Advertiser's Agreement

A. XPEDE agrees to indemnify, protect and hold harmless ADVERTISER from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from XPEDE's actions offering and facilitating the Mobile Ad Services to ADVERTISER.

B. ADVERTISER agrees to indemnify, protect and hold harmless XPEDE, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of ADVERTISER and/or their Staffs arising from the performance of Mobile Ad Services under this Agreement, including personal injury or death to any person (including to ADVERTISER and/or their Staffs), as well as any liability arising from ADVERTISER's failure to comply with the terms of this Agreement. ADVERTISER's obligations hereunder shall include the cost of defense, including attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by XPEDE or its parent, subsidiary and/or affiliated companies.

C. ADVERTISER agrees to indemnify, protect and hold harmless XPEDE, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to ADVERTISER and ADVERTISER's Staffs.

D. ADVERTISER shall be responsible for, indemnify and hold harmless XPEDE, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from all costs of ADVERTISER's business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.

A. ADVERTISER and XPEDE agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. ADVERTISER and XPEDE therefore agree that, before either ADVERTISER or XPEDE demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If ADVERTISER is represented by counsel, ADVERTISER's counsel may participate in the conference, but ADVERTISER shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify XPEDE that ADVERTISER intends to initiate an informal dispute resolution conference, email support@XPEDE.net and subject title: “Advertiser Dispute Resolution,” providing ADVERTISER's name, the telephone number associated with ADVERTISER's Driver account (if any), the email address associated with ADVERTISER's Driver account, and a description of ADVERTISER's claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party's claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

B. If, following the informal resolution process, either ADVERTISER or XPEDE wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery or pick up within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought and (4) the amount in controversy. Any demand for arbitration by ADVERTISER must be delivered to the counsel who represented XPEDE in the informal resolution process, or if there was no such counsel, then to Legal Department, XPEDE, Inc., 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843.

C. Arbitration Class Action Waiver. ADVERTISER and XPEDE mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action—including but not limited to actions brought pursuant to the Private Attorney General Act (“PAGA”), California Labor Code section 2699 et seq., and any request seeking a public injunction—and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action, or to award relief to anyone but the individual in arbitration (“Arbitration Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the CPR Rules, as defined below, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. All other disputes with respect to whether this Mutual Arbitration Provision is unenforceable, unconscionable, applicable, valid, void or voidable, and all disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. For sake of clarification only, nothing in this paragraph shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.

D. Any arbitration shall be governed by the CPR Administered Arbitration Rules and, when applicable, the CPR Employment-Related Mass-Claims Protocol (together, the “CPR Rules”) of the International Institute for Conflict Prevention & Resolution, except as follows:

• i. The arbitration shall be heard by one arbitrator (the “Arbitrator”) selected in accordance with the CPR Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute.
• ii. If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 45 miles of ADVERTISER's residence as of the effective date of this Agreement or via video conference through such third-party provider(s), such as Zoom, Webex, etc., where it is reasonably safe for the parties involved due to Covid-19 or related outbreak.
• iii. The CPR fee schedule will apply with the following exceptions. Unless applicable law provides otherwise, in the event that XPEDE and ADVERTISER have agreed to this Mutual Arbitration Provision, XPEDE and ADVERTISER shall equally share filing fees and other similar and usual administrative and Arbitrator costs, as are common to both court and administrative proceedings.
• iv. The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
• v. Except as provided in the Arbitration Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
• vi. The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
• vii. The Arbitrator's decision or award shall be in writing with findings of fact and conclusions of law.
• viii. The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any nonparty from any part of the hearing.
• ix. Either ADVERTISER or XPEDE may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.

E. ADVERTISER's Right to Opt Out of Mutual Arbitration Provision. Arbitration is not a mandatory condition of ADVERTISER's contractual relationship with XPEDE, and therefore ADVERTISER may submit a statement notifying XPEDE that ADVERTISER wishes to opt out and not be subject to this MUTUAL ARBITRATION PROVISION. In order to opt out, ADVERTISER must notify XPEDE in writing of ADVERTISER's intention to opt out by sending a letter, by First Class Mail, to XPEDE, Inc., Attn: Legal Department, 11752 Garden Grove Boulevard, Suite 123, Garden Grove, CA 92843. Any attempt to opt out by email will be ineffective. The letter must state ADVERTISER's intention to opt out. In order to be effective, ADVERTISER's opt out letter must be postmarked within 30 days of the effective date of this Agreement, which is the date ADVERTISER applied or signed up as a Driver/Courier through the Xpede platform. The letter must be signed by the ADVERTISER himself/herself, and not by any agent or representative of ADVERTISER. The letter may opt out, at most, only one ADVERTISER, and letters that purport to opt out multiple ADVERTISERS will not be effective as to any. No ADVERTISER (or their agent or representative) may effectuate an opt out on behalf of other ADVERTISERS. If, at the time of ADVERTISER's receipt of this Agreement, ADVERTISER was bound by an existing arbitration agreement with XPEDE, that arbitration agreement will continue to apply to any pending litigation, even if ADVERTISER opts out of this Arbitration Agreement. If ADVERTISER opts out as provided in this paragraph, ADVERTISER will not be subject to any adverse action from XPEDE as a consequence of that decision and they may pursue available legal remedies without regard to this Mutual Arbitration Provision. If ADVERTISER does not opt out within 30 days of the effective date of this Agreement, ADVERTISER and XPEDE shall be deemed to have agreed to this Mutual Arbitration Provision. ADVERTISER has the right to consult with counsel of ADVERTISER's choice concerning this Mutual Arbitration Provision (or any other provision of this Agreement).

F. Except as specified in the prior paragraph, this Mutual Arbitration Provision supersedes any and all prior arbitration agreements between ADVERTISER and XPEDE and is the full and complete agreement relating to the formal resolution of disputes covered by this Mutual Arbitration Provision. In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.

A. XPEDE hereby grants ADVERTISER a non-exclusive, non-transferable, non-sublicensable, revocable license to use the XPEDE Mobile Ad platform solely for their lawful use to perform the Mobile Ad Services in accordance with these terms of this Agreement. XPEDE retains all rights, title, and interest in and to the XPEDE platform and its other intellectual property rights therein. Any such license shall terminate upon termination of this Agreement.

B. ADVERTISER acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information provided by ADVERTISER to XPEDE regarding the XPEDE Mobile Ad platform are provided freely and shall become the sole property of XPEDE. XPEDE shall own exclusive rights of such Submissions, including all intellectual property rights therein, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to ADVERTISER.

C. All copyright, database rights, trademarks (whether registered or unregistered), design rights (whether registered or unregistered), patent applications, patents, and other intellectual property rights of any nature in the XPEDE Mobile Ad platform together with the underlying Platform code and any and all rights in, or derived from the XPEDE Mobile Ad platform are proprietary and owned either directly by XPEDE or by XPEDE's licensors and are protected by applicable intellectual property and other laws. ADVERTISER agrees that they will not use such proprietary information, materials, or intellectual property rights in any way whatsoever except for by use of the XPEDE Mobile Ad platform to provide Mobile Ad Services in compliance with the terms of this Agreement.

A. Voluntary Action and Legal Advice. Each party hereby declares and represents that he, she or they have carefully read this Agreement and that he, she or they freely and voluntarily enter into the same.

B. Full Force and Effect. The Parties expressly consent that this Agreement shall be given full force and effect according to each and every of its express terms and provisions.

C. Interpretation. The Parties agree and acknowledge that this Agreement, and each term, condition and provision hereto, is fair, just and equitable, and is freely and voluntarily entered into in the absence of coercion and duress.

D. Captions. Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.

E. Severability. Except as specifically provided in Section XI, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.

F. Applicable Law and Interpretation. Except for the Mutual Arbitration Provision above, which is governed by the Federal Arbitration Act, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable California law.

G. Notice and Curing Opportunity. ADVERTISER agrees to notify XPEDE in writing at support@Xpede.net of any breach or perceived breach of this Agreement.

H. Effective Date. The effective date of this Agreement shall be the date ADVERTISER applied or signed up as an ADVERTISER through the XPEDE Mobile Ad platform.