Pick-Up Points Operation Agreement

 

THIS PICK-UP POINTS OPERATION AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS GOVERNING PARTICIPATION IN THE PICK-UP PROGRAM AND IS AN AGREEMENT BETWEEN AMAZON.COM SERVICES, LLC (“AMAZON”) AND THE BUSINESS YOU REPRESENT (“OPERATOR”). BY CLICKING THE “I ACCEPT” BUTTON, YOU, ON BEHALF OF OPERATOR, AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. PICK-UP PROGRAM

1.1 At each owned, leased, or other relevant location operated by Operator (including, where applicable, those locations operated by Operator’s licensees and franchisees, on behalf of whom Operator is entering into this Agreement as agent) and mutually agreed by the parties (the “Operator Locations”), Operator will receive and store parcels which are delivered to the Operator Locations (“Program Parcels”) and enable pick-up of Program Parcels at the Operator Locations by customers of Amazon and its Affiliates (the “Pick-Up Program”). For purposes of this Agreement, “Affiliate” means, with respect to any entity, any person or other entity that controls, is controlled by, or is under common control with such first entity.
1.2 Operator will operate the Pick-Up Program in accordance with the standard operating procedures, performance standards, service levels, and reporting requirements agreed between Amazon and Operator in writing (the “Performance Standards”). The initial Performance Standards are attached to this Agreement as Exhibit A. Amazon may update or modify the Performance Standards by notifying Operator of the updates or modifications via email.
1.3 Except as provided in Section 7, Operator will provide all equipment, supplies, software, and other resources necessary to operate the Pick-Up Program in accordance with this Agreement.
1.4 Amazon makes no promises or representations as to the amount of business Operator can expect at any time under this Agreement or the amount of any future business. Amazon may give information on volume and other projections to Operator, but any projections are speculative only and will not give rise to any obligation or liability on the part of Amazon. Amazon may engage the services of other companies that may perform the same or similar services as those provided by Operator under this Agreement.
1.5 Legal, beneficial, and equitable title to the Program Parcels shall at all times remain with Amazon or (on acceptance by the relevant Amazon customer) the Amazon customer. Operator shall have no right, title, or interest in or to Program Parcels.
1.6 While the Program Parcels are in the possession or control of Operator: (a) Amazon may, subject to providing reasonable advance notice, enter upon any Operator or third party premises where the Program Parcels are stored to inspect them; (b) Amazon may require Operator to surrender the Program Parcels to Amazon, and if Operator fails to do so immediately, Amazon may enter upon any Operator or third party premises where the Program Parcels are stored and repossess the Program Parcels; and (c) Operator will not in any way pledge, or charge by way of security or indebtedness, any of the Program Parcels.
1.7 Operator has no right to claim a lien over Amazon property, including Program Parcels, present at the Operator Location or which are in the possession of the Operator in connection with provision the Pick-Up Program, and Operator waives all related claims and rights.

2. NO FEES

Amazon is not required to pay Operator any fee, or reimburse Operator for any costs or expenses, under this Agreement or otherwise in connection with the Pick-Up Program.

 

3. TERM AND TERMINATION

3.1 The initial term of this Agreement will begin on the Effective Date and will continue for a period of six months (such period, the “Initial Term”), unless this Agreement is earlier terminated under Section 2. After the Initial Term, this Agreement will automatically renew until either party terminates this Agreement in whole or with respect to any particular Operator Location(s) (a) by providing at least ninety (90) days’ prior written notice to the other party, or (b) pursuant to Section 3.2. Notwithstanding the foregoing, Operator may not terminate: (i) this Agreement (in whole or with respect to any particular Operator Location(s)) if the effective date of termination would occur during any November 1 through January 15 period, and any such termination that would otherwise become effective during that period will be suspended until the next-occurring January 16; or (ii) this Agreement with respect to any individual Operator Location during the six-month period following the launch of the Pick-Up Program at that Operator Location.
3.2 Notwithstanding anything to the contrary in Section 1, either party may terminate this Agreement (in whole or with respect to any particular Operator Location(s)) if the other party breaches this Agreement and fails to cure the breach (if the breach is capable of being cured) within 30 days of receiving written notice of the breach from the non-breaching party.
3.3 Termination of this Agreement shall not relieve any party of any liability or obligation to the extent accruing prior to such termination. Sections 4, 1.5, 1.6, 1.7, 2, 3.3, 3.4, 6 (excluding Section 6.6), 8, 10, and 11 will survive the cancellation, termination, or expiration of this Agreement.
3.4 On the effective date of any termination (or prior thereto, if requested by Amazon) of this Agreement (in whole or with respect to any particular Operator Location(s)), Operator will, at its expense, (a) ensure that each affected Operator Location will not accept any Program Parcels after the effective date of termination, (b) process all Program Parcels that are then located or subsequently accepted at each affected Operator Location for return to Amazon in accordance with the returns procedure set out in the Performance Standards, (c) return any property of Amazon that is located at any affected Operator Location to an address specified by Amazon, and (d) return or destroy (at Amazon’s election) any advertising, promotional, or other documents or materials relating to the Pick-Up Program then located at each affected Operator

4. REPRESENTATIONS, WARRANTIES AND COVENANTS

4.1 Each party represents and warrants to the other that: (a) it has all requisite right, power, and authority to enter into this Agreement, to perform its obligations under this Agreement, and to grant the rights, licenses, and authorizations it grants under this Agreement; (b) this Agreement has been duly authorized, executed and delivered by such party, and constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms; (c) its execution, delivery and performance of this Agreement, and the other party’s exercise of rights under this Agreement, do not conflict with or result in a breach or other violation of any agreement or other third-party obligation by which it is bound; and (d) it is duly incorporated or formed, validly existing, and in good standing as a company under the laws of the jurisdiction of its incorporate or
4.2

Operator represents, warrants and covenants that it:

  1. will comply with all laws, statutes, ordinances, regulations, rules, orders and other requirements (including requirements for licenses, permits, certifications and approvals) of governmental authorities having jurisdiction (“Laws”) in connection with its operation of the Pick-Up Program;
  2. holds good and valid title to, or a valid leasehold interest in and to, each Operator Location; and
  3. will operate the Pick-Up Program in accordance with the Performance Standards and otherwise in a competent and workmanlike manner in accordance with the level of professional care customarily observed by skilled professionals rendering similar

5. CODE OF CONDUCT AND OTHER POLICIES

5.1 Operator acknowledges that Amazon’s Code of Business Conduct and Ethics posted at Code of Business Conduct and Ethics (the “Code”) prohibits the paying of bribes to anyone for any reason, whether in dealings with governments or the private sector. Operator will not violate or knowingly permit anyone to violate the Code’s prohibition on bribery or any applicable anti-corruption Laws in performing under this Agreement. Amazon may immediately terminate or suspend performance under this Agreement if Operator breaches this Section 5.1. Operator will maintain true, accurate and complete books and records concerning any payments made to another party in connection with the Pick-Up Program, including on behalf of Amazon. Amazon and its designated representative may inspect Operator’s books and records to verify such payments and for compliance with this Section.
5.2 Operator will comply, at its sole cost and expense, with any compliance and safety policies and other requirements made available by Amazon to Operator, including Amazon’s Supply Chain Standards and Supplier Code of Conduct, which is posted at About Our Supply Chain.
5.3 Operator represents and warrants that Operator and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government

6. CONFIDENTIALITY AND PUBLICITY

6.1 Operator agrees that the terms and conditions of this Agreement and any other information obtained from Amazon in connection with this Agreement or related to the Pick-Up Program that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including information relating to Amazon’s technology, customers, business plans, marketing activities and finances) shall be confidential information (“Confidential Information”). Operator may use Confidential Information only in pursuance of its business relationship with Amazon under this Agreement. Except as provided in this Agreement, Operator will not disclose Confidential Information to anyone without Amazon’s prior written Operator will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.
6.2 Operator will use any personally identifiable information concerning Amazon’s customers, suppliers, employees, or contractors, including names, addresses, e-mail addresses, and telephone numbers (collectively, “Personal Information” and together with Confidential Information, collectively, “Amazon Information”), solely for the purpose of operating the Pick-Up Program. Operator will not transfer, disclose or sell Personal Information and will not develop lists of or aggregate Personal Information. Operator will delete Personal Information upon Amazon’s request.
6.3 Operator will comply with Amazon’s standards for protecting the confidentiality and integrity of all transmissions of Amazon Information. Operator will immediately inform Amazon of any actual or suspected unauthorized access, collection, acquisition, use, transmission, disclosure, corruption, or loss of Amazon Information (each, an “Information Security Incident”), and Operator will cooperate with Amazon and take all actions required by Amazon to rectify all Information Security If Operator is required by Law to retain archival copies of Amazon Information for tax or similar regulatory purposes, Operator will store the Amazon Information in accordance with Amazon’s information security policies in effect from time to time.
6.4 Except as expressly permitted pursuant to this Section 6, Operator will not use any trade name, trademark, service mark, logo, commercial symbol, or any other proprietary rights of Amazon or any of its Affiliates in any manner without prior written authorization of such use by Amazon.
6.5 Operator will not issue press releases or publicity relating to Amazon, the Pick-Up Program, or this Agreement, or reference Amazon or its Affiliates in any brochures, advertisements, client lists or other promotional materials (except as expressly permitted pursuant to this Section 6), in each case without prior written authorization by Amazon. Operator will not do anything that suggests or implies that the Pick-Up Program is a co-branded or co- sponsored initiative between Amazon and Operator.
6.6 If requested by Amazon, Operator and Amazon will work together to develop and display wayfinding signage at the Operator Locations to direct customers and transportation service providers as appropriate. In addition, Operator may display advertising, promotional or other documents or materials relating to the Pick-Up Program that are provided by Amazon from time to time (or that are otherwise in a form and substance specifically reviewed and approved in advance by Amazon), in a manner mutually acceptable to Operator and Amazon (together with any wayfinding signage, “Promotion Displays”), in which case (a) Amazon or one of its Affiliates will grant to Operator a non-exclusive, non-transferable, non-assignable, non-sublicenseable, revocable license to use the Amazon trademark(s) included in any such Promotion Display (collectively, the “Amazon Marks”), solely in connection with such Promotion Display; (b) Amazon and its Affiliates shall have the right to monitor the quality of each Promotion Display, and Operator shall assist Amazon and its Affiliates in monitoring such quality by permitting Amazon to review such Promotion Display; (c) Operator will comply with all Trademark Usage Guidelines issued by Amazon and its Affiliates as updated from time to time (“Trademark Usage Guidelines”) and will not use the Amazon Marks except as expressly provided herein and in the Trademark Usage Guidelines; and (d) Operator will promptly and permanently remove all Promotion Displays after the earlier of Amazon’s written request or the expiration or termination of this Agreement. Amazon’s current Trademark Usage Guidelines are attached to this Agreement as Exhibit B.
6.7 Operator acknowledges and agrees that (a) none of Operator, its Affiliates, or Personnel (as defined below) of any of the foregoing has any interest in or to the Amazon Marks other than the interest granted pursuant to this Section 6 (b) Amazon and its Affiliates will remain the sole and exclusive owner of all right, title and interest in and to the Amazon Marks; and (c) Operator’s use of the Amazon Marks and any goodwill in the Amazon Marks resulting from such use will inure solely to the benefit of Amazon and its Affiliates and will not create for Operator any right, title or interest in or to the Amazon Marks. Operator agrees that it will do nothing to impair Amazon’s and its Affiliates’ ownership or rights in and to the Amazon Marks and that it will not contest, oppose or challenge Amazon’s and its Affiliates’ ownership of the Amazon Marks.

7. LICENSED MATERIALS

7.1 As used in this Agreement, “Licensed Materials” means any software (including any mobile application), website, content, or other information made available to Operator (whether standalone, for use on devices owned by Operator or Amazon, or otherwise) by Amazon or its Affiliates in connection with the Pick-Up Program, together with any related manuals and other documentation. Amazon grants to Operator, during the term of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Licensed Materials in the United States (the “Territory”), solely for the purpose of performing Operator’s obligations under this Agreement. Operator will not, in whole or in part: (a) copy the Licensed Materials; (b) distribute copies of the Licensed Materials or any part of the Licensed Materials to any third party; (c) modify, adapt, translate, reverse engineer, make alterations to, decompile, disassemble, or make derivative works based on the Licensed Materials or any part of the Licensed Materials; or (d) use the Licensed Materials other than to perform Operator’s obligations under this Agreement. Operator will, and will cause its Personnel to, attend the training relating to the Licensed Materials as required by Amazon, including for updates and periodic refresher training. Amazon may, in its sole discretion, prohibit or otherwise restrict Operator or its Personnel from accessing or logging into the Licensed Materials.
7.2 Operator will notify Amazon immediately after becoming aware that any device on which any Licensed Material is installed has been lost, stolen, or misplaced. If Amazon provides Operator with any device or other equipment in connection with the Pick-Up Program (an “Amazon Device”) and any Amazon Device (or any part of it) is lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered, or assigned without the express prior written consent of Amazon, Operator will promptly pay Amazon the full replacement cost of the Amazon Device, together with any incidental costs that are incurred by Amazon to replace the Amazon Device.
7.3 If Amazon provides Operator with any Amazon Device, Operator shall (and shall ensure the Operator’s Personnel shall): (a) only use the Amazon Device for the purposes of carrying out the Operator’s obligations under this Agreement; (b) not alter, modify or tamper with any Amazon Device (including removal of any SIM cards from Amazon Device) or otherwise use or attempt to use the Amazon Device or any part thereof for any purposes other than for performance of Operator’s obligations under this Agreement; (c) return the Amazon Device to Amazon upon request; (d) not in any way pledge, or charge by way of security or indebtedness any Amazon Device; (e) ensure each Amazon Device is only used at an Operator Location and securely stored at the Operator Location when not in use; (f) only permit access to Amazon Devices to authorized Operator Personnel; (g) not install or attempt to install any software, applications or any other media on any Amazon Device; and (h) comply with any specific policies or terms of use in relation to the Amazon Device which are provided to Operator by Amazon from time to time. Operator shall immediately notify Amazon after becoming aware of any breach or suspected breach of this Section 7.3.
7.4 AMAZON LICENSES THE LICENSED MATERIALS TO OPERATOR “AS IS” AND MAKES NO WARRANTIES OF ANY KIND REGARDING THE LICENSED MATERIALS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AMAZON EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. AMAZON DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL MEET OPERATOR’S REQUIREMENTS OR WILL OPERATE UNINTERRUPTED, ERROR FREE, OR PROVIDE ACCURATE, COMPLETE, OR UP- TO-DATE INFORMATION. AMAZON WILL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR CLAIM CAUSED BY OR ATTRIBUTABLE TO ANY DEFECT OR DEFICIENCY IN ANY LICENSED MATERIALS.

 

8. INDEMNIFICATION

8.1 Operator will defend, hold harmless, and indemnify Amazon, each of its Affiliates, and its and their respective directors, officers, employees, successors and assigns (collectively, “Amazon Indemnified Parties”), from and against any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) arising out of or resulting from any third party allegation or claim based on or relating to: (a) any act or omission by Operator or its Personnel, including any negligent act or omission or willful misconduct of Operator or its Personnel; (b) a breach of this Agreement by Operator; (c) any violation of law by Operator; or (d) any and all bodily injury (including death) suffered by third parties on or about any Operator Location to the extent caused by the negligence, recklessness, willful misconduct of Operator or any of its Personnel.
8.2 Amazon will defend, hold harmless, and indemnify Operator, each of its Affiliates, and its and their respective directors, officers, employees, successors and assigns (collectively, “Operator Indemnified Parties” and together with the Amazon Indemnified Parties, as applicable, the “Indemnified Parties”)) from and against any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) arising out of or resulting from any third party allegation or claim based on or relating to (a) any bodily injury or damage to tangible property at any Operator Location to the extent caused by the negligence, recklessness, or willful misconduct, in connection with the Pick-Up Program, of Amazon or Amazon’s employees or agents; or (b) Amazon’s failure to comply with any applicable law, rule, or regulation.
8.3 In connection with any claim for which a party has a right to be indemnified under this Section 8 (a “Claim”), the applicable Indemnified Party will: (a) give the party indemnifying under this Section 8 (“Indemnifying Party”) prompt written notice of the Claim (provided that any delay in notification will not relieve the Indemnifying Party of its indemnity obligations except to the extent that the delay impairs its ability to defend); (b) cooperate reasonably with the Indemnifying Party (at the Indemnifying Party’s expense) in connection with the defense and settlement of the Claim; and (c) permit the Indemnifying Party to control the defense and settlement of the Claim, provided that the Indemnifying Party may not settle the Claim without the Indemnified Party’s prior written consent (which will not be unreasonably withheld or delayed), and provided further that the Indemnified Party (at its cost) may participate in the defense and settlement of the Claim with counsel of its own choosing. Notwithstanding the foregoing, if at any time Amazon reasonably determines that any Claim for which it has a right to be indemnified might adversely affect any Amazon Indemnified Party, then without limiting Operator’s indemnification obligations, Amazon may take control of the defense of the Claim, and in such event Amazon and its counsel will proceed diligently and in good faith with that defense. Each party’s duty to (a) defend is independent of its duty to indemnify, and (b) indemnify under this Section 8 will be independent from its other obligations under this Agreement.
8.4 In the event that Amazon has any claim, cause of action or other legal recourse against a third party relating to or arising in connection with any Operator Location or the Pick-Up Program, Operator agrees to reasonably cooperate with Amazon and provide all information within its reasonable control to Amazon that is related to such claim, cause of action or other legal recourse.

9. INSURANCE

9.1 Throughout the term of this Agreement and for at least two years thereafter, Operator will carry, at its expense, (a) commercial general liability insurance with a limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate (which can include excess or umbrella coverage), and (b) worker’s compensation insurance as required by applicable Law in each state where an Operator Location is located. All such policies will also cover Operator’s liability under this Agreement for any acts by subcontractors. Operator will cause each insurance policy to provide that it will not be canceled or allowed to expire without at least 30 days prior written notice from Operator to Amazon. Operator will cause Amazon to be named as an additional insured on the policy referenced in clause (a) of this Section 9.1 and will submit certificates of insurance for the coverage required under this Section 9.1 on or prior to the Effective Date and thereafter at Amazon’s request.
9.2 The existence of Operator’s insurance policies, or Amazon’s approval thereof, does not relieve or limit any of Operator’s other obligations under this Agreement.

10. RELATIONSHIP OF THE PARTIES; SUBCONTRACTORS

10.1 Amazon and Operator are independent contractors, and nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties. Operator will not represent itself to be a representative or agent of Amazon. Operator will have no authority to enter into any agreement on Amazon’s behalf or in Amazon’s name or otherwise bind Amazon to any agreement or obligation.
10.2 Operator has exclusive responsibility for its employees, representatives, franchisees, contractors, subcontractors, and agents (“Personnel”) and exclusive control over its policies relating to wages, hours, working conditions and other employment conditions. Operator is solely responsible for the payment of all salaries, compensation and benefits to its Personnel, as well as for making all deductions and withholdings from the salaries and other compensation of its Personnel and for paying all related contributions, taxes, social security dues and assessments. None of Amazon or any of its Affiliates will have any liability for the debts, liabilities, damages, claims or expenses arising out of or related to the operation of the Pick-Up Program by Operator or Operator’s business.
10.3 Operator will not engage subcontractors to operate the Pick-Up Program without the prior written consent of Amazon. If Amazon provides written consent to any instance of subcontracting by Operator, then notwithstanding the existence or terms of any subcontract, Operator will remain responsible for the operation of the Pick-Up Program in full compliance with this Agreement.

11. GENERAL PROVISIONS

11.1 Site Visits. Amazon may, upon 48 hours’ advance notice to Operator and during normal business hours, conduct (or engage a third party to conduct) an audit and/or on-site visits of any Operator Location to determine if Operator is meeting its obligations under this Agreement. Operator will provide all relevant reports and related information in a satisfactory format that enables Amazon to conduct audits.
11.2 Assignment. Operator will not assign any part or all of this Agreement, or subcontract or delegate any of Operator’s obligations or rights under this Agreement, without Amazon’s prior written consent. Any attempt to assign, subcontract or delegate in violation of this Section 11.2 is null and void. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party. Amazon may assign this Agreement (or any of its rights and obligations under this Agreement): (a) to any of its Affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets, or any similar transaction.
11.3 Governing Law. The internal laws of the State of Washington, excluding its conflicts of law rules, govern this Agreement. Each party irrevocably submits to exclusive personal jurisdiction and venue in the federal and state courts in King County, Washington, for any dispute arising out of this Agreement and waives all objections to jurisdiction and venue of such courts.
11.4 Notices. All notices will be in writing. Notices to Operator will be sent to the email Operator provided through registration or through the Licensed Materials; such notices will be deemed to have been received upon Amazon’s sending of the email. Notices to Amazon will be sent by overnight courier service to: Amazon.com Services, Inc., 410 Terry Avenue North, Seattle, WA 98109-5210, Attn: General Counsel, with a copy to Amazon.com Services, Inc., 410 Terry Avenue North, Seattle, WA 98109-5210, Attention: Director, WW Lockers and Pickup; such notices shall be deemed to have been received upon receipt.
11.5 Amendment and Waiver. This Agreement may not be amended, supplemented, suspended, superseded or otherwise modified except by a written instrument, expressly identifying the modifications made and signed by an authorized representative of each of the parties; provided, however, that in each instance in this Agreement where reference has been made to establishing or deviating from the terms of this Agreement as “mutually agreed” (or with substantially similar terms), each party acknowledges and agrees that the parties may so agree by any commercially reasonable means. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party’s rights to subsequently enforce the provision.
11.6 Remedies. The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity. Operator acknowledges that any breach of this Agreement by Operator would cause Amazon irreparable harm for which Amazon has no adequate remedies at law. Accordingly, Amazon is entitled to specific performance of this Agreement or injunctive relief for any such breach (without the necessity of proving damages or posting a bond).
11.7 Construction. Each addendum and exhibit associated with this Agreement is hereby incorporated by reference, as if fully set forth herein. If any provision of this Agreement is determined to be unenforceable in any jurisdiction, the parties intend that this Agreement be enforced in such jurisdiction as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced in such jurisdiction to the extent that they are enforceable, and further agree to substitute for the invalid provision a valid provision (with respect to such jurisdiction) which most closely approximates the intent and economic effect of the invalid provisions. The section headings of this Agreement and of any service orders are for convenience only and have no interpretive value. References to currency or “$” in this Agreement refer to the United States of America dollar unless otherwise expressly noted. The use of the word “including” and similar terms in this Agreement will be construed without limitation. References in this Agreement to “business days” will refer to each day other than a Saturday or Sunday or a day that commercial banking institutions in Seattle, Washington, are authorized or required by law to remain closed. Each party and its counsel has reviewed and jointly participated in the establishment of this Agreement. No rule of strict construction or presumption that ambiguities will be construed against any drafter will apply, and no presumptions will be made or inferences drawn because of the final inclusion of a term not contained in a prior draft or the final deletion of a term contained in a prior draft. Except as expressly set forth in this Agreement with respect to Indemnified Parties, who are intended third party beneficiaries of this Agreement, the terms and conditions of this Agreement will apply solely for the benefit of the parties hereto (including their permitted successors and assigns), and nothing under this Agreement will give any third party any benefit, right or remedy hereunder.
11.8 Counterparts. This Agreement and any amendment or addendum hereto may be executed in multiple counterparts that together will constitute one and the same agreement.
11.9 LIMITATION OF LIABILITIES. EXCEPT WITH RESPECT TO CLAIMS FOR BREACH OF SECTION 6 AND FOR OPERATOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, NEITHER PARTY WILL BE LIABLE UNDER ANY CIRCUMSTANCES FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR ANY LOST OPPORTUNITIES OR PROFITS.
11.10 Entire Agreement. This Agreement constitutes the complete and final agreement of the parties pertaining to the Pick-Up Program and supersedes the parties’ prior agreements, understandings, communications and discussions, oral or written, relating to the subject matter of this Agreement. The application of any conflicting, deviating or supplementary terms and conditions of Operator and any other terms stipulated in any other document issued by Operator (invoice, delivery notice, etc.) is hereby expressly excluded even if Amazon does not expressly object to them.

EXHIBIT A

Performance Standards

 

  1. Standard Operating Procedures.
  • Operator Locations.
    • Operator will keep each Operator Location clean, in good condition, free from any defects, repair or maintenance obligations, debris, or other environmental conditions (such as ice or snow), and in strict compliance with the applicable health and safety Laws.
    • Operator will maintain an area in each Operator Location for (A) the receipt of Program Parcels, and (B) the operation of the Pick-Up Program.
  • Acceptance. Operator will accept all Program Parcels delivered in accordance with this Agreement. During the term of this Agreement, each Operator Location will be prepared to accept Program Parcels at any time during which such Operator Location is open for business.
  • Storage.
    • Operator will locate Program Parcels within a designated area of each Operator Location which is (A) secure, suitable and sufficient for the storage of the Program Parcels, (B) not on the sales floor, and (C) which does not impede the path of travel for Operator Personnel (e.g. behind a counter where Operator Personnel are supposed to stand).
    • Operator will provide suitable access to each Operator Location in order to allow transportation service providers to safely and efficiently deliver and/or accept distribution of Program Only transportation service providers designated by Amazon and Operator’s Personnel may have access to the area(s) in which Program Parcels are located.
    • Operator will make each Program Parcel available for collection by the Amazon customer specified on the shipping label or by any transportation service provider designated by Amazon, in each case during the published opening hours of the applicable Operator Location for a period as determined by Amazon of up to fourteen business days from the date of receipt of such Program Parcel at such Operator Location, unless an extension or a different period is agreed between Amazon and Operator.
  • Inquiries.
    • Operator will reasonably assist Amazon customers at each Operator Location upon request, including confirming that an Operator Location participates in the Pick-Up Program and informing Amazon customers about the customer requirements set forth in Section 1(e) of this Exhibit A for distribution of a Program Parcel. For any further customer inquiries, Operator will refer the customer to the email correspondence, instruction and tracking data sent to the customer by Amazon.
    • If Operator becomes aware of an issue with the Pick-Up Program or any particular Program Parcel, Operator will promptly notify Amazon at the email address and/or telephone number designated by Amazon for this purpose.
  • Distributions.
    • Operator will ensure that each Program Parcel is distributed only to the Amazon customer specified on the shipping label (or an authorized representative of such person, providing sufficient evidence of such authorized representation) or to any transportation service provider designated by Amazon by obtaining proof of identification, such as a barcode or other scan code, or by such means determined by Amazon from time to time.
    • Operator will follow the instructions on the Licensed Materials for distributing the Program Parcels. For example, if the Licensed Materials specify that the customer must have identification, such as a barcode or other scan code, to demonstrate that they are the intended recipient of the Program Parcel, Operator must request and check that information, and record it as per the instructions on the Licensed Materials.
    • Distribution and receipt of Program Parcels during periods of system outages must be manually recorded and uploaded to an applicable tracking database after the system outage is rectified.
    • Amazon and Operator will work diligently to continuously improve the quality of Program Parcel distributions.
  • Damages and Losses.
    • If, prior to distribution, Operator becomes aware that any Program Parcel is dented, punctured, torn, wet, soiled, or is determined to contain damaged product due to sound (a “Damaged Parcel”), Operator will promptly notify Amazon at the email address and/or telephone number designated by Amazon for this purpose. Operator will reasonably cooperate with Amazon customer service in assessing damage to a Damaged Parcel, including providing a digital photo illustrating the damage, to the extent practicable. If requested by Amazon customer service, the Program Parcel will be recalled pursuant to Section 1(g) of this Exhibit A.
    • If Operator becomes aware that any Program Parcel is lost, misplaced or erroneously distributed, Operator will promptly notify Amazon at the email address, telephone number, and/or other communication method designated by Amazon for this purpose.
    • Unless the Program Parcel is clearly destroyed, Operator will leave to Amazon customers the choice of either accepting or rejecting the Program Parcel, and Operator will need to flag the status accordingly in the Licensed Materials. Operator will appropriately classify each Program Parcel using the Licensed Materials before the Program Parcel is turned over to the Amazon customer if accepted; Operator will not provide any rejected Program Parcel to the applicable Amazon Once a Program Parcel is accepted by an Amazon customer (and scanned accordingly in the Licensed Materials), in case the Amazon customer wants to return it, the Amazon customer has to contact Amazon customer service, as per Section 1(g)(i) of this Exhibit A. If an Amazon customer rejects a Program Parcel, Operator shall return the Program Parcel pursuant to the procedures specified by Amazon from time to time.
  • Returns. Operator will arrange for the return of a Program Parcel in accordance with this Section 1(g) in the event that such Program Parcel (A) is recalled by the request of Amazon, or (B) has been delivered to and held at an Operator Location for more than fourteen business days, unless an extension or a different period is agreed between Amazon and the Operator.
    • As at the date of this Agreement, Operator will not accept any Program Parcel from an Amazon customer for return. Operator will request that any Amazon customer attempting to return a Program Parcel contact Amazon customer service as provided in the email correspondence, instruction and tracking data sent to the customer by Amazon. Amazon will notify Operator if this changes from time to
    • Operator’s return delivery of Program Parcels will be made pursuant to the procedures specified by Amazon from time to
  1. Performance Standards.
    • Operator will allow designees of Amazon, including transportation service providers and their Personnel, to access each Operator Location at any time during which such Operator Location is open for business, for the delivery, distribution, or (for returns) retrieval of Program
    • Upon delivery of a Program Parcel to an Operator Location (which action will be flagged in the Licensed Materials as “delivered to store”), Operator shall bear the risk of loss or damage to the Program Parcel until it is distributed to and accepted by the applicable Amazon customer (which action will be flagged in the Licensed Materials as “collected by customer”) or transportation service provider designated by Amazon in accordance with Section 1(e) of this Exhibit A (which action will be flagged in the Licensed Materials as “returned to carrier”) or until its return to Amazon in accordance with Section 1(g) of this Exhibit A. In the event of any loss or damage of or to any Program Parcel occurring while the Program Parcel is in Operator’s care, custody, or control, Amazon may charge Operator for the full replacement cost of the Program Parcel, and Operator will pay this amount within 30 days after its loss or damage. For the avoidance of doubt, Operator will not be responsible for loss or damage of or to Program Parcels caused by Amazon, the Amazon customer, the transportation service provider, or their respective Personnel.
    • Tracking and Reporting Requirements.
      • Package Level Delivery Status. Operator will utilize the Licensed Materials to electronically record the delivery status of each of the following stages: received at Operator Location; pick-up by Amazon customer or designated transportation service provider; and, if applicable, any return to Amazon.
      • Updates to Operator Location Information. Operator will notify Amazon (at the email address or any other communication method designated by Amazon for this purpose from time to time) within 24 hours of any modification to the operating hours, shipping address, eligibility to participate in the Pick-Up Program, or other modification that affects any Operator Location.
    • Service Levels
      • Amazon may measure and report on Operator’s performance against the “Service Levels” specified in the table below during the applicable “Measurement and Reporting Period” (except in relation to the “Query Resolution Rate” Service Level, which Operator shall measure and report to Amazon in accordance with the “Measurement and Reporting Period” specified below). Operator’s performance against the Service Levels shall be measured and reported based across all Operator The “Minimum Service Level” column in the table below reflects Service Level targets as of the Effective Date. The parties will review these targets together within the six-month period following the Effective Date and will mutually agree on appropriate revisions to the Service Level targets, if any.
      • If Operator’s performance falls below any of the Service Levels in any “Measurement and Reporting Period”, Operator shall take such steps as are necessary to meet or exceed the relevant Service Levels as soon as reasonably If Operator (a) does not take these steps and at least meet the Service Levels within this timeline, or (b) falls below these Service Levels on more than three occasions, then in addition to any other remedies available to Amazon under this Agreement, Amazon may terminate this Agreement under Section 3.2.
    Service Level Minimum Service Level Measurement and Reporting Period Detail
    Delivery Scan Rate (scan compliance) At least 98.92% Weekly The number of Program Parcels that are scanned by Operator as received on arrival at Operator Locations, as a percentage of the total number of Program Parcels handed over to Operator by Amazon.
    Attributable Loss Rate No more than 0.181% Quarterly The number of Program Parcels which are lost, stolen or damaged (excluding Program Parcels lost or damaged as a result of an event outside Operator’s control) whilst in Operator’s possession or control, as a percentage of the total number of Program Parcels handed over to Operator by Amazon.
    CS Contact Rate (CPU – Customer to Client) No more than 3% Monthly The number of customer inquiries and complaints received by Amazon, which relate to Operator, as a percentage of all customer inquiries and complaints received by Amazon.
    DPMO (Defects per million opportunities) lower than 5,500 Monthly DPMO is the calculation used by Amazon to calculate the number of concessions (i.e. goodwill gestures) issued by the Amazon customer service relating to late, lost, damaged or stolen Program Parcels. The calculation used for the DPMO metric is 1,000,000 multiplied by the number of concessions, with the resulting number divided by the number of late, lost, damaged or stolen Program Parcels as multiplied by the total number of Program Parcels handed over to Operator by Amazon.
    Query Resolution Rate – general At least 96% in 24-hours Quarterly The number of telephone and email enquiries received by Operator from Amazon customer service and which are resolved within a 24 consecutive hour period, as a percentage of all telephone and email enquiries received by Operator from Amazon customer service.
    Net Promoter Score (note: this SLA shall not be measured until four (4) weeks after the Effective Date, or such later date as may be agreed in writing between the parties) At least 80% Quarterly The number of Amazon customer reviews and feedback which relate to Operator and which are positive, as a percentage of all Amazon customer reviews and feedback, which relate to Operator.

    5. Updates. Amazon may modify, supplement, supersede or otherwise update these Performance Standards at any time and from time to time by notifying Operator via email.

    EXHIBIT B

    Trademark Usage Guidelines

     

    These Trademark Usage Guidelines apply to your use of the AMAZON logo (the “Trademark”) in materials that have been approved in advance by Amazon.com, Inc. and/or its Affiliates (for purposes of this Exhibit B, “Amazon”). Strict compliance with these Trademark Usage Guidelines is required at all times, and any use of the Trademark in violation of these Trademark Usage Guidelines will automatically terminate any license related to your use of the Trademark.

    1. You may use the Trademark solely for the purpose expressly authorized by Amazon and your use must: (a) comply with the most up-to-date version of all agreement(s) with Amazon regarding your use of the Trademark (collectively “Agreements”); (b) comply with the most up-to-date version of these Trademark Usage Guidelines; and (c) comply with any other terms, conditions, or policies that Amazon may issue from time to time that apply to the use of the
    2. Amazon will supply an approved Trademark image for you to use. You may not alter the Trademark in any manner, including changing the proportion, color, or font of the Trademark, or adding or removing any element(s) from the Trademark.
    3. You may not use the Trademark in any manner that implies sponsorship or endorsement by Amazon other than by using the Trademark as specifically authorized under the
    4. You may not use the Trademark to disparage Amazon, its products or services, or in a manner which, in Amazon’s sole discretion, may diminish or otherwise damage or tarnish Amazon’s goodwill in the
    5. The Trademark must appear by itself, with reasonable spacing between each side of the Trademark and other visual, graphic or textual elements. Under no circumstance should the Trademark be placed on any background which interferes with the readability or display of the Trademark. Do not use a trademark symbol with the Trademark.
    6. You acknowledge that all rights in and to the Trademark are the exclusive property of Amazon, and all goodwill generated through your use of the Trademark will inure to the benefit of Amazon. You will not take any action that is in conflict with Amazon’s rights in, or ownership of, the Trademark.

    Amazon reserves the right, exercisable at its sole discretion, to modify these Trademark Usage Guidelines and/or the approved Trademark at any time and to take appropriate action against any use without permission or any use that does not conform to these Trademark Usage Guidelines.

    If you have questions about these Trademark Usage Guidelines, please contact [email protected] for assistance.