TERMS OF USE

Courier Service Agreement

This Courier Service Agreement (“Agreement”) between Deliveries by Gabrielle (Service Provider), a company organized and existing in Ohio, and [Client Name] (Client) is in effect as of [DATE] and will commence upon delivery of goods or termination of said contract. Deliveries by Gabrielle (Service Provider) will make deliveries to any and all centers as per the approved distribution plan and instruction of [Client Name] (Client). Both parties will be responsible for the following terms and conditions,

Definitions

For purposes of this Agreement, the following terms shall have the following meanings:

“Services” means any and all services specified in the Statement of Work (as defined below).
“Deliverables” means any tangible property, including software media, delivered to Client under this Courier Service Agreement, as specified in the Statement of Work.
“Project” means the combination of Services and Deliverables to be provided under this Agreement.

Statement of Work

Service Provider shall perform and deliver the Project as set forth in the Statement of Work issued against and subject to the terms and conditions of this Agreement.

The work which the Service Provider shall perform shall be specified in the Statement of Work-attached hereto as Attachment A-which will be written under the terms and conditions of this Agreement. The Statement of Work shall specify (a) description of Services and Deliverables, (b) schedule for Deliverables, and (c) price and payment schedule.

Terms of Payment

PRICE. Projects will be performed on a firmly fixed price basis or a time and materials basis, as indicated in the applicable Statement of Work. Any additional or unscheduled Services or Deliverables to be provided by Service Provider outside of the Statement of Work must be mutually agreed upon in writing signed by both parties hereto referencing this Agreement.

TAXES. The Project Price does not include and Client is responsible for all taxes (except taxes on Service Provider’s income), tariffs, and any similar charges imposed upon or related to the Services or Deliverables or their delivery or use.

PAYMENT SCHEDULE. Client will receive invoices based upon the billing/payment schedule contained in the applicable Statement of Work. Invoices will contain a description of the Services and Deliverables provided. Invoices are due and payable within [NUMBER] days of Service Provider’s invoice date. Interest may be charged on all amounts unpaid after [NUMBER] days at the annual rate of 1-½ percent per month or the highest legal rate, whichever is lower. If any invoice is not paid when due, Service Provider may suspend provisions of Services and/or Deliverables without liability or penalty until the final resolution of the matter.

TITLE AND SECURITY INTEREST. Service Provider reserves a purchase money security interest in each Deliverable until payment of the Project Price is received. Client agrees to sign, upon request, any documents necessary to protect Service Provider’s security interest in all Deliverables.

Deliverables

Except for commercial off-the-shelf type products where the license for such products is contained in the applicable Statement of Work, Client shall have exclusive unlimited ownership rights to all Deliverables developed under this Agreement.

All of the foregoing shall be deemed to be work made for hire, except as hereafter specified, and belong to Client, with Client having the sole right to obtain, hold, and renew in its own name or for its own benefit, patents, copyrights, registrations or other appropriate protection.

Client acknowledges that Service Provider uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (Service Provider proprietary items) that are proprietary to Service Provider. It is agreed that these Service Provider proprietary items shall remain the sole and exclusive property of Service Provider.

Service Provider grants Client a perpetual, non-exclusive, paid-up license to use Service Provider proprietary items subject to the following:

Client may use Service Provider proprietary items solely in connection with the products purchased hereunder, for the purpose for which those products were originally purchased.
Client may not transfer, sell, or otherwise dispose of an any Service Provider proprietary items without the prior written consent of Service Provider.
This license gives no title or ownership rights in Service Provider proprietary items or related intellectual property to Client.
Client agrees to retain or reproduce on all copies of any Service Provider proprietary items all copyright notices and other proprietary legends and all trademarks or any third party.
Client will have no rights to assign or sell the license granted herein to other.
If Client orders any commercial off-the-shelf type products, a separate licensing agreement shall be negotiated and shall become part of the applicable Statement of Work.

Transporter Responsibility

Deliveries by Gabrielle (Service Provider) will be responsible for the following terms and conditions as follows:

Service Provider will transport Deliverables to all designated areas as provided by Client.
Service Provider will be responsible for all fuel and maintenance of vehicles deployed for the above transportation.
Service Provider will maintain insurance of all vehicles being deployed under this contract and upon request will furnish proof of such insurance to Client.
All transportation will commence within 24 hours of notification by Client or any personnel deemed qualified to deploy said transportation.
Service Provider will properly secure and cover all Deliverables being transported from any weather, road, or other hazardous conditions during the contract.
Service Provider will arrange for the security of all vehicles on transit as well as work with local officials to secure the overall security of all vehicles during transit.

Personnel

The transporter will provide as well as remain responsible for all personnel deemed necessary for the transport of Deliverables. All personnel will have criminal and state backgrounds conducted and will provide adequate licensing to work in the US.

Client Responsibility

Client will pay for any costs of transportation such as toll roads, turnpikes, or any unforeseen road fees.

Full payment for all Projects conducted will be subject to [Payment Terms].

Client will be responsible for all Deliverables prior to pick-up and upon delivery of Deliverables.

Client will be responsible for providing a bill of lading detailing all items being provided for transport.

Client will be responsible for inspecting Deliverables upon delivery, prior to accepting delivery.

Penalty Clause

Should delivery be delayed due to the Service Provider’s own misconduct or gross negligence, Service Provider will be granted 48 hours to complete delivery. If the Provider is unable to correct the issue within the allotted time the Client will reserve the right to charge the Service Provider for the delay at the rate of $10.00 per day for each day the Project is delayed after 48 hours. Furthermore, Client will reserve the right to hire another Provider to complete the delivery of any delayed shipments.

If Client’s acts or failure to act causes Service Provider to delay or suspend performance of Services, Service Provider and Client mutually agree to one of the following remedies:

Service Provider will use reasonable efforts to continue performance as practicable under the circumstances and Client will continue to make all scheduled payments;
Service Provider will re-assign personnel to extend Service Provider’s work schedule without liability, and Client will pay all additional costs if any.

Notwithstanding the above, Service Provider shall have the right to invoice Client for any work performed to date of suspension.

Termination of Agreement

TERMINATION OF PROJECT. Client reserves the right to terminate a Project in whole or in part, upon [NUMBER] days written notice to Service Provider. In the event the Project is terminated by Client prior to completion, Service Provider shall use its best efforts to conclude or transfer the Project, as directed by Client, as expeditiously as possible. Contractor shall not undertake further work, incur additional expenses, or enter into further commitments with regard to the Project after receiving such notice of termination from Client, except as mutually agreed upon by the parties. In the event of termination of a Project as described above, Service Provider shall be entitled to compensation as follows:

All payments due and owing under this Agreement at the time of Service Provider’s receipt of the written notice of termination for work completed and in progress;
Reimbursement for any non-cancelable services and commitments entered into by Service Provider, in connection with the Project being terminated, provided Service Provider provides Client with documentation of completion of work or expenses incurred.

Termination of the Project shall not affect either party’s obligations in connection with any other ongoing Projects and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.

Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within [NUMBER] days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately.

The right of either party to terminate this Courier Service Agreement, as herein provided, shall not be affected in any way by its waiver of, or failure to, any previous default.

Acceptance

The Deliverables, if any, shall be deemed accepted by Client upon completion of the following acceptance test:

Immediately upon receipt of said Deliverables, Client shall promptly perform testing of the Deliverables to confirm that the Deliverables perform in accordance with the documentation or other standards applicable thereto as set forth in the Statement of Work.
Client shall either promptly provide Service Provider with written acceptance of the Deliverables, or deliver to Service Provider a detailed written statement of nonconformities to be corrected prior ro Client’s acceptance of the Deliverables. Unless otherwise agreed to in writing by the parties, Service Provider will redeliver corrected Deliverables to Client within a reasonable amount of time after receipt of such statement of nonconformities.
Following redelivery of corrected Deliverables, a new acceptance test shall be immediately commenced by Client. Any such written statement of nonconformities shall provide sufficient detail to enable Service Provider to remedy the failure to conform to the Completion Criteria. If Client fails to provide a written acceptance or a written statement of nonconformities within five (5) days of initial receipt of said Deliverables or such other mutually acceptable period as defined in the applicable Statement of Work, or within five (5) days of redelivery of said corrected Deliverables or such other mutually acceptable period, the Deliverables shall be deemed immediately accepted by Client.

Warranties and Remedies

Service Provider warrants deliverable functionality substantially as defined in the Statement of Work for a period of [NUMBER] days following final delivery.

Service Provider warrants that with respect to any Deliverable assigned by Service Provider to Client that Service Provider has the right to transfer title to Client.

Service Provider further warrants that to its knowledge the Deliverables to not infringe any intellectual property right held by a third party.

Client’s sole and exclusive remedy and Service Provider’s only obligation for breach of the warrant hereunder will be, at Service Provider’s option, to correct any material errors in provision of Services or to replace or repair Deliverables which do not conform to the warranty. In order for Client to exercise this remedy, Client must give Service Provider written notice of such nonconformity within the warranty period, and Service Provider must determine that any nonconformity did not arise due to any cause specified below. Service Provider shall be given free and full access to Deliverables to make corrections, and Client shall promptly inform Service Provider of any changes in the location of Deliverables during the warranty period. If this remedy is adjusted to have failed of its essential purpose, Service Provider’s total liability will be to refund the price paid to Service Provider by Client for the nonconforming Deliverables. The remedy provided by Service Provider for breach of warranty does not include the following, which may be provided, at Service Provider’s sole option, at Service Provider’s then-current time and material rates:

Repair of damage to Deliverables caused by Client during unpacking.
Repair of damage caused by events beyond Service Provider’s reasonable control.
Repair of damage caused by Client’s improper installation, relocation, or rearrangement of Deliverables.

Except for the warranties stated in this Section, Service Provider DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST NON-INFRINGEMENT. Service Provider does not warrant that the operation of Deliverables which are software shall be uninterrupted or error-free; or that Deliverables will operate on any system, or with any software, other than the system with which the Service Provider tested such Deliverables. Service Provider does not warrant any third-party software development tools. Service Provider specifically does not warrant the accuracy of any technical or subject matter content of the courseware or software that is based upon information or direction provided by Client.

Limitation of Liability

The total liability of Service Provider to Client from any cause whatsoever, will be limited to the lesser of Client’s actual damages or the Project price paid to Service Provider for those Services and Deliverables in a Project that are the subject of the Client’s claim.

In no event will either party be liable for SPECIAL INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, including but not limited to loss of profits, revenues, data or power, damage to or loss of the use of products, damage to property, claims of third parties, including personal injury or death, suffered as a result of provision of Services or use of Deliveries.

TIME FOR CLAIMS. All claims against Service Provider must be brought within one (1) year after the cause of action arises and Client waives any statute of limitations which might apply by operation of law or otherwise.

Indemnification

Client shall defend, indemnify, and save Service Provider harmless, at Client’s own expense, against any action or suit brought for any loss, damage, expense, or liability that may result by reason of an infringement of any patent, trademark, copyright, or trade secret based upon the normal and intended use of the Deliverables furnished to Service Provider hereunder.

Should any of the Deliverables furnished to Service Provider hereunder become the subject of a claim of any infringement of a patent, trademark, copyright, or trade secret, Client shall, at its option and expense, deliver non-infringing material, modify the material so that it becomes non-infringing, or procure for Service Provider the right to continue using Client’s infringing material.

Client agrees to indemnify and hold Service Provider harmless against all claims, liabilities, demands, damages, or expenses (including attorneys’ fees and expenses) arising out of or in connection with Client’s use of the Deliverables.

Force Majeure

Any delays happening in the instance of “Force Majeure” where one or both of the contracting parties becomes unable to perform their obligations under the terms of this contract; then no party shall be held responsible for termination of contract. Client is then responsible for the calculation of payment at the rate per Project per mile up to the point where transportation was interrupted.

Confidentiality

Service Provider and Client acknowledge that during the course of the performance of a Project, information of a confidential nature may be disclosed between the parties. Such information, excluding the Deliverables and any other information incident to the Deliverables that a party could reasonably be expected to be provided to the other party as contemplated hereunder, shall be considered confidential information (“Confidential Information”).

Neither party has the right to disclose the Confidential Information of the other, in whole or in part, to any third party, and neither party will make us of the Confidential Information of the others for its own or a third party’s benefit or in any way use such Confidential Information other than for the purposes of performance of this Agreement without the prior written consent of the disclosing party.

Each party agrees to take all steps reasonable to protect the other’s Confidential Information from unauthorized use and/or disclosure. The parties agree not to copy in whole or in party, any Confidential Information nor modify the same in any way without prior written consent from the other party.

Neither party will be liable to the other for the disclosure of Confidential Information if, as shown by clear and convincing evidence, the Confidential Information: (a) is generally known to the public at the time of disclosure by the disclosing party; or (b) becomes generally known to the public through no fault of the receiving party; or (c) was lawfully in the possession of the receiving party prior to signing this Agreement; or (d) is subject to applicable United States laws or valid court order requiring disclosure of such Confidential Information.

Publicity

Service Provider may use Client’s name or mark and identify Client as a customer of Service Provider, on Service Provider’s website and/or marketing materials.

Service Provider may issue a press release, containing Client’s name, related to any award under this Agreement.

Neither party will use the other party’s name or marks, refer to or identify the other party for any other reason, except as established in this section, without such other party’s written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.

Subcontracting

Service Provider may, at its option, subcontract work under a Statement of Work but Service Provider’s use of subcontractors shall not affect its responsibilities under the applicable Statement of Work. Moreover, Service Provider shall be fully responsible for work done by its subcontractors within the scope of the applicable Statement of Work as it is for work done by its own employees.

Service Provider shall have written agreement(s) with its subcontractors that contain, at minimum, clauses that are the same as or comparable to the sections of this Agreement regarding ownership rights and confidentiality of Client’s materials.

General Provisions

This Courier Service Agreement shall be deemed to have been made, executed and delivered in the State of [state] and shall be construed in accordance with the laws of [state].

Any losses sustained during the transportation from point of loading to the final destination will be deducted against the transport invoice.

In the event that of theft from a vehicle by armed men, or any other person with firearms, the case will immediately be investigated in collaboration with local law enforcement. The Service Provider will not be held responsible for such as loss arising from armed attack until investigation is complete and case is closed.

This may be modified or extended by written agreement of both parties.

In the event of a disagreement arising out of this contract, the parties agree to Negotiate a settlement of this agreement, or failing to reach a settlement submit Disagreement to mediation prior to any case filings.

NOTICES. Notices to be given by either party under this Agreement shall be sent by certified mail, express overnight delivery, or telecopy to the attention of the other party at the addresses of the parties as first set forth above.

SEVERABILITY AND ASSIGNMENT. The invalidity or unenforceability, in whole or in part, of any provision in this Agreement shall not affect in any way the remainder of the provisions herein. This Agreement may not be assignmened by Client without Service Provider’s consent.

ENTIRE AGREEMENT. This Agreement, together with any other materials referenced in or expressly made a part of the Agreement, constitutes the final and entire Agreement between Service Provider and Client and supersedes all prior and contemporary agreements, oral or written.

COUNTERPARTS. The Parties hereto agree that facsimile signatures shall be effective as if originals. This Agreement may be executed via facsimile in any number of counterparts, all of which taken together shall constitute one and the same agreement.

By affixing their respective signatures below, the Parties hereby agree to enter into, enforce, and uphold the entirety of this Courier Services Agreement for the agreed term.