DELIVERY TERMS OF SERVICE
These Lyft Delivery Terms of Service and the exhibits attached hereto (collectively, the “Delivery Terms”) is entered into by and between the merchant contracted with the Partner for delivery services and agreeable to the Partner’s Delivery Network addendum (“Merchant”) and Lyft, Inc., a Delaware corporation located at 185 Berry Street, Suite 5000, San Francisco, CA 94107 (“Lyft”). Lyft and Merchant are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, [Applied Data Consultants, Inc. dba Elite EXTRA] (“Partner”) and Lyft have entered into that certain Delivery Services Agreement with an effective date of July 14, 2020 (the “Agreement”) pursuant to which Lyft agrees to provide to Merchants (as defined in the Agreement) a delivery application programming interface via the Partner Platform to allow Merchants to submit delivery requests via the Lyft Platform for delivery services for Merchant customers; and
WHEREAS, Merchant wishes to use the Partner platform (as described below) to submit delivery requests via the Lyft Platform for delivery services and Lyft wishes to provide Merchant the ability to use the Lyft Platform to facilitate delivery requests.
NOW, THEREFORE, in consideration of the above recitals and the covenants and agreements stated below, and intending to be legally bound, Merchant and Lyft hereby agree as follows:
DELIVERY TERMS OF SERVICEE
Lyft operates a ridesharing platform (the “Lyft Platform”) and mobile application (the “Lyft App”), which allows merchants the opportunity to request transport of approved products and goods (the “Products”) from one location to another (each a “Delivery Request”). Drivers, as independent contractors and authorized users of the Lyft Platform (each a “Driver” or collectively, the “Drivers”), may accept the Delivery Request to provide Merchants with transporting Merchant Products (the “Delivery Services”). Lyft has developed a delivery application programming interface (the “Delivery API”) which allows businesses selling goods (each a “Merchant” or collectively the “Merchants”), using a Merchant designated administrator (each an “Administrator”) with the ability to request Delivery Services to deliver Products to Merchant customers (each a “Customer” or collectively the “Customers”) via Partner’s integration of the Delivery API (“Partner Platform”). Merchant wishes to utilize the Delivery Service in accordance with the terms of the Delivery Terms.
a. “Administrator(s)” means any individual authorized by a Merchant to manage Delivery Requests for Merchant Customers.
b. “Customer” means business or individuals who wish to purchase Products produced or sold by a Merchant.
c. “Delivery API” means the Lyft Delivery application programming interface (“API”) that will allow Delivery Services, including Delivery Requests, to be exchanged between Lyft and Merchant Platform or Partner Platform.
d. “Delivery Fees” means the cost of each completed Delivery Request, which may include driving fees based on time and distance, tolls, charges, taxes, cancellation fees, other charges and Partner or Lyft fees for use of the Delivery API.
e. “Delivery Request” means to use the Lyft Delivery API via the Partner Platform to submit a request to a Driver to transport Products from one place to another.
f. “Driver” means an independent third-party person(s) authorized to provide driving services using their approved personal, owned or operated vehicle on the Lyft Platform. For avoidance of doubt, Drivers are users of the Lyft Platform and are not employees, subcontractors, representatives or agents of Lyft; rather, Drivers provide driving services at their own direction and control.
g. “Partner” means the technology or marketplace company contracted with Lyft to integrate the licensed Delivery API into its Platform.
h. “Partner Platform” means Partner’s platform provides integrated technology solutions that allow Merchants to better manage their businesses.
i. “Products” means mechanical parts, supplies and products, (“Mechanical Supplies”) or such other retail items, electronics, office supplies and products produced or sold by Merchant (“General Goods”).
j. “Proof of Delivery” means (i) a photo image capture by a Driver capturing Products and delivery location as proof that the Delivery Service has been successfully completed; (ii) signature for receipt of delivery; (iii) bar code scanning upon receipt; or (iv) such other methods as may be implemented or agreed upon by the parties.
a. Use of Delivery API. During the Term, Lyft grants to Merchant a non-exclusive, non-transferrable, non-assignable, non-sublicensable, revocable, limited license to access Delivery API in strict compliance with the Delivery Terms and applicable law. Lyft reserves all rights not expressly granted to Merchant under the Delivery Terms.
c. Restrictions. Merchant shall not, and shall not authorize others to: (i) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Delivery API; (ii) sublicense, lease, rent, sell, give or otherwise transfer or provide the Delivery API to any unaffiliated party excepted as may be provided in the Delivery Terms; or (iii) interfere with, modify or disable any features or functionality of the Delivery API; (iv) use the Delivery API in any manner the violates any law or regulation; and (v) use the Delivery API for any reason other than specifically provided or intended under the Delivery Terms.
3. Delivery Services
a. Lyft Obligations. During the Term, Lyft will provide Merchant with access to its Delivery API to submit Delivery Requests through the Partner Platform to Drivers to provide Delivery Services of select Products to Merchant’s Customers.
b. Merchant Obligations. During the Term, Merchant will (i) submit Delivery Requests via the Partner Platform providing information needed for Delivery Service, including Merchant name, Merchant address, Merchant phone number, Products for delivery, Customer name, Customer address, and customer phone number; (ii) ensure that it obtains Customer consent, in compliance with privacy laws, to collect, use and share Customer information with Lyft for the sole purpose of fulfilling the Delivery Service; (iii) ensure that Customers are aware that updates regarding the Delivery Services will be provided to Customer via SMS text messaging from Lyft and the Drivers; and (iv) consent for itself and Customers to receive SMS text messages and phone calls in connection with the Delivery Requests and Delivery Service.
c. Partner Delivery Platform. If Merchant has contracted with a Partner to facilitate Delivery Requests and receive the Delivery Service and Lyft also has a contractual relationship with Partner, then Lyft will manage the Delivery Request via the API integration with the Partner Platform. Merchant will pay the Partner for all Delivery Fees to such Partner, and the Partner shall be responsible for payment of all Delivery Fees to Lyft.
d. Restrictions. Merchant shall not, and shall not authorize others to: (i) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of any Lyft-owned properties, including but not limited to the Lyft Platform, Delivery Platform, Lyft App, Delivery API, Lyft website, and the Delivery Services (collectively, the “Lyft Materials”); (ii) use the Lyft Materials and any data received from the Delivery Services in violation of applicable law, third party rights, and the Delivery Terms; (iii) sublicense, lease, rent, sell, give, or otherwise transfer or provide the Lyft Materials to any unaffiliated third party except as may be provided in the Delivery Terms; (iv) substantially replicate or modify the Lyft Materials or their elements, except as expressly permitted hereunder; (v) use incorrect or outdated Customer information in connection with the Delivery Terms; (vi) interfere with, modify or disable any features or functionality of the Lyft Materials; and/or (vii) transmit files, documents, or any other material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs via the Lyft Materials. Lyft reserves all rights not expressly granted to Merchant under the Delivery Terms.
4. Delivery Request Procedures
a. Delivery Administrator. In order to utilize the Delivery API, Merchant will require access to an online portal, owned and hosted by Partner, whereby Merchant may request Delivery Service via Delivery Requests. Merchant will designate at least one (1) authorized personnel to serve as Merchant’s administrator (each, an “Administrator”) to access and use the Partner Platform and the Administrator will be required to create login credentials to access and use the Partner Platform. Merchant will take all reasonable precautions to prevent unauthorized access to or use of the Delivery API using Administrator’s login credentials and notify Lyft promptly of any such known unauthorized access or use. Merchant is solely responsible for all of its use of the Partner Platform under its Administrator account(s). Merchant will indemnify Lyft for all activity occurring under Merchant’s Administrator’s account(s), except to the extent caused by Lyft’s breach of the Delivery Terms, and this obligation shall survive termination of the Delivery Terms.
b. Delivery Limitations. Merchant acknowledges that all Products for Delivery Requests must be able to fit into a Lyft Standard vehicle, not to exceed more than 50lbs for each individual package, bag or box included with the delivery, but under no circumstances shall the total collective weight for all packages for a single delivery exceed 100lbs. A “Lyft Standard Vehicle” means a vehicle able to support four (4) passengers and may not include: SUVs, Mini-Vans, Vans, Trucks or vehicles supporting more than four (4) passengers, special needs vehicles, or vehicles designed or authorized to transport special equipment.
c. No Contact Delivery. If applicable and subject to Lyft policies and regulatory guidance, Merchant acknowledges and agrees that it will inform all Customers that Drivers have been instructed not to have any contact with Customers. All items required to be delivered without Customer contact will be left at the Customer’s front door and will not, in any event, be handed from Driver to Customer. For deliveries to Customers that are businesses, deliveries will be left inside the Customer’s place of business at a location noted in the Delivery Request.
d. No Interstate Delivery. Merchant acknowledges and agrees that the Lyft Platform is not intended to be used in interstate commerce. Merchant represents and warrants that Merchant will not submit Delivery Requests for Delivery Services that cross state lines.
5. Charges and Payments
a. Charges and Payments. Merchant will be required to establish a Merchant billing method for use of the Delivery Service and all related Delivery Fees shall be invoiced to Merchant’s billing method.
b. Payment to Partner. If applicable, Partner shall invoice Merchant for all applicable Delivery Fees on a monthly basis and any payment obligations will be agreed upon between Partner and Merchant.
c. Payment to Lyft. If the parties agree that Lyft shall collect all applicable Delivery Fees under the Delivery Terms, all invoices provisioned by Lyft shall be paid, without offset or deductions, within thirty (30) days of the date of invoice. If Merchant is overdue on any payment and fails to cure such non-payment within ten (10) business days of written notice of the non-payment, then Lyft may assess, and Merchant will pay a late fee of the lesser of 1.5% per month or the maximum amount allowable by law.
d. Suspension for Non-Payment. For clarity, if Merchant does not remit applicable Delivery Fees when due, Partner or Lyft may temporarily suspend Merchant’s account.
e. Disputes of Charges. Within thirty (30) days of the date of an applicable charge or invoice, Merchant may notify Partner or Lyft in writing (email will suffice) in the event Merchant, in good faith, disputes any charges paid or payable by Merchant under the Agreement. The parties will work together to resolve the applicable dispute promptly. Lyft or Partner reserves the right to suspend Merchant’s Account in the event Merchant for unresolved disputes in excess of sixty (60) days; provided, however, that any resolution is not due to Partner or Lyft’s delay. Notwithstanding the foregoing, all fees and taxes not in dispute must be paid in accordance with the Payment Terms section of the Agreement or in accordance with the terms in Merchant’s agreement with Partner.
6. Delivery Claims
Merchant agrees that Lyft is only responsible for facilitating the delivery of Products to Merchant’s Customers. Merchant is responsible for any Customer complaints regarding the Products, including, but not limited to, complaints regarding the nature, quality, content and packaging of the Products delivered to Customer. Merchant agrees not to refer any Customer complaints to Lyft unless such complaint involves Lyft’s Delivery Services. In the event Customer fails to receive Proof of Delivery from a Driver or if the Products are destroyed during the Delivery Service, Merchant may submit a claim demonstrating loss in accordance with the claim procedures set forth in Exhibit C-3 (each a “Delivery Claim” or collectively, the “Delivery Claims”).
a. Ownership. Lyft and its affiliates are and shall remain the owners of all right, title and interest in and to the Lyft Platform, Delivery Requests, Delivery API or any other products or services, including any updates, enhancements and new versions thereof, and all related documentation and materials provided or available to Merchant, Partner or any Customer in connection with the Delivery Terms.
b. Feedback. Merchant acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Delivery Service (“Feedback”), provided by Merchant to Lyft are optional, anonymized, non-confidential and shall become the sole property of Lyft. Lyft shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Merchant.
c. Use of Merchant Marks. During the Term and subject to the terms of the Delivery Terms and upon prior written consent in each instance, Merchant (the “Licensor”) grants Lyft (the “Licensee”) a non-exclusive, limited, revocable right to use and display Licensor’s name, logo (the “Licensor Marks”) and Use Case(s) (as defined below) on its website, in earnings calls, press releases, and other promotional materials (collectively, the “Approved Uses”) and/or solely in connection with its activities under the Delivery Terms. Licensor may revoke its license to its Licensor Marks at any time with a notice to the Licensee. A “Use Case” means general description of how Merchant uses the Lyft Platform, Delivery API, Delivery Requests or Delivery Services. All such use of the Licensor Marks will be in accordance with the Licensor’s usage guidelines as provided by Licensor, if any, and will inure to the benefit of Licensor. With the exception of the Approved Uses, Licensee will not use, register or take any other action with respect to any of the Licensor Marks, except to the extent pre-approved in writing by Licensor in each instance. Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor.
8. Notices and Consents
a. Delivery Request Notices. If Merchant is obligated to notify Customers that Merchant will receive information related to certain Delivery Requests, including but not limited to, for example, Customer name, Customer address, Customer phone number (collectively, “Customer Data”), and invoices for Products for Delivery Services. Merchant agrees that all Customers receiving Delivery Services via the Merchant Platform consent to the collection, use and share of Customer Data solely in furtherance of the terms set forth in the Delivery Terms.
c. Consents. If Merchant represents and warrants that it has obtained all necessary consents from each Customer to share such Customer Data for the purposes set forth herein. Merchant agrees to defend, indemnify and hold harmless Lyft and its directors, officers, employees, subcontractors and agents from and against all third-party claims arising out of or related to Merchant’s failure to obtain the required Customer consents set forth in the Delivery Terms or Merchant’s breach or failure to comply with applicable notices and consents law, including but not limited to the Telephone Consumer Protection Act of 1991 (as amended), and the CAN SPAM Act of 2003. It is the responsibility of Merchant to ensure that Customer Data is accurate and complete, and Lyft shall not be liable to Merchant, a Customer, or any other party with respect to inaccurate or incomplete Customer Data supplied by Merchant.
a. Definition. Each Party (“Discloser”) may disclose certain information to the other Party (“Recipient”) that is deemed “Confidential Information” of the Discloser. “Confidential Information” means the terms and conditions of the Delivery Terms, the Lyft Delivery API, Delivery Services and Lyft Platform any information disclosed by Discloser to Recipient in connection with the Delivery Terms that is marked or otherwise designated as confidential or proprietary, or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including but not limited to all information covered by applicable privacy laws and any proprietary and confidential information of the Discloser or its affiliates, including, without limitation, customer lists, pricing, phone numbers, concepts, processes, plans, designs and other strategies, “know how”, financial and other business and/or technical information, including Customer or Merchant lists, and materials of the Disclosing Party and its Affiliates. “Confidential Information” does not include any Participant information or other information or materials disclosed to Recipient by Discloser which Recipient can demonstrate by means of written evidence: (i) was already rightfully known to Recipient at the time of its receipt hereunder as shown by contemporaneous documents in Recipient’s files; (ii) is or becomes generally available to the public other than by means of Recipient’s breach of its obligations under the Delivery Terms; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of Recipient as shown by contemporaneous documents in Recipient’s files without use of or reliance on any Confidential Information of Discloser.
b. Use and Disclosure. Recipient shall use the Confidential Information solely to fulfill its obligations and exercise its rights under the Delivery Terms, and all Confidential Information shall remain at all times the sole and exclusive property of Discloser. Recipient shall hold Discloser’s Confidential Information with at least the same degree of care as it holds its own Confidential Information and may disclose Confidential Information to its employees, agents, contractors, and actual or potential investors, who have a need to know such information and are subject to enforceable obligations, no less stringent than those set forth herein, to maintain the confidentiality of such information. Lyft may disclose Confidential Information in accordance with applicable law or legal process in relation to the Lyft Delivery API or Delivery Services provided via the Delivery API integration or on the Lyft Platform. Merchant may disclose the Confidential Information as required by applicable law provided that, prior to any such compelled disclosure, Merchant will, if permissible: (i) promptly notify Lyft in writing to allow Lyft a reasonable opportunity to resist such disclosure and/or seek a protective order; and (ii) reasonably cooperate with Lyft in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure. In the event that such protection against disclosure is not obtained, Merchant will be entitled to disclose the Confidential Information of the Discloser, but only as and to the extent necessary to legally comply with such compelled disclosure.
c. Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
10. Representations and Warranties
a. Mutual Representations and Warranties. Each Party represents and warrants to the other that (i) it has the necessary power and authority to execute and deliver the Delivery Terms, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby; and (ii) the person signing on the respective party’s behalf has the authority to execute and bind the respective party to the Delivery Terms.
b. Merchant Warranties. Merchant represents and warrants that (i) all Products requested for Delivery Services under the Delivery Terms are suitable for transportation and handling by members of the general public without any specialized training; (ii) Merchant will obtain all necessary permits, consents, certificates, approvals, inspections, releases, authorizations, licenses or file any registration forms needed in connection with its obligations under the Delivery Terms; (iii) will comply with all applicable laws and regulations in its performance of the Delivery Terms, including data and privacy laws; (iv) if Merchant’s Products include Groceries and Sensitive Foods, Merchant will comply with any applicable laws, rules and regulations as to the handling, preparation, packaging, storage and shipment governing food; (v) any content, media and other materials used or provided as part of the Delivery Terms shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party; and (vi) all Products shall be free from any hazardous material; illegal items; or bio-waste.
LYFT MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO ANY PRODUCTS, SERVICES, OR THE DELIVERY API PROVIDED BY SUCH PARTY OR OTHERWISE IN CONNECTION WITH THE DELIVERY TERMS, NOR WITH RESPECT TO ANY THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. LYFT PROVIDES THE LYFT PLATFORM AND LYFT DELIVERY API “AS IS”. LYFT DOES NOT WARRANT THAT THE LYFT PLATFORM AND/OR LYFT DELIVERY API WILL MEET MERCHANT’S REQUIREMENTS OR THAT THE OPERATION OF THE LYFT PLATFORM AND LYFT DELIVERY API WILL BE UNINTERRUPTED OR ERROR FREE. LYFT DOES NOT GUARANTEE THE AVAILABILITY OF DRIVERS OR WARRANT THAT ANY PARTICULAR RIDE REQUEST WILL BE ACCEPTED OR FULFILLED. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
LYFT DOES NOT PROVIDE TRANSPORTATION SERVICES, AND LYFT IS NOT A TRANSPORTATION CARRIER. LYFT IS NOT A DELIVERY SERVICE FOR GOODS AND SUPPLIES. LYFT IS NOT A COMMON CARRIER OR PUBLIC CARRIER. IT IS UP TO THE DRIVER TO DECIDE WHETHER OR NOT TO ACCEPT THE DELIVERY RIDE REQUESTED BY A MERCHANT THROUGH THE LYFT PLATFORM. LYFT DOES NOT PROVIDE, SOURCE OR VERIFY THE QUALITY, SAFETY OR CONTENT OF THE PRODUCTS, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN AS TO THE DELIVERY SERVICES, LYFT DISCLAIMS ANY RESPONSIBILITY FOR THE QUALITY AND CONDITION OF MERCHANT’S PRODUCTS.
During the Term, Lyft shall maintain in force during the Term, at Lyft’s own expense, at least the following insurance coverage for Delivery Services:
a. Workers’ Compensation Insurance in accordance with state statutory laws, including Employers’ Liability with minimum limits of $1,000,000 for each accident.
b. Commercial General Liability Insurance with limits of $1,000,000 per occurrence, $2,000,000 in the aggregate for bodily injury and property damage. The policy shall include coverage for liabilities arising out of premises, operations, independent contractors, product and completed operations, personal and advertising injury and contractual liability.
c. Commercial Automobile Liability Insurance with limits of $1,000,000 for each accident for third party bodily injury and property damage; and
All policies maintained shall be written as primary policies, not contributing with and not supplemental to coverage Merchant may carry and will contain a waiver of subrogation against Merchant and its insurance carrier(s) with respect to all obligations assumed by Lyft under the Delivery Terms. The fact that Lyft has obtained the insurance required hereunder shall in no manner lessen or otherwise affect Lyft’s other obligations or liabilities set forth in the Delivery Terms.
a. Indemnification by Merchant. Merchant shall indemnify, defend and hold harmless Lyft and its directors, officers, employees, agents, affiliates, successors and assigns (collectively, the “Lyft Indemnified Parties”) from and against any third party claim made or brought a Lyft Indemnified Party alleging or arising out of Merchant’s (i) breach of the Delivery Terms; (ii) violation of applicable law, regulation or statute; (iii) violation of the representations and warranties set forth in Section 11; (iv) failure to receive any of Products delivered via No Contact Deliveries where the Driver has provided Proof of Delivery; (v) failure to obtain consent and provide notice for any Customer as required in Section 8; (iv) the safety, quality and condition of Merchant’s Products.
b. Indemnification by Lyft. In addition to any indemnification obligations outlined herein, Lyft shall indemnify, defend and hold harmless Merchant and its directors, officers, employees, agents, affiliates, successors and assigns (collectively, the “Merchant Indemnified Parties”) from and against any third party claim made or brought a Customer Indemnified Party alleging or arising out of (i) Lyft’s misappropriation or infringement of a third party’s intellectual property, copyright, trade secret, trademark or patent; (ii) breach of the Delivery Terms; (iii) violation of applicable law; (iv) violation of the representations and warranties set forth in Section 11; (v) damage or destruction of Merchant’s Products during the Delivery Service; and (vi) failure of Customer to receive Products where Driver has failed to provide Proof of Delivery.
14. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING UNDER THE DELIVERY TERMS, WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY) , OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AMOUNT OF ANY AND ALL LIABILITY OF ONE PARTY TO THE OTHER FOR ANY CLAIM(S) ARISING FROM OR RELATING TO THE AGREEMENT, SHALL BE LIMITED TO DIRECT PROVABLE DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000). THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO: 1) OUTSTANDING AMOUNTS OWED LYFT UNDER THE DELIVERY TERMS, INCLUDING AMOUNTS OWED BY MERCHANT FOR DELIVERY SERVICE FEES INCURRED WHETHER PAYABLE TO PARTNER OR LYFT; 2) MERCHANT’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13(A)(II), 13(A)(V) AND 13(A)(VI). THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO OUTSTANDING AMOUNTS OWED BY MERCHANT FOR FEES INCURRED FOR DELIVERY SERVICES.
15. Term and Termination
a. Term. The Delivery Terms will begin on the Effective Date and shall remain in effect until terminated as set forth herein or as otherwise specified in the Merchant Order Form (the “Term”).
b. Termination for Cause. The Delivery Terms may be terminated by either Party, by written notice to the other Party, in the event of a material breach by the other Party of any material term or condition of the Agreement that remains uncured for thirty (30) days after receipt of written notice thereof from the non-breaching Party. Termination by either Party for breach shall be in addition to any other remedies the non-breaching Party may have for such breach. Either Party may terminate the Agreement immediately by written notice to the other Party upon: (i) the other Party becoming insolvent; (ii) the other Party’s initiation of any proceeding under Federal bankruptcy or state insolvency law regarding its own bankruptcy, reorganization, or insolvency; (iii) the initiation of any proceeding under Federal bankruptcy or state insolvency laws against the other Party that is not dismissed within sixty (60) days; (iv) the appointment of a receiver or a similar officer for the other Party or for a substantial part of the other Party’s property; or (v) the other Party making an assignment for the benefit of creditors or otherwise being reorganized for the benefit of creditors.
c. Effects of Termination. Upon termination or expiration of the Delivery Terms, all rights, obligations and licenses of the Parties hereunder shall cease. Notwithstanding the foregoing, the provisions of Sections 2, 7, 8, 9, 10, 13, 14, 16 and any remedies for breach of the Delivery Terms, shall survive any termination or expiration of the Agreement.
a. Assignment. Neither Party may assign the Delivery Terms (by operation of law or otherwise) without the prior written consent of the other Party, and any prohibition assignment or sublicense will be null and void. Notwithstanding the foregoing, either Party may assign the Delivery Terms to an affiliate or successor in the event of a merger, sale, or acquisition of all or substantially all of the assigning Party’s assets or stock. The Delivery Terms will be binding upon and inure to the benefit of the parties’ permitted successors and/or assignees.
b. Amendment/Waiver. No modification to the Delivery Terms or any attachments thereto, nor any waiver of any rights, will be effective unless consented to in writing, and signed by both parties. Waiver by either Party of a breach of any provision of the Delivery Terms or the failure of either Party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
c. Counterparts. The Delivery Terms may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
d. Relationship. The relationship of the parties hereunder is that of independent contractors, and the Delivery Terms will not be construed to imply that either Party is the agent, employee, or joint venture of the other.
e. Notices. Any notices hereunder shall be in writing (including email) and shall be sent to the addresses set forth herein or the Merchant Account, or to such other address as either Party shall have notified to the other Party. Notices to Lyft shall be copied to email@example.com; Attn: General Counsel.
f. Unenforceability. In the event that any provision or provisions of the Delivery Terms will be held to be unenforceable, the Delivery Terms will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Any ambiguity contained in the Delivery Terms shall not be construed against any Party as the draftsman, but shall be construed in accordance with its fair meaning.
g. Governing Law & Venue. The Delivery Terms will be governed by the laws of the State of California, without regard to its conflict of laws principles. The Parties consent to the personal and exclusive jurisdiction of courts located in the County of San Francisco, California. Each Party waives a jury trial in any matter arising out of or relating to the Delivery Terms.
h. Arbitration. Any dispute, claim, or controversy arising out of or in connection with the Delivery Terms or the breach, termination, enforcement, interpretation, or validity thereof (other than for claims or disputes related to the intellectual property of a Party), shall be determined through binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties shall share equally the fees and expenses of the JAMS arbitrator. The arbitration shall be conducted by a three arbitrator panel chosen by the mutual agreement of the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrators shall have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each Party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. The parties will jointly bear the expense of any arbitrators. Any arbitration proceedings shall take place at a location mutually agreed upon by the parties to the Delivery Terms. If the parties fail to agree upon a location, then such arbitration proceedings shall take place in San Francisco, California.
i. Entire Agreement. The Delivery Terms and all attachments hereto shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Lyft, its agents or employees will create a warranty or in any way increase the scope of the warranties in the Delivery Terms. Any Merchant order form, vendor form, or similar document shall be construed solely as evidence of Merchant’s internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to the Delivery Terms between the parties even if signed by the parties after the date hereof. The Delivery Terms may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
MERCHANT COMMERCIAL TERMS
Products and Delivery Requests:
Products. All Products requested for Delivery Services under the Delivery Terms are suitable for transportation and handling by members of the general public without any specialized training. All Products shall be free from any hazardous material; illegal items; or bio-waste. Merchant acknowledges and agrees that it is responsibility of Merchant to determine whether the Delivery Services is the appropriate method of delivery for any Delivery Requests made under the Delivery Terms, including whether such Delivery Services are in compliance with any applicable laws.
Batched and Pre-Defined Delivery Requests. Merchant can submit two types of Delivery Requests: (a) batched requests and (b) pre-defined requests. A “Batched Delivery Request” means Merchant submits multiple Delivery Requests with pick-up and drop-off times, and requests that Lyft batch the Delivery Requests on the most efficient delivery routes possible. A “Pre-Defined Delivery Request” means Merchant submits a single stop on-demand Delivery Request to be delivered right away or a time in the future as scheduled, or Merchant submits a multi-stop on-demand Delivery Request submitted with a specified route to be delivered right away or a time in the future as scheduled. All Delivery Services Fees for Batched Requests and Pre-Defined Requests shall be in accordance with Exhibit C-2.
Merchant SLA. All pricing as set forth in Exhibit C-2, assumes the following: Driver pick-up for each Batched Delivery Request or Pre-Defined Delivery Request does not exceed five (5) minutes and each individual delivery does not exceed two (2) minutes. For clarity, the five (5) minute and two (2) minute time period begins when the Driver exits the vehicle and ends when the Driver enters the vehicle. Partner will be charged the Partner Rate Card amount and any fees (as further described in Exhibit C-2) for additional time resulting from: (i) a delay in having the Batched Delivery Request or Pre-Defined Delivery Request ready for the Driver upon pick-up; (ii) an individual delivery resulting from the delay of a Customer to complete the receipt and/or acceptance of the Product(s); (iii) inaccurate Customer address or delivery instructions; or (iv) Driver’s return route to Merchant to drop-off any unsuccessful Delivery Request.
Delivery Limitations. Merchant acknowledges and agrees that all Products for Delivery Services must be able to fit into a vehicle approved on the Lyft Platform, not to exceed more than 50lbs for each individual package, bag or box included with the delivery, but under no circumstances shall the total collective weight for all packages for a single delivery exceed 100lbs. An approved vehicle on the Lyft Platform may not include: SUVs, Mini-Vans, Vans, Trucks or vehicles supporting more than four (4) passengers, special needs vehicles, or vehicles designed or authorized to transport special equipment.
No Contact Delivery. If Merchant requests no contact delivery, Merchant acknowledges and agrees that Merchant will inform Customers that Drivers have been instructed not to have any contact at the time of drop off. All items required to be delivered without Customer contact will be left at the Customer’s front door and will not, in any event, be handed from Driver to Customer. For Delivery Services to Customers that are businesses, deliveries will be left inside the Customer’s place of business at a location noted in the Delivery Request.
No Interstate Delivery. Merchant acknowledges and agrees that the Lyft Platform is not intended to be used in interstate commerce. Partner represents and warrants, on behalf of itself and each Merchant, that a Merchant will not submit Delivery Requests for deliveries that cross state lines.
Complaints and Delivery Claims. Merchant acknowledges and agrees that Lyft is only responsible for facilitating the delivery of Products to Merchants’ Customers. Merchant is responsible for any Customer complaints regarding the Products, including, but not limited to, complaints regarding the nature, quality, content and packaging of the Products delivered to Customer. Merchant agrees not to refer any Customer complaints to Lyft unless such complaint involves Lyft’s Delivery Services. In the event Customer fails to receive Proof of Delivery from a Driver or if the Products are destroyed or damaged during the Delivery Service, Partner may submit a claim demonstrating loss in accordance with the delivery claim procedures set forth in Exhibit C-3.
DELIVERY SERVICES PRICING ADDENDUM
Pricing is based upon the Merchant Rate Card + Primetime + Tolls + Taxes (“PPTT”) (subject to Merchant SLAs as described in Exhibit C-1). The “Merchant Rate Card” means the base fare plus the time and distance fees for Delivery Services for each Market (as outlined in Exhibit C-1). Merchant Rate cards will be provided to Merchant prior to launching the Delivery Services in each Market.
a. Upfront Price: If a Merchant submits a Delivery Request for a Pre-Defined Route, the Lyft Delivery API will provide upfront price based upon PPTT (“Upfront Price”). Provided that there are no Price Adjustments or Returns, the Merchant will be charged for the Upfront Price for each Pre-Defined Delivery Request. In the event a Merchant does not include an individual delivery as part of the Delivery Request, the Merchant will still be charged the full Upfront Price amount.
b. Maximum Price: If a Merchant submits a Batched Delivery Request and sets a maximum price for all Delivery Requests that are not for a Pre-Defined Route (“Max Price”), Lyft will only dispatch Delivery Requests that are at or below the Max Price set by the Merchant. Provided that there are no Price Adjustments or Returns, Merchant will be charged for at or below the Max Price for each Batched Delivery Request. In the event a Merchant does not include an individual delivery as part of the Delivery Request, the Merchant will still be charged the full Max Price amount.
2. Price Adjustments
The Upfront Price and/or Max Price may be adjusted based upon any missed Merchant SLAs (as further outlined in Exhibit C-1). Any price adjustments shall be in accordance with PPTT for an applicable Market, including any applicable cancellation fees, taxes, tolls or other fees. Any applicable price adjustments will be reflected in the final price at the end of the completed Batched or Pre-Defined Delivery Request.
3. Cancellation Fees
A Merchant may cancel a Pre-Defined Delivery Request within two (2) minutes after the Driver accepts the Delivery Request. Any cancellations after the two (2) minute grace period, Merchant will be charged a cancellation fee of $5-$10 (depending on the Market). Additionally, Merchant will be charged a flat rate cancellation of $5-$10 (depending on the Market) in the event a Merchant does not have the Delivery Request ready when the Driver arrives at the pick-up time (this assumes that the Merchant cannot provide the Driver with the Delivery Request within five (5) minutes of the Driver’s arrival for pick-up). A Merchant cannot cancel an individual delivery that is included in a Batched Ride Request once the individual delivery is included in the Batched Ride Request. Individual rides are generally included in a Batched Ride Request two (2) hours before the designated pick-up time.
In the event a Driver is required to return to the pick-up location to return an unsuccessful Delivery Request (“Return”), the entire Delivery Request will be charged based on PPTT, regardless of whether the Delivery Request was originally based upon an Upfront Price or a Max Price.
DELIVERY CLAIMS ADDENDUM
1. Claim for Loss. If Merchant submits a Delivery Request, the Driver accepts the Delivery Request, the Driver picks-up the Product and while the Product is in the Driver’s possession is subsequently: (a) damaged, (b) destroyed, or (c) does not arrive at the drop off location and the Driver has failed to provide Proof of Delivery, Merchant may submit a claim for reimbursement via a method to be mutually determined and subject to the conditions outlined below (each a “Delivery Claim” or collectively, the “Delivery Claims”).
2. Filing a Claim. Merchant should file a Delivery Claim with Partner within twenty-four (24) hours of the delivery event resulting in the loss, damage, or no Proof of Delivery. All Delivery Claims must include the supporting information or documentation outlined below to allow Insurance Partners (as defined below) to complete their investigation.
3. Supporting Information or Documentation. For Lyft to process a Delivery Claim, Lyft requires the following information from Merchant via Partner:
(a) Date Product Intended to be Delivered
(b) Pick-Up and Drop-Off Addresses
(c) Description of the Product, including pictures of the Product from different angles
(d) Description of the damage or destruction
(e) The value of the loss, damage, or package not delivered, including repair estimates for damaged Products.
4. What is Considered Damaged or Destroyed. A Product is considered damaged if the Product is able to be repaired so it can be used for its intended purpose. A Product is considered destroyed if the Product cannot be repaired or cannot be used in any way for its intended purpose.
5. Claims for No Proof of Delivery. If Merchant submits a Delivery Request, that is accepted by a Driver, the Driver picks up the Products for delivery, but the Customer does not receive the package and neither Merchant nor the Customer receives Proof of Delivery, Merchant can submit a Delivery Claim for reimbursement of the full value of the Products that were not received.
6. Next Steps. Each Claim will be submitted to Lyft insurance partners (each an “Insurance Partner” or collectively, the “Insurance Partners”) to conduct an investigation. The Insurance Partner will make multiple attempts to reach out to Merchant and Lyft during the first forty-eight (48) business hours from the date of the Delivery Claim submission. Insurance Partners will be responsible for resolving any Delivery Claim, including any negotiated settlement amount.
7. Claims Lyft does not Support. Lyft does not support any Delivery Claims that relate to the following (a) quality, (b) quantity, (c) safety, (d) use, (e) damage or destruction of fragile items or prepared foods due to packaging, (f) storage or (g) resulting illness or injury, including death, resulting from the (a) – (f). Additionally, Lyft will not cover Delivery Claims for (i) damage or destruction to Products occurring after Delivery, (ii) No Contact deliveries or stolen deliveries where Proof of Delivery is provided, or (iii) perishable foods that are frozen, melted, spoiled or deteriorated.
Lyft Legal, Delivery Services Agreement (Marketplace/Technology Partner)
Last Updated, July 2020
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