This agreement (the "Agreement") is made and entered between you ("Contractor" or "you"), an independent Contractor engaged in the business of performing delivery services, and Mulberrys LLC ("Mulberrys").
IMPORTANT: PLEASE NOTE THAT TO USE THE MULBERRYS PLATFORM AS A CONTRACTOR, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION SET FORTH BELOW IN SECTION 11 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH MULBERRYS ON AN INDIVIDUAL BASIS, EXCEPT AS OTHERWISE PROVIDED IN SECTION 11, THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE MUTUAL ARBITRATION PROVISION. BY DIGITALLY SIGNING THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE MUTUAL ARBITRATION PROVISION IN SECTION 11) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE MUTUAL ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 11 BELOW.
Mulberrys provides a mobile app and web-based technology platform that connects customers with independent contractors to facilitate on-demand delivery services (the "Mulberrys Platform" or "Platform"). Through the Mulberrys Platform customers may request that merchandise be delivered to them from particular retail locations. Independent Contractors can access the Mulberrys Platform and receive Delivery Opportunities (as defined in section 3A. below).
Contractor is a fully-licensed, independent provider of delivery services, authorized to conduct the delivery services contemplated by this Agreement in the geographic location(s) in which Contractor operates. Contractor is in lawful possession of all equipment (including a motor vehicle or bicycle, if applicable) 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 Mulberrys Platform to receive delivery opportunities made available through the Platform. When performing services pursuant to the terms of this Agreement, Contractor understands and expressly agrees that Contractor is not doing so as an employee of Mulberrys, any Merchant, or customer. Contractor understands Contractor is free to select those times Contractor wishes to be available on the Mulberrys Platform to receive delivery opportunities and to select only those deliveries Contractor wishes to select.
In consideration of the above recitals and the mutual promises below, and for other good and valuable consideration, Mulberrys and Contractor (collectively "the Parties") agree as follows:
1. Purpose of Agreement
1A. This Agreement governs the entire relationship between Mulberrys 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 in Section 12, "Term and Termination," below, nothing in this Agreement requires Contractor to perform any particular Delivery 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. Per the terms of this Agreement, Contractor shall be contractually bound to complete the Deliveries in accordance with any specifications provided by the customer and/or Merchant (as defined in Section 3A below).
2. Contractor's Services
2A. Contractor agrees and represents that Contractor is an independent provider of delivery services, and that Contractor satisfies all legal requirements necessary to perform the services contemplated by this Agreement. As an independent contractor, Contractor shall be solely responsible for determining how to lawfully perform Deliveries.
2B. Contractor agrees to fully perform all Deliveries accepted in a timely, efficient, safe and lawful manner. Mulberrys 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. The Parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in Mulberrys 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 itself out to the general public as a separately established provider of delivery services. Nothing in this Agreement shall prevent Contractor or Mulberrys from engaging in similar arrangements or business with others. Mulberrys 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 Mulberrys. 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 Mulberrys Platform. Similarly, Contractor is not limited in any way from being actively logged onto online platforms other than the Mulberrys Platform while actively logged onto the Mulberrys 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 Contractor has accepted through the Mulberrys Platform.
2D. Contractor is not required to purchase, lease, or rent any products, equipment, or services from Mulberrys as a condition of doing business with Mulberrys or entering into this Agreement.
2E. Contractor agrees that to ensure the safety of the Mulberrys Platform, Mulberrys shall require that Contractor submit to and pass a background check before Contractor receives access to the Mulberrys Platform or is given continued access to the Platform. Additionally, Contractor agrees that, in accordance with applicable law and at Mulberrys' sole discretion, periodically during the term of this Agreement (as defined in Section 12 below) Mulberrys may require that Contractor submit to and pass additional background check(s). Mulberrys 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, Mulberrys may offer Contractor different promotions or referral programs. Contractor agrees not to abuse or manipulate the referral programs or promotions. Contractor understands that any abuse or manipulation constitutes a material breach of this Agreement and may lead to deactivation.
3A. While Contractor is actively logged onto the Mulberrys Platform, the Platform will, from time to time, notify Contractor of the opportunity to complete deliveries to customers as ordered by customers through the Platform (each, a "Delivery Opportunity"). With respect to each Delivery Opportunity accepted by Contractor (a "Delivery"), Contractor agrees to retrieve the order, (collectively "Merchants") and deliver the order to customers in a timely fashion. Contractor understands that the customer, not Mulberrys, determines the content of the Delivery. Contractor understands that Mulberrys shall have no right to, and shall not, supervise, direct, or control the manner or prescribe the method Contractor uses to perform the Delivery. Contractor understands and agrees that the parameters of each Delivery are established by the customer, not Mulberrys, and represent the end result desired, not the means by which Contractor is to accomplish the end result.
3B. Contractor agrees that Mulberrys has discretion regarding which, if any, Delivery Opportunities to offer Contractor, just as Contractor has the discretion whether and to what extent to accept any Delivery Opportunity.
3C. Contractor agrees that Mulberrys may provide Contractor with a prepaid debit card that Contractor will use to complete certain Deliveries. Notwithstanding any other provision of this Agreement, 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 Mulberrys immediately.
3D. Contractor authorizes Mulberrys, 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 deliveries. However, under no circumstances shall Mulberrys be authorized to control the manner or means by which Contractor performs a Delivery.
3E. In the event Contractor fails to fully perform any Delivery due to Contractor's action or omission (a "Service Failure"), Mulberrys reserves the right to recover any costs incurred by Mulberrys related to the Service Failure. If Contractor fails to complete a return of any item that cannot be delivered (a "Return Failure"), Mulberrys reserves the right to recover any costs incurred by Mulberrys related to the Return Failure. If Contractor disputes responsibility for a Service Failure or Return Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision in Section 5 below.
4. Delivery Fees
4A. Contractor agrees to receive a delivery fee paid through the Mulberrys Platform in exchange for each Delivery completed. Mulberrys agrees to use its best efforts to establish delivery fees for each locality and time slot that will maximize the Delivery Opportunities available to Contractor. Contractor will receive notice of how delivery fees are calculated prior to accepting Delivery. Contractor understands that delivery fees paid through the Platform may vary depending on customer demand. Mulberrys may, but is not obligated to, offer Contractor additional incentives to complete particular Delivery Opportunities.
4B. Mulberrys agrees to transmit delivery fees to Contractor via PayPal no later than seven (7) days after Contractor successfully completes the related Delivery through the Platform. Contractor is responsible for any applicable processing fees associated with such remittance.
4C. Nothing in this Section 4 is intended to limit the Parties' ability during the Term of this Agreement (as defined in Section 12 below) to mutually agree to a payment structure different than that described herein.
5. Payment Disputes
5A. Contractor's Failure: In the event there is a Service Failure, Contractor may forfeit all or a portion of the fee relating to that Delivery (depending on the extent of the performance failure). Any reduction in the delivery fee shall be based upon proof provided by the customer, Merchant, Contractor, and any other party with information relevant to the dispute. Mulberrys shall make the initial determination as to whether a Service Failure was the result of Contractor's action/omission and, if so, what percentage of fault Contractor shall bear (and, therefore, what percentage of the delivery fee Contractor shall be paid). Contractor shall have the right to challenge Mulberrys' determination as described in the provisions set forth in Sections 11 and 12, below.
5B. Mulberrys' Failure: In the event Mulberrys fails to remit payment of delivery fees 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 Mulberrys in writing of the failure and provides a reasonable opportunity to cure it.
6. Contractor's Equipment
6A. Contractor certifies that Contractor has all equipment, including motor vehicles, scooters and bicycles, when applicable ("Equipment") necessary to perform Deliveries. When Contractor uses a vehicle or scooter to perform a Delivery, Contractor is solely responsible for ensuring that the vehicle or scooter used conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability.
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 its 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, Mulberrys shall report all payments made to Contractor on a calendar year basis using an applicable IRS Form 1099. Contractor agrees to report all such payments to the appropriate federal, state, and local taxing authorities.
8A. As a condition of doing business with Mulberrys, and at Contractor's own expense, Contractor shall, during the Term of this Agreement (as defined in Section 12 below), maintain current insurance of the types and in the amounts required by law in the jurisdiction in which Contractor operates to perform Contractor's 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. Mulberrys 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 Mulberrys Platform. However, Contractor is under no obligation to participate in such plans.
8B. Contractor is solely responsible for conducting the appropriate research and consultation necessary to determine the insurance types and amounts Contractor must maintain. Contractor acknowledges that Contractor's 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 and shall result in the termination of the Agreement, the loss of Contractor's right to receive Delivery Opportunities, and deactivation of the Contractor's account on the Mulberrys Platform.
8C. Workers' Compensation/Occupational Accident Insurance: Contractor agrees that Contractor will not be eligible for workers' compensation benefits through Mulberrys, and instead, will be responsible for providing Contractor's own workers' compensation insurance or occupational accident insurance, if permitted by law.
8D. Notification of Coverage: Contractor agrees to deliver to Mulberrys, 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 Mulberrys at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement. Mulberrys reserves the right to require Contractor to identify Mulberrys as an additional insured on Contractor's vehicle insurance.
9A. Contractor agrees to indemnify, protect, and hold harmless Mulberrys, 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, lawsuits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of Contractor arising from the performance of Deliveries under this Agreement, including but not limited to, personal injury to or death of any person (including Contractor), 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 Mulberrys or its parent, subsidiary, and/or affiliated companies.
9B.Contractor agrees to indemnify, protect, and hold harmless Mulberrys, 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/or local laws, that are owed by Contractor with respect to Contractor's providing delivery services through the Mulberrys Platform.
9C. Contractor agrees to be responsible for, indemnify, and hold harmless Mulberrys, 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.
10. Informal Dispute Resolution
10A. To expedite resolution and reduce the cost of any dispute, controversy, or claim related to this Agreement or otherwise arising from the relationship between Contractor and Mulberrys, the Parties mutually agree to first attempt to negotiate any dispute informally for at least thirty (30) days before initiating any arbitration proceeding. Such informal negotiations will commence upon written notice of any dispute by either Party. Contractor's address for such notices is Contractor's most recent address on file with Mulberrys as provided by Contractor. Mulberrys' address for such notices is the firstname.lastname@example.org
11. Mutual Arbitration Provision
11A. Arbitration of Disputes. Mulberrys and Contractor mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court.
i. Mulberrys 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 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 Mulberrys, 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 Mulberrys. The Parties expressly agree that this Agreement shall be governed by the FAA even in the event Contractor and/or Mulberrys 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 services shall apply.
ii. 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.
i. 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 Mulberrys Attn: Legal Department, 2587 Fairview Avenue North, Roseville, MN 55113
ii. CLASS ACTION WAIVER—PLEASE READ. Mulberrys 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").
iii. REPRESENTATIVE ACTION WAIVER—PLEASE READ. Mulberrys 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").
iv. 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.
v. 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 Services pursuant to the terms of this Agreement, Contractor is not doing so as an employee of Mulberrys, a Merchant, or a customer. Contractor further agrees that any disputes in this regard shall be determined exclusively by an arbitrator.
vi. 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) Mulberrys shall pay the arbitrator's and arbitration fees and costs, unless applicable law requires otherwise. Notwithstanding applicable law to the contrary, Mulberrys 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 Mulberrys 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.
vii. 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. Mulberrys 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.
viii. 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 Mulberrys to provide a copy.
ix. Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Contractor's contractual relationship with Mulberrys, and therefore Contractor may submit a statement notifying Mulberrys that Contractor wishes to opt out of this Mutual Arbitration Provision. In order to opt out, Contractor must notify Mulberrys of Contractor's intention to opt out by filling out and submitting written notice stating Contractor's first and last name, email address, home address, and intention to opt out and returned to Mulberrys at Attn: Legal Department, 2587 Fairview Avenue North, Roseville, MN 55113. 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 Mulberrys 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 Mulberrys 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.
Contractor acknowledges and agrees that if Mulberrys modifies any provision of this Agreement other than this Mutual Arbitration Provision, Contractor will not have a renewed opportunity to opt out of arbitration. Contractor further acknowledges and agrees that if Mulberrys modifies the addresses for delivery or electronic mailing of opt-out or other notices identified in this Mutual Arbitration Provision, Contractor will not have a renewed opportunity to opt of arbitration. If, however, Mulberrys modifies any provision of this Mutual Arbitration Provision other than the addresses for delivery or electronic mailing of opt-out or other notices, Contractor will have a renewed opportunity to opt out of arbitration. In such circumstances, the 30-day opt out period will begin to run upon Contractor's digital execution of the modified Agreement. Changes to any information referenced at hyperlinks from the Agreement or Mutual Arbitration Provision shall not create a renewed opportunity to opt-out.
x. 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.
xi. 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:
i. 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.
ii. By Mulberrys, 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.
iii. By Mulberrys, 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.
iv. 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, Mulberrys may deactivate Contractor's account.
12B. The following acts and/or occurrences shall constitute a material breach of this Agreement:
i. Failure by Contractor to maintain current insurance coverage in the amounts and types specified herein or as required by law.
ii. Failure by Mulberrys to remit to Contractor all delivery fees for completed Deliveries within twenty-one (21) days of the customer's payment.
iii. Failure by Contractor to maintain the minimum customer star rating applicable in Contractor's market as of the date Contractor accepts this agreement.
iv. Failure by Contractor to complete a Delivery without waiver of the obligation by the customer or Mulberrys.
v. 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.
vi. Any act by a Party that causes the other party to violate its obligations under any applicable state, federal or local law.
vii. Documented complaint by a customer, employee of Mulberrys, or employee of a Merchant that Contractor has engaged in conduct that a reasonable person would find physically threatening, highly offensive or harassing.
viii. Documented illegal or destructive acts, including but not limited to fraud or theft, engaged in by Contractor.
ix. Failure by Contractor to provide services in a manner consistent with Mulberrys' effective operation of the Mulberrys Platform.
12C. Early termination of this Agreement by Mulberrys 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 C above. By executing this Agreement, Contractor agrees that any liquidated damages assessed against it may be deducted from any amount Contractor is owed in delivery fees, unless otherwise prohibited by law.
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 Mulberrys' 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 Mulberrys 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 Mulberrys 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 Mulberrys' obligations and rights arising under Section 2, 5, 6, 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. To the extent Mulberrys' Terms of Service Agreement (as may be periodically updated) is inconsistent or conflicts with this Agreement, this Agreement controls. 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 Mulberrys may assign its rights and obligations under this Agreement to an affiliate of Mulberrys 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 Mulberrys shall be deemed to include such successor(s).
13B. The failure of Mulberrys 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 provide any services. Contractor may cease accepting Delivery Opportunities at any time without providing Mulberrys notice of Contractor's intention to stop performing services.
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. Except as provided in Section 11, 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 Mulberrys 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 Mulberrys or Contractor.
14E. Communications. Contractor agrees that Mulberrys or its representatives may contact Contractor by email, phone, push notifications or SMS (including by use of an automatic telephone dialing system) at the email address, phone or phone number Contractor provides, including for marketing purposes. Contractor also agrees and understands that he or she cannot receive Delivery Opportunities and thus cannot provide services on the Platform unless SMS and push notifications are enabled.
By entering into this Agreement, I represent that I understand and agree that I will perform services under this Agreement as an Independent Contractor, not an employee.
By entering into this Agreement, I represent that I have read and understand and agree to the Mutual Arbitration Provision in Section 11, subject to my right to opt out of said Mutual Arbitration Provision, as described above.
If you disagree with any of the terms of this Agreement, please contact email@example.com to negotiate those terms with Mulberrys BEFORE accepting this Agreement.
By entering into this Agreement, I expressly acknowledge and agree that I have read and fully understand the provisions of this Agreement, I had sufficient time and opportunity to consult with legal and tax advisors before executing this Agreement, I am legally competent to enter into this Agreement, and I agree to be bound by this Agreement.
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