April 18, 2020
PLEASE READ THIS AGREEMENT CAREFULLY. IT AFFECTS YOUR RIGHTS. BY ACCEPTING THE AGREEMENT, YOU ACKNOWLEDGE THAT YOU READ IT, UNDERSTAND IT, AND VOLUNTARILY AGREE TO ALL THE TERMS, INCLUDING THE ARBITRATION PROVISION (Sec 6.3). THE ARBITRATION PROVISION REQUIRES YOU TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, AS FAR AS THE LAW ALLOWS, THROUGH FINAL AND BINDING ARBITRATION.
This agreement (the "Agreement") is between you ("Currier" or "you"), an independent business engaged in the business of performing the type of delivery services contemplated by this Agreement, and Curri, Inc. ("Curri"). Currier and Curri may be referred to herein individually as a "Party" and together as the "Parties". This Agreement will become effective on the date it is accepted by Currier regardless of whether Currier is eligible to use or ever uses the Curri online marketplace (the "Curri Platform" or "Platform") to provide delivery services to customers.
In consideration of the mutual promises below, and for other good and valuable consideration, Curri and Currier agree as follows:
1. Our Relationship and this Agreement
1.1. Our Relationship
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 a business-to-business relationship. 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.
1.2. The Purpose of this Agreement
This Agreement governs the entire relationship between Curri and Currier, and establishes the Parties' respective rights and obligations applicable to the delivery opportunities made available to Currier through the Platform. In exchange for the promises contained in this Agreement, Currier shall have the contractual right and obligation to perform those deliveries that Currier accepts. However, except as expressly stated below in Section 7 (Term and Termination), nothing in this Agreement requires Currier to use the Platform to provide any delivery services during the Term of this Agreement, and nothing in this Agreement shall guarantee that any particular volume of deliveries will be available to Currier through the Platform for any particular time period.
2. Who We Are
Curri is a technology company providing an online marketplace (i.e., the Platform) using web-based technology that connects customers using the Curri website and/or mobile application ("Customers"), and independent providers ("Curriers") for delivery services. Curri's software permits Customers to request delivery services, notifies Curriers that a delivery opportunity exists, and facilitates the provision of delivery services to the Customers who requested them.
3. What We Will Do
3.1. Help You Get Paid For Your Services
3.1.1. Unless notified in writing by Curri or as otherwise provided herein, Currier will receive payment per completed delivery in the amount listed in the payment schedule for the relevant type of delivery and/or relevant market. Curri reserves the right, at its sole discretion, to change the payment schedules at any time for any reason. Continued use of the Curri Platform shall constitute your consent to the payment schedule. From time to time, Curri may, but is not obligated to, offer Currier additional incentives to complete particular deliveries. Currier is free to accept, reject, or ignore any delivery opportunities as a means to earn different rates of pay and maximize opportunity for profit.
3.1.2. Curri agrees to transmit payment for a Delivery completed by Currier to Currier via direct deposit payment no later than seven (7) days after Currier successfully completes the related delivery. Currier is responsible for any applicable processing fees associated with such remittance. Currier further agrees to accept transfer and/or transaction fees, as applicable, for such payments.
3.1.3. Curri uses Stripe to process payments to Curriers for their services to Customers. Currier represents and warrants that he or she has reviewed, understands and agrees to the Stripe Connected Account Agreement and Stripe Service Agreement and which are incorporated herein by reference.
3.2. Obey Tax Laws
For a Currier who receives the minimum income established by the Internal Revenue Service, Curri shall report all payments made to Currier on a calendar year basis by issuing an applicable IRS Form 1099. Currier agrees that Curri may fulfill any tax-related obligations, including but not limited providing 1099 Forms, through any means, including by electronic transmission to the email address associated with the Currier’s account, as provided by Currier.
Currier agrees to report all such payments to the appropriate federal, state, and local taxing authorities.
3.3. Communicate With You
3.3.1. Currier agrees that Curri, its affiliates or its representatives may contact Currier 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) Currier provides, including for marketing purposes where permitted by law. Currier also agrees and understands that Curri sends information related to deliveries, including delivery fees, user account information, and sign up progress to become a Currier, via SMS and push notification, so Currier must agree to receive such transactional messages to provide delivery services through the Platform.
3.3.2. SMS and push communications from Curri, its affiliates or its representatives and/or Merchants or Customers, may include but are not limited to: (1) operational communications concerning your user account, sign up progress to become a Currier, use of the Platform, or features available on the Platform, (2) communications relating to deliveries, including delivery fees, (3) news concerning Curri and industry developments that affect your relationship with us, and (4) account verification communications. With your consent, Curri may also send you marketing SMS regarding promotions from us or our third- party partners. Message and data rates may apply.
IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE FROM OUR MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. Please be advised that if you opt out of marketing emails, Curri may still send you emails about your account or any transactions between us. If you wish to opt out of marketing text messages, you may text "STOP" in response to such a text message from the mobile device receiving the messages. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES THROUGH THE PLATFORM.
4. Who You Are
4.1. You Assert You Are An Independent Business
4.1.1. You represent that you are a fully-licensed, independent provider of delivery services, authorized to perform the delivery services contemplated by this Agreement in the geographic location(s) in which you operate. You further represent that you lawfully possess all equipment necessary to perform the delivery services contemplated by this Agreement in accordance with all applicable laws. Currier desires to enter into this Agreement for the right to access the Curri Platform to receive Delivery Opportunities (as defined in Section 5.1 below) made available to Currier through the Platform. When performing delivery services pursuant to the terms of this Agreement, Currier understands and expressly agrees that Currier is not doing so as an employee of Curri or of any Customer. Currier further understands that: (i) Currier is free to select those times Currier wishes to use the Curri Platform to be available to receive Delivery Opportunities; (ii) Currier is free to accept, reject, or ignore any particular delivery opportunities made available to Currier through the Platform as Currier sees fit to maximize Currier's opportunity to profit; and (iii) Currier has the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed.
4.1.2. Currier expressly acknowledges and agrees that as a separately established provider of delivery services, Currier retains the right to perform services for others and to hold him or herself out to the general public as a separately established provider of delivery services. Nothing in this Agreement shall prevent Currier or Curri from engaging in similar arrangements or business with others. Curri neither has nor reserves the right to restrict Currier at any time from performing delivery services for other entities or customers, even should Currier procure such services through a business that directly competes with Curri. Provided Currier can meet the customer's specifications, and unless prohibited by law, nothing in this Agreement shall prohibit Currier from carrying and/or delivering goods for other(s) of Currier's customers at the same time while delivering orders requested by Customers through the Curri Platform. Similarly, Currier is not limited in any way from being actively logged onto online platforms other than the Curri Platform while actively logged onto the Curri Platform, subject only to the limitation that Currier's use of other online platforms may not prevent Currier's ability to timely, efficiently, and safely complete any Deliveries.
4.1.3. Currier is not required, as a condition of doing business with Curri or entering into this Agreement, to purchase, lease, or rent any products, equipment, or services from Curri.
4.1.4. Nothing in this Agreement requires a Currier to use the Curri Platform to provide any delivery services. Currier may cease using the Curri Platform to accept delivery opportunities at any time without providing Curri notice of Currier's intention to stop using the Curri Platform.
4.2. You Equip, Manage, and Insure Yourself
4.2.1. Equipment and Expenses
Currier certifies that, as applicable, Currier has all equipment, including motor vehicles, scooters, and/or bicycles, (collectively "Equipment") necessary to perform Deliveries. When Currier uses a motor vehicle or scooter to perform a Delivery, Currier is solely responsible for ensuring that the such motor vehicle or scooter conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability. In addition, Currier agrees that all Equipment will be free of health hazards, including but not limited to odors, toxins, chemicals, waste, or debris as required by law.
Currier is responsible for all costs and expenses arising from Currier'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, Currier assumes all risk of damage or loss to Currier's Equipment.
As a condition of use of the Curri Platform, at Currier's own expense, Currier shall, during the Term of this Agreement, maintain current insurance of the types and in the amounts required by law in the jurisdiction in which Currier operates to perform Currier's delivery services as contemplated by this Agreement. This includes, but is not limited to, vehicle insurance that satisfies the minimum vehicle insurance coverage amounts and types required by state or local law. Currier acknowledges that failure to secure or maintain satisfactory insurance coverage, including but not limited to vehicle insurance if applicable, shall be deemed a material breach of this Agreement. Curri may offer Currier the opportunity to participate in certain group insurance plans made available by third-party providers to delivery service providers like Currier who use the Curri Platform. However, Currier is under no obligation to participate in such plans.
18.104.22.168. Workers' Compensation/Occupational Accident Insurance. Currier agrees that Currier will not be eligible for workers' compensation benefits through Curri but will be responsible for procuring Currier's own workers' compensation insurance or occupational accident insurance, to the extent required or permitted by applicable law.
22.214.171.124. Notification of Coverage. Currier agrees to deliver to Curri, upon request, current certificates of insurance as proof of coverage. Currier agrees to make available updated certificates each time Currier purchases, renews, or alters Currier's insurance coverage. Currier agrees to give Curri at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement. Curri reserves the right to require Currier to identify Curri as an additional insured on Currier's vehicle insurance.
4.2.3. People Who Help You
Currier agrees, for safety purposes, that Currier will personally pick up and drop off all items accepted for delivery. However, nothing in this Agreement prohibits Currier, to the extent permitted by law and subject to the terms of this Agreement, from hiring, subcontracting, or otherwise engaging any other person (a "SubCurrier") to assist Currier with the performance of some or all of Currier's performance of a Delivery, provided any SubCurrier meets and accepts all the requirements and obligations of this Agreement applicable to Currier, including but not limited to accepting the terms of this Agreement and completing the process to separately receive Delivery Opportunities on the Curri Platform. Currier agrees to bear sole responsibility for the direction and control over any SubCurrier. Specifically, to the extent Currier engages a SubCurrier: (1) Currier assumes full and sole responsibility for the payment of all amounts due to the SubCurrier for work performed in relation to this Agreement, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to Currier and all SubCurrier(s) engaged by Currier in the performance of the delivery services under this Agreement.
4.2.4 No Employment Relationship. Curri shall have no responsibility for any wages, benefits, expenses, or other payments due Currier's SubCurrier(s), nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to Currier or any SubCurrier. Neither Currier nor any SubCurrier shall receive any wages, including vacation pay or holiday pay, from Curri, nor shall Currier or any SubCurrier participate in or receive any other benefits, if any, available to Curri's employees. Unless mandated by law, Curri shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of Currier or any SubCurrier. The Parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in Curri 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.
5. What You Will Do
5.1.1. From time to time, the Platform will notify Currier of the opportunity to complete deliveries to Customers as requested by Customers through the Platform (each, a "Delivery Opportunity"). The Platform may provide Currier automatic acceptance options or other preferences for certain Delivery Opportunities. With respect to each Delivery Opportunity accepted by Currier (each, a "Delivery"), Currier agrees to deliver the order to Customer(s) in accordance with the terms of this Agreement.
Currier understands and agrees that the Customer, not Curri, determines the content of the Delivery. Currier understands and agrees that the parameters of each Delivery are established by the Customer, not Curri, and represent the end result desired, not the means by which Currier is to accomplish the end result.
5.1.2. Currier agrees that Curri has discretion regarding which, if any, Delivery Opportunities to offer Currier, just as Currier has sole discretion to decide whether and to what extent Currier accepts any Delivery Opportunity.
5.1.3. Notwithstanding any other provision of this Agreement, once Currier accepts a Delivery Opportunity, Currier agrees that Currier shall be contractually bound to complete the delivery in accordance with this Agreement and any specifications provided to Currier by a Customer.
5.1.4. Currier agrees that if Currier accepts a Delivery Opportunity that includes any age-restricted items, including but not limited to alcohol, tobacco, e-cigarettes, or vaporizers, Currier is solely responsible for ensuring that the Delivery complies with all federal, state, and local laws, including but not limited to ensuring that the individual accepting the delivery is the individual who placed the order, has provided valid identification, is the required age, and is not intoxicated.
5.1.5. Currier authorizes Curri, during the course of a Delivery, to communicate with Currier’s customer, to the extent permitted by Currier, in facilitating a Delivery. However, under no circumstances shall Curri be authorized to control the manner or means by which Currier performs a Delivery.
5.1.6. Currier understands and agrees that in the event Currier fails to fully perform any Delivery (a "Service Failure"), Curri shall reserve the right to recover any costs incurred by Curri related to a Service Failure that result from Currier's act or omission. If Currier disputes responsibility for a Service Failure, Currier agrees that the dispute shall be resolved pursuant to the "Payment Disputes" provision in Section 6.1 below.
5.2. Currier Service
5.2.1. Currier agrees and represents that Currier is an independent provider of delivery services, and that Currier satisfies any and all legal requirements necessary to perform the delivery services contemplated by this Agreement. Currier agrees to perform all Deliveries in compliance with any and all applicable federal, state, and local laws, rules and regulations. Additionally, Currier agrees that all items delivered, shall arrive to the Customer uncontaminated, free from tampering, and in the condition intended by the Customer or the same condition as the item was upon the start of delivery.
5.2.2. Currier agrees to ensure full performance of all Deliveries in a timely, efficient, safe, and lawful manner. Curri shall have no right to, and shall not, supervise, direct or control Currier, or control the manner or prescribe the method Currier uses to perform Deliveries, and the general public and all governmental agencies regulating the activities contemplated by this Agreement shall be so informed. Currier 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.
5.2.3. Currier agrees that to ensure the safety of the Curri Platform, Curri shall require that Currier submit to and pass a background check based on Currier's own social security number before Currier receives access to the Curri Platform or is given continued access to the Platform. Additionally, Currier agrees that, in accordance with applicable law, and at Curri' sole discretion, periodically during the Term of this Agreement (as defined in Section 7 below) Curri may require that Currier submit to and pass additional background check(s). Curri agrees that any such check(s) may be conducted only with Currier's consent (as applicable) and in accordance with applicable law.
126.96.36.199. Currier acknowledges and agrees that in the performance of this Agreement Currier may have direct or indirect access or exposure to Curri's confidential information ("Confidential Information"). Confidential Information includes Curri's data, provider IDs, user information, Customer information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that Curri designates as being proprietary or confidential or that Currier should reasonably know to treat as confidential.
188.8.131.52. Currier acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of Curri; (b) Currier shall not use Confidential Information for any purpose except to complete a Delivery; (c) Currier shall not disclose Confidential Information to any third party; and (d) Currier shall not keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of this Agreement or at the request of Curri.
184.108.40.206. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no action or omission of Currier; (b) was possessed by Currier prior to the date of this Agreement without an obligation of confidentiality; or (c) is disclosed to Currier by a third party having no obligation of confidentiality with respect thereto.
5.2.5. On occasion, Curri may offer Currier different promotions or referral programs. Currier agrees not to abuse or manipulate the promotions or referral programs. Currier understands that any abuse or manipulation constitutes a material breach of this Agreement and may lead to deactivation, and that Currier forfeits any payments.
6. If There Are Problems
6.1. Payment Disputes
6.1.1. Currier's Failure: In the event there is a Service Failure, Currier agrees that Currier may forfeit all or a portion of the payment as described in Section 3.1 above (depending on the extent to which the Service Failure results from Currier's act or omission). Any reduction of payment shall be based upon proof provided by the Customer, Currier, and/or any other party with information relevant to the Service Failure. Curri shall make the initial determination as to what percentage of fault Currier bears (and, therefore, what percentage of the Delivery Fee Currier shall forfeit). Currier shall have the right to challenge Curri's determination as described in the provisions set forth in Sections 6.3 and 7, below.
6.1.2. Curri's Failure: In the event Curri fails to remit payment in a timely or accurate manner, Currier shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, Currier first informs Curri in writing of the failure and provides Curri a reasonable opportunity to cure.
6.2.1. Currier agrees to defend, indemnify, protect, and hold harmless Curri, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees (collectively "Indemnitees"), from any and all claims, demands, damages, lawsuits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of Currier and/or SubCurrier arising from the performance of Deliveries under this Agreement, including but not limited to, personal injury to or death of any person (including Currier and/or SubCurrier), as well as any liability arising from Currier's failure to comply with the terms of this Agreement. Currier'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 Curri or its parent, subsidiary, and/or affiliated companies.
6.2.2. Currier agrees to indemnify, protect, and hold harmless the Indemnitees from any and all tax liabilities and responsibilities for payment of all federal, state, and/or local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers' compensation premiums, and any contributions imposed or required under federal, state, and/or local laws, that are owed by Currier with respect to Currier's and/or any SubCurrier’s use of the Curri Platform to complete Deliveries.
6.2.3. Currier agrees to be responsible for, indemnify, and hold harmless Curri, 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 Currier'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.
6.3. ARBITRATION PROVISION
6.3.1. Arbitration of Disputes. Curri and Currier mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. Curri and Currier expressly agree that this Arbitration Provision is governed exclusively by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) and shall apply to any and all Covered Claims (as defined below). The Parties expressly agree that this Agreement shall be governed by the FAA even in the event Currier and/or Curri 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 Currier performs delivery services shall apply. If either party wishes to initiate arbitration, the initiating party must notify the other party in writing within the applicable statute of limitations period.
220.127.116.11. Covered Claims. This agreement to arbitrate covers all grievances, disputes, claims, or causes of action (collectively, “Claims”) in a federal, state or local court or agency under applicable federal, state or local laws including, but not limited to, those arising out of or relating to this Agreement, Currier's provision of delivery services through the Curri Platform under this Agreement, the Delivery Fees received by Currier for performing Deliveries, the termination of this Agreement, the deactivation of Currier's account, and all other aspects of the Currier's relationship with Curri, 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 Currier's relationship or termination of that relationship with Curri (the “Covered Claims”).
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.
18.104.22.168. Claims Not Covered. Specifically excluded from this agreement to arbitrate are claims that are not arbitrable by law, including claims for workers’ compensation and unemployment compensation benefits, suits brought pursuant to the California Private Attorney General Act (“PAGA”) (but only for so long as PAGA claims are held to be not arbitrable by law by the California Supreme Court or the United States Supreme Court) and any claims which are expressly excluded from binding arbitration by controlling law or public policy (the “Excluded Claims”). To the extent that the Parties’ dispute involves Covered Claims and Excluded Claims, the Parties agree to bifurcate and stay the Excluded Claims pending resolution of the arbitration proceedings. Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with a Covered Claim, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief.
Regardless of any other terms of this Agreement, nothing prevents Currier 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 Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this section, even if the claims would otherwise be Covered Claims. Nothing in this 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. Curri will not retaliate against Currier 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.
22.214.171.124. 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 Arbitration Provision. However, as stated in Section 6.3.2 below, the preceding clause shall not apply to the Class Action Waiver and Representative Action Waiver.
126.96.36.199. CLASS ACTION WAIVER—PLEASE READ. Curri and Currier 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").
188.8.131.52. REPRESENTATIVE ACTION WAIVER—PLEASE READ. Curri and Currier 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").
6.3.2. Notwithstanding any other clause contained in this Agreement, this Arbitration Provision, or the AAA 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 Arbitration Provision shall be determined exclusively by an arbitrator.
6.3.3. Waiver of Right to Court or Jury Trial. Currier understands that, by agreeing to this Arbitration Provision, both Curri and Currier are giving up any right we may have to a trial by jury and are giving up rights of appeal following the rendering of a decision except as applicable law provides for judicial review of arbitration decisions.
6.3.4. Arbitration Procedures. 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 who shall be an attorney or retired judge with experience in the law underlying the dispute; (2) Curri shall pay the arbitrator’s and arbitration fees and costs, unless applicable law permits otherwise, and, notwithstanding applicable law permitting otherwise, Curri shall pay the arbitrator's and arbitration fees and costs related to any payment dispute (see Section 6.1, above) or any claim relating to any of Currier’s constitutional rights, fundamental rights, unwaivable public rights, unwaivable federal or state statutory rights, or an employment claim for violation of the common law that is grounded on similar unwaivable statutory rights including, without limitation, any claim relating to wrongful termination in violation of public policy; (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; (5) the arbitrator shall apply state or federal substantive law, or both, as is applicable; (6) 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; (7) the arbitrator's decision or award shall be in writing with findings of fact and conclusions of law; and (8) either Curri or Currier 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 6 may be rendered ineffectual.
6.3.5. The AAA Rules may be found at www.adr.org or by searching for "AAA Commercial Arbitration Rules" using an online search engine or by asking Curri to provide a copy.
6.3.6. Right To Consult With An Attorney: Currier has the right to consult with private counsel of Currier's choice, at Currier's own expense, with respect to any aspect of, or any claim that may be subject to this Arbitration Provision.
6.3.7. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this 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.
7. Term and Termination (How Long This Agreement Lasts and How It Can End)
7.1. This Agreement shall remain in full force and effect for a term of one (1) year from the date it is accepted by Currier 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. 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 Currier, and upon written notice, Curri may deactivate Currier's account.
7.2. Material Breach
The following acts and/or occurrences shall constitute a material breach of this Agreement:
i. Failure by Currier to maintain current insurance coverage in the amounts and types specified herein or as required by law.
ii. Failure by Curri to remit to Currier all delivery fees for completed Deliveries within twenty-one (21) days of the customer's payment.
iii. Failure by Currier to maintain the minimum customer star rating applicable in Currier's market as of the date Currier accepts this agreement.
iv. Failure by Currier to complete a Delivery without waiver of the obligation by the customer or Curri.
v. Failure by Currier 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. Substantiated complaint by a customer or employee of Curri that Currier has engaged in conduct that a reasonable person would find physically threatening, highly offensive, or harassing.
viii. Illegal or destructive acts, including but not limited to fraud or theft.
ix. Failure by Currier to reasonably cooperate with Curri in the investigation of or response to any claim (insurance, civil, or otherwise) arising out of or related to Currier's and/or SubCurrier's alleged or actual acts or omissions while using the Curri Platform.
x. Failure by Currier to provide delivery services in a manner consistent with Curri's effective operation of the Curri Platform.
7.3. Early termination of this Agreement by Curri 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 Currier, up to a maximum amount of $500.00. The Parties acknowledge that liquidated damages are appropriate because actual damages are not reasonably ascertainable.
7.4. 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 7.3 above.
7.5. If not terminated, the Agreement shall be automatically renewed for successive one-year terms, unless terminated by either party as described in Section 7.1 above.
7.6. Currier's and Curri's obligations and rights arising under the Relationship, Payments, Insurance, Confidentiality, Indemnity, Arbitration and Dispute Resolution, Term and Termination, and Affirmations of this Agreement shall survive termination of this Agreement and deactivation of Currier's account.
8. Other Affirmations Of This Agreement
8.1. Entire Agreement
This Agreement, including those agreements expressly incorporated herein by reference, 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 Curri may assign its rights and obligations under this Agreement to an affiliate of Curri 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 Curri shall be deemed to include such successor(s).
The failure of Curri or Currier 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.
Captions and headings 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.
If any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
8.6. Force Majeure
The performance of the obligations of this Agreement on the part of either Curri or Currier 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 Curri or Currier.
8.7. Conflict of Terms
By entering into this Agreement, Currier expressly acknowledges and agrees that Currier has read and fully understands the provisions of this Agreement, Currier has had sufficient time and opportunity to consult with legal and tax advisors before executing this Agreement, Currier is legally competent to enter into this Agreement, and Currier agrees to be bound by this Agreement.