Snackz App's Delivery Partner’s Agreement
Effective As Of 09/17/ 2020
IMPORTANT: THOROUGHLY REVIEW THIS AGREEMENT ENTIRELY, MAINLY THE MUTUAL ARBITRATION PROVISION OUTLINED IN SECTION 11. UNLESS YOU OPT OUT OF ARBITRATION AS DESCRIBED BELOW, THIS AGREEMENT REQUIRES THE PARTIES TO RESOLVE DISPUTES THROUGH A FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO THE FULLEST EXTENT PERMITTED BY THE LAW. 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 AND SEEK ANY LEGAL ASSISTANCE NEEDED TO COMPREHEND AND UNDERSTAND THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION YOU’RE ABOUT TO START.
Snackz App maintains and primarily provides an online marketplace solely on it’s mobile platform (“Platform”) in which individual customers (collectively “Customers”); and You , independent delivery service providers (“Services Providers”) connect to assist in expediting the purchase, fulfillment, and, where applicable, delivery of goods from Snackz App (s) nearest location to the Customer(s). You acknowledge when you are assigned a delivery and accept it, you are entering in a direct business relation with the customer. As a delivery partner , you are an independent entity providing delivery services and you’re certain that you're authorized and able to satisfy any and all legal requirements necessary to perform the services within this Agreement in the local location(s) in which you're contracted to operate in . You understand and agree that You enter into this Agreement as an independent delivery service provider, and You desire to enter into this Agreement for the right to access the Platform in order to complete , receive or view Delivery Opportunities (as defined in section 4A below). In consideration of these relations and the mutual promises below, and for other good and valuable consideration, You and Snackz App agree as follows:
2A. This Agreement governs the entire relationship between the Parties, and establishes the Parties’ respective rights and obligations arising out of this relationship. The relationship between the Parties governed by this Agreement includes Your access to the Platform, which facilitates Your provision of Services through Delivery Opportunities. The Parties acknowledge and agree that this Agreement is a licensing agreement between independent businesses that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor (“Contractor”) and not that of employer and employee. Neither Party shall have the right to bind the other by contract (or otherwise) except as specifically provided in this Agreement.
2B. Nothing in this Agreement shall require You to complete or accept any Delivery Opportunity on the Snackz App Platform, and nothing in this Agreement shall guarantee You any particular amount of earning , volume of Delivery Opportunities or Deliveries within any particular time period.
2C. Snackz App reserves the right, at any time, to modify or change external documents referenced and incorporated into this Agreement and (or) any information referenced via hyperlink (or the addresses where such information may be found). Such supplements shall become effective upon uploading. Such update or modification may be provided to You via electronic means.
3. Operation Of Service
3A. You understand and agree that in providing any services under this Agreement, You are not an employee or customer of Snackz App, or any of its Customer purchasing goods through Snackz App. You represent that in providing any services under this Agreement You operate an independent business, whether a sole proprietorship or other formal business entity, including but not limited to a corporation, limited liability company, or partnership. If You are required to obtain or maintain a business license, You represent that You have obtained and agreed to maintain such a license. You agree to inform Snackz App in writing by mail or electronic via other means upon notice that you are no longer operating an independent business to provide services under this Agreement.
3B. You understand that: (i) You are free to select the times and day You wish to access the Platform; (ii) You are free to reject , accept , and withdraw any hours you scheduled , or ignore any particular Delivery Opportunities assigned to You when available through the Platform; (iii) You have the full right to control the manner and means by which You perform Deliveries through the Platform; and (iv) You are engaging Snackz App to provide You access to the Platform, which will permit You to perform deliveries.
3C. You represent that, as applicable, You own all tools, vehicles, and equipment, including mobile telephone, modes of transportation, etc. (collectively “Equipment”) and personnel necessary to lawfully provide the services contemplated by this Agreement. Moreover, You agree that You are solely responsible for ensuring that such Equipment conforms to applicable laws, including those pertaining to health, safety, inspection, and operational capability, and that You are responsible for all costs and expenses You may incur under this Agreement, including, but not limited to, traffic tickets, tolls, parking fees, inspections, insurance, and any other costs related to Equipment. Except as otherwise required by law, You fully assume all risk of damage or loss to Your Equipment.
3D. Nothing in this Agreement prohibits You, 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 You with the performance of a Delivery, provided that any such Subcontractor accepts the terms of this Agreement and separately completes the process to receive Delivery Opportunities. You agree to take sole responsibility for the direction and control over any Subcontractor. Specifically, to the extent You engage a Subcontractor, unless otherwise mandated by law, You assume full and sole responsibility for the payment of all amounts due or required to be withheld from Subcontractor(s) for work performed under this Agreement, including but not limited to any wages, benefits and expenses, state and federal income tax withholdings, unemployment insurance contributions, and/or social security taxes. Snackz App shall have no responsibility for money or obligations You may owe Subcontractor(s), and neither You nor any Subcontractor(s) shall participate in or receive any wages or other benefits available to Snackz App’ employees. The Parties acknowledge and agree that any provisions of this Agreement reserving ultimate authority in Snackz App 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.
3E. Nothing in this Agreement shall prevent the Parties from at any time engaging in similar arrangements or business with others, including the Parties’ direct competitors, or from advertising themselves to the public as available to engage in similar arrangements or business with others. You agree to immediately notify Snackz App in writing if You believe You have been restricted in any way by Snackz App from advertising, engaging with, or providing Your services to any other entity.
3F. You understand and agree that You are not required at any time to wear or use any clothing or equipment provided by or displaying Snackz App’ name or logo; or to purchase, lease, or rent any products, equipment, or services from Snackz App.>
3G. You agree that before You receive access to the Platform, You will consent to and pass a background check based on Your own social security number. You also agree that, at its sole discretion and in accordance with applicable law, Snackz App may require You to consent to and pass additional background checks.
3H. You expressly consent to be contacted by, and to receive and accept communications from Snackz App and authorized partners, representatives, and/or affiliates (which may include Merchants and (or) Customers) via different communication methods, including but not limited to email(s), SMS (or) text message(s), push notification(s), and/or call(s) to contacts, including telephone number(s), You provide to Snackz App. By consenting to being contacted, You understand and agree that You may receive communications--including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems--sent by or on behalf of Snackz App on various subjects, including but not limited to: (1) operational or transactional communications, such as those concerning Your user account, sign up progress to become a Contractor, use of the Platform, and/or features available on the Platform; (2) communications relating to Deliveries and Delivery Opportunities, including delivery fees and incentive offers; (3) promotions, advertising, and/or marketing, (4) news concerning Snackz App and industry developments that affect Your relationship with us; and (5) account verification communications. Message and data rates may apply. By consenting to be contacted, You represent that the telephone number(s) that You have provided to us are Your contact numbers, that You are permitted to receive calls at such telephone number(s), and that You will promptly alert us whenever you stop using a particular telephone number.
3I. You agree that Snackz App, its partners, affiliates, or representatives may contact You (including for marketing and promotional purposes from Snackz App or our third-party partners where permitted by law) 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) You provide to Snackz App.
YOU CAN UNSUBSCRIBE FROM Snackz App’ MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, Snackz App MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN THE PARTIES.
IF YOU WISH TO OPT OUT OF MARKETING TEXT OR SMS MESSAGES, IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES USING Snackz App.
4. Making Deliveries
4A. Snackz App may notify You of the opportunity to complete a delivery from it’s facilitator to its Customer (an “Assigned Order”), and You may have the option to choose manually acceptance or other preferences for certain Delivery Opportunities. For each Delivery Opportunity You indicate as arrived or start route (a “Delivery), You agree to complete that delivery of the good(s) purchased by a Customer in a form free from tampering, in the condition intended by the Customer and according to the terms of this Agreement and (or) as otherwise set forth in our terms of service, and 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. You further agree (if age applicable ) that for any Delivery that includes any age-restricted items, including but not limited to alcohol, tobacco, e-cigarettes, or vaporizers, You are responsible for ensuring 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 minimum age, and is not intoxicated.
4B. You agree to follow Snackz App instructions that may be displayed to you via the mobile app that must be followed when delivering orders indicated as cash payments for certain Deliveries. Any unauthorized use of such funds received from customers will be considered theft and (or) fraud. You further agree that if You lose any cash , received shortage or counterfeit, You will report the loss to Snackz App immediately.
4C. You agree that if you fail to complete any Delivery (a “Service Failure”), Snackz App reserves the right to recover any costs incurred by Snackz App related to Your action(s) or omission(s). You further agree that if You fail to return any undelievable item(s) that cannot be delivered (a “Return Failure”), Snackz App reserves the right to recover any costs incurred by Snackz App related to the Return Failure. If You dispute responsibility for a Service Failure or Return Failure, You agree to resolve the dispute pursuant to the “Payment Disputes” provision in Section 6 below.
4D. You agree to not use alcohol and drugs while on the platform , at any time.
5. Compensation For Completed Deliveries
5A. Except stated differently in writing by Snackz App or as otherwise provided herein, You will receive compensation upon completion of each Delivery in the amount shown in the app.1 Snackz App reserves the right, at its sole discretion, to change the payment structure , weekly payout schedules at any time for any reason, and Your continued use of the Snackz App Platform shall constitute Your consent to any change made. Nothing in this Agreement prevents the Parties from negotiating a different rate of pay. You are free to contact Snackz App regarding the payment structure, commissions and are free to accept assigned orders, reject, or ignore any further orders pending for Delivery when available as a means to earn different rates of pay.
5B. Snackz App agrees to submit payment(s) for all assigned order (s) that are marked delivered upon receiving confirmation from the customer to You via direct deposit no later than eight (8) days after You complete the related Delivery unless the Parties negotiate and agree to an alternate arrangement. You are responsible for any applicable processing fees imposed by the payment processor, associated with such remittance, and You understand that You may incur and agree to pay transfer and (or) transaction fees, as applicable, for such payments.
5C. You're free to receive gratuity in cash or via other payment method(s) preferable by the customer. Nothing in this Agreement shall prevent You from retaining 100% of any gratuity given by a Customer. Snackz App acknowledges it has no right to interfere with the amount of gratuity paid to You by a Customer. You agree to pay any fees imposed by the payment processor to complete any or all gratuity payment .
6. Disputes Of Service Payment
6A. If you perform any act that results in a Service Failure or Return Failure while on the platform, You agree that You may forfeit all or a portion of the payment as described in Section 5 above (based on the extent to which the Service Failure results from Your action or behavior). Any reduction of payment shall depend on proof obtained by Snackz App , You, the Customer and (or) any other party with information pertaining to the dispute. Snackz App shall make the initial determination as to what percentage of fault You carry, and You shall have the right to challenge Snackz App’s determination as described in the provisions set forth in Sections 11 and 12, below.
6B. In the event Snackz App fails to remit payment in a timely or accurate manner, You shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, You first inform Snackz App in writing of the failure and provide Snackz App a reasonable opportunity to cure.
6C. If at any time a customer disputes a service You provided , Snackz App may reverse the delivery fees, commission , or any amount in dispute from your future payments. Snackz App also has the right to seek such payment by any legal means contemplated by this Agreement, provided, however, We first inform You in writing of such dispute or failure and provide You a reasonable time to help fix the issues through a reasonable agreement to resolve such matter.
7. Reporting Income Earned
7A. When you've earned the minimum income set by the Internal Revenue Service, Snackz App will report all payments made to You within that current calendar year by issuing you IRS Form 1099.
7B. You agree to consult with a tax professional to understand your tax obligation and understand that Snackz App is required by law to fulfill its tax obligations, including but not limited to providing 1099 Forms, through all means allowed , including by electronic transmission to the email address associated with Your Snackz App account as provided by You. Further, You agree to report all such payments to the appropriate local taxing authorities, federal, and state.
8A. At all times , while using the platform, at Your own expense, You shall, during the entire Term of this Agreement, carry up-to-date insurance of the types needed to perform all duties and in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in which You provide services as contemplated by this Agreement. This includes, but is not limited to, vehicle insurance that is equal to or greater than the minimum vehicle insurance coverage amounts and types required by state or local law, worker’s compensation insurance, and (or) occupational accident insurance.
8B. Snackz App may offer You the opportunity to participate in certain group insurance plans made available to you by Snackz App and (or) third-party providers, if available.
8C. At any time, while using the platform, when requested, You agree to submit to Snackz App, valid ,current and up-to-date certificates of insurance as proof of coverage. You agree to update all certificates with Snackz App each time You purchase, renew, or alter Your insurance coverage. You also agree to stop using the platform when You notify Snackz App of any change of insurance until we review such document and approve it . In addition , you agree to give Snackz App a written notice at least thirty (30) days in advance upon your intent to cancel any insurance policy required by this Agreement.
9. Confidential Information
9A. Upon on-boarding, You acknowledge and agree that in the performance of this Agreement You may have direct or indirect access or exposure to Snackz App’ confidential information (“Confidential Information”). Confidential Information includes Snackz App’s data, provider IDs, user information, Customer information, delivery 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 Snackz App designates as being proprietary or confidential or that You should reasonably know to treat as confidential.
9B. You acknowledge and agree that: (a) all Confidential Information shall remain the exclusive property of Snackz App; (b) You shall not use Confidential Information for any purpose except to complete a Delivery; (c) You shall not disclose Confidential Information to any third-party; and (d) You 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 Snackz App’ request.
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 by You; (b) was possessed by You prior to the date of this Agreement without an obligation of confidentiality; or (c) is disclosed to You by a third party having no obligation of confidentiality with respect thereto.
9D. If You become legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, You will provide Snackz App prompt written notice of such disclosure and will cooperate with Snackz App should Snackz App seek a protective order or another appropriate remedy. If Snackz App waives Your compliance with this obligation or fails to obtain a protective order or other appropriate remedy, You will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
10A. You agree to indemnify, protect, and hold harmless Snackz App, 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: (i) 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 You and/or any Subcontractor under this Agreement, including but not limited to, personal injury to or death of any person (including You and/or any Subcontractor); (ii) any liability arising from Your failure to comply with the terms of this Agreement; (iii) 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 You with respect to Your and (or) any Subcontractors using the Snackz App Platform to complete Deliveries; and (iv) all costs associated with Your 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.
10B. You agree that Your obligations in this Section 10 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 Snackz App or any of the Indemnitees.
11. Mutual Arbitration Provision
11A. Arbitration of Disputes. The Parties mutually agree to resolve any and all disputes
between them exclusively through final, binding, and individual arbitration instead of
filing a lawsuit in court (except as otherwise provided below). However, this Mutual
Arbitration Provision does not cover disputes that, as a matter of law, may not be
subject to pre-dispute arbitration agreements.
1. Snackz App and You expressly agree that this Mutual Arbitration Provision is a licensing agreement governed exclusively by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”), and evidences a transaction involving commerce, and You agree that this is not a contract of employment involving any class of workers engaged in foreign or interstate commerce within the meaning of Section 1 of the FAA. Snackz App and You expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Mutual Arbitration Provision, and that the FAA shall apply to any and all disputes between the Parties, including but not limited to those arising out of or relating to this Agreement, Your classification as an independent contractor, Your provision of services under this Agreement, the fees received by You for performing Deliveries, the termination of this Agreement, the suspension or deactivation of Your Snackz App account, and all other aspects of Your relationship with Snackz App, 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 Your relationship or termination of that relationship with Snackz App. The Parties expressly agree that this Agreement shall be governed by the FAA even in the event You and/or Snackz App 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 You perform Services shall apply
2. 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, including without limitation any dispute concerning arbitrability. However, the preceding clause shall not apply to any dispute relating to or arising out of the Class Action Waiver and/or Representative Action Waiver—including, but not limited to, any claim that all or part of the Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, illegal, void, or voidable, or that a breach of either such Waiver has occurred—which must proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an arbitrator. Moreover, all disputes relating to or arising out of the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator. In addition, all disputes relating to whether either party has satisfied the condition precedent of engaging in the pre-arbitration informal telephonic dispute resolution conference discussed in Section 11B(i), below, shall be decided only by a court of competent jurisdiction and not by an arbitrator. The Parties agree that any and all due dates for arbitration fees shall be tolled while the Parties resolve a dispute relating to or arising out of the Class Action Waiver, Representative Action Waiver, and/or the payment of arbitration fees.
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.
1.) Before commencing individual arbitration, the Parties must engage in a good-faith effort to resolve any claim covered by this Mutual Arbitration Provision through an informal telephonic dispute resolution conference between You and Snackz App. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either Party intends to commence individual arbitration; multiple couriers initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either Party is represented by counsel, that Party's counsel may participate in the informal telephonic dispute resolution conference, but the Party also must appear at and participate in the conference. The Party initiating the claim must give notice to the other Party in writing of its, his, or her intent to initiate an informal telephonic dispute resolution conference, which shall occur between thirty (30) and forty-five (45) days of the other Party receiving such notice, unless an extension is mutually agreed upon by the Parties. In the interval between the party receiving such notice and the informal telephonic dispute resolution conference (“Negotiation Period”), nothing in either this Mutual Arbitration Provision specifically or this Agreement generally shall prohibit the Parties from engaging in informal communications to resolve the initiating Party’s claims. Engaging in an informal telephonic dispute resolution conference is a condition precedent that must be fulfilled before commencing individual 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.
2.) Only after the Parties have engaged in a good-faith effort to resolve the
dispute through an informal telephonic dispute resolution conference, and only if
those efforts fail, either You or Snackz App may initiate arbitration by notifying
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, telephone number, mailing address, and
e-mail address of the Party seeking arbitration (if You are seeking arbitration, the
e-mail address provided must be the e-mail address associated with Your Snackz
App account); (2) a statement of the legal claims being asserted and the factual
bases of those claims; and (3) a description of the remedy sought and an
accurate, good-faith calculation of the amount-in-controversy, enumerated in
United States Dollars (any request for injunctive relief or attorneys’ fees shall not
count toward the calculation of the amount in controversy unless such injunctive
relief seeks the payment of money); (4) the original personal signature of the
Party seeking arbitration (a digital, electronic, copied, or facsimile signature is not
sufficient); and (5) the Party’s portion of the applicable filing fee. If the Party
seeking arbitration is represented by counsel, counsel must also provide an
original personal signature on the demand for arbitration (a digital, electronic,
copied, or facsimile signature is not sufficient). By signing the demand for
arbitration, counsel certifies to the best of counsel’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances, that (1) the
demand for arbitration is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the cost of dispute
resolution; (2) the claims and other legal contentions are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing existing
law or for establishing new law; and (3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery. Any demand for
arbitration by You must be delivered to Snackz App Attn: Legal Department, 2128
Grant Ave Apt 17, Philadelphia, PA,19115
3.) PLEASE READ - CLASS ACTION WAIVER—. Snackz App and You 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 the right to have any dispute or claim brought, heard, administered, resolved, or arbitrated as a class, collective, or mass action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective, and (or) mass action, or to award relief to anyone but the individual in arbitration (“Class Action Waiver”). Snackz App and You agree that the definition of a “class, collective, and (or) mass action” includes, but is not limited to, instances in which You are represented by a law firm or collection of law firms that has filed more than 25 arbitration demands of a substantially similar nature against Snackz App within 180 days of the arbitration demand filed on Your behalf, and the law firm or collective of law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands together. If more than 25 arbitration demands of a substantially similar nature are filed against Snackz App by the same law firm or collection of law firms within 180 days of one another, each arbitration demand must be filed, administered, arbitrated, and resolved in an individual manner. This Class Action Waiver does not prevent You or Snackz App from participating in a classwide settlement of claims.
4.) PLEASE READ - REPRESENTATIVE ACTION WAIVER—. Snackz App and You 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, administered, resolved, or arbitrated as a representative action, or to participate in any representative action, including but not limited to, claims brought under any state’s Private Attorneys General Act (“PAGA”), and an arbitrator shall not have any authority to arbitrate a representative action, or to award relief to anyone but the individual in arbitration (“Representative Action Waiver”). This Representative Action Waiver does not prevent You or Snackz App from participating in a classwide settlement of claims. Disputes regarding the nature of Your relationship with Snackz App (including, but not limited to, any claim that You are an employee of Snackz App), as well as any claim that You bring on Your own behalf as an aggrieved worker for recovery of underpaid wages or other individualized relief (as opposed to a representative claim for civil penalties) are arbitrable and must be brought in arbitration on an individual basis only as required by this Mutual Arbitration Provision. You agree that any representative claim that is permitted to proceed in a civil court of competent jurisdiction must be stayed pending arbitration of Your dispute regarding the nature of Your relationship with Snackz App and any claim You bring on Your own behalf for individualized relief.
5.) You agree and acknowledge that entering into this Mutual Arbitration Provision does not change Your status as an independent contractor in fact and in law. You further agree that when performing services pursuant to the terms of this Agreement, You are not doing so as an employee of Snackz App, a Merchant, or a Customer. You further agree that any disputes in this regard shall be determined exclusively by an arbitrator.
6.) The Arbitrator shall be an attorney with experience in the law underlying the dispute, but in no event shall any arbitration be administered by the American Arbitration Association (“AAA”). The Parties shall be required to meet and confer to select a neutral arbitrator or arbitration provider. If the Parties are unable to mutually agree upon an arbitrator or arbitration provider, then either Party may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider other than AAA. As set forth in Section 11(B)(iii)-(iv), any arbitration provider appointed by a court under 9 U.S.C. § 5 shall conduct arbitration solely on an individualized basis. Once the Parties mutually agree upon a neutral arbitrator, or an arbitrator provider is appointed under 9 U.S.C. § 5, the ensuing arbitration shall commence pursuant to the rules of the designated arbitration provider, except that: (1) Unless applicable law provides otherwise, as determined by the arbitrator, Snackz App and You shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings, such as court reporter costs and transcript fees. Snackz App shall pay any costs that are uniquely associated with arbitration, such as payment of the arbitrator and room rental; (2) If a Party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other Party finally obtains is not more favorable than the unaccepted offer, then the other Party shall pay the costs, including filing fees, incurred after the offer was made; (3) Both Parties agree not to oppose or interfere with any negotiations or agreements between the other Party and the arbitration administrator, or individual arbitrator, relating to a Party’s portion of the fees. The arbitrator, however, may disallow any private agreement between an administrator, on the one hand, and the negotiating party, on the other hand, if the arbitrator believes that the private agreement undermines his or her neutrality as arbitrator; (4) 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; (5) 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, including but not limited to the imposition of sanctions under the Federal Rules of Civil Procedure, 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; (6) The arbitrator may hear motions to dismiss and/or motions for summary judgment. An arbitrator may not permit the filing of a motion for summary judgment until after the Parties have conducted discovery to support their claims and defenses. Any motion to dismiss and/or motion for summary judgment shall otherwise be governed by the standards of the Federal Rules of Civil Procedure governing such motions; (7) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law; (8) Any finding that a claim or counterclaim was filed for purposes of harassment or is frivolous shall entitle the other Party to recover its, his, or her attorneys’ fees, costs, and expenses; (9) Either Snackz App or You 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; and (10) The arbitrator may consider, but under no circumstances is the arbitrator bound by, decisions reached in separate arbitrations. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Mutual Arbitration Provision, either Party may seek to enjoin the arbitration proceeding in a court of competent jurisdiction, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
7.) Regardless of any other terms of this Agreement, nothing prevents You 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. Snackz App will not retaliate against You 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.
8.) Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Your contractual relationship with Snackz App, and therefore You may opt out of this Mutual Arbitration Provision. In order to opt out, You must notify Snackz App of Your intention to opt out by submitting to Snackz App, via USPS Priority Mail or hand delivery to Attn: Legal Department, 2128 Grant Ave Apt 17, Philadelphia, PA,19115, a written notice stating that you are opting out of this Mutual Arbitration Provision. This written notice must be signed by You, and not any attorney, agent, or other representative of Yours. In order to be effective, Your opt-out notice must be postmarked or received by Snackz App within thirty (30) days of Your acceptance of this Agreement. If You opt out as provided in this subparagraph, You 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 You do not opt out within thirty (30) days of Your execution of this Agreement, Your failure to do so shall constitute mutual acceptance of the terms of this Mutual Arbitration Provision by Snackz App and You.
9.) If You opt out of this Mutual Arbitration Provision and at the time of Your receipt of this Agreement You were bound by an existing agreement to arbitrate disputes arising out of or relating to Your use of the Platform, then that existing arbitration agreement shall remain in full force and effect, and either Party may apply to a court under 9 U.S.C. § 5 for an order appointing an arbitrator or arbitration provider to resolve in individual arbitration the Parties’ disputes arising out of or relating to such existing agreement to arbitrate.
10.) You may only opt out on behalf of Yourself. A written notice submitted to Snackz App indicating Your intention to opt out may apply, at most, to You. You (and Your agent or representative) may not effectuate an opt out on behalf of other couriers.
11.) Your decision to opt out of this Mutual Arbitration Provision will relieve You only of Your obligation to arbitrate the disputes specified in this Mutual Arbitration Provision, and does not relieve You of any obligation to arbitrate disputes not specified in this Mutual Arbitration Provision that might arise under any Snackz App Terms of Service to which You may be bound as a customer. Similarly, Your decision to opt out of another arbitration provision contained in any other agreement shall not relieve You of Your obligation to arbitrate disputes pursuant to this Mutual Arbitration Provision.
12.) Impact on Pending Litigation. This Mutual Arbitration Provision shall not affect your standing with respect to any litigation between Snackz App and You that is pending in a state or federal court or arbitration as of the date of Your receipt of this Mutual Arbitration Provision (“Pending Litigation”). This subsection shall not apply to any litigation between Snackz App and You that is filed in a state or federal court or arbitration at any point after Your receipt of this Mutual Arbitration Provision; such actions shall be subject to mutual arbitration. Thus:
1. If You are or previously were authorized to use the Platform, and at the time of Your receipt of this Mutual Arbitration Provision you were not bound by an existent arbitration agreement, You shall remain eligible to participate in any Pending Litigation to which you were a party or participant regardless of whether You opt out of this Mutual Arbitration Provision.
2. If, at the time of Your receipt of this Mutual Arbitration Provision, You were bound by an existing arbitration agreement with Snackz App, that arbitration agreement shall continue to apply to any Pending Litigation, even if You opt out of this Mutual Arbitration Provision.
3. If, at the time of Your receipt of this Mutual Arbitration Provision, You were not previously a courier authorized to use the Platform, then this Mutual Arbitration shall apply to all covered disputes and any Pending Litigation unless you timely opt out of this Mutual Arbitration Provision.
13.) Right To Consult With An Attorney: You have the right to consult with private
counsel of Your choice, at Your own expense, with respect to any aspect of, or
any claim that may be subject to this Mutual Arbitration Provision.
14.) In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, it shall be severed from the Agreement such that the remainder of this Mutual Arbitration Provision shall be enforceable to the fullest extent permitted by law. In any case in which (1) the dispute is filed as a class, collective, mass, 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, mass, 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. Termination And Terms
12A. This Agreement shall remain in full force and effect for one (1) year (the “Term”) from the date it is accepted by You and may not be terminated early without penalty except in the following limited circumstances:
1.) 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.
2.) By Snackz App, upon thirty (30) days’ written notice to You, if You have 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.
3.) By Snackz App, in the event of an anticipated change in control or cessation of its operations in Your market, upon thirty (30) days’ written notice to You (with electronic communication satisfying this requirement), with the date of transmission commencing the thirty (30) day period.
4.) 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 You, and upon written notice, Snackz App may deactivate Your Snackz App account.
12B. The following acts and/or occurrences shall constitute a material breach of this Agreement:
1.) Failure by Snackz App to remit to You all fees for a completed Delivery within twenty-one (21) days of the completed Delivery.
2.) Failure by You to maintain current insurance coverage in the amounts and types specified herein or as required by law
3.) Failure by You to complete a Delivery without waiver of the obligation as communicated by Snackz App.
4.) Failure by You to maintain all licenses (including business licenses), permits, authorities, registrations and/or other prerequisites to operate that are required by law and/or this Agreement.
5.) Any act by a Party that causes the other Party to violate its obligations under any applicable state, federal or local law.
6.) Documented complaint by a Customer, employee of Snackz App, employee of an internal Contractor and/or third-party that You have engaged in conduct that a reasonable person would find physically threatening, highly offensive or harassing.
7.) Failure by You to reasonably cooperate with Snackz App in the investigation of or response to any claim (insurance, civil, or otherwise) arising out of or related to Your and/or Subcontractor’s alleged or actual acts or omissions while using Snackz App.
8.) Documented abuse or manipulation of promotions or referral programs offered by Snackz App.
9.) Using, or attempting to use, more than one Snackz App account at a time; or using, or attempting to use, more than one Snackz App account to obtain multiple opportunities to opt out of this Agreement’s Section 11, above.
10.) Failure by You to provide delivery in a manner consistent with Snackz App’ effective operation of the Snackz App Platform.
11.) Unfairly Misusing the platform in a manner that allows you to cheat the system in any way that may earn you income without an effort as other drivers.
11.) Unfairly Misusing the platform in a manner that allows you to cheat the system in any way that may earn you income without an effort as other drivers.
12C. Early termination of this Agreement by Snackz App 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 You, up to a maximum amount of $500.00. The Parties acknowledge that liquidated damages are appropriate because actual damages are not reasonably ascertainable.
12D. Other than for illegal or destructive acts, in the event You dispute that You materially breached this Agreement, You may challenge Snackz App’ 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 Snackz App shall bear the arbitrator’s and arbitration fees and costs. Notwithstanding the foregoing, as set forth below, You are not precluded from asserting that applicable law requires Snackz App to bear the arbitrator’s and arbitration fees and costs, even for 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.
12E. If not terminated, the Agreement shall be automatically renewed for successive one-year terms, unless terminated by either Party as described in Sections 11A and 11B.
12F. The Parties’ obligations and rights arising under Section 5, 6, 8, 9, 11, 12, 13, and 14 of this Agreement shall survive termination of this Agreement and deactivation of Your Snackz App account.
13. Transferability, Full Agreement And Waiver
13A. Unless otherwise stated in this Agreement, 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 Snackz App may assign its rights and obligations under this Agreement to an affiliate of Snackz App 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 Snackz App shall be deemed to include such successor(s).
13B. The failure of a Party 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. Severability. Except as otherwise provided in this Agreement, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
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 Party 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 either Party.
14F. Stripe Connected Account Terms of Service. You represent and warrant that You have reviewed, understand, and agree to the Stripe Connected Account Agreement, which is expressly incorporated herein by reference.
15.) Pay & Work Availability
15A. (i) You may make up the days, time , and hours you’ll like to drive every week from what’s available below in 15B, every Sunday , for the entire week. A four hour shift can not be combined with a six hour shift. A six hour shift can not be combined with a four hour shift.Once you have confirmed which shifts you’ll like to drive, you’re expected to drive for that time slot. If you wish to cancel, you’re free to do so, however, if the cancellation notice is received in less than 4-6 hours from your start time, it may affect your relationship with Snackz App. (ii) You’ll be paid via direct deposit every friday starting a week after you deliver your first order. (iii) Cash tips will be given to you at the end of your shift , if any given by the customer.
15B. Snackz App Pay offer to You as a Delivery Partner is as followed
24/7 Coverage Work Schedule (6HR Shifts)
7:30 AM Until 1:30 PM 9.50/Hr plus an additional $3.50 Commission Per Delivery
3:30 PM Until 9:30 PM 11.00/Hr plus an additional $3.50 Commission Per Delivery
11:30 PM Until 5:30 AM 11.50/Hr plus an additional $3.50 Commission Per Delivery
24/7 Coverage Work Schedule (4HR Shifts)
7:30 AM Until 11:30 AM 9.50/Hr plus an additional $3.50 Commission Per Delivery
1:30 PM Until 5:30 PM 9.50/Hr plus an additional $3.50 Commission Per Delivery
7:30 PM Until 11:30 PM 11.00/Hr plus an additional $3.50 Commission Per Delivery 1:30 AM Until 5:30 Am 11.50/Hr plus an additional $3.50 Commission Per Delivery.
15C. If an order is cancelled while you’re completing , we’ll compensate you the entire delivery fee of $2.65 , assuming you're not at fault.
15D. You agree that once a shift has been scheduled , you can't extend longer during your shift. You also understand that you’re free to end a shift early without any penalty
15E. When accepting a shift , you understand that you’re restricted from driving more than 6 hours within a shift, for safety . To drive longer, you must exit off the platform for at least two hours before driving again . If you do not show up 30 minutes early for a shift , you agree to forfeit to another driver.
15F. You understand that only you will be able to adjust, entend, or make your schedule to drive .
16.) While On Premises
16A. At all times, while on the property, the vehicle you’re operating must be insured to cover you for theft, accident, and property damage.
16B. You understand that at all times when not assigned an order, you must remain in your vehicle and not leave the property if being paid for the time .
By signing up , and entering into this agreement , and (or )making your first delivery , you expressly acknowledge that you have read, truly understand, and taken time to carefully consider the consequences within this Agreement, that you are legally competent to enter into this Agreement with the Company, and that you willingly agree to be bound by the terms of service of this Agreement.