Merchant Terms of Use

NextPakk Merchant Terms of Use

Effective: March 10, 2019

BEFORE YOU PARTICIPATE IN THE PROGRAM(S) OPERATED BY NextPakk, LLC. (“NextPakk”) THAT ARE COVERED BY THESE NextPakk MERCHANT TERMS OF USE (“MERCHANT TERMS” OR “TERMS”), PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH NextPakk OR OTHERWISE AGREEING TO THESE TERMS, INCLUDING THROUGH AN AUTHORIZED NextPakk PARTNER, YOU OR THE ENTITY THAT YOU REPRESENT AGREE ON BEHALF OF ALL PARTICIPATING RETAIL/RESTAURANT LOCATIONS TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 17 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. To wit: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING OR PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 17 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, AND THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT.

Definitions

  1. “Pakkmen” or “Pakkman” means third-party delivery contractor.
  2. “Delivery API” means the NextPakk application programming interface (API) that will allow the Merchant to exchange information with NextPakk.
  3. “NextPakk Data” shall mean any information that NextPakk provides or makes accessible to Merchant through the NextPakk Platform, including without limitation Personal Information.
  4. “NextPakk End Customer” means the NextPakk customer who places an order through the NextPakk Marketplace.
  5. “NextPakk Marketplace” means the online ordering platform where NextPakk End Customers can place orders
  6. e an order for Merchant Products via the NextPakk website or mobile application.
  7. “NextPakk Services” means NextPakk Marketplace, as applicable.
  8. “Marketplace Orders” means orders for Merchant Products through the NextPakk Marketplace from NextPakk customers.
  9. “Merchant” means the retail/restaurant or other entity that has agreed to participate in the NextPakk Services.
  10. “Merchant End Customer” means the Merchant customer who places an order directly with the Merchant.
  11. “Merchant Products” means all products offered for delivery or take-out orders at Merchant Stores.
  12. “Merchant Stores” means the Merchant retail/restaurant locations that are within the then-current territory services by NextPakk and that have elected to participate in the NextPakk Services, as may be amended by an exchange of emails.
  13. “Marketplace Term” means the term of the agreement between NextPakk and Merchant for the NextPakk Marketplace.
  14. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law.
  15. “Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Delivery API that enables Merchant to request delivery fulfillment and provide information necessary to enable such delivery fulfillment.

1. Nextpakk / Merchant Core Responsibilities.

For Merchants that have agreed to participate in the NextPakk Marketplace, NextPakk and Merchant shall have the following responsibilities during the Marketplace Term:

  1. NextPakk Core Responsibilities. NextPakk will:
    1. Display Merchant’s logo; a listing of the Merchant Stores and locations; and a menu and/or item list of all Merchant Products made available for purchase and delivery by Merchant and approved by NextPakk;
    2. Accept Marketplace Orders from NextPakk End Customers;
    3. Forward each Marketplace Order to the relevant Merchant Store; and
    4. Forward each Marketplace Order to a Pakkman, so that the Pakkman can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the NextPakk End Customer.
  2. If NextPakk determines, in its sole discretion, that continuing to support Marketplace Orders of a particular Merchant Product or Merchant Store could possibly subject NextPakk to undue regulatory risk or other liability, then NextPakk may remove such Merchant Product and/or Merchant Store from the NextPakk Marketplace.
  3. Merchant Core Responsibilities. Merchant will timely:
    1. Provide NextPakk with the Merchant’s items for sale or take-out menu (as appropriate), including the price of each item, and immediately notify NextPakk of any updates made to the Merchant’s in-store items or take-out menu;
    2. Accept all Marketplace Orders placed by NextPakk from Merchant’s then-current item list or menu. Any discrepancy in pricing shall be borne solely by Merchant;
    3. Confirm all Marketplace Orders from NextPakk promptly;
    4. Prepare the Merchant Products for each Marketplace Order for pickup by a Pakkman at the designated time;
    5. Process Marketplace Orders in the order in which they are received;
    6. Promptly notify NextPakk of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;
    7. Notify NextPakk of its days and hours of operation, and remain open for business on NextPakk the same days and hours of operation as Merchant’s in-store business; notify NextPakk of any changes to Merchant’s hours of operations on federal holidays; and notify NextPakk if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;
    8. Notify all Merchant store staff members of the relationship with NextPakk immediately upon execution of this Agreement; and
    9. Provide the same utensils, napkins, bags and other materials that Merchant would normally provide.

2. Refunds and Re-Orders 

Refunds and re-orders shall be addressed as follows for Merchants that have agreed to participate in the NextPakk Marketplace:

  1. Marketplace Refunds. In the event that NextPakk, in its sole reasonable discretion, has to issue a refund or re-order on an End Customer’s Order, Merchant will fulfill or exchange the item (as necessary) or prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund or re-order, unless the refund or re-order is due to the gross negligence or willful misconduct of a Pakkman or NextPakk. The cost of all subsequent deliveries necessary to fulfill the customer’s original order shall be borne by Merchant.

3. Order Equipment.

With respect to the NextPakk Marketplace, Merchant will install or make available any equipment reasonably required by NextPakk for Merchant to receive Orders (including, without limitation, a tablet, fax machine, computer, or other automated, electronic means of receiving Orders) (“Order Equipment”). Any Order Equipment provided by NextPakk will remain NextPakk’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant agrees to use any security procedures or protocols or access credentials as requested by NextPakk. Merchant will not allow any third party to use the NextPakk Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the NextPakk Platform; damage, destroy or impede the services provided through the NextPakk Platform; transmit injurious code; or bypass or breach any security protection on the NextPakk Platform. NextPakk may restrict or rescind Merchant’s right to use the NextPakk Platform at any time. Merchant will be responsible for any damage to or loss of any Order Equipment provided by NextPakk, which will be promptly reimbursed by Merchant (at the replacement cost thereof). NextPakk may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments.

4. Payment, Fees, and Taxes.

Payment, fees, and taxes shall be addressed as follows for Merchants that have agreed to participate in the NextPakk Marketplace:

  1. NextPakk Marketplace. NextPakk will pay for Marketplace Orders filled by Merchant each week on a consistent day of the week, subject to change with no less than 10 days notice to Merchants by email or service notification, provided that NextPakk shall be entitled to deduct from such payment the Promotion Fee on all Marketplace Orders. For the avoidance of doubt, NextPakk will be entitled to a Platform Service Fee, standard processing fees and delivery fee when applicable on all Marketplace Orders at the rate stated in the Sign-Up Sheet. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement and remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a product or menu item, it shall not charge NextPakk the higher price for 3 business days after it has provided notice to NextPakk of that product or menu change. For Merchants in Canada, Merchant shall also be responsible for all taxes, duties, and other governmental charges on the Promotion Fee, which NextPakk shall be responsible for withholding and remitting to the appropriate authorities.

5. Payment Processing.

Payment processing services for Merchants on the NextPakk Marketplace are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, you agree to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of NextPakk enabling payment processing services through Stripe, Merchant agrees to provide NextPakk accurate and complete information about Merchant’s representative and its business, and Merchant authorizes NextPakk to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Stripe claims it has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.

6. Use of Merchant Content and Trademark.

During the Marketplace Term, Merchant grants to NextPakk a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use the content, including without limitation, menus, photographs, trademarks, and logos provided by Merchant to NextPakk for NextPakk to use in providing services to Merchant.

7. Confidential Information.

  1. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, NextPakk Data is the Confidential Information of NextPakk.
  2. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
  3. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 9(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
  4. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

8. Data Privacy.

  1. General. Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner NextPakk Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep NextPakk Data secure from unauthorized access and maintain the accuracy and integrity of NextPakk Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to NextPakk Data, Merchant will immediately notify NextPakk, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by NextPakk.
  2. Delivery API. During the Term, NextPakk grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the NextPakk services. Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.

9. Termination.

Merchant may terminate this agreement for any reason at any time upon 7 days prior written notice. NextPakk may terminate this agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor NextPakk will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Merchant or NextPakk.

10. Modifications.

NextPakk reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. NextPakk also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://www.NextPakk.com/retail-merchant-terms/. We will notify Merchants of material revisions via a service notification or an email to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

11. Representations and Warranties; Disclaimer.

  1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
  2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
  3. Merchant further represents and warrants that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food safety and sanitation, (ii) it has informed NextPakk of any required consumer-facing warnings associated with Merchant Product(s) and it will inform NextPakk of any such warnings that become required in the future, and (iii) it will comply with its obligations under Section 2(b)(iii) and 2(b)(iv) of this Agreement.
  4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NextPakk HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE NextPakk PLATFORM, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and NextPakk shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the NextPakk services contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

12. Indemnification.

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations or warranties in this Agreement; or (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmless NextPakk from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of NextPakk. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. NextPakk assumes no liability, and shall have no liability, for any infringement claim pursuant to section 14(iii) above based on Merchant’s access to and/or use of the NextPakk Platform following notice of such an infringement claim; any unauthorized modification of the NextPakk Platform by Merchant; or Merchant’s combination of the NextPakk Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

13. Limitation of Liability.

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILLFUL MISCONDUCT, UNPAID FEES OWED BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 14 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

14. Insurance.

During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement. NextPakk reserves the right to self-insure.

15. Dispute Resolution.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY (NextPakk) AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 17 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

  1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST THE COMPANY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
  2. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to NextPakk’s registered agent. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, the Company will pay them for you. In addition, the Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
  3. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.
  4. Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 17(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
  5. Waiver of Class or Consolidated Actions; Severability. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 18, and all other provisions of this Section 17 (Dispute Resolution) shall remain in force. If any provision of this Section 17 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 17.
  6. Survival. This Arbitration Agreement will survive any termination of your relationship with the Company.
  7. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to the Company.

16. Eligible Franchisees

Franchisees operating a retail/restaurant concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by NextPakk to Merchant.

17. Partner Code of Conduct.

Merchant will comply with the Partner Code of Conduct hosted at https://xpakkdelivery.com/partner-code-of-conduct

18. General Provisions.

Nothing in these Terms is to be construed as creating an agency, partnership, or joint venture relationship between NextPakk and Merchant, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. As set forth on the Sign-Up Sheet executed between Merchant and NextPakk, these Terms form part of an Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the State of Minnesota without regard to the conflicts of laws principles thereof. Except as set forth above in Section 17 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of Minneapolis, Minnesota. Merchant may not assign this Agreement in whole or in part without NextPakk’s prior written consent. NextPakk may freely assign this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents and other communications hereunder must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Sheet (or any updated address properly noticed hereunder). NextPakk’s address is 11670 Fountain Drive, Suite 200, Maple Grove, MN 55369. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.