Background. Pursuant to these terms of service, Quadient, Inc. (“Quadient,” “our,” “us,” or “we”) hereby offers a smart phone application (the “App”) for your use through which you can gain access to our designated parcel lockers to facilitate the delivery of goods or other tangible materials (“Delivery”) in connection with your commercial transactions with your end consumers.
Acceptance. The Terms of Service stated herein, which shall be deemed to include any policies, guidelines or document referenced herein (collectively, this “Agreement”) constitute a legal agreement between you and Quadient and govern your use of the App.
By checking a box or clicking to accept this Agreement and installing the App, you agree, effective as of such date (the “Effective Date”) to be bound by this Agreement. You are only authorized to use the App if you agree to abide by all applicable laws and the terms of this Agreement. Please read this Agreement carefully and save a copy. If you do not agree with it, you should not install the App and should discontinue use of the App immediately. This Agreement will govern any upgrades provided by Quadient that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
IMPORTANT: PLEASE CAREFULLY READ THE ARBITRATION CLAUSE IN SECTION 14. IT REQUIRES YOU TO WAIVE YOUR RIGHT TO A JURY TRIAL AND TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH ARBITRATION (AND NOT AS A MEMBER OF A CLASS). BY ACCEPTING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THEIR CONSEQUENCES.
1. License. Subject to the terms and conditions hereof, you are granted a limited, non-exclusive, revocable and nontransferable license to download, install and use the App on a smart phone, tablet or other mobile device that you own or control and to personally utilize the App for its intended purpose. The App is licensed, not sold, to you.
2. Representations About You. You represent and warrant that: (a) you are eighteen (18) years of age or older, (b) the information that you provide through the App will be current, true, accurate, supportable and complete, (c) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, (d) you are not listed on any U.S. Government list of prohibited or restricted parties, (e) you have the right to share your end consumers’ name, email and phone number with Quadient, and (f) you have obtained all legally required consents to enable Quadient to send email and/or SMS notifications to your end consumers to alert them regarding a Delivery that is ready for them to pickup.
3. Your Promises. You agree that you will (a) as a condition to using the App to complete a Delivery, link your account with a valid credit or debit card or other authorized payment method that belongs to you (“Payment Method”), (b) pay for each Delivery that you complete through the App, (c) not place any Prohibited Goods (as defined and detailed in the attached Exhibit A), and (d) comply with all applicable law at all times. You agree to keep your Payment Method information current at all times while using the App (such as your card number and expiration date). If Quadient has previously removed you as a user or terminated your account, you are not eligible to use the App.
4. Payment. The App will display any fee for each Delivery. You hereby authorize Quadient, or its third-party payment processor, to charge your Payment Method on file for the fees associated with each Delivery completed through the App. Fees paid by you are final and non-refundable.
5. Restrictions. You may not: (a) rent, lease, lend, sell, redistribute, reproduce or sublicense access to the App, (b) copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, or any part of the App, or (c) use the account, username, or password of another user at any time, allow any other person to use your account or provide your passwords to any other person or entity. You may not exploit the App in any unauthorized or unlawful way. You will not assert, nor will you authorize, assist, or encourage any third party to assert, any intellectual property infringement claim regarding the App. If the above restrictions are prohibited by applicable law or by one of our license(s), then the activities are permitted only to the extent necessary to comply with the law or licenses. Any attempt to do any of the foregoing activities is a violation of the rights of Quadient. If you breach any of these restrictions, you may be subject to prosecution and damages. You may not use the App for any use other than its intended use.
6. Communications. Quadient may need to communicate with you about your use of the App. AS SUCH, YOU CONSENT TO RECEIVE MESSAGES (WHETHER BY PHONE, EMAIL, TEXT MESSAGES OR PUSH NOTIFICATIONS WITHIN THE APP), AND ACKNOWLEDGE AND AGREE THAT YOUR PHONE NUMBER, EMAIL ADDRESS AND OTHER INFORMATION MAY BE USED BY US FOR SUCH PURPOSE. You may opt out of receiving some of these messages, but in order to stop receiving any and all messages from us whatsoever (including administrative messages regarding the App or messages that are primarily about transactions enabled via the App), you will need to delete the App.
7. Reservation of Rights. Quadient reserves all rights in and to the App and all related intellectual property rights not expressly granted under this Agreement. “Quadient,” “Parcel Pending by Quadient” and all associated logos displayed within the App are trademarks of Quadient, Inc. and/or its affiliates. If you submit comments, suggestions, or other feedback regarding the App (“Feedback”), you agree that Quadient will own such Feedback and will be free to use such Feedback for any purpose, and hereby assign it to Quadient. Neither this Agreement nor your use of the App will convey or grant to you any rights: (a) in or related to the App except for the limited rights and license granted above; or (b) to use or reference in any manner the names, logos, products, trademarks or services marks of Quadient or its affiliates regardless of whether such names, logos, products trademarks or services are displayed within or referenced in connection with the App.
8. Acceptable Use. In addition to the other restrictions outlined in these Terms of Service, you agree that you will not:
• Use the App for any purpose that is illegal, beyond the scope of its intended use, or otherwise prohibited by these Terms of Service;
• Use the App in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the App, or that could damage, disable, overburden, or impair the functioning of the App in any manner;
• Compromise the security of the App;
• Send any unsolicited or unauthorized advertising, spam, solicitations, or promotional materials via the App;
• Use any robot, spider, crawler, scraper, or other automated means or interface not provided by us to access the App or to extract data;
• Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
• Violate the publicity, privacy, or data-protection rights of others;
• Infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party; or
• Use the App for any illegal or unauthorized purpose or engage in, encourage, or promote any activity that violates these Terms of Service.
9. Termination and Suspension. This Agreement is effective until terminated by you, which may be effectuated by you deleting the App, or Quadient. Your rights hereunder will terminate automatically upon notice from Quadient if you fail to comply with any term(s) of this Agreement. Upon termination, you shall cease all use of the App and destroy all copies, full or partial, of the App. Quadient may also impose limits on your use of or access to the App, in any case and without notice or liability. Without limiting other available remedies, Quadient reserves the right to suspend or disable your access to the App at any time and for any reason or for no reason, including, but not limited to, if Quadient determines (in its discretion) that: (a) you are in violation of this Agreement, or (b) your use of the App disrupts, harms, or poses a security risk, or may cause harm. Sections 4 (as to amounts owed as of termination), 5, 7-9, 11-17 and 19-21 shall survive any termination or expiration.
10. Limitations on Availability. The App is not available at all times, in all languages or in all geographies. Quadient makes no representation that the App will achieve any particular uptime, or that the App is appropriate or available for use in any particular location. You use the App at your own initiative and are responsible for compliance with any applicable laws in connection with your use of the App. Quadient may also impose limits on your use of or access to the App as required by law.
11. Acknowledgements Regarding App Marketplace Terms. You understand that this Agreement is between you and Quadient and not an agreement with Apple, Inc. (“Apple”), Google Inc. (“Google”) or any other provider of a mobile application marketplace (“Marketplace Providers”). YOU ACKNOWLEDGE AND AGREE THAT NO OTHER PERSON OR ENTITY MAKES ANY WARRANTIES WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APP. You acknowledge that Marketplace Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the App or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
12. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME ARE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. QUADIENT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. QUADIENT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED THEREIN OR THE TRANSACTIONS YOU UNDERTAKE THROUGH THE SAME WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THROUGH THE APP SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
13. Limitation of Liability. WITH RESPECT TO THIS AGREEMENT WITH YOU, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL QUADIENT BE LIABLE FOR: (A) ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, (B) ANY LIABILITY, DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER ARISING, INCLUDING NEGLIGENCE, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), (C) ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR INTERACTIONS WITH THIRD PARTIES OR ANY TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE APP OR (D) ANY DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND QUADIENT’S REASONABLE CONTROL. TO THE EXTENT ANY LIABILITY IS NOT DISCLAIMED BY QUADIENT UNDER THIS AGREEMENT, IN NO EVENT SHALL QUADIENT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE LESSER OF: (I) THE TOTAL AMOUNT OF DELIVERY FEES PROCESSED BY YOU THROUGH THE APP IN THE SIX (6) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (II) $100.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF QUADIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IN SUCH JURISDICTIONS, QUADIENT’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. Dispute Resolution, Binding Arbitration and Class Action Waiver
Except where prohibited by applicable law, you and Quadient agree to resolve all “Disputes” arising out of or relating to this Agreement by binding, individual (non-class, non-consolidated, and non-multiple claimants) arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”). Arbitration is an alternative dispute resolution procedure that allows us to resolve issues without going to court. Any dispute between you and Quadient will be submitted to a neutral arbitrator (not a judge or jury) for fair and fast resolution. The right to appeal from an arbitrator’s decision is very limited. The AAA Rules, including instructions for how to initiate arbitration, are currently available at https://adr.org and https://adr.org/sites/default/files/Consumer%20Rules.pdf. If these links do not bring you to the AAA Rules, you should use a search engine (such as Google) to search for “American Arbitration Association Consumer Arbitration Rules”.
“Dispute” means any dispute, claim, or controversy for which you or Quadient seeks legal recourse against or involving the other, including the validity, enforceability, applicability, scope, or meaning of this agreement to arbitrate or any portion of it, and including claims that arose before this or any prior agreement or that arise after the termination of this Agreement. The term “Dispute” will be given the broadest possible meaning permitted by law. The involvement of a third party which or who is not a party to this agreement to arbitration shall not affect, prevent, or destroy your or Quadient’s right to have Disputes arbitrated pursuant to this Agreement.
Only the following Disputes are exempt and excepted from the arbitration requirement: (1) complaints you wish to make to a government agency; (2) small claims court actions; (3) claims related to intellectual property infringement; (4) claims related to the enforceability of the requirement that arbitrations must be conducted on an individual basis only; (5) actions to compel arbitration or to uphold or enforce any prior arbitration decision, and (6) all Disputes and claims related thereto that are not subject to arbitration pursuant to these Terms and which are not included in the preceding subparagraphs (1) through (5) which shall be settled in accordance with decision of the referee rendered as provided for in Part 1, Title 8, Chapter 6, § 638(a) of the California Code of Civil Procedure, or any successor California statute governing resolution of disputes by a court-appointed referee without a jury. Further, you or Quadient may seek an injunction in court on an individual (non-class) basis to preserve the status quo between us for the entire period until we resolve the Dispute in arbitration.
A. Arbitration Procedure and Location
For matters which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required, and you reside in the United States, the hearing will take place in New Haven County, Connecticut, unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you and Quadient are unable to agree on a location, the neutral arbitrator shall determine the location.
The time by which an arbitration shall be commenced shall be determined by reference to the applicable statute(s) of limitations, including the applicable rules governing the commencement of the limitations period, and a claim in arbitration is time-barred to the same extent it would be barred if it were asserted in court of law or equity rather than in arbitration. Nothing in the foregoing shall, however, preclude a party from defending a claim based on the failure to commence an arbitration based on laches, equitable estoppel, or other equitable defenses.
B. Consumer Arbitration Fees and Costs
If you initiate an arbitration against us, you must pay the AAA filing fee required for consumer arbitrations in an amount no greater than the fee you would have to pay if you filed a complaint in federal court. Quadient will pay any remaining costs or arbitration required by the AAA Rules. However, if the arbitrator determines your claims are frivolous, you shall bear all arbitration costs. If Quadient initiates arbitration against you, Quadient will pay the AAA filing fee and arbitration costs.
Each party will pay his/her/its own attorney’s fees, as well as costs relating to proof and witnesses, regardless of who prevails, unless applicable law and/or the AAA Rules gives a party the right to recover any of those fees from the other party. An award will be enforceable under the Federal Arbitration Act by any court having jurisdiction.
C. Class Action Waiver
Without limiting the foregoing, You agree that to the fullest extent permitted by law: (1) no claims by you shall be joined with any other and you agree not to participate in any claim brought by others; (2) YOU HAVE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE LITIGATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; and (3) you have no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. You agree that any dispute between you and Quadient arising out of or relating to this Agreement will be decided only by arbitration, individually and not on a class-wide basis. You knowingly waive any right to participate in any form of "class," "joint" or "representative" litigation (including in any "private attorney general capacity") against Quadient.
D. Severability
If all or any provision of this Section 14 or part thereof is found invalid, unenforceable, or illegal, then you and Quadient agree that the provision or part will be deemed severed, and the rest of these Terms shall remain in effect and be construed as if any severed provision or part had not been included. The sole exception is that if the prohibition on class arbitrations is found invalid, unenforceable, or illegal, you and Quadient agree that this entire agreement to arbitrate will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of law clauses specified herein.
E. 30-Day Right to Opt Out
You have the right to opt out of and not to be bound by the binding, individual arbitration provisions set forth in these Terms. To exercise this right, you must send written notice of your decision to Quadient at 210 Progress, Suite 100, Irvine, CA 92618. Your notice must include your name, mailing address, and email address associated with your account with us, and state that you do not wish to be bound by the Binding Individual Arbitration provisions set forth in these Terms. TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW; OTHERWISE YOU WILL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THIS SECTION. You are responsible for ensuring that we receive your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these provisions, we will not be bound by them with respect to Disputes with you.
F. Survival of Arbitration Provision
Except as provided in Section E if you opt-out, this Section 14 shall specifically survive any termination or expiration of this Agreement or your account with Quadient.
15. Compliance with Law, Export and Other Restrictions. To the extent you choose to use the App, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. The App and On-Demand and related documentation are “Commercial Items” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
16. Modifications. Quadient may modify the terms of this Agreement from time to time, including, but not limited to, the attached Privacy Policy. Any modification shall be effective when Quadient notifies you of the modification (via an email or update delivered through the App) and you subsequently use the App.
17. Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement.
18. Miscellaneous. The laws of the State of Delaware excluding its conflicts of law rules, govern this Agreement and your use of the App. This Agreement constitutes the entire agreement between you and Quadient regarding the App. The failure of Quadient to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles are for convenience only and have no legal or contractual effect. All notices to Quadient must be given by certified mail, return receipt requested to 210 Progress, Suite 100, Irvine, CA 92618. Any notices to you will be provided to you through the App or via the email address you provide to Quadient during the App registration process. This Agreement operates to the fullest extent permissible by law. Quadient may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You may not transfer or assign this Agreement or any of your rights or obligations hereunder without the prior written consent of Quadient, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Exhibit A
“Prohibited Goods” shall mean any of the following items:
1. Explosive substances and articles
2. Gases including flammable gas, toxic gas and non-flammable/ non-toxic gasses
3. Flammable liquids (for example petrol)
4. Flammable solids, self-reactive substances and solid desensitised explosives, substances liable to spontaneous combustion
5. Oxidising substances and organic peroxides
6. Toxic & infectious substances
7. Radioactive material
8. Corrosives
9. Animals (living or dead), including fish or birds, or any living organism of any type (including trees, or flowers shipped in liquid)
10. Perishable food
11. Drugs. Any medicinal, cannabidiol products, narcotic or psychoactive substance controlled under applicable current Misuse of Drugs legislations.
12. Tobacco products or e-cigarette liquids containing nicotine
13. Alcohol including wines, beers and spirits, liquids of any kind exceeding 100ml, ,
14. Firearms, weapons, explosives and ammunition. Commodities whose specific functionality is to inflict injury or to cause death, such as complete firearms, explosives (including fireworks, flares, blasting caps & party poppers) and ammunition
15. Human and animal parts, remains or ashes and medical samples. This includes bodily fluids and tissue samples (both animal and human)
16. Illegal goods. Any goods considered to be illegal in any territory, including but not limited to pirated goods, counterfeit goods and narcotics.
17. Controlled goods. Any goods which require a license or permit in order to transport the Consignment and/or which are subject to import, export, or transportation restrictions (including dual-use goods) imposed by the laws applicable in the country of expedition, dispatch, transit, destination, or otherwise; or any goods which require temperature controlled transport,
18. Imitation or Replica firearms, weapons, explosive devices or ammunition. Although these items are usually disabled (without a firing mechanism or explosive components), they hold the same or similar appearance as real firearms, weapons, explosive devices and ammunition