Updated November 1, 2019
These Mechmobil, Inc. Suppliers Terms (“Terms”) apply to the service relationship between Mechmobil, Inc., its subsidiaries and affiliates (collectively, “Mechmobil, Inc.” or “MECHMOBIL” “we”, “us” or “our”) and the Suppliers (“Suppliers”) signing the Mechmobil, Inc. services form (the “Services Form”), which is incorporated into these Terms. These Terms and the Services Form will be together referred to as the “Agreement.” The Agreement is entered into as of the date set forth on the Services Form (“Effective Date”). Capitalized terms not defined herein will have the meanings set forth in the Services Form. THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS SUPPLIERS LEGAL RIGHTS. PLEASE READ IT.
. MECHMOBIL will enable customers/Independent Business Partners to purchase Inventory & Parts from Suppliers via
(i) MECHMOBIL’s proprietary ordering, advertising, delivery logistics and billing system at Mechmobil.com and its associated web-based and mobile properties and apps, including Seamless (the “MECHMOBIL Platform”);
(ii) if selected on the Services Form, the Mechmobil, Inc. for Work platform (“MFW” and together with the MECHMOBIL Platform, the “MECHMOBIL System”), and
(iii) at MECHMOBIL’s sole option, at any properties partnered with MECHMOBIL (together with the MECHMOBIL System, the “Systems”). The foregoing does not apply to any Suppliers that signs a Services Form that does not include Marketing Services until such Suppliers elects to receive such Marketing Services
b . MARKETING SERVICES (IF SELECTED): MECHMOBIL will include Suppliers on the Systems as provided herein, and will enable the transmission of orders to Suppliers for pickup or delivery (the “Marketing Services”). The Marketing Services, together with the MECHMOBIL Service Providers and the POS Services (each as defined below), will be referred to herein as the “Services.”
c. INDEPENDENT BUSINESS PROVIDER (IBP) SERVICES (IF SELECTED): MECHMOBIL will connect Suppliers with Mechmobil`s service providers through MECHMOBIL’s proprietary logistics platform(s) (the “IBP Services”). MECHMOBIL will have the sole right to determine the particulars of the IBP Services, including, without limitation, the IBP fee, IBP area and availability. For clarity, MECHMOBIL does not itself provide delivery or logistics services; instead, MECHMOBIL provides a platform for Suppliers to connect with Mechmobil, Inc. service providers to transport orders to customers/Independent Business Partners and to receive information relating thereto. MECHMOBIL IBP are independent contractors who access MECHMOBIL’s proprietary technologies to provide on-demand business services and logistics services, and such independent contractors control the method and manner in which they deliver service request. Accordingly, MECHMOBIL will not be liable or responsible for any IBP or any errors or misrepresentations made by them.
d. POS SERVICES (IF SELECTED): POS SERVICES (IF SELECTED): Suppliers and MECHMOBIL will connect the MECHMOBIL System with SUPPLIERS point-of-sale (“POS”) system (the “POS Services”). Suppliers expressly permits MECHMOBIL to have access to, and will ensure MECHMOBIL is an authorized user on, its POS account, and MECHMOBIL will be permitted to use SUPPLIERS POS account and data included therein in order to provide the Services. MECHMOBIL disclaims any and all liability for the availability and operations of the POS Services, and all service requests in connection with the POS Services will be directed to the applicable POS provider (as identified on the Services Form) and not MECHMOBIL. Suppliers agrees that its use of any AB Application Programming Interfaces in connection with the POS Services is subject to Mechmobil, Inc. Suppliers POS API Terms as in effect.
e. . MECHMOBIL owns all right, title, and interest in and to the MECHMOBIL System and any content supplied by MECHMOBIL, and will have sole editorial control over the MECHMOBIL System, including the presentation of any content provided by Suppliers (“Suppliers Content”). Suppliers Content may include, without limitation, products and service list, photographs, trademarks and logos. For the term of the Agreement and for six (6) months thereafter, Suppliers hereby grants to MECHMOBIL a royalty-free, worldwide, sub-licensable, transferable, fully paid-up, irrevocable right and license to use the Suppliers Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Suppliers owns all right, title, and interest in and to the Suppliers Content, subject to the license granted to MECHMOBIL herein. MECHMOBIL may remove Suppliers Content on the Systems at any time if it believes, in its sole discretion, which such Suppliers Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems.
f. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, MECHMOBIL, INC. AND ALL MECHMOBIL`S PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER MECHMOBIL NOR ANY MECHMOBIL`s PARTNER WILL BE LIABLE TO SUPPLIERS FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR SUPPLIERS CONTENT. MECHMOBIL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUPPLIERS FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. MECHMOBIL’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF COMMISSIONS EARNED BY MECHMOBIL DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
a . Suppliers will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Suppliers will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, MECHMOBIL’s Confidential Information. Suppliers will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by MECHMOBIL, Suppliers will deliver to MECHMOBIL (or destroy at MECHMOBIL’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
“Customer Data” means
(i) any and all information about customers/Independent Business Partners generated or collected by MECHMOBIL or Suppliers through the Systems or Services, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and
(ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Suppliers acknowledges that all Customer Data is the sole and exclusive property of MECHMOBIL (or, as applicable, the MECHMOBIL Partner). Accordingly, Suppliers will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying SUPPLIERS obligations hereunder. Suppliers (and any other persons to whom Suppliers provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current industry best practices in order to protect, handle, and secure Customer Data. Suppliers will also be responsible for any breach of this provision by any third-party service provider engaged by Restaurant. Suppliers will notify MECHMOBIL in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with MECHMOBIL concerning any remedial measures and any disclosures to affected parties, in each case as requested by MECHMOBIL or required under applicable law.
d . . If Suppliers is a franchisee of a franchisor (“Franchisor”) that has negotiated a master agreement with MECHMOBIL (“Master Agreement”), Suppliers consents to the sharing of certain sales reporting data with Franchisor pursuant to the Master Agreement.
Suppliers represents, warrants and covenants:
(i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party;
(ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin;
(iii) the Suppliers Content will not infringe or otherwise violate the rights of any third party;
(iv) it will comply with all applicable retail sellers and service providers, including or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to service providers and other workers, if any);
(v) it will provide accurate tax rates and calculations to MECHMOBIL; and
(vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. In the event that Suppliers includes warranties and offer coverage in its product and services list on the Systems, Suppliers further represents and warrants that it maintains a valid and active coverages and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) Supplies of services and products (collectively, “Service & Warranty Information”). Suppliers will provide MECHMOBIL with a copy of the Business required Licenses and all renewals thereof, and will immediately notify MECHMOBIL if any Business License is not renewed or is revoked, cancelled or surrendered at any time during the Term.
f . Suppliers will indemnify and hold MECHMOBIL (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of SUPPLIERS activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) SUPPLIERS provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. MECHMOBIL will provide prompt notice to Suppliers of any potential claim subject to indemnification hereunder. Suppliers will assume the defense of the claim through counsel designated by it and reasonably acceptable to MECHMOBIL, provided that MECHMOBIL may use counsel of its choice at its own expense. Suppliers will not settle or compromise any claim or consent to the entry of any judgment without the written consent of MECHMOBIL, which will not be unreasonably withheld. MECHMOBIL will reasonably cooperate with Suppliers in the defense of the claim, at SUPPLIERS expense.
In consideration for SUPPLIERS access to the applicable Systems and Services, Suppliers will pay to MECHMOBIL the commissions and other fees set forth in the Services Form (collectively, the “Commissions”).
a. The Agreement may be cancelled by either party for any reason (or no reason) upon three (3) days’ prior written notice to the other party.
b. ONLY FOR MFW, IBP SERVICES OR POS SERVICES: If either party wishes to cancel
(i) placement on the MFW platform;
(ii) the IBP Services; and/or
(iii) the POS Services, in each case, while remaining on the other platform(s) and/or retaining the other Services, it may do so at any time upon three (3) days’ prior written notice to the other party. Notwithstanding anything to the contrary herein, in the event that only placement on the MFW platform, the IBP Services and/or the POS Services are cancelled, the Agreement will continue in full force and effect, except that: (A) “Services” will be redefined to refer only to the remaining Service(s), (B) “Commission” will be redefined to refer only to the Commission(s) applicable to the remaining Services, and (C) any obligations of MECHMOBIL with respect to the cancelled Service(s) will be of no further force and effect. Further, (I) any cancellation of IBP Services for MFW will result in SUPPLIERS removal from the MFW platform; and
(II) any cancellation of the POS Services may affect the Commission rates of the remaining Services.
Suppliers and MECHMOBIL agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in San Francisco, CA unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of
(i) upon delivery, or refusal of delivery, if personally delivered;
(ii) on the third business day after deposit with the United States Postal Service if sent by certified mail;
(iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and
(iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Suppliers will be sent to Suppliers at the address provided on the Services Form under “Contact Information,” or such other address provided by Suppliers and accepted by MECHMOBIL in writing. All notices to MECHMOBIL will be sent to the below, unless otherwise provided by MECHMOBIL:
75 Broadway Suite 202, San Francisco, CA 94111
Attn: Legal Department