Master Services Agreement General
Terms and Conditions for Services
1. Applicability and Background.
(a) Applicability. These Terms and Conditions for Services (these “Terms”) govern the provision of services by FTW Delivery Management Group, LLC, a Texas limited liability company, dba DMGGO (“DMGGO”) for Customers who accept quotes for services (the “Customer”).
(b). Background. Customer is in the package delivery business. DMGGO has the capacity and capability to provide certain administrative, management, and logistical services to support Customer in the operation of its package delivery business. Accordingly, Customer desires to engage DMGGO to provide the Services (as defined herein) and DMGGO desires to provide such Services.
(c). Agreement. These Terms comprise the entire Master Services Agreement (the “Agreement”) between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(d). Priority of Terms. These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of Services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. DMGGO shall provide each of the services selected by Customer in a quote (the “Services”). Customer may elect to add or delete Services from time to time by submitting an email to DMGgo or by sending an updated Service Selection Form to DMGGO. A description of each of the Services is available at https://dmggo.com/services/.
3. Customer Obligations.¹ Customer shall: (a). cooperate with DMGGO in all matters relating to the Services; (b). respond promptly to any DMGGO request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for DMGGO to perform Services in accordance with the requirements of this Agreement; (c). provide such Customer materials or information as DMGGO may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; (d). obtain and maintain all necessary licenses and consents and comply with all applicable laws, regulations, or other requirements related to this Agreement and Customer’s underlying business activities; (e). comply with any and all requirements, obligations, and conditions of all third party delivery service or similar programs applicable to Customer (e.g., Amazon’s Delivery Service Partner Program, FedEx Independent Service Provider, and other third party delivery programs), and remain in good standing as an authorized partner in such service or program.2
4. Customer’s Acts or Omissions. If DMGGO’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, DMGGO shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Fees and Expenses; Payment Terms; Late Payments.
(a). Fees. In consideration of the provision of the Services by DMGGO and the rights granted to Customer under this Agreement, Customer shall pay (i) the Implementation Fee as set forth on the Quote; and (ii) the fees set forth in DMGGO’s then current fee schedule, available at www.dmggo.com/service (the “Fee Schedule”). DMGGO may amend the Fee Schedule or otherwise increase its standard fee rates specified in the Fee Schedule upon 30 days’ prior written notice to Customer. The Implementation Fee is due prior to implementing new services.
(b). Expenses. Customer agrees to reimburse DMGGO for all reasonable travel and out-of-pocket expense incurred by DMGGO in connection with the performance of the Services as well as Customer’s pro rata share of all necessary software and materials needed to provide the Services, including without limitation, fleet tracking software, scheduling software, and communication tools. Expenses incurred by DMGGO will be documented on the applicable invoice provided to Customer.
(c). Taxes. The fees for services set forth on our website are net of all applicable taxes. Our technology subscriptions do require Customer to pay applicable taxes. Customer shall be responsible for all sales, use, and excise taxes, and any similar taxes, duties, and charges of any kind imposed by any federal state, or local entity on any amounts payable by Customer hereunder; provided, that in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, DMGGO’s income, revenues, gross receipts, personnel, real or personal property, or other assets.
(d). Invoices and Payments. DMGGO will submit invoices to Customer on a weekly basis. Customer shall pay all invoiced amounts due to DMGGO within three (3) days from the date of DMGGO’s invoice. All payments shall be made in US dollars by wire transfer, check, or ACH.
(e). Late Payments. In the event payments are not received by DMGGO within thirty (30) days after becoming due, DMGGO may (i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full. Customer shall reimburse DMGGO for all costs incurred in collecting any overdue payments and related interest, including without limitation, attorneys’ fees, legal costs, court costs, and collection agency fees. If a check tendered by Customer is returned for insufficient funds, uncollected funds or stopped payment, Customer shall pay DMGGO a $50.00 service fee.
6. Limited Warranty and Limitation of Liability. DMGGO represents and warrants that the Services shall be provided in accordance with the terms of this Agreement. DMGGO’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be to use commercially reasonable efforts to promptly cure any such breach; provided, that if DMGGO cannot cure such breach within 30 days after Customer’s written notice of such breach, Customer may terminate the Agreement by delivering written notice of termination in accordance with Section 10(b). EXCEPT AS SET FORTH IN THIS SECTION 6, DMGGO MAKES NO OTHER REPRESENTATIONS OR WARRANTIES RELATED TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE EXTENT PERMITTED IN LAW.
7. Intellectual Property; Data License.
(a). Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the DMGGO in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials, shall be owned by DMGGO. DMGGO hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
(b). Data License.
(i) License Grant. Customer hereby grants DMGGO a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 14(e)) royalty free, perpetual, irrevocable license to use the Data in providing the Services to Customer and for DMGGO’s business purposes of creating and preparing financial projections, forecasting metrics, and other benchmarks for its customers, including without limitation, compiling, processing, aggregating, and otherwise using the Data in de-identified and anonymized form for such forecasting and benchmarking purposes. For purposes of this Agreement, “Data” means (a) current and historical information and data related to the Customer and its business that is provided in or accessible through applicable third party platforms, including without limitation, Amazon Logistics’ DSP Dashboard or the FedEx’s MyGroundBiz Account (b) Customer’s current and historical accounting records, information, and data contained in or accessible through Customer’s accounting records and/or accounting software; and (c) Customer’s current and historical payroll records, information, and data contained in or accessible through Customer’s payroll records and/or payroll processing software or payroll processing service provider records; provided, however, notwithstanding anything to the contrary in this Agreement, Data shall not include or mean any aggregation or compilation of such Data that has been anonymized by DMGGO for use in its business, including, without limitation, for providing forecasting and benchmarking information to DMGGO’s customers.
(ii) Use Restrictions. The Parties acknowledge that the Data is Confidential Information of Customer subject to Section 8 hereof.
(iii) Access and Delivery. During the Term, Customer shall provide DMGGO with access to the Data, as reasonably requested by DMGGO, or otherwise deliver the Data electronically, on tangible media, or by other means, as reasonably requested by DMGGO.
(c). Data Ownership. DMGGO acknowledges that, as between DMGGO and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Data. Notwithstanding anything to the contrary herein, DMGGO and Customer hereby acknowledge and agree that, as between DMGGO and Customer, DMGGO owns all right, title, and interest, including all intellectual property rights, in and to any and all (i) anonymized aggregations or compilations of the Data that DMGGO processes or prepares as allowed under this Agreement and (ii) Deliverables that contain or were derived, in whole or in part, from the Data.
(d). Data Warranties. Customer warrants that: (i) the Data shall not include any virus or other malicious code; (ii) the Data is the exclusive property of Customer; (iii) Customer has obtained and shall maintain all governmental and regulatory licenses, registrations, permits, certifications, and approvals required for the Data; (iv) Customer has obtained and shall maintain at all times during the term of this Agreement all third-party permissions, rights, and consents required to license the Data as contemplated by this Agreement; (v) Customer has undertaken reasonable efforts to ensure that the Data is timely and accurate; and (vi) Customer will use reasonable efforts to notify the DMGGO of errors in the Data.
(e). Customer Data Indemnification. In addition to the indemnification obligations contained in Section 12 of the Agreement, Customer hereby agrees that Customer will on behalf of itself and its representatives, at Customer’s sole cost and expense, indemnify, defend, and hold DMGGO, its affiliates and each of their respective officers, employees, agents, representatives, successors, and assigns harmless from and against any and all Losses directly or indirectly arising from or related to any Claim that DMGGO’s use of the Data infringes or misappropriates such third party’s US intellectual property rights, provided that DMGGO promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim. If such a Claim is made or appears possible, DMGGO agrees to permit Customer, at Customer’s sole cost and expense, to (A) modify or replace any such infringing part of feature of the Data to make it non-infringing, or (B) obtain rights to continue use.
8. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within five (5) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s affiliates, employees, officers, directors, owners, service providers, advisors, or representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
9. Term. This Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall continue for an initial period of one (1) year (the “Initial Term”). This Agreement shall automatically renew for additional successive one-year periods (each a “Renewal Term”) at then-current pricing unless and until either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then current term. For purposes of this Agreement, the Initial Term and Renewal Terms are collectively referred to as the “Term.”
(a). Termination for Cause. This Agreement may be terminated before the expiration date of the Term on written notice:
(i). by DMGGO, if Customer (A) fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment, or (B) fails to pay any amount due hereunder more than two (2) times in any three-month period;
(ii). by either Party, if the other Party (A) materially breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within ten (10) days after the breaching Party’s receipt of written notice of such breach; (B) becomes insolvent; (C) is generally unable to pay, or fails to pay its debts as they become due; (D) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law; (E) makes or seeks to make a general assignment for the benefit of its creditors; (F) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property or business; or (G) is dissolved or liquidated or takes any corporate action for such purpose.
(b). Termination by Customer. Subject to Section 10(a), Customer shall not terminate this Agreement for a period of ninety (90) days following the Effective Date, when services are fully implemented. After the initial ninety (90) day period, Customer may terminate this Agreement without cause, by providing at least thirty (30) days prior written notice to DMGGO.
(c). Effect of Termination. The expiration or termination of this Agreement, for any reason, will not release any Party from any obligation or liability to the other Party, including any payment and delivery obligation that (i) has already accrued hereunder; (ii) comes into effect due to the expiration or termination of this Agreement; or (iii) otherwise survives the expiration or termination of this Agreement. In addition, the rights and obligations of the Parties set forth in this Section 10 and in Sections 6, 7, 8, 11, 12, 13 and 14, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive termination or expiration of this Agreement.
11. Limitation of Liability.
(a). IN NO EVENT SHALL DMGGO OR ANY OF ITS AFFILIATES OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DMGGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b). IN NO EVENT SHALL DMGGO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO DMGGO PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(a). To the fullest extent permitted by law, with respect to Customer’s performance under this Agreement, Customer will on behalf of itself and its representatives, at Customer’s sole cost and expense, indemnify, defend and hold DMGGO, its affiliates and each of their respective officers, employees, agents, representatives, successors, and assigns harmless from and against any and all third party claims, actions, suits, allegations, demands, proceedings and regulatory actions (collectively, “Claims”) and all liabilities, damages, judgments, fines, penalties, settlements, costs, expenses (including reasonable attorneys’ fees) and charges (collectively “Losses”) directly or indirectly arising from or related to a Claim from, or in connection with: (i) the operation or conduct of Customer’s business; (ii) the negligence or misconduct of Customer or any of its affiliates, representatives, employees, or subcontractors; (iii) the violation of any applicable law or regulation applicable to Customer or the conduct of Customer’s business; (iv) the breach of any representation, warranty, covenant, or agreement made by Customer in this Agreement; (v) the breach of any obligation Customer owes to or has with a third party, including without limitation, Amazon or FedEx; (vi) violation by Customer of any applicable requirement or obligation of Customer to an applicable third party delivery program (including without limitation, as a delivery partner to Amazon or FedEx); (vii) any claim by a third party against Customer, or any of its affiliates, representatives employees, or subcontractors related to, arising out of, or in connection with Customer’s use of the Services hereunder, including without limitation, any accident (vehicular or otherwise) by related to directions from a DMGGO dispatcher; or (viii) actual or third party-alleged violation or infringement by Customer of a third party’s Intellectual Property Rights.
13. Non-Solicitation. During the Term and for a period of one (1) year following the termination or expiration of this Agreement, Customer shall not, and shall cause its affiliates and representatives not to, solicit to employ or employ any employee or subcontractor of DMGGO or any of DMGGO’s affiliates without the express written consent of DMGGO.
(a). Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth on the Cover Sheet (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 14(a).
(b). Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(c). Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party.
(d). Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e). Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of DMGGO. Any purported assignment or delegation in violation of this Section 14(e) shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. DMGGO may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of DMGGO’s assets without Customer’s consent.
(f). Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
(g). Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(h). No Third-Party Beneficiaries. Except as set forth in Section 12(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(i). Choice of Law. This Agreement and all related documents all Attachments, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
(j). Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all Attachments, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the federal or state courts, in each case located in Fort Worth, Texas, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the federal or state courts, in each case located in Fort Worth, Texas. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(k). WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING any ATTACHMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ATTACHMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(l). Equitable Remedies. Each Party acknowledges that a breach by a Party of Section 7(a) (Intellectual Property), Section 8 (Confidential Information), or Section 13 (Non-Solicitation) may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
(m). Force Majeure. DMGGO shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of DMGGO including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemics, or other health related emergencies, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
(n). Security. DMGGO shall keep Customer passwords in a secure vault and limit access to Customer data to the smallest number of employees needed to support the services Customer has purchased. DMGGO currently utilizes 1Password. Please see https://1password.com/security/ for additional details.