HiPierce Merchat Agreement
INCORPORATION. The undersigned Merchant wishes to utilize, and Pierce Inc. hereby agrees to provide access to, HiPierce’s mobile app and web-based on-demand platform (the “Platform”) pursuant to the terms and conditions of this HiPierce Merchant Agreement and HiPierce’s Privacy Policy (https://hipierce.com/privacy), which is incorporated herein by reference, (collectively, the “Agreement”). Pierce Inc and Merchant may be referred to individually as a “Party,” and collectively as the “Parties.”
INTELLECTUAL PROPERTY. During the Term of this Agreement, each Party grants to the other Party a limited, fully paid-up, non-exclusive, non-transferable, and royalty-free license to use such Party’s marks for the sole purpose of performing its obligations under this Agreement. For the purposes of this Agreement, “marks” shall include trademarks, trade names, service marks, copyrights, logos, slogans and other identifying symbols and indicia of the applicable Party. Use of a Party’s marks shall only be in a manner that complies in all material respects with that Party’s trademark usage policies provided from time to time. Each Party’s use of the other Party’s marks, and all goodwill generated thereby, will inure to the benefit of the owner of such marks.
MERCHANDISE PRICE AND TAXES. Merchant and Pierce Inc will mutually agree upon the pricing of Merchant’s goods on the Platform.
Merchant will provide Pierce Inc with the sales tax rate applicable to items purchased through the Platform for any Merchant location included on the Platform. Merchant will indemnify Pierce Inc for any sales, use, or other tax, duty or charge of any kind that is levied or imposed on the use of the Platform, excluding any tax based on Pierce Inc’s net income.
MERCHANT PROFILE. Merchant will establish a “Merchant Profile” pursuant to Exhibit A, and any accompanying attachments, all of which are incorporated herein by reference.
REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing its obligations under this Agreement; (d) it will comply with all applicable laws and regulations in its performance of this Agreement; and (e) the content, media and other materials used or part of this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party.
Merchant further represents and warrants that: (a) it will prepare and handle items in compliance with all applicable laws, including but not limited to food and beverage health and safety laws rules and regulations and product safety laws, rules and regulation; (b) all items sold will comply with applicable law; (c) it will remit all taxes owed to the relevant authorities; (d) all tax rate information provided to Pierce Inc is accurate; and (e) all information provided to Pierce Inc pursuant to this Agreement is complete, and no such information is inaccurate, misleading, or otherwise deceptive.
The above representations and warranties are true as of the Effective Date and the Parties covenant that they will continue to be true throughout the term of this Agreement.
INDEMNIFICATION. Merchant shall defend, indemnify and hold harmless Pierce Inc and its subsidiaries, affiliates and each of their directors, officers, employees and agents from and against any and all claims, taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal costs, to the extent arising out of, or relating to, any actual or threatened third party claim, including government claims and investigations (each a “Claim”) arising from or in connection with: (i) any negligent, reckless or intentionally wrongful act of Merchant or its employees, contractors or agents; (ii) any breach by Merchant or its employees, contractors or agents of the representations, warranties, and covenants contained in this Agreement; (iii) any violation or alleged violation of any rule, regulation, law, or health and safety code, applicable to Merchant’s products; (iv) any illness or bodily injury resulting from Merchant’s products delivered through the Platform; or (v) any violation or claimed violation of a third party’s rights resulting in whole or in part from or in any way connected or related to Pierce Inc’s use of Merchant’s Marks.
Pierce Inc shall provide prompt notice to Merchant of any potential Claim subject to indemnification by Merchant hereunder and will cooperate with Merchant; provided, however, that failure to provide prompt notice will not excuse Merchant’s obligations to indemnify Pierce Inc unless the delay materially prejudices Merchant’s ability to defend the Claim. Merchant will have full control and authority over the defense of any claim for which indemnification is required, provided that Merchant will not settle or compromise any claim, or consent to the entry of judgment, without the prior written consent of Pierce Inc, which will not be unreasonably withheld. Pierce Inc elect to appoint the defense with counsel of its choice to monitor and reasonably cooperate with Merchant in the defense of any Claim, at Pierce Inc’s expense.
DISCLAIMER. EXCEPT AS SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MERCHANT ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND ANY TABLET PROVIDED TO MERCHANT HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
MERCHANT ACKNOWLEDGES AND AGREES THAT PIERCE INC DOES NOT PROVIDE COURIER SERVICES. SERVICES PROVIDED THROUGH THE PLATFORM ARE PROVIDED BY THIRD PARTY COURIERS WHO ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR AGENTS OF PIERCE INC.
LIMITATION OF LIABILITY. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, PIERCE INC’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT SHALL NOT EXCEED ONE THREE HUNDRED DOLLARS ($300), REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH LIABILITY IS BASED, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, AND WHETHER FOR DIRECT DAMAGES OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, OR SPECIAL, INIDICENTAL, CONSEQUENTIAL, COMPENSATORY OR PUNITIVE DAMAGES.
CONFIDENTIALITY. “Confidential Information” means any confidential, proprietary or other non-public information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) whether disclosed verbally, in writing, in electronic form, or by inspection of tangible objects, including but not limited to any personally identifiable information such as first and last name, email address, phone number etc.
Recipient agrees that it will only disclose the Confidential Information to its employees and agents who have a need to know such Confidential Information and who are bound by written obligations of confidentiality and will not use the Confidential Information in any way other than as necessary to perform its obligations under this Agreement. Such prohibition on disclosure of Confidential Information shall not apply to the extent disclosure is required as a matter of law, provided Recipient gives Discloser prior written notice of such obligation and reasonably assists in obtaining a protective order prior to making such disclosure. Recipient will destroy Confidential Information and certify as to such upon Discloser’s request.
TERM AND TERMINATION. This Agreement shall continue until terminated by either Party in accordance with this Agreement (the “Term”). Either Party may terminate this Agreement for convenience upon thirty (30) days prior written notice, which may include email. Upon termination of this Agreement, all outstanding payments owing by Merchant to Pierce Inc shall be due and payable within five (5) days.
GENERAL. Relationship. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be deemed or construed to create a partnership, joint venture, or employer-employee relationship, or give either Party the power to act as an agent for, or direct or control the day-to-day activities of the other. Each Party will be responsible for its own costs of conducting business and performing its obligations under the Agreement. Survival. Upon expiration or termination of this Agreement, those rights and obligations that by their nature are intended to survive such expiration or termination will survive. Assignment. Merchant may not assign this Agreement or any of its rights and obligations hereunder. Pierce Inc may assign this Agreement or any of its right and obligations hereunder pursuant to a merger, acquisition, or a sale of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the Parties’ and each of their successors and permitted assigns. Force Majeure. Nonperformance by either Party due to a force majeure event will be excused. Law/Venue. This Agreement shall be governed by the laws of the State of California, without regard to the conflicts of law provisions of any jurisdiction. The Parties expressly consent to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California. Severability. If any part of this Agreement is unenforceable, the remaining portions will remain in full force and effect. Entire Agreement. This Agreement contains the entire agreement between the parties. All prior agreements, discussions understandings and negotiations relating to the subject matter thereof are merged into this Agreement. This Agreement may be amended only by a written document executed by both Parties, which may include electronic signatures. This Agreement may be executed and delivered in counterparts, each of which will be deemed an original, but all of which taken together will constitute the same instrument. Waiver. The waiver of a breach of any provision of this Agreement will not waive any other or subsequent breach.