# DELIVERY AGREEMENT
**This agreement ("Agreement") is between you, a business in need of delivery services ("Client”) and Roadrunner Delivery, Inc. d/b/a Open Road (“Open Road”), a corporation engaged in providing a technology platform connecting professional delivery drivers with customers in need of shipping services.
This Agreement will become effective on the date it is accepted by the Client regardless of whether Client uses the Open Road application, website, and technology platform that facilitates Open Road’s online marketplace. If Client has not previously manifested their acceptance of this Agreement, this Agreement will be deemed automatically accepted by Client immediately upon the Clients’ creation of an account on the Open Road Platform.
Open Road reserves the right, from time to time, to modify this Agreement as well as any policies or other external documents. Such modifications shall become binding upon your acceptance of the modified Agreement. Continued use of Open Road’s Platform or performance of any Services after Open Road has posted an updated version of this Agreement or any of its policies on the Open Road website, on any Open Road application, or after Open Road has otherwise provided you with notice of any modifications to this Agreement or any Open Road policies, shall constitute your acceptance of such modifications. You are responsible for regularly reviewing the Open Road website and user applications for any updates to this Agreement or Open Road policies applicable to you. **
WHEREAS, Client is a business desiring to be connected with delivery drivers in order to transport items on Client’s behalf;
WHEREAS, Open Road is a technology company operating an online platform that connects fully licensed (to the extent required by applicable law), independent providers of delivery services (“Contractors”) with businesses seeking delivery services. Upon entering into this Agreement, Client will have access to Open Road’s online platform to source contractors to provide delivery services; and
WHEREAS, Client is interested in using the Open Road platform as a source to locate Contractors interested in providing delivery services.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises below, and for other good and valuable consideration, Client and Open Road (each a “Party”, and, collectively, the “Parties”) agree as follows:
### 1. CLIENT WARRANTIES.
From time to time, Clients will request to receive delivery services through the Open Road platform (“Delivery Request”). Contractor’s will have the ability to respond to Client’s Delivery Request and enter into an arrangement directly with Client in order to pick up and deliver Client’s items according to Client’s specifications. In posting any Delivery Request, Client warrants that Client is the rightful owner of the items, or has all necessary rights and authorizations to request and arrange for the transportation of the items, and to bind the rightful owner of the items to the terms of this Agreement.
Client understands that Open Road is solely a platform provider, and in no way a direct provider of transportation services, and will never have care, custody, or control of Client’s items. Contractor is the sole party liable for the provision of transportation and delivery services under this Agreement.
Client is solely responsible for the accuracy and sufficiency of any and all information Client posts to the platform regarding any Delivery Request, including, without limitation, the amount and nature of the items, origin and destination address, and requested date and pickup time for the items. Should items require any specific handling or delivery requirements, Client shall post, any and all handling obligations necessary for the safe and sanitary handling of such item, as well as any other delivery requirements, including necessary delivery documentation and proof of delivery. Client is solely responsible for any liability arising out of the of the items in any Delivery Request, including, without limitation, property damage, injury, and death, as well as for possessing insurance coverage in the appropriate forms and amounts to cover such liability. Client shall defend, indemnify, and hold Open Road and Contractor harmless from any claim, loss, damage, or suit arising out of Client’s failure to provide full and accurate information regarding any Delivery Request.
Included in the information supplied by Client regarding any Delivery Request, shall be information regarding whether the item or items included in the Delivery Request will require pick-up or delivery inside of any building or in a location which will cause unexpected inconvenience or cost to Contractor.
Client understands and acknowledges that the following items are prohibited from transportation pursuant to this Agreement, and shall indemnify, defend, and hold Open Road and Contractors harmless for any loss or damage should such items be present in any delivery:
(i) Contraband or items that are illegal or dangerous;
(ii) Bullion, precious metals, precious metal objects, precious or semi-precious stones, and jewelry made from precious metals and stones;
(iii) Money, securities, accounts, bills, currency, food stamps, lottery tickets, notes, bank notes, coins, bonds, negotiable instruments or evidences of debt, passports, tickets, documents, manuscripts, records, or other valuable papers;
(iv) Tobacco products and processed tobacco;
(v) Bottled spirits;
(vi) Valuable works of art which includes antiques, paintings, sculptures, tapestries, collectibles or other objects for display; or
(vii) Bloodstock and live animals including cattle or poultry.
### 2. OPEN ROAD’S SERVICES. Open Road agrees that it will maintain its platform to maximize the potential of Clients and Contractors to connect for the efficient performance of delivery services. OPEN ROAD IS NOT A TRANSPORTATION PROVIDER AND DOES NOT PROVIDE ANY TRANSPORTATION OR DELIVERY SERVICES. Open Road shall facilitate and remit payment of delivery fees to Contractors for delivery services based the Delivery Fees (as defined herein) charged to Client. Open Road will use Stripe to process payments for the services provided pursuant to this Agreement. As Client, you represent and warrant that you have reviewed, understand, and agree to the Stripe Connected Account Agreement and Stripe Service Agreement, both of which are incorporated herein by reference, and which may be found here https://stripe.com/legal/ssa.
### 3. PRICING AND DELIVERY FEES. Client agrees to pay a Delivery Fee in exchange for each Delivery Request accepted and completed by a Contractor. Open Road and Client agree that, in order to provide an experience for Clients and Contractors that will increase the likelihood of Contractor’s accepting Delivery Requests from Clients, Open Road shall be responsible for setting default pricing for delivery services offered to Clients through the platform. Pricing is determined based on the parameters of Client’s Delivery Request, including, without limitation, distance, nature of goods to be shipped, vehicle type, and timing. Client shall have the opportunity to review, before finalizing any Delivery Request, Open Road’s proposed delivery fee. Unless a different amount is negotiated between Client and Open Road, and memorialized in a writing accepted by both Parties, for each Delivery Request accepted and completed by a Contractor using the platform, Client agrees to pay Open Road the proposed Delivery Fee as well as other fees and surcharges that apply to the Delivery Request, including, but not limited to: actual or anticipated airport fees, state fees, local fees, event fees, fuel surcharges, wait time fees, or distance surcharges as determined by Open Road. In addition, where required by law Open Road will charge to Client applicable taxes associated with the Delivery Request.
Contractor shall allow for a sixty (60) minutes following any scheduled Client pick-up or delivery without any additional payment. In the event that Contractor is on time for any scheduled pick-up or delivery, and is made to wait longer than sixty (60) minutes, Client will be charged a fee of one dollar ($1.00) per minute of wait time (“Detention Fee”). Such Detention Fee will accrue during Contractor’s waiting period up to one hundred and twenty (120) minutes, at which point, Client will not continue to be charged a Detention Fee, unless Client agrees to continue to pay such Detention Fee in order to have Contractor remaining waiting at the pick-up or drop-off location.
In the event that Client cancels any Delivery Request after a Contractor has accepted such request, an administrative and cancellation fee of fifty percent (50%) of the Delivery Request rate shall be assessed against Client.
### 4. CLAIMS HANDLING. Client shall inform Contractors directly if they believe an item has been damaged during Contractor’s performance of services pursuant to a Delivery Request. Unless otherwise disclosed within the Delivery Request, Client expressly agrees that Client’s maximum claim for damage to or loss of items will be $100. Open Road is not liable or responsible for any claims, damages, suit, or losses arising out of the provision of transportation or delivery services. Open Road may, but is not required, to assist Client and Contactors in the resolution of any dispute related to a Delivery Request or performance of transportation or delivery services and facilitate the exchange of information related thereto. Client and Contractor expressly agree that Open Road shall not be named as a party in any legal proceeding or other dispute related to fulfillment of a Delivery Request.
### 5. CONFIDENTIAL INFORMATION. To the extent that the Parties are provided access to Confidential Information of the other Party or any Contractor or any of Contractor’s Personnel (“Confidential Information”) as used herein is defined to include Contractor contact information, contact information of Contractor’s Personnel, lists of Clients authorized to use the Open Road platform compiled by Open Road or client lists developed by Client of Client’s own customers, trade secrets, patents, copyrights, trademarks, mask works, algorithms, pricing and fee calculations, licenses, software, computer programs, designs, technology, ideas, processes, data, techniques, improvements, inventions (whether patentable or not), works of authorship, marketing and product development plans, budgets, prices, technical or financial information, research or development, information which is received in confidence by or for either party from any other person, and any other proprietary information), the Parties agree that they will not use or disclose it in any manner other than as necessary to perform their respective obligations under this Agreement or as required by law. The Parties agree that, upon request of a Party, the other Party shall return all materials and documents (in any form) containing Confidential Information provided to that party during the Term of this Agreement, including all copies thereof. The Parties understand that this includes hard-copy documents, as well as electronically stored information and all copies thereof.
### 5.1. Special Standards for Personally Identifying Information (“PII”). Client shall have access to personally identifying information, which includes, but is not limited to (i) information which identifies or could reasonably be used to identify any natural person, including without limitation a person’s first and last name, home or other physical address, telephone number, fax number, email address, UDID, IP address, etc., (ii) data collected directly from a user via an application’s user interface (name, address, date of birth), (iii) data that is gathered indirectly, such as mobile phone numbers, IMEI, or UDID, and (iv) data gathered about a user’s behavior, such as purchase, order and transactional information, location data, web browsing data or the applications used which is linked to a unique profile.
### 5.2. Each Party acknowledges and agrees that: (1) all Confidential Information shall remain the exclusive property of the disclosing entity, regardless of whether this disclosing entity is a Party to this Agreement, or a Contractor or Contractor’s personnel; (2) it shall not use disclosed Confidential Information for any purpose except in furtherance of this Agreement; (3) it shall not disclose the disclosed Confidential Information to any third party, except to its employees, officers, Clients, agents, and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms herein or as required to be disclosed pursuant to law, court order, subpoena, or governmental authority, provided the receiving Party notifies the disclosing Party thereof and provides the disclosing Party a reasonable opportunity to contest or limit such required disclosure; and (4) it shall return or destroy all disclosed Confidential Information, upon the termination of this Agreement or at the request of the other Party (subject to applicable law and, with respect to Open Road, its internal record-keeping requirements).
### 5.3. Information Security. Client shall ensure the security and confidentiality of any disclosed Confidential Information and PII, and protect against any threats or hazards to the security of such information, including but not limited to protecting against unauthorized access to, or modification, destruction, disclosure or use of, such information that could result in substantial harm or inconvenience to Open Road and Open Road’s customers, employees, or independent contractors. Client shall incorporate security and awareness of Confidential Information and PII protection into Client’s job training and/or job performance requirements.
### 5.4. Data Breach. Client shall notify Open Road immediately in writing if it becomes aware of any potential or actual unauthorized disclosure, access to, acquisition of, or other loss or use of any Confidential information or PII held in possession by Client or held or maintained in any Client System, including Client employee Mobile Phones containing or used to access the platform or other Open Road Systems. Notice shall include, at a minimum: (1) a description of the breach or loss, including the date it occurred; (2) to the extent known, the number of individuals affected and their states of residence; (3) the data and/or information accessed, acquired, lost, and/or misused; (4) whether the breach or loss was computerized in nature or a paper loss; (5) whether such data was encrypted or unencrypted; (6) whether encryption keys or passwords may have been compromised; and (7) a description of the steps taken to investigate the incident, secure Client’s systems or recover lost information, and prevent the recurrence of further security breaches or losses of the same type. Following the initial notification of a potential or actual unauthorized disclosure of any PII, Client shall continue to provide Open Road with updated information related thereto as additional details become available to Open Road. In the event of any potential or actual unauthorized disclosure or use of any PII, Client shall cooperate with Open Road, the Client, the Client’s customer, and any applicable regulatory authorities to (1) further assess the risk that unauthorized use or disclosure of the PII has occurred, the nature and scope of any such event and review all pertinent records; and (2) take other remedial measures as may be reasonably necessary or appropriate to mitigate the risks arising out of the unauthorized use or disclosure of the PII. Client shall indemnify, defend, and hold Open Road harmless from any claim, suit, loss, or damage arising out of any data breach as detailed herein.
### 5.5 Accuracy and Identification. Open Road makes no representation as to the accuracy of any information supplied by any user of the Open Road platform. Client understands that they receive the information supplied by any other user, including the user’s identity, at their own risk.
### 6. TERM AND TERMINATION. This Agreement shall remain in full force and effect from the Execution Date, until thirty days’ notice of termination is provided by either Party. Either Party may terminate this Agreement immediately upon written notice if the other Party is in material breach of this Agreement. Should Client materially breach this Agreement, Client will not be reinstated in the platform.
The following acts and/or occurrences shall constitute a material breach of this Agreement:
- Failure by Client to accurately disclosure the nature and quality of items in Delivery Requests.
- Repeated cancellations by Client.
- Repeated late loading or significantly late loading by Client.
- The improper use or disclosure of Confidential Information.
- Failure by Client to maintain all licenses, permits, authorities, registrations and/or other prerequisites to operate that are required by law and/or this Agreement.
- Any act by a Party that causes the other Party to violate its obligations under any applicable state, federal or local law.
- Documented complaint by a Contractor or employee of Open Road that Client engaged in conduct that a reasonable person would find physically threatening, highly offensive or harassing.
- Failure by Client to provide services in a manner consistent with Client’s requirements and effective operation of the Open Road Platform.
- Documented illegal or destructive acts, including but not limited to fraud or theft, engaged in by Client.
- Usage of another user’s account or login credentials or creation of a fake account on the Open Road platform.
- Failure to provide acceptable documentation for deliveries that confirms location and address of delivery.
- Failure to pay for services provided to Client.
- Use of PII in violation of of this Agreement.
- Repeated damage claims by a Client.
The Parties acknowledge and agree that this Agreement does not reflect an uninterrupted service arrangement, and each Delivery Request made by Client constitutes a separate contractual engagement.
A Party that receives notice of termination must continue to fulfill its obligations under this Agreement, including providing any deliveries a Contractor has accepted as of the time notice is given, for the entire notice period.
Obligations and rights arising under the Confidential Information and Arbitration provisions of this Agreement (as well as any other provisions of this Agreement to the extent necessary to give effect to these provisions) shall survive termination of this Agreement. Client understands that termination of this Agreement does not mean that Client’s account with Open Road’s payment processor is terminated. Upon termination of this Agreement, Client will contact Open Road’s payment processor to terminate their account should Client wish to do so.
### 7. ARBITRATION AND DISPUTE RESOLUTION.
**CLIENT UNDERSTANDS THAT ALL DISPUTES RELATED TO THIS AGREEMENT AND THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT SHALL BE HANDLED UNDER THE TERMS FOUND IN OPEN ROAD’S TERMS OF SERVICE. ACCEPTANCE OF THIS AGREEMENT CONSTITUTES AN EXPLICIT ACCEPTANCE OF SUCH TERMS.**
### 8. GENERAL PROVISIONS
### 8.1 Except for the Arbitration Provision set forth in Section 7, which is governed by the Federal Arbitration Act, this Agreement will be governed, controlled, interpreted, and defined by and under the laws of the State of Arizona, without giving effect to any conflicts of laws principles that require the application of the law of a different state.
### 8.2 Risk of Loss and Indemnification. Except as otherwise specifically set forth in this Agreement, Client agrees to be exclusively and solely responsible for any and all losses arising from or related to Client’s acts and omissions performed pursuant to this Agreement. Client agrees to indemnify, protect and hold harmless Open Road, and its customers from any and all losses, damages, expenses, costs, claims, demands, damage, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of Client and/or Client’s personnel in any way arising from or relating to Client’s actions relating to any Delivery Request, including personal injury or death to any person (including Contractor or their Personnel), as well as any liability arising from Client’s failure to comply with the terms of this Agreement. Client’s obligations hereunder shall include all applicable consequential, special, and incidental damages, as well as Open Road’s cost of defense as well as the payment of any final judgment rendered against Open Road.
Client agrees to indemnify, protect and hold harmless Open Road and its Contractors from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to Client and Client’s personnel.
Client shall be responsible for, indemnify and hold harmless Open Road and its Contractors from all costs of Client’s business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, salaries and compensation, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
### 8.3 Severability. Except as described in Sections 7.4, 7.5, and 7.8 of this Agreement, if any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
### 8.5 Non-Solicitation. Other than pursuant to this Agreement, Client shall not tender, directly or indirectly, items for delivery to any Contractor which first became known to Client through the use of Open Road’s platform while Client’s account with Open Road remains active, or for twelve (12) months after this Agreement is terminated. Should Client breach the provisions of this section, Client shall be liable for, and pay to Open Road, 30% of the amount paid to such Contractor in violation of this provision. Open Road retains the right to review all books and records of Client’s business necessary for Open Road to ensure compliance with this provision.