Via Mobility LLC’s parent company, Via Transportation, Inc., has developed the Via for Business platform (the “Via for Business Platform”) to enable entities using such platform (each such entity, “Company”) to offer Via rides on the Via-branded service (which may be operated by one of Via’s affiliates) to their employees, contractors, or other individuals designated by Company through uploading their information into the Via for Business Platform (collectively “Customers”). The Via for Business Platform may (1) allow Customers to create a business profile in the Via app to expense Via rides to Company (“Via Business Rides”), and to allow Company to update Customer information and access certain information with respect to Via Business Rides through a dedicated portal, and/or (2) allow Company to provide Via rides to Customers through a dispatching tool (“Dispatched Rides”). Via Mobility LLC or the applicable affiliate of Via identified in an Order (“Via”) and Company are together referred to as the “Parties”.
1. Access to Via for Business Platform
Via may provide Company with access to elements of the Via for Business Platform (as described in an Order), and a right to use and access to such platform may be provided to Company solely subject to these Terms.
2. Company Obligations
Company shall compensate Via for all Covered Rides, at retail price or any other price specified in the applicable Order, including applicable toll, tips, taxes, and including any applicable cancelation or no-show fees. “Covered Rides” means, collectively, (1) Via Business Rides booked by individuals through their business profile on the Via mobile application, as determined by the Via system and/or (2) Dispatched Rides booked through the Company’s Dispatcher account. Company shall pay to Via the administrative fee and any other fees set forth in the applicable Order. If Company provides credit card information for purposes of the payments described in this Section 2.a, Company hereby consents to Via charging such card in accordance herewith. Fees stated are exclusive of applicable taxes (including sales, use, value-added, or excise taxes) or government charges, all of which are payable by Company (excluding taxes on Via’s income), nor do they include expenses Via may incur for Company’s direct benefit, which will be incurred in accordance with Company’s applicable expense-reimbursement policies, if so requested. 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 Company disputes invoiced or charged amounts, Company must submit disputes to Via in writing within ten (10) business days of the date the invoice originally was due, or the credit card was charged, otherwise it will be final and non-refundable.
Company shall market the Via for Business Platform to Customers in the manner mutually agreed by the Parties in an Order or otherwise. All copy must be approved by Via in advance.
C. Reporting; Data Protection
i. Via Business Rides. It is Company’s responsibility to maintain and update at all times a current list of authorized Customers affiliated with Company on the portal that is part of the Via for Business Platform. Company shall obtain Customers’ consent to the sharing of their names, contact information, and any information relating to their rides under the Via for Business platform (including location data), and any other personally identifiable information as may be necessary for the provision of Via’s services. Company shall obtain such consent in accordance with applicable data protection laws prior to the launch of the Via for Business service for Company or prior to Company providing such information to Via, whichever occurs earliest. Company shall be responsible for the payment of Via for Business Rides booked by individuals identified by Company as Customers until one business day after Company has removed such individuals from the Customers list in the portal.”
ii. Dispatched Rides. Company shall obtain Customers’ consent to share their names, contact information, and any information relating to their rides under the Via for Business platform (including location data), and any other personally identifiable information as may be necessary for the provision of the services requested by Customer. Company shall obtain such consent in accordance with applicable data protection laws, prior to providing such information to Via in order to allow Via to text and/or email Customers with the information they need to access Dispatched Rides and to provide the services requested by Company.
3. Trademarks and Intellectual Property
A. Via License
Via hereby grants to Company a revocable, time-limited, royalty-free, non-exclusive, non-transferable, non-sublicensable right and license to use all names, marks, and logos associated with Via (collectively, the “Via Marks”), solely in furtherance of Company’s obligations under this Agreement. Via warrants that it has (or has obtained from all appropriate rights holders) all necessary rights and authority to grant the license granted by it hereunder. Company hereby covenants and agrees that the Via Marks shall remain the sole and exclusive property of Via, and that Company shall not hold itself out as having any ownership rights with respect thereto. Any and all goodwill associated with the Via Marks shall inure directly to the benefit of Via. Company’s use of Via Marks must conform to Via’s usage guidelines and instructions as Via may provide or update from time to time (and in no event shall the color, style, appearance, or relative dimensions of the Via Marks be altered or changed in any way unless explicitly approved by Via in writing). Upon termination or expiration of this Agreement for any reason, Company shall immediately discontinue all use of the Via Marks.
B. Company License
Company hereby grants to Via a revocable, time-limited, royalty-free, non-exclusive, non-transferable, non-sublicensable right and license to use all names, marks, and logos associated with Company (collectively, the “Company Marks”), solely (1) in furtherance of Via’s obligations under this Agreement or (2) for the purpose of mentioning the existence of this Agreement in marketing materials. Company warrants that it has (or has obtained from all appropriate rights holders) all necessary rights and authority to grant the license granted by it hereunder. Via hereby covenants and agrees that the Company Marks shall remain the sole and exclusive property of Company and that Via shall not hold itself out as having any ownership rights with respect thereto. Any and all goodwill associated with the Company Marks shall inure directly to the benefit of Company. Via’s use of Company Marks must conform to Company’s usage guidelines and instructions as Company may provide or update from time to time (and in no event shall the color, style, appearance, or relative dimensions of the Company Marks be altered or changed in any way unless explicitly approved by Company in writing).
C. Intellectual Property
The Parties acknowledge that each Party retains all ownership right, title, and interest in and to their respective intellectual property and materials and all associated intellectual property rights therein. No Party acquires any interest under this Agreement to any Party’s intellectual property or materials, other than the license rights expressly granted herein. For the avoidance of doubt, all intellectual property rights in and to the Via for Business Platform and all of its derivative works and improvements are owned by Via.
Any ideas, suggestions, guidance or other information disclosed by Company related to the Via for Business Platform and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback.” Company agrees to grant and hereby grants to Via a nonexclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction.
A. Termination Triggers
This Agreement may be terminated by either Party:
i. Convenience. Company acknowledges that Via may discontinue or suspend the use of the Via for Business Platform at any time with immediate effect. Following written notice, it may take up to five business days for Via to effect the termination and remove Customers’ access to Covered Rides.
ii. Breach. Immediately upon written notice to the other Party in the event of a material breach by the other Party of any term or condition of this Agreement that remains uncured fourteen (14) days after receipt by the breaching Party of written notice thereof from the non-breaching Party. Termination by either Party for breach shall be in addition to any other remedies the non-breaching Party may have for such breach.
iii. Insolvency. Immediately upon written notice to the other Party upon: (I) the other Party becoming insolvent; (II) the other Party’s initiation of any proceeding under Federal bankruptcy or state insolvency law regarding its own bankruptcy, reorganization, or insolvency; (III) the initiation of any proceeding under Federal bankruptcy or state insolvency laws against the other Party; (IV) the appointment of a receiver or a similar officer for the other Party or for a substantial part of the other Party’s property; or (V) the other Party making an assignment for the benefit of creditors or otherwise being reorganized for the benefit of creditors.
B. Effects of Termination. Upon termination or expiration of this Agreement, all rights, obligations, and licenses of the Parties hereunder shall immediately cease and each Party shall promptly return to the other Party or, if so directed by the other Party, destroy, all originals and copies of any Confidential Information (as defined below) and all information, records and materials developed therefrom. Notwithstanding the foregoing, the provisions of Section 2(a) (with respect to Covered Rides booked up to five business days after the effective date of the termination), the provisions of Sections 3(c), 4, 5, 6, 7, 8, 9, 10 and any remedies for breach of this Agreement, shall survive any termination or expiration of the Agreement.
For purposes of this Section 5, “Confidential Information” means (a) any information disclosed (directly or indirectly) by either Party (“Discloser”) to the other (“Recipient”) in connection with the discussion or the performance of this Agreement that is in written, graphic, machine readable or other tangible form objects (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, hardware configuration information, marketing and finance documents, prototypes, samples, data sets, and Company’s plant and equipment); (b) oral information disclosed (directly or indirectly) by Discloser to Recipient pursuant to this Agreement; and (c) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information may include information of a third party that is in the possession of Discloser and is disclosed to Recipient under this Agreement. Confidential Information also includes the terms of this Agreement.
Confidential Information shall not, however, include any information that (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by Discloser to Recipient through no wrongful action or inaction of Recipient; (iii) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by Recipient from a third party without an accompanying duty of confidentiality without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
C. Compelled Disclosure
If Recipient becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Recipient will provide Discloser prompt written notice, if legally permissible, and will use its best efforts to assist Discloser in seeking a protective order or another appropriate remedy. If Discloser waives Recipient’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, Recipient will furnish only that portion of the Confidential Information that is legally required to be disclosed, provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
D. Nonuse and Nondisclosure
Recipient shall not use any Confidential Information of Discloser for any purpose except to evaluate and engage in discussions concerning the Opportunity. Recipient shall not disclose any Confidential Information of Discloser to third parties or to Recipient’s employees, except that, subject to subsection e. below, Recipient may disclose Discloser’s Confidential Information to those employees of Recipient who are required to have the information in order to evaluate or engage in discussions concerning the Opportunity. Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Discloser’s Confidential Information and that are provided to Recipient under this Agreement. Company shall not file any patent application(s) containing or based, in whole or in part, on any of Via’s Confidential Information and/or relating to the Via service or technology.
E. Maintenance of Confidentiality
Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing, Recipient shall take at least those measures that it employs to protect its own confidential information of a similar nature and shall ensure that its employees who have access to Confidential Information of Discloser have signed a nonuse and nondisclosure agreement in content at least as protective of Discloser’s Confidential Information as the provisions of this Agreement, prior to any disclosure of Confidential Information to such employees. The Recipient shall not make any copies of the Confidential Information of Discloser unless the same are previously approved in writing by Discloser. The Recipient shall reproduce Discloser’s proprietary rights notices on any such authorized copies in the same manner in which such notices were set forth in or on the original. The Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.
6. Representations and Warranties
Each Party represents and warrants to the other that it has the necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. Each Party shall comply with all applicable laws in its performance of this Agreement, including (without limitation) applicable privacy laws.
A. Indemnification by Company
Company agrees to defend, indemnify, and hold harmless Via and its directors, officers, employees, subcontractors, and agents from and against all third party claims, suits, causes of action, damages, costs (including reasonable and documented attorneys’ fees), judgments, and other expenses arising out of or related to (i) Company’s breach of this Agreement; (ii) Company’s violation of the representations and warranties in Section 6; (iii) any allegation that Via’s use of the Company Marks or intellectual property as permitted herein infringes or misappropriates the intellectual property rights of a third party, including without limitation patent, copyright, trademark, or other proprietary or intellectual property rights of such third party; (iv) Company’s violation of applicable law; and (v) any grossly negligent or willful misconduct of Company which results in: (A) any bodily injury, sickness, disease, or death or (B) any injury or destruction to tangible or intangible property or any loss of use resulting therefrom.
B. Indemnification by Via
Via agrees to defend, indemnify, and hold harmless Company and its directors, officers, employees, subcontractors, and agents from and against all third party claims, suits, causes of action, damages, costs (including reasonable and documented attorneys’ fees), judgments, and other expenses arising out of or related to (i) Via’s breach of this Agreement; (ii) Via’s violation of the representations and warranties in Section 6; (iii) any allegation that Company’s use of the Via Marks or intellectual property as permitted herein infringes or misappropriates the intellectual property rights of a third party, including without limitation patent, copyright, trademark, or other proprietary or intellectual property rights of such third party; (iv) Via’s violation of applicable law; and (v) any grossly negligent or willful misconduct of Via which results in: (A) any bodily injury, sickness, disease, or death or (B) any injury or destruction to tangible or intangible property or any loss of use resulting therefrom.
C. Indemnification Procedure
A Party’s obligation to indemnify the other under this Section 7 is subject to the indemnified Party notifying the indemnifying Party promptly in writing of any claim as to which indemnification shall be sought and providing the indemnifying Party reasonable cooperation in the defense and settlement thereof. In each case the indemnifying Party shall have the exclusive right to defend any such claim, and the indemnifying Party may not settle or compromise such claim without the prior written consent of the indemnified Party. An indemnified Party may, at its sole cost and expense, participate in the defense of a claim with counsel of its own choosing.
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 (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
9. NO CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, COSTS OF COVER, LOST PROFITS OR LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE RESULTS OF ANY SERVICES) ARISING UNDER THIS AGREEMENT, OR IN THE COURSE OF IT PROVIDING ANY SERVICES TO THE OTHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT, OR OTHERWISE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH A PAYMENT, INDEMNIFICATION, OR CONFIDENTIALITY OBLIGATION HEREUNDER, THE AGGREGATE AMOUNT OF ANY LIABILITY OF ONE PARTY TO THE OTHER FOR ANY CLAIM(S) ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE LIMITED TO DIRECT PROVABLE DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, THE TOTAL AMOUNT PAID BY COMPANY TO VIA UNDER THIS AGREEMENT. ANY LIABILITY OF ONE PARTY TO THE OTHER IN CONNECTION WITH AN INDEMNIFICATION OBLIGATION HEREUNDER SHALL BE LIMITED TO DIRECT PROVABLE DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, TWO HUNDRED PERCENT (200%) OF THE TOTAL AMOUNT PAID BY COMPANY TO VIA UNDER THIS AGREEMENT.
A. Via Terms of Service
B. Independent Contractors
The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to constitute the Parties as partners, joint venturers, or co-owners.
Neither Party shall announce this Agreement without the other Party’s prior written consent as to the content of such announcement; provided that Via may mention the existence of this Agreement in future marketing materials subject to complying with the guidelines referenced in Section 3.b, if any.
D. Choice of Law; Venue
The laws of the state of New York shall govern this Agreement without regard to is conflict of laws principles, and any claim or controversy arising out of related to this Agreement shall exclusively be decided by the federal and state courts located in New York County, New York, to which jurisdictions both Parties hereby irrevocably submit.
E. Entire Agreement
This Agreement (including the Order signed by the Parties) is the complete and exclusive statement between the Parties relating to the subject matter hereof, and supersede all prior understandings, communications, or representations, either oral or written, between the Parties. In the event of a conflict between the provisions of this Agreement and the provisions of an Order, the provisions of such Order will prevail.
These Terms may be amended by Via at any time by modifying the terms set forth at the URL referenced in an Order; provided that Via shall notify Company of any such amendment that materially affects Company’s rights. Company’s continued use of the Via for Business Platform shall constitute acceptance of the amended terms.
No waiver of any provision of this Agreement shall be effective unless in writing signed by both Parties. The failure to exercise any remedy available to either Party shall not be deemed to be a waiver of any rights or remedies of either Party under this Agreement or at law or in equity.
This Agreement may not be assigned unless agreed to by both Parties in writing; provided that Via may assign this Agreement to any of its subsidiaries by providing notice to Company.
All monetary sums discussed in an Order shall be denominated in United States Dollars, unless otherwise specified.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
K. Cumulative Rights
Unless expressly stated to the contrary elsewhere in this Agreement, all rights, powers, and privileges conferred hereunder upon the Parties hereto shall be cumulative and not restrictive of those given by law.
L. Force Majeure
Neither Party shall be held in breach of this Agreement because of acts or omissions caused by any act of God or other cause beyond the control of the Parties, including, but not limited to, fire, floods, war, labor disputes, or other unforeseen circumstances.
M. Advice of Counsel; Construction
Each Party acknowledges that, in executing this Agreement, such Party has had the opportunity to seek the advice of independent legal counsel, and has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any Party by reason of the drafting or preparation hereof.
N. Titles and Subtitles
The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
O. Electronic Signatures
Any signature page delivered electronically (including, without limitation, transmission by .pdf) shall be binding to the same extent as an original signature page, with regard to any Order subject to the terms hereof or any amendment thereto. Any Party who delivers such a signature page agrees to later deliver an original counterpart to the other Party if so requested.