These Terms of Service (the “Agreement”) are entered into between Greenpoint Transit LLC (“Via”), a wholly owned subsidiary of Via Transportation, Inc., and the entity placing an order (“Customer”). The “Effective Date” of this Agreement is the effective date of any order (“Order”).
1. Services.
Via will provide Customer access to a portal through which Customer may schedule pre-arranged and on-demand transportation using the Via-branded service to certain persons affiliated with Customer (the “Riders”). Via shall arrange the fulfillment of such rides in accordance with the Order and the relevant requests set forth in the portal. Prior to providing any personally identifying information to Via, Customer shall obtain Riders’ consent. Customer shall ensure that any provision of personally identifying information is in accordance with applicable federal, state and local privacy law.
Customer acknowledges that the use of the Via branded service by the Riders is subject to Via’s Terms of Service and Privacy Policy, as set forth on Via’s website and as modified by Via from time to time.
2. Fees.
Unless otherwise stated in the Order, all fees will be payable by Customer within fifteen (15) days of receipt of invoice from Via, regardless of whether or not Customer has received reimbursement for such fees from the Department of Education within the 15 day period. If Via does not receive timely payment, Via may charge the maximum monthly interest allowed by law or one percent, whichever is greater, suspend Via’s performance and seek cost of collection, including reasonable attorneys’ fees. If Customer disputes invoiced amounts, Customer must submit disputes to Via in writing within ten (10) business days of the date the invoice originally was due, otherwise it will be final and non-refundable.
3. License.
To the extent either party requires the use of the other’s marks in connection with the services provided hereunder, this Agreement shall be deemed to contain a grant of license to such party’s marks sufficient to allow full performance hereunder. In the event that a party uses the other party’s marks in a way that causes material reputational harm to such party’s brand, such party reserves the right to withdraw the license contained in this Section 3.
4. Term; Termination.
a. Term. This Agreement is in effect for the time period set forth in the Order, unless earlier terminated as set forth herein (the “Term”).
b. Termination. If an obligation under this Agreement or an Order is materially breached, the non-breaching party may provide written notice specifying the nature of the breach and the breaching party will have thirty (30) days from receipt of notice to cure. If not so cured, the non-breaching party may terminate the applicable Order or Orders affected by the breach by providing a second written notice of immediate termination.
In addition, all Orders shall terminate automatically and immediately upon either party’s insolvency or any attempt by either party to obtain protection from creditors or wind down operations, unless otherwise agreed by the opposing party in a written notice.
If an Order is terminated by either party or expires pursuant to its terms, then Customer must pay any outstanding amounts due to Via, and all copies and embodiments of Via’s Confidential Information must be returned. Unless an Agreement is terminated by Customer under this Section 4 as a result of Via’s uncured material breach, no expiration or termination of this Agreement will affect Customer’s obligation to pay for Via’s non-cancelable obligations to third parties on behalf of or benefitting Customer all of which will remain due and payable by Customer in accordance with the terms of the applicable Order. The notification by either party of its intent to terminate this Agreement and/or any Orders does not relieve either party of any obligations that have accrued on or before the date on which termination becomes effective.
5. Confidentiality.
Any information that is a trade secret, proprietary, confidential, marked as confidential or which should reasonably be known to be confidential based on the circumstances, is “Confidential Information”. The receiving Party of any Confidential Information will hold it in confidence with the same degree of care it uses for its own Confidential Information, and in no event less than reasonable care. The receiving Party will not use or disclose the disclosing Party’s Confidential Information to any other party at any time without the written consent of the disclosing Party. The receiving Party can disclose to its employees, service providers, legal and financial advisors, and individual independent contractors who are bound to confidentiality obligations substantially similar to this Section and need to know the Confidential Information disclosed. The receiving Party may disclose Confidential Information in a legal proceeding or to a government agency so long as it provides prior written notice of the proposed disclosure to allow for the reasonable opportunity for Via to contest or limit the disclosure or, if prior written notice is not permitted or practicable under the circumstances, prompt notice of such disclosure.
This Section does not apply to Confidential Information that (i) the Party can prove was already known to the Party at the time of its receipt; (ii) is or becomes generally available to the public without breaching this Agreement or any other relevant agreement; (iii) is independently obtained from a third party whose disclosure does not violate a duty of confidentiality; or (iv) the Party can prove was independently developed without use of any Confidential Information of the disclosing Party.
6. Warranties.
Via warrants: (i) that the Services will be carried out in a competent and professional manner in accordance with applicable law including New York City Taxi and Limousine Commission Black Car Base regulations and requirements; (ii) that it has all rights necessary to enter into this Agreement and to perform the Services in accordance with this Agreement; (iii) that it shall contract with drivers with suitable experience and skill to perform the Services and verify that at a minimum such driver (A) complies with applicable New York City Taxi and Limousine Commission Black Car Base regulations and requirements including having passed a criminal background check; (B) holds the appropriate licenses, permits and insurance for the Services and (C) has completed a Via onboarding session; and (iv) will maintain insurance customary for the delivery of the Services.
Customer warrants that it has all rights necessary to enter into this Agreement and to receive the Services in accordance with this Agreement
7. Indemnification.
a. Via’s Indemnification Obligations. Via will indemnify Customer for losses, including reasonable attorney’s fees, arising out of third party claims resulting from (i) Via’s breach of this Agreement; (ii) Via’s violation of the representations and warranties contained in this Agreement; (iii) any allegation that Customer’s use of Via’s marks as permitted herein infringes or misappropriates the intellectual property rights of a third party; (iv) Via’s violation of applicable law; and (v) any grossly negligent or willful misconduct of Via. For the avoidance of doubt, Via shall not be liable for any actions or omissions of any Rider or any guardian or chaperone of a Rider, including gross negligence, willful misconduct, or Customer’s failure to arrange for a guardian to accompany a Rider.
b. Customer’s Indemnification Obligations. Customer will indemnify Via for losses, including reasonable attorney’s fees, arising out of third party claims resulting from (i) Customer’s breach of this Agreement; (ii) Customer’s violation of the representations and warranties contained in this Agreement; (iii) any allegation that Via’s use of Customer’s marks as permitted herein infringes or misappropriates the intellectual property rights of a third party; (iv) Customer’s violation of applicable law; and (v) any grossly negligent or willful misconduct of Customer; and (vi) the actions or omissions, gross negligence or willful misconduct of a chaperone, guardian or Rider using the Via branded service in connection with this Agreement. Customer shall further indemnify Via for losses arising out of claims from chaperones, guardians and/or Riders in connection with data provided by Customer and any other claim related to Customer’s use of the Services.
c. Limitation of Liability. VIA’S TOTAL LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, TWO HUNDRED PERCENT (200%) OF THE TOTAL AMOUNT PAID BY CUSTOMER TO VIA UNDER THIS AGREEMENT.
d. Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND ARISING UNDER THIS AGREEMENT, OR IN THE COURSE OF PROVIDING ANY SERVICES TO THE OTHER PARTY, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT, OR OTHERWISE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. DISCLAIMER OF WARRANTIES.
OTHER THAN AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
9. Assignment.
Customer may not assign or transfer this Agreement and/or any Order unless Customer makes a request in writing in advance and Via consents in writing. Via may require Customer and the proposed assignee/transferee to agree to additional terms or pay additional fees. Via may provide the services through one or more of its affiliated entities.
10. Dispute Resolution; Governing Law.
The laws of the State of New York will govern this Agreement without regard to the principles of conflicts of laws. Except for either party’s right, in connection with any matter involving any Agreement, to seek equitable or declaratory relief in any court of competent jurisdiction, all disputes not resolved informally by the parties shall be submitted for arbitration before a panel of three (3) arbitrators selected one each by the parties and one by the American Arbitration Association (the “AAA”), at least one of whom shall be an expert in the field of cloud-deployed software solutions. The arbitration shall be conducted in accordance with the provisions contained herein and in accordance with the Commercial Arbitration Rules of the AAA in effect at the time of the arbitration. A written notice of intent to arbitrate shall be provided by one party to the other party within a reasonable time after the dispute has arisen, and in no event shall such notice be provided after the date when institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. All arbitration shall be administered by the AAA and shall take place in New York, New York unless otherwise agreed to by the parties. All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed. The award of the arbitrators shall be binding and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction; provided, however, that the arbitrators shall not have the power to award: (a) punitive damages; or (b) damages in excess of the limitations set forth in Section 10 hereof.
11. Miscellaneous.
Notices must be sent by certified mail, overnight courier or e-mail to the address specified for each party and, in the event of such notice being sent via certified mail or overnight courier, shall be deemed given three (3) business days after sending. The prevailing party in any dispute is entitled to the recovery of reasonable legal fees and expenses. Failures in performance beyond a party’s reasonable control are excused. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. Nothing in an Agreement is intended to create an agency, partnership, joint venture, or franchise between the parties and except as may be expressly stated in an Order, neither party has the authority to act in the name or on behalf of or otherwise to bind the other. In performing its obligations under this Agreement, each party is acting as an independent contractor of the other and is solely responsible for the supervision, daily direction, and control of its own employees and for the payment of their salaries and benefits and related compensation. Via may issue a press release or make other public announcements concerning this Agreement and/or Orders and may use Customer’s marks in its marketing materials and on its website in a manner consistent with Customer’s communications policies (to the extent made available to Via) but in all events reasonably. Customer shall, upon Via’s request, use commercially reasonable efforts to provide comments with respect to the collaboration hereunder that Via can quote in its press release. To the extent required by the licensors of any third party content Via may provide, such licensors are the express, intended third-party beneficiaries of this Agreement. Except as expressly set forth herein, there are no other third-party beneficiaries of this Agreement. The Customer agrees that Via is in the business of performing services similar to the Services it is providing Customer and that, subject to Via’s confidentiality obligations, nothing herein prevents Via from continuing to engage in the performance of such services and related independent activities.
12. Entire Agreement and Survival.
This Agreement and the Order are the entire agreement between the parties with respect to Services under them and cannot be modified except by written agreement between the parties. Conflicts between this Agreement and an Order with respect to fees will be resolved in favor of the Order. All other conflicts will be resolved in favor of this Agreement. Sections 2 through 8 and 10 shall each survive expiration or termination of this Agreement.