July 25, 2022
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 ("Agreement") is between you ("Driver” or “you”), an independent business engaged in the business of performing the type of delivery services contemplated by this Agreement, and Curri Inc ("Curri"). Driver 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 Driver regardless of whether Driver is eligible to use or ever uses the Curri application, website, and technology platform that facilitates Curri’s online marketplace (collectively "Curri Platform" or "Platform") to provide delivery services to customers, or otherwise provides delivery services brokered or arranged by Curri customer service or operations personnel. If Driver has not previously manifested their acceptance of this Agreement, this Agreement will be deemed automatically accepted by Driver immediately upon the earlier of: (a) Driver’s creation of a driver account on the Curri Platform, or (b) Driver’s performance of delivery services for any customer through the Curri Platform or otherwise through the arrangements of Curri customer service or operations personnel (unless such services are performed pursuant to employment or a contractual relationship with an independent carrier that has entered into a Carrier/Broker Agreement with Curri). The Agreement will end on the termination date set forth in Section 7 below.
In consideration of the mutual promises below, and for other good and valuable consideration, Curri and Driver 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
Curri reserves the right, from time to time, to modify this Agreement as well as any policies or other external documents – (a) referenced and incorporated herein, (b) otherwise related to the Platform or the performance of delivery services, and (c) any information referenced at hyperlinks. Such modifications shall become binding upon your acceptance of the modified Agreement. Continued use of Curri’s Platform or performance of any Services after Curri has posted an updated version of this Agreement or any of its policies on the Curri website (www.curri.com), on any Curri user application, or after Curri has otherwise provided you with notice of any modifications to this Agreement or any Curri policies, shall constitute your acceptance of such modifications. You are responsible for regularly reviewing the Curri website and user applications for any updates to this Agreement or Curri policies applicable to you. Any changes to Driver compensation will be addressed pursuant to the terms of Section 3 below.
2. Who We Are
Curri is a Broker of commercial delivery services, registered with the U.S. Department of Transportation (“DOT”) as an authorized broker, U.S. DOT #: 3350325 and MC #: 1071003 (Curri’s “Operating Authority”). Curri owns the Curri Platform, offers delivery services to customers (“Customers”) through the Curri Platform and other means, and offers properly licensed and qualified drivers, couriers and motor carrier companies ("Carriers") the opportunity to perform delivery services requested by Customers.
As a provider of delivery services you are representing, warranting and confirming, each time you perform such services, that you are independently licensed and qualified to perform them.
If Driver is located or performing any services within the State of California, then by entering into this Agreement you and Curri acknowledge and agree that Curri is a “delivery network company,” and Driver is a “delivery network company courier” and “app-based driver,” in each case, as such terms are defined under California Business and Professions Code Section 7463.
3. What We Will Do
3.1. Help You Get Paid for Your Services
3.1.1. Unless otherwise agreed in writing between Driver and Curri or disputed by Curri in good faith, and subject to the terms of this Agreement, the Curri Terms of Services, and any other agreements between you and Curri, Driver will receive payment for each completed delivery in accordance with: (a) the amount listed in the Platform for the delivery when the opportunity was accepted by Driver, or (b) the amount agreed upon by you and Curri in writing with respect to the delivery. Curri reserves the right, at its sole discretion, to change the payment rates it offers for new delivery service opportunities at any time for any reason. Continued use of the Curri Platform or performance of delivery services pursuant to this Agreement shall constitute your consent to the payment rates in effect at any given time. From time to time, Curri may, but is not obligated to, offer Driver additional incentives to complete particular deliveries. Driver is free to accept, reject, or ignore any delivery opportunities as a means to earn different rates of pay and maximize opportunity for profit. However, if Driver has accepted or agreed to provide services pursuant to any opportunity offered to Driver on the Platform or otherwise through Curri personnel, such Driver may cancel such services only in accordance with 5.2.6.
3.1.2. Unless otherwise agreed between Driver and Curri or disputed by Curri in good faith, and subject to any limitations in this Agreement, Curri agrees to transmit (or to have transmitted on its behalf) payment for each completed Delivery to Driver via direct deposit payment no later than seven (7) days after Driver successfully completes the Delivery and accepts related payment via the Curri Platform. Curri’s payment obligation under this Agreement for any Delivery is contingent upon Driver fully performing such Delivery including providing copies of any bills of lading, waybills, shipping documentation, or other proof of delivery as Curri may reasonably require. Driver is responsible for any applicable processing fees associated with such remittance, which Curri may deduct from the total payment provided to Driver, unless such deduction is waived by Curri in its sole discretion. Driver further agrees to accept transfer and/or transaction fees, as applicable, for such payments.
3.1.3. Curri will use Stripe to process payments to Driver for the services provided pursuant to this Agreement. As Driver, you represent and warrant that you have reviewed, understand, and agree to the Stripe Connected Account Agreement and Stripe Service Agreement, both of which are incorporated herein by reference.
3.1.4. Notwithstanding any other provision of this Agreement, if Driver is a resident of, or performing services directly in, California, then (i) Curri shall ensure that Driver is compensated, for each 14-day earning period as designated by Curri, with net earnings that are not less than the net earnings floor, in accordance with California Business and Professions Code Section 7453; and (ii) Curri shall provide a quarterly healthcare subsidy to Driver if Driver qualifies for such subsidy in accordance with California Business and Professions Code Section 7454, provided that Driver provides proof to Curri, within 16 calendar days from the end of each calendar quarter, of current enrollment in a qualifying health plan.
3.2. Obey Tax Laws
If Driver receives the minimum annual income established by the Internal Revenue Service, Curri shall report all payments made to Driver on a calendar year basis by issuing an applicable IRS Form 1099. Driver agrees that Curri may fulfill any tax-related obligations, including but not limited to providing 1099 Forms, through any means, including by electronic transmission to the email address associated with Driver’s account, as provided by Driver.
Driver agrees to report all such payments to the appropriate federal, state, and local taxing authorities.
3.3. Communicate With You
3.3.1. Driver agrees that Curri, its affiliates or representatives may contact Driver by email, phone, push notification, 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) Driver provides, including for marketing purposes where permitted by law. Driver also agrees and understands that Curri sends information related to deliveries, including delivery fees, user account information, and signup progress to become a Driver, via e-mail, SMS and push notification, so Driver 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 an independent provider of delivery services, offering and providing such delivery services to the public generally, and 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. Driver desires to enter into this Agreement for the right to access the Curri Platform and to otherwise receive Delivery Opportunities (as defined in Section 5.1 below) made available to Driver through the Platform or otherwise by Curri customer service and operations personnel. When performing delivery services pursuant to the terms of this Agreement, Driver understands and expressly agrees that Driver is not doing so as an employee of Curri or of any Customer. Driver further understands that: (i) Driver is free to select those times Driver wishes to use the Curri Platform to be available to receive Delivery Opportunities in their sole discretion (provided that, once a Delivery Opportunity has been accepted by Driver, Driver is obligated to perform such Delivery Opportunity in accordance with its terms); (ii) Driver is free to accept, reject, or ignore any particular Delivery Opportunities made available to Driver through the Platform (or otherwise offered by Curri customer service and operations personnel) as Driver sees fit to maximize Driver's opportunity to profit; and (iii) subject to the terms of this Agreement and the Curri Terms of Service, Driver 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. Driver expressly acknowledges and agrees that, as a separately established provider of delivery services, Driver 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 Driver or Curri from engaging in similar arrangements or business with others. Curri neither has nor reserves the right to restrict Driver at any time from performing delivery services for other entities or customers, including delivery services through a business that directly competes with Curri. Notwithstanding any of the foregoing, however, for the avoidance of doubt, nothing in this Agreement shall limit or reduce Driver’s non-circumvention obligations under Section 13.5 of the Curri Terms of Service. Driver 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 Driver's use of other online platforms may not prevent Driver from timely, efficiently, and safely completing any Deliveries, and subject further to Section 4.2.2.
4.1.3. Driver 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 or any of its affiliates.
4.1.4. Nothing in this Agreement requires a Driver to use the Curri Platform to provide any delivery services or to otherwise accept any Delivery Opportunities offered by Curri. Driver may cease using the Curri Platform to accept Delivery Opportunities at any time without providing Curri notice of Driver’s intention to stop using the Curri Platform (subject to any notice requirements related to any specific Delivery Opportunity Driver has accepted or otherwise agreed to perform).
4.1.5 Driver represents and warrants that Driver has all legal capacity and authority to enter into and perform its obligations under this Agreement.
4.2. You Equip, Manage, and Insure Yourself
4.2.1. Equipment and Expenses
(a) Driver represents and warrants that, as applicable, Driver owns or maintains a transferable ownership interest in all equipment, including motor vehicles (collectively "Equipment") necessary to perform Deliveries and a mobile device compatible with the Curri app. Driver agrees that, as part of managing Driver’s own business, Driver will maintain a mobile device compatible with the Curri app and utilize the Curri app while performing Deliveries. When Driver uses a motor vehicle to perform a Delivery, Driver agrees that (i) Driver will identify such motor vehicle on the Curri Platform by inputting all relevant information requested by the Curri Platform with respect to such vehicle, and (ii) Driver is solely responsible for ensuring that such motor vehicle is in good mechanical condition and repair and conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability. Driver’s identification of any motor vehicle on the Curri Platform will be considered an acknowledgement of and receipt for Equipment, as required by applicable law.
(b) Driver is responsible for all costs and expenses arising from Driver'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, Driver assumes all risk of damage or loss to Driver's Equipment.
As a condition of using the Curri Platform, at Driver's own expense, Driver 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 Driver operates to perform Driver'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. Driver 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.
22.214.171.124. Workers' Compensation/Occupational Accident Insurance. Driver agrees that Driver will not be eligible for workers' compensation benefits through Curri but will be responsible for procuring Driver's own workers' compensation insurance or occupational accident insurance, to the extent required or permitted by applicable law. Notwithstanding the foregoing, however, (a) Driver may qualify for coverage under any Occupational Accident insurance coverage which Curri may procure, in its sole discretion, for the benefit of Driver and other similarly situated delivery providers (more information can be found at https://help.curri.com/en/articles/5212802-occupational-accident-insurance), and (b) a prorated portion of the premium for any such Occupational Accident insurance coverage may be deducted from any payment owed to Driver by Curri pursuant to Section 3.1.1., provided such deduction is in an amount equal to or less than the amount of premium attributable to the delivery services performed by Driver.
126.96.36.199. Notification of Coverage. Driver agrees to deliver to Curri, upon request, current certificates of insurance, proof or insurance cards, insurance declaration pages, or such other evidence of insurance coverage as Curri may deem acceptable in its sole discretion. Unless waived by Curri, Driver’s insurance policies must be issued by insurance carriers that are A.M. Best “A” rated or of equivalent financial strength in Curri’s reasonable judgment. Driver agrees to make available updated certificates each time Driver purchases, renews, or alters Driver's insurance coverage. Driver agrees to give Curri at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement. By entering this Agreement, Driver is making Curri an additional insured on Driver's vehicle insurance and Curri reserves the right to require Driver to produce a certificate of insurance evidencing such coverage.
4.2.3. People Who Help You
4.2.4 Representations and Agreements. The representations, warranties, and agreements made by Driver as a “Deliverer” in Section 13.2 of the Curri Terms of Service are incorporated herein by this reference and made by Driver to Curri.
4.3 No Employment Relationship
As a delivery services provider performing deliveries on the Curri Platform, Driver acknowledges and agrees that Driver and Curri are in a business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. Driver and Curri expressly agree that (a) this is not an employment agreement and does not create an employment relationship between Driver and Curri; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. Neither Curri nor any of its affiliates shall have responsibility for any wages, benefits, expenses, or other payments due any Driver Subcontractor(s), nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to Driver or any Driver Subcontractor. Neither Driver nor any Driver Subcontractor shall receive any wages, including vacation pay or holiday pay, from Curri, nor shall Driver or any Driver Subcontractor participate in or receive any other benefits, if any, available to employees of Curri or any of its affiliates. 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 Driver or any Driver Subcontractor. 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 ensure the safety of all delivery services performed under this Agreement.
5. What You Will Do
5.1.1. From time to time, the Platform, or Curri customer service or operations personnel will notify Driver of the opportunity to complete deliveries as requested by Customers through the Platform or otherwise ("Delivery Opportunity"). The Platform may provide Driver automatic acceptance options or other preferences for certain Delivery Opportunities. With respect to each Delivery Opportunity accepted by Driver ("Delivery"), Driver agrees to complete each accepted Delivery for the applicable Customer in accordance with the terms of this Agreement and any specifications provided by the applicable Customer. Driver understands and agrees that the Customer, not Curri or any of its affiliates, determines the content of the Delivery. Driver understands and agrees that the parameters of each Delivery are established by the Customer, not Curri or any of its affiliates, and such parameters represent the result desired, not the means by which Driver is to accomplish the end result.
5.1.2. Driver agrees that Curri has discretion regarding which, if any, Delivery Opportunities to offer Driver, just as Driver has sole discretion to decide whether and to what extent Driver accepts any Delivery Opportunity.
5.1.3. Notwithstanding any other provision of this Agreement, once Driver accepts a Delivery Opportunity, Driver agrees that Driver shall be contractually bound to complete the Delivery in accordance with this Agreement, the Curri Terms of Service, and any specifications provided to Driver on the Curri Platform or by the applicable Customer. Curri agrees that delivery services performed pursuant to any Delivery Opportunity accepted by Driver shall be performed under Curri’s Operating Authority, and accordingly (a) Driver is granted the limited right to create obligations for Curri to perform delivery services pursuant to any Delivery Opportunity accepted by Driver, and (b) Driver’s acceptance of a Delivery Opportunity represents Curri’s contractual obligation to the applicable Customer to perform such delivery services. Notwithstanding any of the foregoing however, this Section 5.1.3 is not intended to create any rights for any Customer as a third-party beneficiary, or otherwise.
5.1.4. Driver acknowledges and agrees that if Driver accepts a Delivery Opportunity that includes any special shipments described in Section 12.3 of the Curri Terms of Service, (a) Driver is representing and warranting to Curri that Driver has all necessary qualifications, licensing, and professional skills to safely perform the Delivery in compliance with all applicable federal, state, and local laws, (b) Driver is solely responsible for ensuring that the Delivery complies with all applicable federal, state, and local laws, and (c) Driver’s indemnification obligations under Section 6.1.2 include any and all losses associated with Driver’s performance of the Delivery.
5.1.5. Driver understands and agrees that in the event Driver accepts a Delivery Opportunityand fails to fully perform any Delivery for any reason ( “Service Failure”), Curri reserves the right to recover from Driver any costs incurred by Curri related to such Service Failure, and Driver’s indemnification obligations in Section 6.1.2 of this Agreement include any such costs and other liabilities associated with the Service Failure. Service Failures include, without limitation, Driver’s cancellation of the services they agreed to perform, Driver’s failure to perform the Delivery according to the specifications provided by the customer providing the Delivery Opportunity, and Driver’s failure to perform the Delivery in accordance with their obligations under this Agreement. If Driver disputes responsibility for a Service Failure, Driver agrees that the dispute shall be resolved pursuant to the "Payment Disputes" provision in Section 6.1 below.
5.1.6. Driver agrees to, as promptly as possible, report to Curri any accidents or other incidents that occur in connection with the performance of any Delivery that involve actual or potential damage to property or physical injury to any party. Driver will cooperate with Curri with respect to any such accidents or incidents and provide any and all information Curri requests from Driver in its sole discretion.
5.1.7. If Driver (a) is notified by Curri operations personnel, or by the applicable Customer, that a Delivery has been canceled by the Customer after Driver has initiated, but before Driver has completed, performance of such Delivery, or (b) if Driver reasonably determines that the Delivery cannot be completed according to the specifications provided by the applicable Customer, then Driver shall promptly notify Curri operations personnel and shall return the Shipment to its point of origin.
5.1.8. Cancellation of Services; Notice of Service Failure. Driver may cancel a Delivery or decline to perform delivery services related to a Delivery Opportunity accepted by Driver only in accordance with any applicable Curri cancellation policies and Customer specifications related to the Delivery Opportunity. In the absence of any applicable policies or specifications, Driver must cancel a Delivery Opportunity within five minutes of acceptance to avoid any cancellation or declination of services being deemed a Service Failure. In any event, Driver will promptly notify Curri operations personnel upon the occurrence of any Service Failure
5.2. Delivery Services
5.2.1. Driver agrees that all items delivered in connection with any Delivery shall arrive to the applicable Customer uncontaminated, free from tampering, and according to the specifications provided and in the condition intended, by the Customer, or otherwise in the same condition as the item was upon the start of Delivery.
5.2.2. Driver agrees to ensure full performance of all Deliveries in a timely, efficient, safe, and lawful manner. Driver’s full performance of any Delivery will include, without limitation, collecting, completing, and reporting to Curri (via the Curri Platform) such bills of lading, shipping documentation, and other proof of delivery as Curri may reasonably require. Driver acknowledges that Curri has a compelling interest in ensuring that all deliveries performed pursuant to its Operating Authority are conducted in a safe and legally compliant manner. Accordingly, Driver agrees, as a condition of accepting Delivery Opportunities and performing Deliveries, to abide by any and all Curri safety standards and programs that are generally applicable to all drivers operating under Curri’s Operating Authority and reasonably calculated to ensure public safety in connection with Driver’s delivery services. However, under no circumstances shall Curri be authorized to control the manner or means by which Driver satisfies such safety standards and programs or otherwise performs any Delivery.
5.2.3. Neither Curri nor any of its affiliates shall have the right to, and shall not, supervise, direct or control Driver, or control the manner or prescribe the method Driver uses to perform Deliveries, and the general public, Customers, and all governmental agencies regulating the activities contemplated by this Agreement shall be so informed. Subject to any requirements for a Delivery specified by the applicable Customer, Driver 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.
5.2.4. Driver agrees that to ensure the safety of the Curri Platform, Driver shall submit to and pass a background check, including a Motor Vehicle Record (“MVR”), criminal background check, consumer report, and/or an investigative consumer report, before Driver accepts any Delivery Opportunities or performs any delivery services pursuant to this Agreement. Additionally, Driver acknowledges and agrees that, (a) certain Delivery Opportunities may require Driver to submit to and pass a drug screening test as a condition to accepting such Delivery Opportunities, and (b) in accordance with applicable law, and at Curri's sole discretion, periodically during the Term of this Agreement (as defined in Section 7 below) Curri may require that Driver submit to and pass additional background check(s) (of any of the types described above) on an annual or more frequent basis, in Curri’s sole discretion. Curri agrees that any such check(s) may be conducted only with Driver's consent (which is expressly provided herein) and in accordance with applicable law. Driver agrees to take any actions as may be reasonably necessary to facilitate any background checks undertaken pursuant to this Section 5.2.3 as a condition to Driver performing any delivery services pursuant to this Agreement.
5.2.5. Driver agrees that Driver shall not be logged in and performing delivery services on the Curri Platform for more than a cumulative total of 12 hours in any 24-hour period unless Driver has already logged off for an uninterrupted period of at least 6 hours. If Driver has been logged on and driving for more than a cumulative total of 12 hours in any 24-hour period, without logging off for an uninterrupted period of 6 hours, Driver is prohibited from logging back into the Curri Platform for an uninterrupted period of at least 6 hours.
5.2.6. As a condition to using the Curri Platform, you agree to review, acknowledge receipt and review of, and comply with Curri’s Sexual Harassment Policy, available here: https://help.curri.com/en/articles/5212825-sexual-harassment-policy.
188.8.131.52. Driver acknowledges and agrees that, in the performance of this Agreement, Driver may have direct or indirect access or exposure to confidential information of Curri or any of its affiliates ("Confidential Information"). Confidential Information includes Curri and Customer data, provider IDs, user information, Customer information, package information, transaction volume, marketing and business plans, business, financial, technical, operational, and such other nonpublic information (whether disclosed in writing or verbally) that is designated as being proprietary or confidential or that Driver should reasonably know to treat as confidential.
184.108.40.206. Driver acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of Curri; (b) Driver shall not use Confidential Information for any purpose except to complete a Delivery; (c) Driver shall not disclose Confidential Information to any third party except to the extent necessary to perform delivery services under this Agreement; and (d) Driver 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.
220.127.116.11. 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 Driver; (b) was possessed by Driver prior to the date of this Agreement without an obligation of confidentiality; or (c) is disclosed to Driver by a third party having no obligation of confidentiality with respect thereto.
6. If There Are Problems
6.1. Payment Disputes
6.1.1. Driver's Failure: In the event there is a Service Failure, Driver agrees that Driver may forfeit all or a portion of Driver’s payment for the Delivery on which the Service Failure occurred (depending on the extent to which the Service Failure results from Driver’s act or omission). Any reduction of payment shall be based upon proof provided by the Customer, Driver, and/or any other party with information relevant to the Service Failure. Curri shall make the initial determination as to what percentage of fault Driver bears (and, therefore, what percentage of the delivery fee Driver shall forfeit). Driver 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, then subject to the limitations of this Agreement, Driver shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, Driver first informs Curri in writing of the failure and provides Curri a reasonable opportunity to cure.
6.1.3. Curri’s Set-off Right. Notwithstanding any other provision in this Agreement, and subject to any limitations provided by applicable law, Curri shall have the right to deduct, from any payments owed to Driver, any outstanding and unpaid obligations or liabilities owed to Curri by Driver under the terms of this Agreement.
6.2.1. Driver agrees to defend, indemnify, protect, and hold harmless Curri, including all parent, subsidiary, and affiliated companies, as well as their respective 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 of any nature whatsoever, arising directly or indirectly from, as a result of, or in connection with: (a) the actions or omissions of Driver or any Driver Subcontractor arising from Driver’s acceptance of any Delivery Opportunity and performance of Deliveries (or failure to perform Deliveries) under this Agreement, including but not limited to, personal injury to or death of any person (including Driver and/or Driver Subcontractor), as well as any liability arising from any Service Failure, (b) Driver’s failure to comply with the terms of this Agreement in any respect, (c) any and all tax liabilities and responsibilities for payment of all federal, state, 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 Driver with respect to Driver’s or any Driver Subcontractor’s use of the Curri Platform or performance of delivery services pursuant to or in connection with this Agreement, (d) all costs of Driver’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, and (e) any claim by Driver or any Driver Subcontractor that such Driver or Driver Subcontractor is an employee of any Indemnitee or entitled to any benefits from or in connection with the performance of delivery services pursuant to this Agreement. Driver'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.
6.3. ARBITRATION PROVISION
6.3.1. Arbitration of Disputes. Curri and Driver mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. Curri and Driver 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 Driver 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 Driver 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.
18.104.22.168. 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, Driver's provision of delivery services through the Curri Platform under this Agreement, the delivery fees received by Driver for performing Deliveries, the termination of this Agreement, the deactivation of Driver's account, and all other aspects of the Driver'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 Driver's relationship or termination of that relationship with Curri (“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.
22.214.171.124. 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 (“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 Driver 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 Driver 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.
126.96.36.199. 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.
188.8.131.52. CLASS ACTION WAIVER—PLEASE READ. Curri and Driver 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").
184.108.40.206. REPRESENTATIVE ACTION WAIVER—PLEASE READ. Curri and Driver 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. Driver understands that, by agreeing to this Arbitration Provision, both Curri and Driver 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 Driver’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 Driver 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: Driver has the right to consult with private counsel of Driver's choice, at Driver'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 is effective immediately upon the earlier of: (a) your creation of a user account on the Curri Platform, or (b) your acceptance of, or other agreement to perform, any Delivery Opportunity and shall remain in full force and effect for a period of 1 year from the Agreement’s effective date, provided that this Agreement shall automatically renew for a successive 1-year term following such date, and shall automatically renew for consecutive 1-year terms thereafter, unless terminated by either Party. Either Party may terminate this Agreement without penalty:
i. Upon the 15 days written notice to the other Party (with electronic communication satisfying this requirement), with the 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 Driver, and upon written notice, Curri may deactivate or suspend Driver's account on the Curri Platform.
7.2. Material Breach
A material breach of this Agreement shall include, without limitation, the following:
i. Failure by Driver to maintain current insurance coverage in the amounts and types specified herein or as otherwise required by law to perform services under this Agreement.
ii. Failure by Curri to remit to Driver all delivery fees for completed Deliveries in accordance with the terms of this Agreement, provided that Curri shall have 5 days after receiving written notice of such failure from Driver to pay Driver and cure its breach under this Section 7.2(ii).
iii. Failure by Driver to maintain a minimum Driver Star Rating of 3.5 out of 5 stars, based on a weighted average of Senders (as defined in the Curri Terms of Service) consistent with Curri's internal rating mechanism, which Driver acknowledges Curri may alter, modify, or update in its sole discretion.
iv. Occurrence of any Service Failure in the performance of Driver’s services.
v. Driver’s violation of the Curri Community Standards (which can be found at https://help.curri.com/en/articles/6076554-driver-community-guidelines, or Driver’s failure to successfully complete Curri’s driver verification program.
vi. Driver’s breach of any of their obligations under the Curri Terms of Service.
vii. Failure by Driver to maintain all licenses, permits, authorities, registrations, and/or other prerequisites to operate as required by law and/or this Agreement.
viii. Any act or omission by a party that causes the other party to violate its obligations under any applicable federal, state, or local law.
ix. Substantiated complaint by a customer or employee of Curri that Driver has engaged in conduct that a reasonable person would find physically threatening, highly offensive, or harassing.
x. Illegal or intentionally destructive acts by a party, including but not limited to, fraud or theft.
xi. Failure by Driver to reasonably cooperate with Curri in the investigation of or response to any claim (insurance, civil, or otherwise) arising out of or related to Driver's or any Driver Subcontractor's alleged or actual acts or omissions while performing delivery services under this Agreement or using the Curri Platform.
x. Failure by Driver to provide delivery services in a manner consistent with its obligations under this Agreement and the Curri Terms of Service and with Curri's effective operation of the Curri Platform.
7.3. A party that receives notice of termination must continue to fulfill its obligations under this Agreement for the entire notice period, including, with respect to Driver, continuing to fulfill Deliveries pursuant to any Delivery Opportunities Driver has accepted.
7.4. If this Agreement is terminated by Curri pursuant to Section 7.1(ii), and Driver disagrees with the basis for Curri’s termination, Driver shall have the right to appeal Curri’s decision by contacting Curri’s internal claims adjudication department. Such appeal shall be conducted and resolved in accordance with Curri’s internal Driver claims appeal policies and procedures. If the appeal is successful, this Agreement will continue in full force and effect and, if applicable, Driver’s account on the Curri Platform will be reinstated.
7.5. Sections 1.1, 1.2, 3.2, 4, 5.2.6, 6, 7 and 8 shall survive any termination of this Agreement, along with all representations and warranties and any party and any other terms which reasonably should be expected to survive in order to properly effectuate their meaning. In addition, after this Agreement is terminated, Curri may in its sole discretion retain all Driver information on the Curri Platform for a period of three years, to the extent reasonably necessary or useful to Curri for the purposes of complying with record-keeping requirements under applicable federal, state, and local law.
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.
8.2. Transferability; Third Party Beneficiaries
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 its stock or assets. References to Curri in this Agreement shall be deemed to include such successor(s). Curri and all other affiliates of Curri are intended third-party beneficiaries of this Agreement with the right to enforce any of their respective rights under this Agreement. No other third-party is intended to be a beneficiary of this Agreement, and no other third-party shall have the right to enforce any rights or obligations hereunder.
The failure of Curri or Driver 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 Driver shall be excused by reason 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 Driver.
By entering into this Agreement, Driver expressly acknowledges and agrees that Driver (a) has read and fully understands the provisions of this Agreement; (b) has had sufficient time and opportunity to consult with legal and tax advisors before executing this Agreement; (c) is legally competent to enter into this Agreement; and (d) agrees to be bound by this Agreement.