TERMS OF SERVICE FOR PLATFORM USE
BY PARTNER LOGISTICS PROVIDER
In consideration of INTELUCK CORPORATION providing or continuing to provide the Platform Services or other accommodation or services to us for so long as INTELUCK may deem fit, we, the undersigned agree as follows with INTELUCK:
This Terms of Service for Platform Use (“Platform Terms”) constitutes a legal agreement between Logistics Provider (as signed and executed below in favour of INTELUCK) and INTELUCK. LOGISTICS PROVIDER is authorized to provide Logistics Services in the Philippines, and it desires to enter into this Platform Terms for the purpose of accessing and using the Platform Services to enhance its transportation business. INTELUCK provides the Platform Services (as defined below). The Platform Services enable LOGISTICS PROVIDER to seek, receive and fulfill requests for Logistics Services from an authorized user of the Platform. LOGISTICS PROVIDER desires to enter into this Platform Terms for the purpose of accessing the Platform Services and potentially increasing its business. By signing the Platform Terms, LOGISTICS PROVIDER hereby authorizes INTELUCK to represent the LOGISTICS PROVIDER with potential Users and current Users for purposes of acquiring customers and increasing the business of the LOGISTICS PROVIDER. LOGISTICS PROVIDER acknowledges and agrees that INTELUCK is a software solutions provider and provides software-as-a-service and does not provide logistics services.
1.1. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of that Affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that Affiliate on any distribution by it of all of its income or the majority of its assets on a winding up.
1.2. “Device” means a device owned or controlled by INTELUCK that is provided to LOGISTICS PROVIDER or a Driver or a Helper for the sole purpose of LOGISTICS PROVIDER using the Platform to provide Logistics Services and for no other purpose whatsoever, which includes the IFMS and any GPS-enable device.
1.3. “Driver” means an employee or contractor of Logistics Provider operating the Vehicle.
1.4. “Helper” means an employee or contractor of Logistics Provider assisting in the Vehicle during the provision of the Logistics Services.
1.5 “Platform” means INTELUCK’s Platform that enables LOGISTICS PROVIDER to access the Platform Services for the purpose of seeking, receiving and fulfilling on-demand requests for Logistics Services by Users, and for Users to seek logistics providers providing Logistics Services, as may be updated or modified by INTELUCK or its Affiliates or related parties at its discretion from time to time.
1.6. “Fare” has the meaning set forth in Section 5.1.
1.7. “DOTr” means the Department of Transportation.
1.8. “Service Fee” has the meaning set forth in Section 5.4.
1.9. “Platform Services” mean the services rendered by INTELUCK to enable LOGISTICS PROVIDER to seek, receive and fulfill on-demand requests by Users seeking Logistics Services through the proprietary software solutions of INTELUCK.
1.10. “LOGISTICS PROVIDER” shall refer to the logistics provider accredited by the DOTr (such as but not limited to carriers for overland transportation) and which accepted the Platform Terms by its signature below.
1.11. “Logistics Services” means the provision of logistics and cargo transport services to Users via the Platform Services in the Philippines by LOGISTICS PROVIDER and its Logistics Provider Staff using the Vehicles.
1.12. “Logistics Provider Staff” shall refer to the employeesand contractors of Logistics Provider which includes the Driver and Helper.
1.13 “User” means an end user of the Platform Services authorized by INTELUCK for the purpose of obtaining Logistics Services offered by LOGISTICS PROVIDER and may include a shipper of goods using the Platform Services to book for Logistics Services offered by LOGISTICS PROVIDER.
1.14. “User Information” means information about a User or shipper made available to LOGISTICS PROVIDER and its Logistics Provider Staff in connection with such User’s request for and use of Logistics Services.
1.15. “INTELUCK” means Inteluck Corporation, a Philippine corporation registered with the Securities and Exchange Commission with SEC Reg. No. CS201320757.
1.16. “Vehicle” means any vehicle of LOGISTICS PROVIDER that: (a) meets the then-current INTELUCK’s, its Affiliates’ or related parties’, requirements for a vehicle on the Platform Services; (b) INTELUCK, its Affiliates or related parties, authorizes for use by a Logistics Provider for the purpose of providing Logistics Services; and (c) compliant as required by the DOTR and other applicable laws and regulations.
2. Use of the Platform Services
2.1. Logistics Services. When the Platform is active, User’s or INTELUCK’s requests for Logistics Services may appear to a Logistics Provider via the Platform. If a Logistics Provider accepts a User’sor INTELUCK’s request for Logistics Services, the Platform will provide certain User Information to such Logistics Provider. The LOGISTICS PROVIDER acknowledges and agrees that once it has accepted a User’s request for Logistics Services, the Platform may provide certain information about the Logistics Provider to the User, including contact information, LOGISTICS PROVIDER’s entity name, and the Vehicle’s make and license plate number. LOGISTICS PROVIDER shall not, and shall ensure that all Logistics Provider Staff do not, contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling Logistics Services. As between INTELUCK and LOGISTICS PROVIDER, LOGISTICS PROVIDER acknowledges and agrees that: (a) LOGISTICS PROVIDER and its Logistics Provider Staff are solely responsible for determining the most effective, efficient and safe manner to perform each instance of Logistics Services; and (b) except for the Platform Services or any Devices (if applicable), LOGISTICS PROVIDER shall provide all necessary equipment, tools and other materials, at LOGISTICS PROVIDER’s own expense, necessary to perform Logistics Services. For purposes of using the Platform and INTELUCK’s coordination with the User, Logistics Provider hereby appoint INTELUCK, its Affiliates or related parties or a third-party outsourced or appointed by INTELUCK (whether in the Philippines or otherwise) as its agent and attorney-in-fact for the sole purpose of booking for, contracting with, and coordinating the Logistics Services of the Logistics Provider by Users.
2.2. LOGISTICS PROVIDER’s Relationship with Users. LOGISTICS PROVIDER, its Affiliates or related parties, acknowledges and agrees that LOGISTICS PROVIDER’s provision of Logistics Services to Users creates a legal and direct business relationship between LOGISTICS PROVIDER and the User, to which INTELUCK, its Affiliates or related parties, is not a party. INTELUCK, its Affiliates or related parties, is not responsible or liable for the actions or inactions of a User in relation to the activities of LOGISTICS PROVIDER, anyLogistics Provider Staff, or any Vehicle. LOGISTICS PROVIDER shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from its provision of Logistics Services. LOGISTICS PROVIDER acknowledges and agrees that it and each Logistics Provider Staff are solely responsible for taking such precautions as may be reasonable and proper (including maintaining the insurance policy issued by any DOTR’s accredited insurance provider) regarding any acts or omissions of a User or third party. LOGISTICS PROVIDER acknowledges and agrees that INTELUCK may release the contact and/or insurance information of LOGISTICS PROVIDER and/or a Logistics Provider Staff to a User upon such User’s reasonable request. LOGISTICS PROVIDER acknowledges and agrees that, unless specifically consented to by a User, neither LOGISTICS PROVIDER nor Logistics Provider Staff may transport or allow inside any Vehicle individuals or package/cargo other than that of a User and any individuals authorized by such User during the performance of Logistics Services for such User. The LOGISTICS PROVIDER will pick-up any shipments assigned to it at the requested pickup date and time in the specified pickup location. Additionally, the LOGISTICS PROVIDER will deliver the shipments during the expected delivery date and time to the specified destination.
2.3. LOGISTICS PROVIDER’s Relationship with INTELUCK. LOGISTICS PROVIDER acknowledges and agrees that INTELUCK’s provision to LOGISTICS PROVIDER of the Platform Services creates a legal and direct business relationship between INTELUCK and LOGISTICS PROVIDER. INTELUCK does not, and shall not be deemed to, direct or control LOGISTICS PROVIDER or its Logistics Provider Staff generally or in their performance under this Platform Terms specifically, including in connection with the operation of LOGISTICS PROVIDER’s business, the provision of Logistics Services, the acts or omissions of Logistics Provider Staff, or the operation and maintenance of any Vehicles. LOGISTICS PROVIDER and its Logistics Provider Staff retain the sole right to determine when and for how long each of them will utilize the Platform or the Platform Services. LOGISTICS PROVIDER acknowledges and agrees that it has complete discretion to operate its independent business and direct its Logistics Provider Staff at its own discretion, including the ability to provide services at any time to any third party separate and apart from Logistics Services. For the sake of clarity, LOGISTICS PROVIDER understands that it retains the complete right to provide Logistics Services to its existing customers and to other potential customers. Access to or use of the Platform Services by LOGISTICS PROVIDER may be cancelled or otherwise deactivated in the event of a violation of this Platform Terms, the LOGISTICS PROVIDER’s or any Logistics Provider Staff’s disparagement of INTELUCK or any of its Affiliates or related parties, LOGISTICS PROVIDER’s or any Logistics Provider Staff’s act or omission that causes harm to INTELUCK’s or its Affiliates’ and related parties’ brand, reputation or business as determined by INTELUCK in its sole discretion or for any other reasonable ground. INTELUCK also retains the right to deactivate or otherwise restrict User or any Logistics Provider from accessing or using the Platform Services for any other reason at the sole and reasonable discretion of INTELUCK.
2.4. LOGISTICS PROVIDER’s Relationship with Logistics Provider Staffs. LOGISTICS PROVIDER shall have the sole responsibility for any obligations or liabilities to Logistics Provider Staffs that arise from its relationship with its Logistics Provider Staffs (including provision of Logistics Services). The LOGISTICS PROVIDER acknowledges and agrees that it exercises sole control over the Logistics Provider Staffs and will comply with all Philippine laws governing or otherwise applicable to its relationship with its Logistics Provider Staffs. Notwithstanding LOGISTICS PROVIDER’s right, if applicable, to take recourse against a Logistics Provider Staff, LOGISTICS PROVIDER acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of its Logistics Provider Staffsvis-à-vis Users and INTELUCK, even where such liability may not be mandated under Philippine law.The LOGISTICS PROVIDER will be solely responsible for handling and securing shipments to be transported and each Logistics Provider Staff and Logistics Provider Staff are expected to have the required knowledge and training in properly handling and transporting the shipment and generally in providing the Logistics Services.
2.5.1. LOGISTICS PROVIDER acknowledges and agrees that after receiving Logistics Services, a User may be prompted by the Platform to provide a rating of such Logistics Services and Logistics Provider Staff and, optionally, to provide comments or feedback about such Logistics Services and Logistics Provider Staff.
2.5.2. LOGISTICS PROVIDER acknowledges that INTELUCK desires that Users have access to high-quality services via the Platform. In order to continue to receive access to the Platform and the Platform Services, a Logistics Provider must maintain an average rating by Users that exceeds the minimum average acceptable rating established by INTELUCK for the Philippines, as may be updated from time to time by INTELUCK in its sole discretion (“Minimum Average Rating”). In the event a Logistics Provider Staff’s average rating falls below the Minimum Average Rating, INTELUCK may provide feedback to LOGISTICS PROVIDER. If such Logistics Provider does not increase its average rating above the Minimum Average Rating within the time period allowed (if any), INTELUCK reserves the right to deactivate such Logistics Provider’s access to the Platform Services.
2.5.3. INTELUCK and its Affiliates or other related parties reserve the right to use, share and display User ratings and comments in any manner in connection with the business of INTELUCK and its Affiliates or other related parties without attribution to or approval of LOGISTICS PROVIDER.
3.1 To start a transaction for a Logistics Service to a User, the Corporation will provide a copy of the terms of the User to the Logistics Provider;
3.2 The Logistics Provider shall agree on all the terms of the User stated in the agreement provided by Inteluck;
3.3 All Vehicles used in Trucking.ph shall be equipped with Inteluck Fleet Management Solutionsplatform (“IFMS”) which shall be installed by INTELUCK free of charge and free for use for 30 calendar days counted from installation; INTELUCK reserves the right, as informed to LOGISTICS PROVIDER, to impose additional terms and conditions for its continued use including without limitation additional charges and lock-in period;
3.4 If the Vehicle to be used is not equipped with IFMS, the Logistics Provider shall not be allowed to provide the Logistics Service;
3.5 Vehicles which are not active on the Tracking Platform Dashboard due to Device issuecannot be used during delivery.
3.6 Failure to provide the Vehicle or the truck to Inteluck or the User upon the agreedtimeline shall be subject for penalty, which total computation will be provided by Inteluck.
3.7 The User will issue a Certificate of Delivery to the Logistics Provider within the day of delivery (or uponagreed terms), to which the User will sign the said document;
3.8 The signed Certificate of Delivery shall be forwarded and submitted to Inteluck immediately in no case beyond 48 hours from issuance by the User;
3.9 Any changes on the details of Certificate of Delivery from the User shall be subject for review by Inteluck and the User;
3.10 The delivery information in the Certificate of Delivery will be the basis of the LogisticsServices Fare that shall be paid to Logistics Provider;
3.11 Any acquisition or deductionwill be charged directly to Logistics Provider;
3.12 The collection of payments for the LogisticsService Fare will be based on the agreed terms of thetransaction (eg. 15 days, 30ays);
3.13 Payment to the Logistics Provider may vary depending his delivery performance (in accordance to the agreed terms). Delivery performance shall be subject to Key Performance Indicators (“KPIs”) that Inteluck may promulgate from time to time. Continued use and/or non-termination by the Logistics Provider shall mean continuing consent by the Logistics Provider of the Inteluck KPIs.
3.14 Any changes in the delivery information (eg. weight of goods, destination, type of vehicle needed)can affect the total amount of the LogisticsServices rate.
3.15 INTELUCK, its Affiliates or related parties, will supply LOGISTICS PROVIDER with INTELUCK Devices to each authorized Vehicle, provided that INTELUCK, its Affiliates or related parties, may require a deposit for each Device. LOGISTICS PROVIDER acknowledges and agrees that: (a) Devices may only be used for the purpose of enabling Logistics Provider Staff access to the Platform Services and provide the Logistics Services; and (b) Devices may not be transferred, loaned, sold or otherwise provided in any manner to any party other than the Vehicle assigned to use such Device. Devices shall at all times remain the property of INTELUCK, and upon termination of this Platform Terms or the termination or deactivation of LOGISTICS PROVIDER, Logistics Provider agrees to return to INTELUCK the applicable Devices within ten (10) calendar days without need of demand. LOGISTICS PROVIDER acknowledges and agrees that failure to timely return any Devices, or damage to Devices outside of “normal wear and tear,” will result in the forfeiture of related deposits.
3.16 LOGISTICS PROVIDER acknowledges and agrees that each Vehicle’s geo-location information must be provided to INTELUCK via a Device in order to provide Logistics Services.
3.17 INTELUCK will provide and release memorandum containing new or modified process and polices anytime or if needed. LOGISTICS PROVIDER should follow and agree with all the content of the said memorandum.
4. Provider Staffs and Vehicles
4.1 Requirements. LOGISTICS PROVIDER acknowledges and agrees that: (a) each Driver shall at all times hold and maintain (i) a valid professional driver’s license to operate the Vehicle assigned to such Driver, and (ii) all licenses, permits, approvals and authority applicable to LOGISTICS PROVIDER and/or Driver that are necessary to provide Logistics Services to third parties in the Philippines; (b) Logistics Provider Staffs possess the appropriate and current level of training, expertise and experience to provide Logistics Services in a professional manner with due skill, care and diligence; and (c) Logistics Provider Staffs maintain high standards of professionalism, service and courtesy. LOGISTICS PROVIDER acknowledges and agrees that each Logistics Provider Staff may be subject to criminal background check and may be subject to driving record checks from time to time in order for such Logistics Provider Staffs to qualify to provide, and remain eligible to provide, Logistics Services. LOGISTICS PROVIDER acknowledges and agrees that INTELUCK or its Affiliates or related parties reserves the right, at any time in its sole discretion, to deactivate or otherwise restrict Logistics Provider from accessing or using the Platform Services if LOGISTICS PROVIDER or any of its Logistics Provider Staff fails to meet the requirements set forth in this Platform Terms.
4.2 Vehicle Requirements. LOGISTICS PROVIDER acknowledges and agrees that each Vehicle shall at all times be: (a) properly registered and licensed to operate as a transportation vehicle in the Philippines; (b) owned or leased by LOGISTICS PROVIDER, or otherwise in LOGISTICS PROVIDER’s lawful possession; (c) suitable for performing the Logistics Services contemplated by this Platform Terms; (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the Philippines, and in a clean and sanitary condition; (e) be equipped with basic tools and equipment (like spare tire, jack, early warning device or the like) when providing the Logistics Services; (f) without any advertisement on the exterior of the vehicle unless approved by the DOTR or a component of INTELUCK’s trademark; and (g) equipped with INTELUCK’s trade mark that is readable during daylight hours at a distance of at least fifty (50) feet and reflective, illuminated or otherwise patently visible so as to be seen in darkness.
4.3 Documentation. To ensure LOGISTICS PROVIDER’s and each of its Logistics Provider Staffs’ compliance with all requirements in Sections 4.1 and 4.2 above, LOGISTICS PROVIDER must provide INTELUCK with written copies of all such licenses, permits, approvals, authority, registrations and certifications prior to LOGISTICS PROVIDER’s provision of any Logistics Services. Thereafter, LOGISTICS PROVIDER must submit to INTELUCK written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. INTELUCK shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and LOGISTICS PROVIDER’s failure to provide or maintain any of the foregoing shall constitute a material breach of this Platform Terms. INTELUCK reserves the right to independently verify LOGISTICS PROVIDER’s and/or any Logistics Provider Staffs’s Documentation from time to time in any way INTELUCK deems appropriate in its reasonable discretion.
5. Financial Terms
5.1 Fare Calculation. LOGISTICS PROVIDER is entitled to charge a fare for each instance of completed Logistics Services provided to a User that are obtained via the Platform Services (“Fare”), where such Fare is calculated based upon the rates to be agreed by and with the Logistics Provider and informed to the User by INTELUCK as agent of the Logistics Provider (“Fare Calculation”).The Logistics Provider will communicate directly to Inteluck should there be any concerns regarding payment of LogisticsServices. In the event of nonpayment, Inteluck shall act as mediator to resolve the issue with the User. LOGISTICS PROVIDER: (i) appoints INTELUCK, its Affiliates or related parties or a third-party outsourced or appointed by INTELUCK (whether in the Philippines or otherwise), as LOGISTICS PROVIDER’s limited payment collection agent solely for the purpose of accepting the Fare, and, depending on the location and/or if requested by LOGISTICS PROVIDER, applicable taxes and fees from the User on behalf of LOGISTICS PROVIDER; (ii) agrees that payment made by User to INTELUCK or its Affiliates or related parties shall be considered the same as payment made directly by User to LOGISTICS PROVIDER; and (iii) resolve payment issues.Inteluck makes no guarantees or claims that the provision of LogisticsServices by the Logistics Provider will meet any expectations and requirements or result in profits or cost reduction.
5.2 Service Fee. In consideration of the Platform Services, LOGISTICS PROVIDER agrees to pay INTELUCK or its Affiliates or other related parties or licensors, a service fee on a per Logistics Services transaction basis, as provided to LOGISTICS PROVIDER via email or otherwise made available electronically from time to time for the Philippines (“Service Fee”). Such Service Fee shall be collected by INTELUCK, by itself or through its Affiliates, related parties or a third-party outsourcing entities (whether in the Territory or otherwise), whether on its own behalf or on behalf of its Affiliates or related parties.
5.3 Receipts. LOGISTICS PROVIDER shall issue its official receipts to Users or toINTELUCK (should INTELUCK directly collect payment from the Users on behalf of LOGISTICS PROVIDER) in accordance with applicable Philippine law.
5.4 Taxes. LOGISTICS PROVIDER acknowledges and agrees that it is required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of Logistics Services as required by applicable law; and (b) issue official receipts to Users or INTELUCK as required under applicable Philippine law and (c) provide INTELUCK with all relevant tax information (including a valid VAT number belonging to the LOGISTICS PROVIDER). LOGISTICS PROVIDER further acknowledges and agrees that LOGISTICS PROVIDER, for itself and each of its Logistics Provider Staffs is responsible for taxes on its own and its Logistics Provider Staff’s income arising from the performance of Logistics Services. Notwithstanding anything to the contrary in this Platform Terms, INTELUCK, its Affiliates or related parties, may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes assessable and/or due and payable from LOGISTICS PROVIDER’s and/or any Logistics Provider Staff’s provision of Logistics Services and/or provide any of the relevant tax information LOGISTICS PROVIDER and/or any Logistics Provider Staff has provided pursuant to the foregoing requirements in this Section directly to the applicable governmental tax authorities on LOGISTICS PROVIDER’s and/or the applicable Logistics Provider Staff’s behalf.
5.5 Set-Offs. Without prejudice to all other rights and remedies which INTELUCK may have against LOGISTICS PROVIDER, INTELUCK may, and is hereby authorized by LOGISTICS PROVIDER to, set-off, sell or dispose, as full or partial payment, and/or withhold, as additional security, to the extent permitted by law, at INTELUCK‘s option, all monies, properties, receivables or securities of LOGISTICS PROVIDER which may come into the possession or control of INTELUCK, itsAffiliates or related parties, whether left with them for safekeeping or otherwise, or coming into any of their hands in any way, to settle any or all obligations of the LOGISTICS PROVIDER to INTELUCK and/or Users, including but not limited to damage and/or loss of goods of Users.To effectively carry out the powers herein granted, LOGISTICS PROVIDER hereby unconditionally and irrevocably names and constitutes INTELUCK as its true and lawful attorney-in-fact, with full power of substitution, to do or cause to be done any and all acts that are necessary to carry out the aforesaid purposes, including the power to sell in accordance with law, without the need for any further notice, demand or deed, all such monies, properties, receivables or securities of LOGISTICS PROVIDER. Any excess in the proceeds of the sale after application for payment of LOGISTICS PROVIDER’s obligationsshall be returned to LOGISTICS PROVIDER. The appointment of INTELUCK is coupled with interest and is, therefore, irrevocable until all of LOGISTICS PROVIDER‘s obligations to INTELUCK and Users are fully settled. In addition, all of such monies, properties, receivables or securities in the possession or control of, LOGISTICS PROVIDER are hereby ceded, transferred and conveyed by way of assignment unto INTELUCK in order that the same may be used to satisfy any and all obligations to INTELUCK and Users in accordance with this provision. For such purpose, LOGISTICS PROVIDER irrevocably authorizes INTELUCK to debit or cause the debit of, such amounts as may be necessary from any of LOGISTICS PROVIDER’s accounts with INTELUCK, immediately after which due notice shall be sent to LOGISTICS PROVIDER. LOGISTICS PROVIDER further authorizes INTELUCK to furnish INTELUCK’s Affiliates with a copy of this Agreement to implement this provision.LOGISTICS PROVIDER hereby undertakes to hold INTELUCK and its Affiliates, their directors, officers, employees, representatives and agents, free and harmless from any liability arising from INTELUCK’s exercise of its remedies and authorities hereunder, or from any action taken by INTELUCK and its Affiliates on the basis of and within the framework of the foregoing appointment and assignment;
6.1. Each party acknowledges and agrees that in the performance of this Platform Terms it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). Confidential Information includes INTELUCK or its Affiliate or related parties Data, Logistics Provider Staff IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Platform Terms; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Platform Terms, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party upon the termination of this Platform Terms or at the request of the other party (subject to applicable law and, with respect to INTELUCK, its internal record-keeping requirements).
6.3. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Platform Terms without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
8.1. Prior to doing business with INTELUCK, LOGISTICS PROVIDER agrees to obtain the insurance policy from anDOTR-accredited insurance provider at LOGISTICS PROVIDER’s sole cost and expense. LOGISTICS PROVIDER agrees to review the terms and conditions of such coverage to ensure that it provides the amounts of coverage required by Philippine law.
8.2 LOGISTICS PROVIDER agrees that INTELUCK may require certain specific insurance and minimum coverage from time to time as may be informed to LOGISTICS PROVIDERS.
9. Representations and Warranties; Disclaimers
9.1 By the LOGISTICS PROVIDER. LOGISTICS PROVIDER hereby represents and warrants that: (a) it has full power and authority to enter into this Platform Terms and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the term will not enter into, any agreement that would prevent it from complying with this Platform Terms; (d) it will comply with all applicable Philippine laws in its performance of this Platform Terms, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide (i) Logistics Services using the Logistics Provider Staffs and Vehicles pursuant to this Platform Terms, and (ii) Logistics Services to third parties in the Philippines generally; (e) it shall report to INTELUCK, within twenty-four (24) hours from receipt of report or reliable information, the following: (i) any assault or robbery or crime involving LOGISTICS PROVIDER or Logistics Provider Staffs; (ii) any accident, resulting in physical injuries or death, involving LOGISTICS PROVIDER or Logistics Provider Staff; (iii) conviction of criminal offenses that have a bearing on LOGISTICS PROVIDER’s or Logistics Provider Staff’s ability or fitness to operate as a logistics provider. Such offenses may include: theft, fraud, robbery, assault, sex crime, alcohol, drugs or prostitution; and (iv) termination of aLogistics Provider Staff’s employment or contractor contract with LOGISTICS PROVIDER; and (f) it shall require all Logistics Provider Staffs to comply with the applicable terms and conditions set forth in this Platform Terms and all applicable Philippine laws.
9.2 Disclaimer of Warranties. INTELUCK, its Affiliates or related parties, provides, and LOGISTICS PROVIDER accepts, the Platform Services, Platform and the Devices on an “as is” and “as available” basis. INTELUCK or its Affiliates or related parties does not represent, warrant or guarantee that LOGISTICS PROVIDER’s or any Logistics Provider Staff’s access to or use of the Platform Services, Platform or the Devices: (a) will be uninterrupted or error free; or (b) will result in any requests for Logistics Services. INTELUCK, its Affiliates or related parties, makes no representations, warranties or guarantees as to the actions or inactions of the Users who may request or receive Logistics Services from the LOGISTICS PROVIDER or any Logistics Provider Staff hereunder, and INTELUCK, its Affiliates or related parties, need not screen or otherwise evaluate Users. By using the Platform Services and Platform, LOGISTICS PROVIDER acknowledges and agrees that LOGISTICS PROVIDER or a Logistics Provider Staff may be introduced to a third party (including Users) that may pose harm or risk to LOGISTICS PROVIDER, a Logistics Provider Staff or other third parties. LOGISTICS PROVIDER and Logistics Provider Staffs are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Platform Services or Platform.
9.3 No Service Guarantee. INTELUCK, its Affiliates or related parties, does not guarantee the availability or uptime of the Platform or Platform. LOGISTICS PROVIDER acknowledges and agrees that the Platform or Platform may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Platform or Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and INTELUCK is not responsible for any delays, delivery failures or other damages, liabilities or losses resulting from such problems.
10.1 LOGISTICS PROVIDER shall indemnify, defend (at INTELUCK’s option) and hold harmless INTELUCK (and its Affiliates and other related parties and their respective officers, directors, employees, agents, successors and assigns) from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) LOGISTICS PROVIDER’s breach of its representations, warranties or obligations under this Platform Terms; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to LOGISTICS PROVIDER’s provision of Logistics Services or use of the Platform Services.
10.2 As between LOGISTICS PROVIDER and INTELUCK, its Affiliates or related parties, LOGISTICS PROVIDER is and shall be solely responsible for its provision of Logistics Services. As such, LOGISTICS PROVIDER shall indemnify, defend (at INTELUCK’s option) and hold harmless INTELUCK (and its Affiliates and other related parties and their respective officers, directors, employees, agents, successors and assigns) from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes directly or indirectly arising out of or related to its Logistics Provider Staffs’ or use of the Platform Services. The Logistics Provider is solely accountable for all liabilities, including, but not limited to, property damage, shipment loss, damage or delay, personal injury and death as a result or an alleged result of the LogisticsServices. Inteluckshall not be responsible and as such, the Logistics Provider shall compensate for any and all corresponding losses and damages.
10.3 LOGISTICS PROVIDER shall comply with all of its obligations under tax and social security laws to the extent applicable to this Platform Terms. LOGISTICS PROVIDER shall indemnify INTELUCK or its Affiliates or other related parties from all tax liabilities, duties, levies, claims and penalties that may be imposed on LOGISTICS PROVIDER or on INTELUCK or its Affiliates or other related parties as a result of LOGISTICS PROVIDER’s failure to comply with any of its tax obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any wage tax, social insurance premiums or employee insurance premiums) arising in the event that the relationship described in the Platform Terms, contrary to the intention and meaning of the parties, should be held to be an employment agreement between INTELUCK and LOGISTICS PROVIDER’s Logistics Provider Staffs by the relevant authority in the Philippines.
11. Limits of Liability
Unless otherwise provided by law, or unless INTELUCK fails to exercise due diligence and reasonable care in accrediting LOGISTICS PROVIDER and their Logistics Provider Staffs and the liability was not caused by acts or omissions outside of INTELUCK’s control, INTELUCK and its Affiliates and related parties shall not be liable under or related to this Platform Terms for any of the following, whether based on contract, tort or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) LOGISTICS PROVIDER’s, Logistics Provider Staff’s or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Except for INTELUCK’s obligations to pay amounts due to LOGISTICS PROVIDER pursuant to Section 5 above, but subject to any limitations or other provisions contained in this Platform Terms which are applicable thereto, in no event shall the liability of INTELUCK or its Affiliates or other related parties under this Platform Terms exceed the amount of Service Fees actually paid to or due to INTELUCK hereunder in the six (6) month period immediately preceding the event giving rise to such claim. LOGISTICS PROVIDER acknowledges and agrees that any and all claims LOGISTICS PROVIDER has or purports to have against INTELUCK or its Affiliates or other related parties should be notified to INTELUCK or its Affiliates or other related parties within one (1) year after the event(s) that gave rise to such claim and that LOGISTICS PROVIDER forfeits all rights in respect of that claim if LOGISTICS PROVIDER fails to do so. These limitations do not purport to limit liability that cannot be excluded by applicable Philippine law.
12. Term and Termination
12.1 Term. This Platform Terms shall commence on the date LOGISTICS PROVIDER receives a notice of commencement from INTELUCK, its Affiliates or related parties and until terminated in accordance herein.
12.2 Termination. Either party may terminate this Platform Terms: (a) without cause (for convenience) at any time upon 30 calendar days prior notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Platform Terms; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, INTELUCK may terminate this Platform Terms or INTELUCK or its Affiliates or other related parties may deactivate LOGISTICS PROVIDER or a particular Vehicle immediately, without notice, with respect to LOGISTICS PROVIDER and/or any Vehicle in the event LOGISTICS PROVIDER and/or any Vehicle, as applicable, no longer qualifies, under applicable Philippine law or the standards and policies of INTELUCK, to provide Logistics Services or to operate the Vehicle, or as otherwise set forth in this Platform Terms.
12.3 Effect of Termination. Upon termination of the Platform Terms, the LOGISTICS PROVIDER and all Logistics Provider Staffs, as applicable, shall promptly return to INTELUCK all Devices. Outstanding payment obligations shall survive the termination of this Agreement.
13. Relationship of the Parties
13.1 The relationship between the parties under this Platform Terms is solely that of independent contractors. The parties expressly agree that: (a) this Platform Terms is not an employment agreement, nor does it create an employment relationship (including from a labor law, tax law or social security law perspective), between INTELUCK, its Affiliates or related parties, and LOGISTICS PROVIDER or INTELUCK, its Affiliates or related parties, and any Logistics Provider Staff; and (b) no joint venture, partnership, or agency relationship exists between INTELUCK, its Affiliates or related parties, and LOGISTICS PROVIDER or INTELUCK, its Affiliates or related parties, and any Logistics Provider Staff.
13.2 LOGISTICS PROVIDER has no authority to bind INTELUCK or its Affiliates or related parties and undertakes not to hold itself out, and to ensure that each Logistics Provider Staff does not hold himself or herself out, as an employee, agent or authorized representative of INTELUCK or its Affiliates or other related parties. Where, by implication of mandatory Philippine law or otherwise, LOGISTICS PROVIDER’s Logistics Provider Staff may be deemed an employee, agent or representative of INTELUCK, LOGISTICS PROVIDER undertakes and agrees to indemnify, defend (at INTELUCK’s option) and hold INTELUCK and its Affiliates and other related parties harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
13.3 LOGISTICS PROVIDER expressly acknowledges and agrees that by agreeing to the terms and conditions of this Platform Terms, LOGISTICS PROVIDER intends to perform Logistics Services in a non-incidental manner and, as such, INTELUCK, its Affiliates or related parties, will consider LOGISTICS PROVIDER and its Logistics Provider Staffs to be taxable persons in accordance with all applicable VAT and indirect tax legislation.
14. Miscellaneous Terms
Governing Law and Jurisdiction. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF THE PHILIPPINES, IRRESPECTIVE OF SUCH COUNTRY’S CHOICE OF LAW PRINCIPLES. ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT ONLY AND EXCLUSIVELY IN THE PROPER COURTS OF MAKATI CITY, TO THE EXCLUSION OF OTHER COURTS.
The rights and obligations of the Logistics Provider under this Agreement may not be assigned without the prior written consent of Inteluck However, Inteluck may assign its rights and obligations under this Agreement to its Affiliates or to a third party without need of prior consent from the Logistics Provider. This Agreement shall be binding on each of the Parties hereto and all their successors and permitted assignees.
Entire Agreement. This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, between the Parties with respect to the subject matter hereof. All annexes, schedules, and other documents attached to this document are integral to this Agreement and shall form part of said Agreement.
Waiver. Any Party to this Agreement may waive compliance with any of the agreements or conditions of the other Party contained herein. Any such waiver or extension shall only be valid if set forth in an instrument in writing signed by the Party waiving compliance. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of any of such rights.
Further Action. Each of the Parties shall use all reasonable efforts to take or cause to be taken all appropriate action, do or cause to be done all things necessary, proper or advisable, and execute and deliver such documents and other papers as may be required to carry out the provisions of this Agreement and consummate and make effective the transactions contemplated by this Agreement.
Severability. If any term or other provision of this Agreement is held invalid, illegal, or incapable of being enforced by any Philippine Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby are not affected or in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Amendment. This Agreement may not be amended or modified except (a) by an instrument in writing signed by, on behalf of, or by a duly authorized representative of both Parties.Supplemental terms may apply to Logistics Provider’s use of the Platform Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). Logistics Provider may be presented with certain Supplemental Terms from time to time by Inteluck. Supplemental Terms are in addition to, and shall be deemed a part of, this Terms. Continued use by Logistics Provider after being notified of the Supplemental Terms shall mean consent by the Logistics Provider of such terms.