Effective May 21, 2020
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY, SPECIFICALLY THE MUTUAL ARBITRATION PROVISION IN SECTION 11. UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW, THIS AGREEMENT REQUIRES THE PARTIES TO RESOLVE DISPUTES THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO THE FULLEST EXTENT PERMITTED BY LAW. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND VOLUNTARILY AGREED TO ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING THE MUTUAL ARBITRATION PROVISION, AND THAT YOU HAVE TAKEN TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND AND CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
Ship District provides and maintains an online marketplace and mobile platform (“Platform”) on which individual customers (collectively “Customers”); restaurants, retail stores, and other merchants (collectively “Merchants”); and independent businesses providing delivery services (“Services”) connect to facilitate the purchase, fulfillment, and, when applicable, delivery of goods from Merchant(s) to Customer(s). You are an independent business providing delivery services, authorized and able to satisfy any and all legal requirements necessary to perform the services contemplated by this Agreement in the geographic location(s) in which You operate. You understand and agree that You enter into this Agreement as an independent business entity, and You desire to enter into this Agreement for the right to access the Platform in order to receive Delivery Opportunities (as defined in section 3A below). In consideration of these recitals and the mutual promises below, and for other good and valuable consideration, You and Ship District agree as follows:
1. Purpose Of Agreement
1A. This Agreement governs the entire relationship between the Parties, and establishes the Parties’ respective rights and obligations arising out of this relationship. The relationship between the Parties governed by this Agreement includes Your access to the Platform, which facilitates Your provision of Services through Delivery Opportunities. The Parties acknowledge and agree that this Agreement is a licensing agreement between independent businesses that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor (“Contractor”) and not that of employer and employee. Neither Party shall have the right to bind the other by contract (or otherwise) except as specifically provided in this Agreement.
1B. Nothing in this Agreement requires You to accept any Delivery Opportunity on the Ship District Platform, and nothing in this Agreement shall guarantee You any particular volume of Delivery Opportunities or Deliveries for any particular time period.
1C. Ship District reserves the right, at any time, to modify or supplement external documents referenced and incorporated into this Agreement and/or any information referenced via hyperlink (or the addresses where such information may be found). Such modifications shall become effective upon posting. Such modifications or supplements may be provided to You via electronic means.
2. Your Operations
2A. You understand and agree that in providing any services under this Agreement, You are not an employee or customer of Ship District, any Merchant selling goods through Ship District, or any Customer purchasing goods through Ship District. You represent that in providing any services under this Agreement You operate an independent business, whether a sole proprietorship or other formal business entity, including but not limited to a corporation, limited liability company, or partnership. If You are required to obtain or maintain a business license, You represent that You have obtained and agreed to maintain such a license. You agree to inform Ship District in writing immediately if You are no longer operating an independent business to provide services under this Agreement.
2B. You understand that: (i) You are free to select the times You wish to access the Platform; (ii) You are free to accept, reject, or ignore any particular Delivery Opportunities made available to You through the Platform; (iii) You have the sole right to control the manner and means by which You perform Deliveries through the Platform; and (iv) You are engaging Ship District to provide You access to the Platform, which will permit You to perform deliveries.
2C. You represent that, as applicable, You possess all tools, vehicles, and equipment, including mobile telephone, modes of transportation, etc. (collectively “Equipment”) and personnel necessary to lawfully provide the services contemplated by this Agreement. Moreover, You agree that You are solely responsible for ensuring that such Equipment conforms to applicable laws, including those pertaining to health, safety, inspection, and operational capability, and that You are responsible for all costs and expenses You may incur under this Agreement, including, but not limited to, traffic tickets, tolls, parking fees, inspections, insurance, and any other costs related to Equipment. Except as otherwise required by law, You assume all risk of damage or loss to Your Equipment.
2D. Nothing in this Agreement prohibits You, to the extent permitted by law and subject to the terms of this Agreement, from hiring, subcontracting, or otherwise engaging any other person (a “Subcontractor”) to assist You with the performance of a Delivery, provided that any such Subcontractor accepts the terms of this Agreement and separately completes the process to receive Delivery Opportunities. You agree to bear sole responsibility for the direction and control over any Subcontractor. Specifically, to the extent You engage a Subcontractor, unless otherwise mandated by law, You assume full and sole responsibility for the payment of all amounts due or required to be withheld from Subcontractor(s) for work performed under this Agreement, including but not limited to any wages, benefits and expenses, state and federal income tax withholdings, unemployment insurance contributions, and/or social security taxes. Ship District shall have no responsibility for money or obligations You may owe Subcontractor(s), and neither You nor any Subcontractor(s) shall participate in or receive any wages or other benefits available to Ship District’ employees. The Parties acknowledge and agree that any provisions of this Agreement reserving ultimate authority in Ship District 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.
2E. Nothing in this Agreement shall prevent the Parties from at any time engaging in similar arrangements or business with others, including the Parties’ direct competitors, or from advertising themselves to the public as available to engage in similar arrangements or business with others. You agree to immediately notify Ship District in writing if You believe You have been restricted in any way by Ship District from advertising, engaging with, or providing Your services to any other entity.
2F. You understand and agree that You are not required at any time to wear or use any clothing or equipment provided by or bearing Ship District’ name or logo; or to purchase, lease, or rent any products, equipment, or services from Ship District.
2G. You agree that before You receive access to the Platform, You will consent to and pass a background check based on Your own social security number. You also agree that, at its sole discretion and in accordance with applicable law, Ship District may require You to consent to and pass additional background checks.
2H. You expressly consent to be contacted by, and to receive and accept communications from Ship District and authorized partners, representatives, and/or affiliates (which may include Merchants and/or Customers) via different communication methods, including but not limited to email(s), SMS/text message(s), push notification(s), and/or call(s) to contacts, including telephone number(s), You provide to Ship District. By consenting to being contacted, You understand and agree that You may receive communications--including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems--sent by or on behalf of Ship District on various subjects, including but not limited to: (1) operational or transactional communications, such as those concerning Your user account, sign up progress to become a Contractor, use of the Platform, and/or features available on the Platform; (2) communications relating to Deliveries and Delivery Opportunities, including delivery fees and incentive offers; (3) promotions, advertising, and/or marketing, (4) news concerning Ship District and industry developments that affect Your relationship with us; and (5) account verification communications. Message and data rates may apply. By consenting to be contacted, You represent that the telephone number(s) that You have provided to us are Your contact numbers, that You are permitted to receive calls at such telephone number(s), and that You will promptly alert us whenever you stop using a particular telephone number.
2I. You agree that Ship District, its partners, affiliates, or representatives may contact You (including for marketing and promotional purposes from Ship District or our third-party partners where permitted by law) by email, phone, push notifications, SMS, or by other comparable means (including by use of an automatic telephone dialing system) at the email address(es), phone(s), or phone number(s) You provide to Ship District.
YOU CAN UNSUBSCRIBE FROM SHIP DISTRICT’ MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, SHIP DISTRICT MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN THE PARTIES.
IF YOU WISH TO OPT OUT OF MARKETING TEXT OR SMS MESSAGES, IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES USING SHIP DISTRICT.
3A. Ship District may notify You of the opportunity to complete a delivery from a Merchant to a Customer (a “Delivery Opportunity”), and You may have the option to choose automatic acceptance or other preferences for certain Delivery Opportunities. For each Delivery Opportunity You accept (a “Delivery”), You agree to complete the delivery of the good(s) purchased by a Customer in a form free from tampering, in the condition intended by the Customer and/or Merchant, according to the terms of this Agreement and/or as otherwise set forth in the Fleet Help Center, and in compliance with any and all applicable federal, state, and local laws, rules and regulations, including but not limited to applicable food and health safety laws, rules, and/or regulations. You further agree that for any Delivery that includes any age-restricted items, including but not limited to alcohol, tobacco, e-cigarettes, or vaporizers, You are responsible for ensuring the Delivery complies with all federal, state, and local laws, including but not limited to ensuring that the individual accepting the Delivery is the individual who placed the order, has provided valid identification, is the required minimum age, and is not intoxicated.
3B. You agree that Ship District may provide You with a prepaid debit card that can be used to pay for certain Deliveries. Any unauthorized use of this prepaid debit card will be considered theft and/or fraud. You further agree that if You lose the prepaid debit card, You will report the loss to Ship District immediately.
3C. You agree that if you fail to complete any Delivery (a “Service Failure”), Ship District reserves the right to recover any costs incurred by Ship District related to Your action(s) or omission(s). You further agree that if You fail to return to a Merchant any item that cannot be delivered (a “Return Failure”), Ship District reserves the right to recover any costs incurred by Ship District related to the Return Failure. If You dispute responsibility for a Service Failure or Return Failure, You agree to resolve the dispute pursuant to the “Payment Disputes” provision in Section 5 below.
4. Fees For Services Provided
4A. Unless otherwise notified in writing by Ship District or as otherwise provided herein, You will receive payment per completed leg of Delivery in the amount listed in the payment schedule for the relevant type of delivery and/or relevant market as found in the Fleet Help Center.1 Ship District reserves the right, at its sole discretion, to change the payment schedules at any time for any reason, and Your continued use of the Ship District Platform shall constitute Your consent to any change. Nothing in this Agreement prevents the Parties from negotiating a different rate of pay. You are free to contact Ship District regarding the payment schedule, and are free to accept, reject, or ignore any Delivery Opportunities as a means to earn different rates of pay.
4B. Ship District agrees to transmit payment(s) for all completed leg(s) of Delivery to You via direct deposit no later than seven (7) days after You complete the related Delivery unless the Parties negotiate and agree to a different arrangement. You are responsible for any applicable processing fees associated with such remittance, and You understand that You may incur and agree to pay transfer and/or transaction fees, as applicable, for such payments.
4C. Customers can pay You a gratuity in cash or via other payment method(s). Nothing in this Agreement shall prevent You from retaining 100% of any gratuity paid by a Customer. Ship District acknowledges it has no right to interfere with the amount of gratuity given to You by a Customer.
1 This excludes Partner Delivery Staff, who are paid directly by their respective merchant.
5. Payment Disputes
5A. In the event of a Service Failure or Return Failure, You agree that You may forfeit all or a portion of the payment as described in Section 4 above (depending on the extent to which the Service Failure results from Your act or omission). Any reduction of payment shall be based upon proof provided by the Customer, Merchant, You, and/or any other party with information relevant to the dispute. Ship District shall make the initial determination as to what percentage of fault You bear, and You shall have the right to challenge Ship District’ determination as described in the provisions set forth in Sections 10 and 11, below.
5B. In the event Ship District fails to remit payment in a timely or accurate manner, You shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, You first inform Ship District in writing of the failure and provide Ship District a reasonable opportunity to cure.
6. Reporting Your Income
6A. If You earn the minimum income established by the Internal Revenue Service, Ship District shall report all payments made to You on a calendar year basis by issuing an IRS Form 1099.
6B. You agree that Ship District 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 Your Ship District account as provided by You. Further, You agree to report all such payments to the appropriate federal, state, and local taxing authorities.
7A. At Your own expense, You shall, during the Term of this Agreement, maintain up-to-date insurance of the types and in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in which You provide services as contemplated by this Agreement. This includes, but is not limited to, vehicle insurance that is equal to or greater than the minimum vehicle insurance coverage amounts and types required by state or local law, workers’ compensation insurance, and/or occupational accident insurance.
7B. Ship District may offer You the opportunity to participate in certain group insurance plans made available to you by Ship District and/or third-party providers.
7C. You agree to deliver to Ship District, upon request, up-to-date certificates of insurance as proof of coverage. You agree to make available updated certificates each time You purchase, renew, or alter Your insurance coverage. You also agree to give Ship District at least thirty (30) days’ prior written notice before cancellation of any insurance policy required by this Agreement.
8A. You acknowledge and agree that in the performance of this Agreement You may have direct or indirect access or exposure to Ship District’ confidential information (“Confidential Information”). Confidential Information includes Ship District’ 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 Ship District designates as being proprietary or confidential or that You should reasonably know to treat as confidential.
8B. You acknowledge and agree that: (a) all Confidential Information shall remain the exclusive property of Ship District; (b) You shall not use Confidential Information for any purpose except to complete a Delivery; (c) You shall not disclose Confidential Information to any third-party; and (d) You shall not keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of this Agreement or at Ship District’ request.
8C. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no action or omission by You; (b) was possessed by You prior to the date of this Agreement without an obligation of confidentiality; or (c) is disclosed to You by a third party having no obligation of confidentiality with respect thereto.
8D. If You become legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, You will provide Ship District prompt written notice of such disclosure and will cooperate with Ship District should Ship District seek a protective order or another appropriate remedy. If Ship District waives Your compliance with this obligation or fails to obtain a protective order or other appropriate remedy, You will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
9A. You agree to indemnify, protect, and hold harmless Ship District, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees (collectively “Indemnitees”), from: (i) any and all claims, demands, damages, lawsuits, losses, liabilities, and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of You and/or any Subcontractor under this Agreement, including but not limited to, personal injury to or death of any person (including You and/or any Subcontractor); (ii) any liability arising from Your failure to comply with the terms of this Agreement; (iii) any and all tax liabilities and responsibilities for payment of all federal, state, and/or local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state, and/or local laws, that are owed by You with respect to Your and/or any Subcontractors using the Ship District Platform to complete Deliveries; and (iv) all costs associated with Your business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state, and/or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
9B. You agree that Your obligations in this Section 9 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 Ship District or any of the Indemnitees.
10. Termination of Prior Agreements
10A. Prior Agreement. This Section 10 only applies if You were a Party to an earlier version of a Fleet Agreement (a “Prior Agreement”) with Ship District prior to Your acceptance of this Agreement. Except as provided in Sections 10B and 11 below, Ship District and You hereby terminate Your Prior Agreement, effective as of your acceptance of this Agreement. The Parties, respectively, hereby waive any applicable notice requirements with respect to their termination of the Prior Agreement.
10B. External Documents Referenced and Incorporated into Prior Agreement. Notwithstanding the termination of your Prior Agreement, You hereby (a) ratify, assume, and confirm Your obligations under any external documents referenced and incorporated into the Prior Agreement and/or any information referenced via hyperlink in the Prior Agreement that are required or applicable to Your provision of Services (“Continuing Documents”) and (b) acknowledge and agree that as of Your acceptance of this Agreement such Continuing Documents are incorporated by reference and form a part of this Agreement. Ship District hereby ratifies, assumes, and confirms its obligations under such Continuing Documents.
11. Mutual Arbitration Provision
11A. Arbitration of Disputes. The Parties mutually agree to resolve any and all disputes between them exclusively through final, binding, and individual arbitration instead of filing a lawsuit in court (except as otherwise provided below). However, this Mutual Arbitration Provision does not cover disputes that, as a matter of law, may not be subject to pre-dispute arbitration agreements.
11B. BY AGREEING TO ARBITRATE DISPUTES BETWEEN THEM AS DESCRIBED HEREIN THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.
12. Term and Termination of Agreement
12A. This Agreement shall remain in full force and effect for one (1) year (the “Term”) from the date it is accepted by You and may not be terminated early without penalty except in the following limited circumstances:
12B. The following acts and/or occurrences shall constitute a material breach of this Agreement:
12C. Early termination of this Agreement by Ship District without proper notice (as established in subsection A above) shall result in liquidated damages of $100.00 for each day that notice is not properly provided to You, up to a maximum amount of $500.00. The Parties acknowledge that liquidated damages are appropriate because actual damages are not reasonably ascertainable.
12D. Other than for illegal or destructive acts, in the event You dispute that You materially breached this Agreement, You may challenge Ship District’ decision using the dispute resolution process described in Section 11, above. In all such instances, the Parties will be responsible for their own attorneys’ fees and costs, subject to any remedy to which they may be entitled under applicable law and which would otherwise be available in a court of law, but Ship District shall bear the arbitrator’s and arbitration fees and costs. Notwithstanding the foregoing, as set forth below, You are not precluded from asserting that applicable law requires Ship District to bear the arbitrator’s and arbitration fees and costs, even for illegal or destructive acts. In the event there is a dispute in this regard, the arbitrator must determine the appropriate apportionment of fees at the earliest practicable time following commencement of the arbitration.
12E. If not terminated, the Agreement shall be automatically renewed for successive one-year terms, unless terminated by either Party as described in Sections 11A and 11B.
12F. The Parties’ obligations and rights arising under Section 5, 6, 8, 9, 10, 11, 12, 13, and 14 of this Agreement shall survive termination of this Agreement and deactivation of Your Ship District account.
13. Entire Agreement, Transferability, And Waiver
13A. Unless otherwise stated in this Agreement, this Agreement shall constitute the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed, or amended in any respect, unless in writing and executed by both Parties. This Agreement supersedes any prior contract between the Parties. This Agreement may not be assigned by either Party without written consent of the other, and shall be binding upon the Parties hereto, including their heirs and successors, provided, however, that Ship District may assign its rights and obligations under this Agreement to an affiliate of Ship District 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 Ship District shall be deemed to include such successor(s).
13B. The failure of a Party in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
14A. Severability. Except as otherwise provided in this Agreement, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
14B. Captions. Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
14C. Savings Clause. If any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
14D. Force Majeure. The performance of the obligations of this Agreement on the part of either Party shall be excused by reasons of closing of public highways, changes in operations, strikes or work stoppages, weather conditions that make operations unsafe or impractical, Acts of God, or the temporary or permanent cessation of business by either Party.
14F. Stripe Connected Account Terms of Service. You represent and warrant that You have reviewed, understand, and agree to the Stripe Connected Account Agreement, which is expressly incorporated herein by reference.
By entering into this Agreement, You expressly acknowledge and agree that You read and fully understand the provisions of this Agreement, You have had sufficient time and opportunity to consult with legal and tax advisors before executing this Agreement, You are legally competent to enter into this Agreement, and You agree to be bound by this Agreement.