Effective May 11, 2018
This agreement (the "Agreement") is made and entered into by and between you ("Contractor"or "you"), an independent contractor engaged in the business of performing the type of delivery services contemplated by this Agreement, and Postmates Inc. ("Postmates"). Contractor and Postmates may be referred to herein individually as a "Party" and collectively as the "Parties". This Agreement will become effective on the date it is accepted by Contractor regardless of whether Contractor is eligible to or ever performs any delivery services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. SPECIFICALLY, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 11, WHICH REQUIRES THE PARTIES (UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND VOLUNTARILY AGREED TO ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING THE MUTUAL ARBITRATION PROVISION, AND THAT YOU HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
Postmates provides an online marketplace (the "Postmates Platform"or "Platform") using web-based technology that connects restaurants and/or other businesses (collectively "Merchants"), customers using the Postmates website and/or mobile application ("Customers"), and independent providers of delivery services ("Contractors") . Postmates' software permits Customers to place orders from Merchants, notifies Contractors that a Delivery Opportunity (as defined in section 3A below) is available, and facilitates the completed delivery of such orders to the Customers who placed them. Postmates is not a retail store, restaurant, food delivery service, merchandise delivery service, or food preparation entity.
Contractor is a fully-licensed, independent provider of delivery services, authorized to perform the delivery services contemplated by this Agreement in the geographic location(s) in which Contractor operates. Contractor lawfully possesses all equipment necessary to perform the delivery services contemplated by this Agreement in accordance with all applicable laws. Contractor desires to enter into this Agreement for the right to access the Postmates Platform to receive Delivery Opportunities (as defined in section 3A below) made available to Contractor through the Platform. When performing delivery services pursuant to the terms of this Agreement, Contractor understands and expressly agrees that Contractor is not doing so as an employee of Postmates, any Merchant, or any Customer. Contractor further understands that: (i) Contractor is free to select those times Contractor wishes to use the Postmates Platform to be available to receive Delivery Opportunities; (ii) Contractor is free to accept, reject, or ignore any particular Delivery Opportunities made available to Contractor through the Platform as Contractor sees fit to maximize Contractor's opportunity to profit; and (iii) Contractor has the sole right to control the manner in which Deliveries are performed and the means by which those deliveries are completed.
In consideration of these recitals and the mutual promises below, and for other good and valuable consideration, Postmates and Contractor agree as follows:
1. Purpose Of Agreement
1A. This Agreement governs the entire relationship between Postmates and Contractor, and establishes the Parties' respective rights and obligations applicable to the Delivery Opportunities (as defined in Section 3A below) made available to Contractor through the Platform. In exchange for the promises contained in this Agreement, Contractor shall have the contractual right and obligation to perform those Delivery Opportunities that Contractor accepts ("Deliveries", defined in Section 3A below). However, except as expressly stated below in Section 12, "Term and Termination", nothing in this Agreement requires Contractor to perform any delivery services during the Term of this Agreement, and nothing in this Agreement shall guarantee Contractor any particular volume of Delivery Opportunities or Deliveries for any particular time period.
1B. Notwithstanding any other provision of this Agreement, once Contractor accepts a Delivery Opportunity, Contractor agrees that Contractor shall be contractually bound to complete the Delivery in accordance with this Agreement and any specifications provided to Contractor by a Customer and/or Merchant.
2. Contractor's Services
2A. Contractor agrees and represents that Contractor is an independent provider of delivery services, and that Contractor satisfies any and all legal requirements necessary to perform the delivery services contemplated by this Agreement. Contractor agrees to perform all Deliveries in compliance with any and all applicable federal, state, and local laws, rules and regulations, including but not limited to applicable food and health safety laws, rules, and/or regulations. Additionally, Contractor agrees that all items delivered, including food, shall arrive to the Customer uncontaminated, free from tampering, and at the temperature or condition intended by the Merchant.
2B. Contractor agrees to ensure full performance of all Deliveries in a timely, efficient, safe, and lawful manner. Postmates shall have no right to, and shall not, supervise, direct or control Contractor, or control the manner or prescribe the method Contractor uses to perform Deliveries, and the general public and all governmental agencies regulating the activities contemplated by this Agreement shall be so informed. Contractor shall be solely responsible for determining the most effective, efficient, satisfactory, and safe manner to perform Deliveries, including determining the manner of pickup, delivery, and route selection. Contractor agrees, for safety purposes, that Contractor will personally pick up and drop off all items accepted for delivery. However, nothing in this Agreement prohibits Contractor, to the extent permitted by law and subject to the terms of this Agreement, from hiring, subcontracting, or otherwise engaging any other person (a "Subcontractor") to assist Contractor with the the performance of some or all of Contractor's performance of a Delivery, provided any Subcontractor meets and accepts all the requirements and obligations of this Agreement applicable to Contractor, including but not limited to accepting the terms of this Agreement and completing the process to separately receive Delivery Opportunities on the Postmates Platform. Contractor agrees to bear sole responsibility for the direction and control over any Subcontractor. Specifically, to the extent Contractor engages a Subcontractor: (1) Contractor assumes full and sole responsibility for the payment of all amounts due to the Subcontractor for work performed in relation to this Agreement, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to Contractor and all Subcontractor(s) engaged by Contractor in the performance of the delivery services under this Agreement. Postmates shall have no responsibility for any wages, benefits, expenses, or other payments due Contractor's Subcontractor(s), nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to Contractor or any Subcontractor. Neither Contractor nor any Subcontractor shall receive any wages, including vacation pay or holiday pay, from Postmates, nor shall they participate in or receive any other benefits, if any, available to Postmates' employees. Unless mandated by law, Postmates shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of Contractor or any Subcontractor. The Parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in Postmates have been inserted solely to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof and/or to ensure the safety of the Platform for all users.
2C. Contractor expressly acknowledges and agrees that as a separately established provider of delivery services, Contractor retains the right to perform services for others and to hold him or herself out to the general public as a separately established provider of delivery services. Nothing in this Agreement shall prevent Contractor or Postmates from engaging in similar arrangements or business with others. Postmates neither has nor reserves the right to restrict Contractor at any time from performing delivery services for other entities or customers, even should such business directly compete with Postmates. Provided Contractor can meet the customer's specifications, and unless prohibited by law, nothing in this Agreement shall prohibit Contractor from carrying and/or delivering goods for other(s) of Contractor's customers at the same time while delivering orders requested by Customers through the Postmates Platform. Similarly, Contractor is not limited in any way from being actively logged onto online platforms other than the Postmates Platform while actively logged onto the Postmates Platform, subject only to the limitation that Contractor's use of other online platforms may not prevent Contractor's ability to timely, efficiently, and safely complete any Deliveries.
2D. Contractor is not required, as a condition of doing business with Postmates or entering into this Agreement, to purchase, lease, or rent any products, equipment, or services from Postmates.
2E. Contractor agrees that to ensure the safety of the Postmates Platform, Postmates shall require that Contractor submit to and pass a background check based on Contractor's own social security number before Contractor receives access to the Postmates Platform or is given continued access to the Platform. Additionally, Contractor agrees that, in accordance with applicable law, and at Postmates' sole discretion, periodically during the Term of this Agreement (as defined in Section 12 below) Postmates may require that Contractor submit to and pass additional background check(s). Postmates agrees that any such check(s) may be conducted only with Contractor's consent (as applicable) and in accordance with applicable law.
2F. On occasion, Postmates may offer Contractor different promotions or referral programs. Contractor agrees not to abuse or manipulate the promotions or referral programs. Contractor understands that any abuse or manipulation constitutes a material breach of this Agreement and may lead to deactivation, and that Contractor forfeits any payments.
2G. Contractor agrees that Postmates, its affiliates or its representatives may contact Contractor by email, phone, push notifications, SMS, or by other comparable means (including by use of an automatic telephone dialing system) at the email address(es), phone(s), or phone number(s) Contractor provides, including for marketing purposes where permitted by law. Contractor also agrees and understands that Postmates sends information related to Deliveries and Delivery Opportunities, including delivery fees, user account information, and sign up progress to become a Contractor, via SMS and push notification, so Contractor must agree to receive such transactional messages to provide delivery services as a Contractor on the Platform.
2H. SMS and push communications from Postmates, its affiliates or its representatives and/or Merchants or Customers, may include but are not limited to: (1) operational communications concerning your user account, sign up progress to become a Contractor, use of the Platform, or features available on the Platform, (2) communications relating to Deliveries and Delivery Opportunities, including delivery fees, (3) news concerning Postmates and industry developments that affect your relationship with us, and (4) account verification communications. With your consent, Postmates may also send you marketing SMS regarding promotions from us or our third-party partners. Message and data rates may apply.
IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE FROM OUR MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, POSTMATES MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN US. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES, YOU MAY TEXT "STOP"IN RESPONSE TO SUCH A TEXT MESSAGE FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES AS A CONTRACTOR ON THE PLATFORM.
3A. From time to time, the Platform will notify Contractor of the opportunity to complete deliveries from Merchants to Customers as ordered by Customers through the Platform (each, a "Delivery Opportunity"). The Platform may provide Contractor automatic acceptance options or other preferences for certain Delivery Opportunities. With respect to each Delivery Opportunity accepted by Contractor (each, a "Delivery"), Contractor agrees to retrieve the order from the Merchant(s) and deliver the order to Customer(s) in accordance with the terms of this Agreement.
Contractor understands and agrees that the Customer, not Postmates, determines the content of the Delivery. Contractor understands and agrees that the parameters of each Delivery are established by the Customer, not Postmates, and represent the end result desired, not the means by which Contractor is to accomplish the end result. Notwithstanding the foregoing, Contractor agrees to complete Deliveries according to the terms of this Agreement and as may be required and updated by Postmates from time to time in the Fleet Help Center.
3B. Contractor agrees that Postmates has discretion regarding which, if any, Delivery Opportunities to offer Contractor, just as Contractor has sole discretion to decide whether and to what extent Contractor accepts any Delivery Opportunity.
3C. Contractor agrees that if Contractor accepts a Delivery Opportunity that includes any age-restricted items, including but not limited to alcohol, tobacco, e-cigarettes, or vaporizers, Contractor is solely responsible for ensuring that the Delivery complies with all federal, state, and local laws, including but not limited to ensuring that the individual accepting the delivery is the individual who placed the order, has provided valid identification, is the required age, and is not intoxicated.
3D. Contractor agrees that Postmates may provide Contractor with a prepaid debit card that Contractor can use to complete certain Deliveries. Any unauthorized use of this prepaid debit card will be considered theft and/or fraud, and may lead to deactivation of Contractor's account. If Contractor loses the prepaid debit card, Contractor will report the loss to Postmates immediately.
3E. Contractor authorizes Postmates, during the course of a Delivery, to communicate with Contractor, customer, and/or Merchant to assist Contractor, to the extent permitted by Contractor, in facilitating a Delivery. However, under no circumstances shall Postmates be authorized to control the manner or means by which Contractor performs a Delivery.
3F. Contractor agrees that In the event Contractor fails to fully perform any Delivery (a "Service Failure"), Postmates reserves the right to recover any costs incurred by Postmates related to a Service Failure that result from Contractor's action or omission. Contractor further agrees that if Contractor fails to complete a return of any item that cannot be delivered (a "Return Failure"), Postmates reserves the right to recover any costs incurred by Postmates related to the Return Failure. If Contractor disputes responsibility for a Service Failure or Return Failure, Contractor agrees that the dispute shall be resolved pursuant to the "Payment Disputes"provision in Section 5 below.
4. Delivery Fees
4A. Unless notified in writing by Postmates or as otherwise provided herein, Contractor will receive payment per completed Delivery in the amount listed in the payment schedule for the relevant type of delivery and/or relevant market, which you can view in the Fleet Help Center. Postmates reserves the right, at its sole discretion, to change the payment schedules at any time for any reason. Continued use of the Postmates Platform shall constitute your consent to the payment schedule. From time to time, Postmates may, but is not obligated to, offer Contractor additional incentives to complete particular Deliveries. Nothing prevents the Parties from negotiating a different rate of pay, and Contractor is free to accept, reject, or ignore any Delivery Opportunities as a means to earn different rates of pay.
4B. Postmates agrees to transmit payment for a Delivery completed by Contractor to Contractor via direct deposit payment no later than seven (7) days after Contractor successfully completes the related Delivery. Contractor is responsible for any applicable processing fees associated with such remittance. Contractor further agrees to accept transfer and/or transaction fees, as applicable, for such payments.
5. Payment Disputes
5A. Contractor's Failure: In the event there is a Service Failure, Contractor agrees that Contractor may forfeit all or a portion of the payment as described in Section 4 above (depending on the extent to which the Service Failure results from Contractor's action or omission). Any reduction of payment shall be based upon proof provided by the Customer, Merchant, Contractor, and/or any other party with information relevant to the dispute. Postmates shall make the initial determination as to what percentage of fault Contractor bears (and, therefore, what percentage of the Delivery Fee Contractor shall forfeit). Contractor shall have the right to challenge Postmates' determination as described in the provisions set forth in Sections 11 and 12, below.
5B. Postmates' Failure: In the event Postmates fails to remit payment in a timely or accurate manner, Contractor shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, Contractor first informs Postmates in writing of the failure and provides Postmates a reasonable opportunity to cure.
6. Contractor's Equipment and Expenses
6A. Contractor certifies that, as applicable, Contractor has all equipment, including motor vehicles, scooters, and/or bicycles, (collectively "Equipment") necessary to perform Deliveries. When Contractor uses a motor vehicle or scooter to perform a Delivery, Contractor is solely responsible for ensuring that the such motor vehicle or scooter conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability. In addition, Contractor agrees that all Equipment will be free of health hazards, including but not limited to odors, toxins, chemicals, waste, or debris as required by law.
6B. Contractor is responsible for all costs and expenses arising from Contractor's performance of Deliveries, including, but not limited to, traffic tickets, tolls, parking fees, inspections, and any other costs related to Equipment. Except as otherwise required by law, Contractor assumes all risk of damage or loss to Contractor's Equipment.
7. Relationship of Parties
7A. The Parties acknowledge and agree that this Agreement is between independent businesses that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The Parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract (or otherwise) except as specifically provided in this Agreement.
7B. For a Contractor who earns the minimum income established by the Internal Revenue Service, Postmates shall report all payments made to Contractor on a calendar year basis by issuing an applicable IRS Form 1099. Contractor agrees that Postmates may fulfill any tax-related obligations, including but not limited providing 1099 Forms, through any means, including by electronic transmission to the email address associated with Contractor account, as provided by Contractor.
Contractor agrees to report all such payments to the appropriate federal, state, and local taxing authorities.
8A. As a condition of doing business with Postmates, and at Contractor's own expense, Contractor shall, during the Term of this Agreement, maintain current insurance of the types and in the amounts required by law in the jurisdiction in which Contractor operates to perform Contractor's delivery services as contemplated by this Agreement. This includes, but is not limited to, vehicle insurance that satisfies the minimum vehicle insurance coverage amounts and types required by state or local law. Contractor's acknowledges that failure to secure or maintain satisfactory insurance coverage, including but not limited to vehicle insurance if applicable, shall be deemed a material breach of this Agreement. Postmates may offer Contractor the opportunity to participate in certain group insurance plans made available by third-party providers to delivery service providers like Contractor who use the Postmates Platform. However, Contractor is under no obligation to participate in such plans.
8B. Workers' Compensation/Occupational Accident Insurance: Contractor agrees that Contractor will not be eligible for workers' compensation benefits through Postmates, and instead, will be responsible for providing Contractor's own workers' compensation insurance or occupational accident insurance, if permitted by law.
8C. Notification of Coverage: Contractor agrees to deliver to Postmates, upon request, current certificates of insurance as proof of coverage. Contractor agrees to make available updated certificates each time Contractor purchases, renews, or alters Contractor's insurance coverage. Contractor agrees to give Postmates at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement. Postmates reserves the right to require Contractor to identify Postmates as an additional insured on Contractor's vehicle insurance.
9A. Contractor acknowledges and agrees that in the performance of this Agreement Contractor may have direct or indirect access or exposure to Postmates' confidential information ("Confidential Information"). Confidential Information includes Postmates' data, provider IDs, user information, Customer information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that Postmates designates as being proprietary or confidential or that Contractor should reasonably know to treat as confidential.
9B. Contractor acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the Postmates; (b) Contractor shall not use Confidential Information for any purpose except to complete a Delivery; (c) Contractor shall not disclose Confidential Information to any third party; and (d) Contractor shall not keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of this Agreement or at the request of Postmates.
9C. 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 action or omission of Contractor; (b) was possessed by Contractor prior to the date of this Agreement without an obligation of confidentiality; or (c) is disclosed to Contractor by a third party having no obligation of confidentiality with respect thereto.
10A. Contractor agrees to defend, indemnify, protect, and hold harmless Postmates, 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 (collectively "Indemnitees"), from any and all claims, demands, damages, lawsuits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of Contractor and/or Subcontractor arising from the performance of Deliveries under this Agreement, including but not limited to, personal injury to or death of any person (including Contractor and/or Subcontractor), as well as any liability arising from Contractor's failure to comply with the terms of this Agreement. Contractor'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 Postmates or its parent, subsidiary, and/or affiliated companies.
10B. Contractor agrees to indemnify, protect, and hold harmless the Indemnitees from any and all tax liabilities and responsibilities for payment of all federal, state, and/or 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/or local laws, that are owed by Contractor with respect to Contractor's and/or any Subcontractors using the Postmates Platform to complete Deliveries.
10C. Contractor agrees to be responsible for, indemnify, and hold harmless Postmates, 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 Contractor's business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state, and/or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
11. Mutual Arbitration Provision
11A. Arbitration of Disputes. Postmates and Contractor mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court.
- Postmates and Contractor expressly agree that this Mutual Arbitration Provision is governed exclusively by the Federal Arbitration Act (9 U.S.C. §§ 1-16) ("FAA") and shall apply to any and all claims between the Parties, including but not limited to those arising out of or relating to this Agreement, the Contractor's classification as an independent contractor, Contractor's provision of delivery services under this Agreement, the Delivery Fees received by Contractor for performing Deliveries, the termination of this Agreement, the deactivation of Contractor's account, and all other aspects of the Contractor's relationship with Postmates, past or present, whether arising under federal, state, or local law, including without limitation harassment, discrimination, and/or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans with Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state, and/or local claims arising out of or relating to the Contractor's relationship or termination of that relationship with Postmates. The Parties expressly agree that this Agreement shall be governed by the FAA even in the event Contractor and/or Postmates are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. In the event, but only in the event, the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in the state in which the Contractor performs delivery services shall apply.
- Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision. However, as stated in Section 11B.IV below, the preceding clause shall not apply to the Class Action Waiver and Representative Action Waiver.
11B. BY AGREEING TO ARBITRATE DISPUTES BETWEEN THEM AS DESCRIBED HEREIN THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.
- If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery 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. Any demand for arbitration by Contractor must be delivered to Postmates Attn: Legal Department, 201 3rd Street, Suite 200, San Francisco, California, 94103.
CLASS ACTION WAIVER—PLEASE READ. Postmates and Contractor mutually agree that any and all disputes or claims between the parties will be resolved in individual arbitration. The Parties further agree that by entering into this Agreement, they waive their right to have any dispute or claim brought, heard or arbitrated as a class and/or collective action, or to participate in any class and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action ("Class Action Waiver").
REPRESENTATIVE ACTION WAIVER—PLEASE READ. Postmates and Contractor mutually agree that any and all disputes or claims between the Parties will be resolved in individual arbitration. The Parties further agree that by entering into this Agreement, they waive their right to have any dispute or claim brought, heard or arbitrated as a representative action, or to participate in any representative action, and an arbitrator shall not have any authority to arbitrate a representative action ("Representative Action Waiver").
- Notwithstanding any other clause contained in this Agreement, this Mutual Arbitration Provision, or the American Arbitration Association Commercial Arbitration Rules ("AAA Rules"), any claim that all or part of this Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, void, or voidable shall be determined only by a court of competent jurisdiction and not by an arbitrator. As stated above, all other disputes regarding interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision shall be determined exclusively by an arbitrator.
- Contractor agrees and acknowledges that entering into this Mutual Arbitration Provision does not change Contractor's status as an independent Contractor in fact and in law. Contractor further agrees that when performing delivery services pursuant to the terms of this Agreement, Contractor is not doing so as an employee of Postmates, a Merchant, or a customer. Contractor further agrees that any disputes in this regard shall be determined exclusively by an arbitrator.
- Any arbitration shall be governed by the AAA Rules, except as follows: (1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute; (2) Postmates shall pay the arbitrator's and arbitration fees and costs, unless applicable law requires otherwise. Notwithstanding applicable law to the contrary, Postmates shall pay the arbitrator's and arbitration fees and costs related to any payment dispute (see Section 5, above); (3) 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; (4) Except as provided in the Class Action Waiver and Representative 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; (5) 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; (6) The arbitrator's decision or award shall be in writing with findings of fact and conclusions of law; (7) Either Postmates or Contractor 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 Section 11 may be rendered ineffectual.
- Regardless of any other terms of this Agreement, nothing prevents Contractor from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Section 11, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law or as required under this Agreement before bringing a claim in arbitration. Postmates will not retaliate against Contractor for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
- The AAA Rules may be found at www.adr.org or by searching for "AAA Commercial Arbitration Rules"using a service such as www.google.com or by asking Postmates to provide a copy.
- Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Contractor's contractual relationship with Postmates, and therefore Contractor may submit a statement notifying Postmates that Contractor wishes to opt out of this Mutual Arbitration Provision. In order to opt out, Contractor must notify Postmates of Contractor's intention to opt out by filling out and submitting this Opt-Out Form stating Contractor's first and last name, email address, home address, and intention to opt out or by submitting a signed and dated statement on an "Opt Out Form"that can be obtained from and returned to Postmates at Attn: Legal Department, 201 3rd Street, Suite 200, San Francisco, California, 94103 or by submitting to Postmates at Attn: Legal Department, 201 3rd Street, Suite 200, San Francisco, California, 94103, a written notice stating that you are opting out of this Mutual Arbitration Provision. In order to be effective, Contractor's opt-out notice must be provided within thirty (30) days of Contractor's digital execution of this Agreement. If Contractor opts out as provided in this subparagraph, Contractor will not be subject to any adverse action as a consequence of that decision and may pursue available legal remedies without regard to this Mutual Arbitration Provision. If Contractor does not opt out within thirty (30) days of Contractor's execution of this Agreement, Contractor's failure to do so shall constitute mutual acceptance of the terms of this Mutual Arbitration Provision by Postmates and Contractor.
- Contractor's decision to opt out of this Mutual Arbitration Provision will relieve Contractor only of Contractor's obligation to arbitrate the disputes specified in this Mutual Arbitration Provision, and does not relieve Contractor of any obligation to arbitrate disputes not specified in this Mutual Arbitration Provision that might arise under any Postmates Terms of Service to which Contractor may be bound as a customer. Similarly, Contractor's decision to opt out of another arbitration provision contained in any other agreement shall not relieve Contractor's obligation to arbitrate disputes pursuant to this Mutual Arbitration Provision.
- Right To Consult With An Attorney: Contractor has the right to consult with private counsel of Contractor's choice, at Contractor's own expense, with respect to any aspect of, or any claim that may be subject to 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. 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 Class Action Waiver and/or Representative Action Waiver is invalid or unenforceable, the class, collective, or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and Representative Action Waiver that is valid and enforceable shall be enforced in arbitration.
12. Term and Termination of Agreement
12A. This Agreement shall remain in full force and effect for a term of one (1) year from the date it is accepted by Contractor and may not be terminated early without penalty except in the following limited circumstances:
- Upon the mutual written consent of the Parties hereto (with electronic communication satisfying this requirement), with the mutually agreed-upon termination date stated in the written notice.
- By Postmates, upon thirty (30) days' written notice to Contractor, if Contractor has not performed a delivery for a period of at least four (4) months (with electronic communication satisfying this requirement), with the date of transmission commencing the thirty (30) day period.
- By Postmates, in the event of an anticipated change in control or cessation of its operations in Contractor's market, upon thirty (30) days' written notice to the Contractor (with electronic communication satisfying this requirement), with the date of transmission commencing the thirty (30) day period.
- If one party has materially breached the Agreement, immediately upon written notice to the breaching party (with electronic communication satisfying this requirement), with such notice specifying the breach relied upon. In the case of a material breach by Contractor, and upon written notice, Postmates may deactivate Contractor's account.
12B. The following acts and/or occurrences shall constitute a material breach of this Agreement:
- Failure by Contractor to maintain current insurance coverage in the amounts and types specified herein or as required by law.
- Failure by Postmates to remit to Contractor all delivery fees for completed Deliveries within twenty-one (21) days of the customer's payment.
- Failure by Contractor to maintain the minimum customer star rating applicable in Contractor's market as of the date Contractor accepts this agreement.
- Failure by Contractor to complete a Delivery without waiver of the obligation by the customer or Postmates.
- Failure by Contractor to maintain all licenses, permits, authorities, registrations and/or other prerequisites to operate that are required by law and/or this Agreement.
- Any act by a Party that causes the other party to violate its obligations under any applicable state, federal or local law.
- Documented complaint by a customer, employee of Postmates, or employee of a Merchant that Contractor has engaged in conduct that a reasonable person would find physically threatening, highly offensive or harassing.
- Documented illegal or destructive acts, including but not limited to fraud or theft, engaged in by Contractor.
- Failure by Contractor to reasonably cooperate with Postmates in the investigation of or response to any claim (insurance, civil, or otherwise) arising out of or related to Contractor's and/or Subcontractor's alleged or actual acts or omissions while using the Postmates Platform.
- Failure by Contractor to provide delivery services in a manner consistent with Postmates' effective operation of the Postmates Platform.
12C. Early termination of this Agreement by Postmates without proper notice (as established in subsection A above) shall result in liquidated damages of $100.00 for each day that notice is not properly provided to Contractor, up to a maximum amount of $500.00. The Parties acknowledge that liquidated damages are appropriate because actual damages are not reasonably ascertainable.
12D. A party that receives notice of termination must continue to fulfill its obligations under this Agreement for the entire notice period. Failure to perform shall constitute early termination and shall subject the party to the liquidated damages provision in subparagraph 12C above.
12E. Other than for failure to maintain the minimum customer star rating, or illegal or destructive acts, in the event Contractor disputes that he or she materially breached this Agreement, Contractor may challenge Postmates' decision using the dispute resolution process described in Section 11, above. In all such instances, the parties will be responsible for their own attorneys' fees and costs, subject to any remedy to which they may be entitled under applicable law and which would otherwise be available in a court of law, but Postmates shall bear the Arbitrator's and arbitration fees and costs. Notwithstanding the foregoing, as set forth below, Contractor is not precluded from asserting that applicable law requires Postmates to bear the Arbitrator's and arbitration fees and costs, even for failure to maintain the minimum customer star rating, or illegal or destructive acts. In the event there is a dispute in this regard, the Arbitrator must determine the appropriate apportionment of fees at the earliest practicable time following commencement of the arbitration.
12F. If not terminated, the Agreement shall be automatically renewed for successive one-year terms, unless terminated by either party as described in Sections 12A and 12B.
12G. Contractor's and Postmates' obligations and rights arising under Section 5, 7, 8, 9, 10, 11, 12, 13 and 14 of this Agreement shall survive termination of this Agreement and deactivation of Contractor's account.
13. Entire Agreement, Transferability, And Waiver
13A. This Agreement shall constitute the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and executed by both Parties. This Agreement supersedes any prior contract between the Parties. This Agreement may not be assigned by either Party without written consent of the other, and shall be binding upon the Parties hereto, including their heirs and successors, provided, however, that Postmates may assign its rights and obligations under this Agreement to an affiliate of Postmates or any successor(s) to its business and/or purchaser of all or substantially all of its stock or assets. References in this Agreement to Postmates shall be deemed to include such successor(s).
13B. The failure of Postmates or Contractor in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
14A. No Services Required. Nothing in this Agreement requires a Contractor to use the Postmates Platform to provide any delivery services. Contractor may cease using the Postmates Platform to accept Delivery Opportunities at any time without providing Postmates notice of Contractor's intention to stop using the Postmates Platform.
14B. 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.
14C. Savings Clause. If any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
14D. Force Majeure. The performance of the obligations of this Agreement on the part of either Postmates or Contractor shall be excused by reasons of closing of public highways, changes in operations, strikes or work stoppages, weather conditions that make operations unsafe or impractical, Acts of God, or the temporary or permanent cessation of business by Postmates or Contractor.
14F. Stripe Connected Account Terms of Service. Contractor represents and warrants that he or she has reviewed, understands and agrees to the Stripe Connected Account Agreement and which is expressly incorporated herein by reference.
By entering into this Agreement, Contractor expressly acknowledges and agrees that Contractor read and fully understand the provisions of this Agreement, Contractor had sufficient time and opportunity to consult with legal and tax advisors before executing this Agreement, Contractor is legally competent to enter into this Agreement, and Contractor agrees to be bound by this Agreement.