The following terms shall have the meanings set forth below:
1.1. “Affiliate” means with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, where “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of at least fifty percent (50%) of the voting equity of another entity, or the power to vote such voting equity, by contract or otherwise.
1.2. “Delivery Charges” means charges you incur for delivery services obtained from Delivery Persons through the use of Uber Direct, including any applicable tolls, foreign transaction fees, taxes, and any other fees or charges that may be due for a particular use of the service.
1.3. “Delivery Integration API” means the specific Uber API Services which allows for access to Uber Direct.
1.4. “Delivery Person” means an independent contractor that intends to seek, receive, and fulfill on-demand requests for delivery services using Uber’s proprietary technology under license from Portier, LLC or its Affiliates. For clarity, the term “Uber” as used in this Agreement does not include Delivery Persons.
1.6. “Territory” means the geographic area within the United States (including its territories and possessions) permitted for you by Uber for the purposes of requesting delivery services.
1.7. “Uber App” means Uber’s mobile applications or mobile websites that allow users to access and use Uber’s products and services, as may be updated by Uber from time to time.
1.8. “Uber Direct” means the Uber service that, in connection with Uber’s Delivery Integration API, enables you to request delivery services from Delivery Persons.
2. TERM AND TERMINATION.
3. FEES AND CHARGES; BILLING.
3.2. Uber will establish an Uber for Business corporate account (“Corporate Account”) for you which will enable billing and other information related to Uber Direct. Uber will bill your Corporate Account for fees and charges in monthly statements. You shall pay each monthly statement from Uber in full within thirty (30) days of receipt thereof. You agree to provide and maintain during the Term a valid credit card number (the “Company Card”) that may be charged for monthly billing as set forth herein. All payments are nonrefundable except as may be expressly provided otherwise herein.
3.3. Uber reserves the right to immediately charge the Company Card in the event that you fail to pay any monthly statement as of the applicable due date. Uber reserves the right to immediately suspend your Corporate Account and access to Uber Direct in the event of any unpaid fees by you due to (a) past due monthly statements (as applicable), (b) an invalid Company Card on your Corporate Account, or (c) a rejected Company Card transaction. In the event of any unpaid fees hereunder, Uber further reserves the right to pursue any and all remedies available under applicable law, including reporting you to credit reporting agencies. Uber shall have sole discretion regarding reestablishing your access to Uber Direct. All late payments shall accrue simple interest on the sum due from the date such payment was originally due until the date of actual payment, at 1.5% per month or the maximum allowed by applicable law.
4.3. Confidential Information Security. Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care.
5. DELIVERY INTEGRATION API.
5.2. Design Implementation. You will implement the Delivery Integration API into your products in a manner consistent with the implementation guidelines agreed to by the parties in writing before launch. Additionally, you agree that you will use Uber’s Marks (as defined below) in any demand channel, including for example your website or app, where Uber Direct is being utilized or advertised. Uber will provide you with requirements on design and placement of Uber’s Marks via email, and you agree to work in good faith with Uber in implementing said requirements. You agree to include tipping information within your products and will submit such designs to Uber for its final approval. In the event that tipping and rating on your products is substantially different from tipping and rating on the Uber App, the parties will mutually agree on a solution.
6. UBER DIRECT.
6.2.b. You further acknowledge that Uber and its Affiliates will have no liability to you for any loss, damage, non-delivery, or delay in the delivery of items requested by you for delivery, or any unexpected issues or changes made by Uber to Uber Direct in its discretion that could arise during your use of Uber Direct. For clarity, Uber does not take title to any items that are requested for delivery through Uber Direct. You agree that no bailment is created by your use of Uber Direct, and Uber is not a bailee of goods.
6.3. Delivery-Informed Parties.
6.3.a. To permit Uber to send information and updates regarding the delivery to parties designated by you, you shall, before requesting delivery services as described herein, obtain from such parties, and submit to Uber, the following information (collectively, “Delivery-Informed Data”) with respect to such Delivery-Informed Parties: (a) active telephone number; (b) delivery drop-off location; and (c) other optional trip related data (e.g., billing code, trip purpose, message to Delivery Persons).
6.3.b. You shall ensure that all data provided to Uber is accurate and complete, and Uber shall not be liable to you or any other party with respect to inaccurate or incomplete Delivery-Informed Data supplied to Uber by you.
6.4. Requirements for Delivery.
6.4.a. You understand that it may provide instructions for the delivery of items at the delivery location. If the items are undeliverable because the delivery recipient cannot be located or the delivery otherwise cannot be completed according to your delivery instructions, the items may be returned to you at the original pickup location (each a “Return”). You shall accept any and all Returns and understand that in the event of a Return, you will be charged fees associated with the Delivery Person’s return trip, which will be considered Delivery Charges (“Return Fees”). In addition, you shall be responsible for handling, including all charges related to, any pick-ups and returns from a delivery location where an item was delivered, but later found to be at the incorrect location.
6.4.b. You shall ensure that items provided to a Delivery Person through Uber Direct: (i) are collectively able to fit into, and are appropriate for transport in a standard midsize motor vehicle; and (ii) do not exceed 50 pounds per package, box, or parcel.
6.4.c. Unless otherwise consented to by Uber in writing, you may not request delivery through Uber Direct for any of the following items ("Restricted Items"): (a) people or animals of any size; (b) illegal items (whether such item is illegal to possess, transfer, or sell); (c) drugs, pharmaceutical products, controlled substances, or over-the-counter medications, vitamins, or supplements; (d) fragile items; (e) dangerous or hazardous items, including but not limited to, weapons, explosives, items that are poisonous or flammable (including paints or adhesives containing a flammable liquid), substances and material identified in the Hazardous Materials Table in 49 CFR section 172.10, or material determined to be hazardous under 49 U.S.C. section 5103 et. seq. and transported in a quantity requiring placarding according to regulations prescribed under 49 CFR, Subtitle B, Chapter I, Subchapter C; (f) stolen goods; (g) sexual aids; (h) money, gift cards, or transferable securities; (i) regulated species (e.g., plants, noxious weeds, prohibited seeds, etc.); or (j) any items for which you do not have permission to send. For clarity, you may request delivery through Uber Direct for alcoholic beverages (“Alcohol Items”), subject to the additional terms and conditions in Exhibit B.
6.4.d. You will ensure that items are readily available for pickup upon arrival of a Delivery Person at the requested pick-up location. You understand that if a Delivery Person refuses to accept an item due to size or weight, or such item is a Restricted Item, or because the Delivery Person is asked to purchase such item, you may be responsible for: (1) a cancellation fee; and (2) any Return Fees. Cancellation fees shall be considered Delivery Charges.
6.4.e. As between Uber and its Affiliates and you, you will be responsible for all support to intended recipients, including resolving any disputes or concerns from Delivery-Informed Parties related to deliveries requested via use of Uber Direct.
7. DELIVERY PERSON VERIFICATION AND USER SAFETY POLICIES.
Uber is responsible for contracting terms with all independent contractors using the Uber technology systems under license from Uber to provide transportation or other services. The following shall apply:
7.1. Screening Standards. Uber shall ensure that all prospective Delivery Persons are screened using a third-party service accredited by a nationally-recognized background screening organization, to the extent such organization exists. The screening standard applied shall conform to Uber’s then-current background check practices on the Uber systems and in the relevant jurisdiction.
7.2. Screening Information. During the course of the screening process the following information shall be collected and maintained (unless such information should not be maintained due to privacy considerations or other applicable law) in accordance with Uber’s then-current practices: (a) full name; (b) date of birth; (c) driver’s license number; and (d) copy of driver’s license.
7.3. Vehicle Standards. In accordance with its business needs and procedures (which are subject to change in Uber’s reasonable discretion), Uber shall undertake reasonable efforts to ensure that Delivery Persons, at all times use vehicles that are suitable for providing transportation services, and maintained in good operating condition consistent with Uber’s safety and maintenance standards.
8. PROPRIETARY RIGHTS.
8.1. License to Marks; Restrictions. The term “Marks” shall mean the trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of a party (“Licensor”). Each party hereby grants to the other party (“Licensee”), solely during the Term, a limited, royalty-free, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use and display the Licensor’s Marks only as expressly permitted by the other party in writing in each instance. All use of a Licensor’s Marks by Licensee will be in the form and format approved by Licensor, and Licensee will not otherwise use or modify Licensor’s Marks without Licensor’s prior written consent. All goodwill related to Licensee’s use of Licensor’s Marks shall inure solely to the benefit of Licensor. Marks will at all times remain the exclusive property of the respective Licensor. Except as expressly set forth herein, Licensor does not, and shall not be deemed to, grant Licensee any license or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved by Licensor.
8.3. No Publicity. Other than as expressly set forth herein, neither party may use or reference the other party’s name, logo, trademarks or service marks in a press release or otherwise without the prior consent of such other party in each instance.
9.1. During the Term, Uber agrees to maintain the following insurance coverage with an A.M. Best financial rating of “A-” or better:
9.1.a. Commercial General Liability (including contractual liability, personal and advertising injury and products and completed operations) with a limit of five million dollars (US$5,000,000) per occurrence and five million dollars (US$5,000,000) in the aggregate for bodily injury and property damage.
9.1.b. Workers Compensation Statutory (for all states of operation) including Employer’s Liability with limits of not less than one million dollars (US$1,000,000).
9.1.c. Commercial Auto Liability insurance for all owned, hired and non-owned vehicles for bodily injury, including death and property damage for limits of five million dollars (US$5,000,000) each accident combined single limit.
9.2. Upon your reasonable request from time to time, Uber shall furnish you with a certificate of insurance showing coverage as set forth herein. You shall be covered as an additional insured on the auto and general liability policies.
10. DATA PROCESSING RESTRICTIONS.
11. WARRANTIES; DISCLAIMER.
Moreover, for the avoidance of doubt, to the extent that items requested by you for delivery include food or beverages, (y) your representation and warranty in 11.1(c) above includes, without limitation all laws, rules, and regulations governing health and safety (e.g., time or temperature controls required for food safety); and (z) you additionally represent and warrant that: (1) all information about food and beverage items made available by you relating to calorie count, ingredients, nutritional information, or allergen information are and will remain accurate; (2) you will package food and beverage items separately from potentially harmful products; and (3) you will not replace items requested by a third party that are ultimately unavailable with different items without the written consent of the third party.
12.2. In addition to the indemnification obligations in the General API Terms, you will also indemnify, defend and hold harmless Uber, its Affiliates, and its and their respective directors, officers, employees, consultants, agents, successors, and assigns from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable outside attorney fees) with respect to any third-party claim arising out of or related to: (a) the use of Uber Direct by any Delivery-Informed Party; (b) any personal injury or damage to property arising from the items requested by you for delivery; or (c) your inclusion of a Restricted Item.
12.3. The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
13. LIMITS OF LIABILITY.
14.2. Notices. Any and all notices permitted or required to be given hereunder will be in writing and will be deemed duly given and effective on the earliest of: (A) upon actual delivery, if delivery is by hand, to such addresses as may be provided, or (B) the next business day after being sent by overnight courier, charges prepaid. For clarification, an email sent to the email address associated with your developer account shall suffice for written notices from Uber to you and an email sent to the email address email@example.com shall suffice for written notices from you to Uber.
14.9. Independent Contractor. Uber and you are and shall remain independent contractors. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other.
14.11. Waiver. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
DATA PROCESSING EXHIBIT
c. “Data Subject” means an identified or identifiable natural person.
d. “Personal Data” shall mean “personal data,” “personal information,” or equivalents as defined in applicable Data Protection Laws. In the absence of applicable Data Protection Laws, “Personal data” shall mean any information relating, directly or indirectly, to an identified or identifiable natural person exchanged under this agreement.
e. “Process,” “Processes,” “Processing,” or “Processed” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collecting, recording, accessing, releasing, disclosing, making available, organizing, structuring, storing, adapting or altering, retrieving, consulting, using, disclosing by transmission, dissemination or otherwise, aligning or combining, restricting, erasing or destroying.
1. GENERAL TERMS
1.1. Personal Data Processing
1.1.a. Limitations and Prohibitions.
1.1.c. Data Security Incidents. The parties shall notify each other without undue delay upon discovery of an actual or suspected unauthorized access to, acquisition or disclosure of Personal Data, or other actual or suspected breach of security or confidentiality with respect to Personal Data in such party’s or its representatives’ control or possession (a “Data Security Incident”).
1.2. Cross Border Transfer. Performance of Services under this Agreement does not require cross-border transfer of Personal Data. In the event that the Services require cross-border transfer of Personal Data, the Parties agree to enter into a separate agreement and to comply with methods of transfer authorized under applicable laws.
1.3. Compliance With Data Protection Laws. Each party shall comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of personal data.
1.4. Data Subject Rights. Each party shall individually inform data subjects and allow data subjects to exercise their rights under applicable laws for Personal Data Controlled by such party.
2. SECURITY MEASURES
2.1. Organizational Security Measures.
2.1.a. Security Program. The parties have developed and implemented, and will consistently update and maintain as needed: (i) a written and comprehensive information security program in compliance with applicable Data Protection Law; and (ii) reasonable policies and procedures designed to detect, prevent, and mitigate the risk of data security breaches or identify theft (“Security Program”). Specifically, the Security Program shall include, at a minimum:
2.1.a.i. data loss prevention program, with appropriate policies and/or technological controls designed to prevent loss of Personal Data; and
2.1.a.ii. a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of Personal Data as well as security needs for back-up sites and alternate communication networks.
2.2. Physical Security Measures. The parties shall maintain appropriate physical security measures for any facility used to Process Personal Information and continually monitor any changes to the physical infrastructure, business, and known threats.
2.3. Technical Security Measures
2.3.a. Vulnerability scanning and assessments. The parties shall perform vulnerability scanning and assessments on new and key applications and infrastructure.
2.3.b. Access Control and Limiting Remote Access. The parties shall secure its computer networks using multiple layers of access controls to protect against unauthorized access.
2.3.b.i. The parties shall restrict access through mechanisms such as, but not limited to, management approvals, robust controls, logging, and monitoring access events and subsequent audits.
2.3.b.ii. The parties shall identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files.
2.3.c. Security Patches. The parties shall deploy all applicable and necessary system security patches to all software and systems that Process, store, or otherwise support the Agreement.
2.3.d. Virus/Malware Scanning. The parties shall use up-to-date, industry standard, commercial virus/malware scanning software that identifies malicious code on all of its systems that collect, use, disclose, store, retain or otherwise Process Personal Data.
*Uber B.V. and Uber Technologies, Inc are the data controllers of the personal data that Uber collects in connection with use of its services in the European Economic Area or the United Kingdom and Switzerland, and Uber Technologies, Inc. is the data controller for such data everywhere else (except where the data controller for employees is the local Uber entity in the country in which the employee resides). Where an entity other than these enters into this Agreement on behalf of Uber, it is authorized to do so by the aforementioned data controller(s).
TERMS AND CONDITIONS RELATED TO THE FULFILLMENT OF ORDERS FOR ALCOHOL ITEMS VIA UBER DIRECT
Representations and Warranties.
As it relates to Alcohol Items, you represent and warrant that you (a) shall comply with all laws and regulations related to the sale of Alcohol Items applicable to you, including without limitation, all laws and regulations related to the promotion, packaging, sale, taxation and delivery of Alcohol Items; and (b) you have and will continue to have during the Term all licenses, permits, or similar authorizations that may be required for you to sell Alcohol Items (“Required Licenses”), including without limitation, Required Licenses for the specific categories of Alcohol Items that you make available and/or Required Licenses to sell and deliver Alcohol Items in a given state or local jurisdiction.
Role of the Parties.
For the avoidance of doubt, (i) Uber is an unlicensed entity that facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties; and (ii) you are a licensed seller of alcoholic beverages that wishes to have orders for Alcohol Items fulfilled via Uber Direct. You are responsible for, will be clearly identified during, and shall control the sale of any orders for Alcohol Items, including any decisions regarding accepting, fulfilling, and rejecting orders for Alcohol Items.
Alcohol Laws and Requirements.
Upon Uber’s request, you shall provide Uber with copies of your Required Licenses. You agree to (i) promptly notify Uber of any change or modification to any of its Required Licenses (e.g., expiration, revocation, renewal, termination, etc.), and (ii) promptly provide Uber with any new or updated Required Licenses. You acknowledge that Portier may remove Alcohol Items from your menu on the Uber Eats App or suspend your account entirely if you fail to comply with your obligations herein.
Packaging and Labeling.
You will package Alcohol Items appropriately for delivery, including (i) any protection necessary to prevent tampering or damage due to any cause, including inclement weather or the nature of the Alcohol Items themselves; and (ii) any labeling required by law, including but not limited to a statement that the package contains alcohol and may only be delivered to a person twenty one (21) years or older with valid proof of age and identity.
Delivery Time and Location Restrictions.
You are responsible for complying with any state or local restrictions related to the time and location it may legally sell Alcohol Items, including any restrictions on locations where alcohol may be lawfully purchased and/or delivered. You agree that Uber may modify (i.e. reduce) the hours that you makes Alcohol Items available for delivery by Delivery People in accordance with operational considerations of Uber Direct (e.g., taking into account any time required for a Delivery Person to return an Alcohol Item to your original pick-up location as described below). You further agree that you will not accept any order involving the delivery of alcohol where any governing regulatory requirement prohibits delivery to the requested delivery destination.
You acknowledge and agree that (i) a Delivery Person may be required to return the Alcohol Item to your original pick-up location for the below reasons; and (ii) you shall accept the return of Alcohol Items in such cases.
Such Delivery Person is unable to deliver an Alcohol Item to your customer (the “Customer”) pursuant to applicable law;
The Customer is unable to accept an Alcohol Item pursuant to applicable law (e.g., such Customer is under 21 years of age); or
You failed to prepare and package an Alcohol Item in accordance with (i) applicable laws, rules, and regulations for the handling and labeling of Alcohol items, or (ii) the quality, portion, size, ingredient, or other criteria that applied to the Alcohol Item.
If a Delivery Person is unable to deliver an Alcohol Item(s) due to an act or omission of the Customer who purchased the Alcohol Item(s) from you, then you agree that the Customer may be charged a fee for the return (the “Return Fee”), the amount of which shall be determined according to the standard fares charged by Delivery People in the region. You agree that you have no right to the Return Fee and the Return Fee will be used to pay the Delivery Person for the return of the Alcohol Item.
You acknowledge and agree that each Delivery Person shall deliver Alcohol Items under and pursuant to your Required Licenses and, where required by applicable law, as your third-party beneficiary. You agree that Delivery People shall conduct the delivery and are therefore responsible for verifying the age and identity of Customers and confirming they are not intoxicated when completing delivery. Uber shall provide in-app screens and product tools for Delivery People to help verify a customer’s ID in accordance with applicable law. Where applicable or required by law, the in-app screen may enable the Delivery Person to capture a photo of the Customer’s ID and signature.
State Specific Provisions.
Without limiting any other term of these Alcohol Terms, you represent and warrant that, if applicable, you will comply with the following state laws and regulations:
Delivery Persons assigned to fulfill orders containing Alcohol Items will act as your agent in compliance with Va. Code Ann. § 4.1-212.1(c). Pursuant to 3 Va. Admin. Code 5-70-225(F), Merchayount will affix a notice in 16-point type or larger in a conspicuous location on the outside of each package of Alcohol Products to be delivered in Virginia that states: “CONTAINS ALCOHOLIC BEVERAGES; SIGNATURE OF PERSON AGED 21 YEARS OR OLDER REQUIRED FOR DELIVERY.” Such notice shall also contain your Delivery Permit number. Further, in accordance with Va. Code Ann. § 4.1-212.1(c), you shall be vicariously liable for any administrative violations of Va. Code Ann. § 4.1-212.1 or § 4.1-304 committed by a Delivery Person relating to any deliveries of Alcohol Items made on behalf of you.