of any delay resulting from any Force Majeure event.

17.8 This Agreement expresses the complete and exclusive statement of the understanding between the parties regarding the subject matter herein and supersedes any prior or contemporaneous written or oral proposals and agreements, representations or courses of dealing. Any modification to this Agreement must be in writing and signed by an authorized officer of Customer and Deliv.