USER AGREEMENT

 

This agreement is for all of us, meaning Customers, Drivers, Merchants and d’Livery NOLA Holdings, LLC (dliverynola), a Louisiana Limited Liability Company.

 

Please read this agreement before using dliverynola.com, orders.dliverynola.com or any of our mobile applications, dliverynola, dliverynola driver and/or dliverynola merchant (collectively the Platform).  

 

All of us reserve the right to terminate this agreement and the use of the Platform at any time for any reason.  If you do not agree with the terms of this agreement you are not permitted to access or use the Platform. To use the Platform you must also have the legal right to do so or permission from a parent or guardian.

 

In order to participate you will have to download, open and run one of d’Livery NOLA’s online mobile applications or access one of d’Livery Nola’s websites.  Through the process you will be asked to create an account on the Platform using an email address, password and cell phone number. Merchants and Drivers will have to provide additional information.  You agree that only you will use the username and password to access your account as you are the sole authorized user.

 

Part 1.  We Are All In This Together.  

We’ll protect the Personal Information you share with us and we won’t sell or give away any content of your Personal Information to anyone except people who may be involved in the delivery of Service. See Note 1 below for more details about our Privacy Policy.

When you visit the Platform, we may place “cookies” on your computer to recognize you. We do this to store your preferences, collect statistical data and track your use of our Service.  See Note 2 below for more details about our Cookie Policy. 

Mistakes will happen, and we have established broad fault based rules for dealing with them, they are.  Pictures are a good way to document what happened and we encourage their use.

1. A Customer is entitled to a refund, in whole or part, as the case may be, if a) the order is cancelled on the Platform by the Customer before a restaurant begins preparing the dish or dishes, or before 5 minutes, whichever time frame is shorter, b) the delivery was 10 minutes or more late and the customer declines to accept the order, c) the order is wrong, in whole or part, but not as a result of a mistake by the Customer, d) the order is not in satisfactory condition, and/or e) in the case of food only, the Safety Seal is broken (and not merely that a safety seal came unglued).

 

2. A Customer is not entitled to a refund if a) the Customer is not available to communicate with the Merchant, the Driver or the Platform by phone, text or email during any part of the period of time from when the order is placed to ten (10) minutes after the time established for delivery, and b) the Customer is not available to receive the delivery in person within 10 minutes either side of the scheduled delivery time, unless specific alternative drop off instructions are included with the order, and c) the customer entered incorrect order or delivery instructions.

 

3. Even though a Customer is entitled to a full refund, a Driver will still be paid the Base Delivery Fee if a) the order was delivered, or an attempted delivery was made within 10 minutes either side of the scheduled delivery time (an attempted delivery means the Driver called, texted and knocked on the Customer’s door without response) and was on site for 5 minutes or more), b) the unsatisfactory condition of the order is not the fault of the Driver, meaning it is the fault of the Merchant, and c) in the case of food, the Safety Seal was not broken at the time the delivery was made.

 

4. A Driver will not be entitled to Base Delivery pay in the event the Customer is entitled to a full refund and a) the order was picked up late at the Merchant’s place of business, b) the unsatisfactory condition of the order is the fault of the Driver, and/or c) in the case of food, the Safety Seal is broken before the food is delivered to the Customer (it is the Driver’s responsibility not to take food from a Restaurant without the proper Safety Seals).

 

5. Merchants are responsible to prepare the order correctly, assure it matches the Customer’s order requirements, is properly packaged for transport and is available to the Driver on time.  In the case of food, the Merchant is responsible for affixing the Safety Seal to the packaging. If any part of these requirements is not met then the Merchant is responsible to approve a refund to the Customer and pay for the Base Delivery cost.

 

Before any refunds or internal credits or charges are accessed for an order that involves a mistake the Platform, through the Platform’s Live Chat system will seek feedback from everyone involved.  Decisions made by the Platform are final.

 

Part 2. Customers.  Once you make a purchase through the Platform the charges paid are final and non-refundable, unless otherwise determined by us based on the fair application of the fault based rules established above. 

 

For non-food items of significant value, with this level of value being defined by you, we suggest the optional purchase of delivery insurance but we do not require it.  We also hereby disclaim the Platform’s obligation to refund or repay because of damage to an order item or group of items that is valued at $300.

 

Merchants, Drivers and the Platform may send you text messages or call you on the phone number you provided when you opened your account.  It is your responsibility to respond to these messages while an order with the Platform is pending.

 

Part 3.  Drivers. You assure us that you are at least 21 years old, in lawful possession of all equipment, insurance, and licenses necessary to perform the services contemplated by this Agreement in accordance with all applicable laws.  You also consent to an initial and periodic on-going background check(s), to provide us with current copies of your driver’s license, proof of automobile insurance, vehicle registration, vehicle inspection stickers, license plate number and a picture of your vehicle and of yourself.

 

The Platform, through the dliverynola driver app, will notify you when it has a delivery opportunity for you.  If you accept a delivery opportunity, you agree to retrieve the requested items from the Merchant selected by the Customer and deliver them in a safe and timely manner and in accordance with the delivery window requested by the Customer.  This is the Service that you are providing.

 

We do not impose any minimum or maximum amount of Services that you as a Driver are required to provide, we do not dictate the times you are available to provide Services and you are under no obligation to accept any particular Delivery Opportunity that is offered to you.  You are free to accept or reject any Delivery Opportunity, based on your business judgment and discretion. If, however, you do accept a Delivery Opportunity, then you are contractually obligated to complete it. The Merchant and Customer are relying on you.

 

We agree to pay you for the Services you perform based on the Rate Schedule in effect at the time the Service is performed. The Rate Schedule is provided to you separately via email.  We reserve the right to change the Rate Schedule at any time so long as we provide you notice via email of the change at the email addressmyou used to open your Driver’s Account before you accept a Delivery Opportunity.

 

You acknowledge that as a Driver you are an Independent Contractor and as such we do not pay based on a salary or hourly rate.  Your payments will always be based on the rate associated with the specific Delivery Opportunity that you accept. You shall be responsible for all costs and expenses incurred or necessary in the performance of the Services, including but not limited to phone, parking, vehicle, vehicle insurance, worker’s compensation insurance and travel expenses. 

 

You enter into this Agreement as an independent contractor with a business relationship between you, dliverynola, the Customers and the Merchants. You acknowledge and agree that you operate a business separate and distinct from ours, and that you are able to operate your business without us. It is understood that in agreeing to provide Services under this Agreement, that you shall be acting and shall act at all times as an independent contractor, and not as an employee of ours, the Customers or the Merchants for any purpose whatsoever, including without limitation, for purposes relating to taxes, payments required by statute, or any other withholdings or remittances to any governmental agency or authority. Under no circumstances shall you look to us as your employer, partner, joint venturer, agent, or principal, nor shall this Agreement be construed to establish any such relationship.

 

You agree that you are not entitled to any employee benefits including but not limited to workers’ compensation, disability or health insurance.  Your further acknowledge that this Agreement does not provide for compensation related to sick or vacation days.

 

You further acknowledge that this Agreement does not create any employer-employee relationship between a third party Merchant and/or Customer and yourself, and that you are not entitled to any benefits, including but not limited to Workers' Compensation coverage, afforded to any employees of a third party Merchant or Customer. 

 

You shall be solely responsible for determining the manner and method of performing all Services under this Agreement, and achieving the desired results, in a lawful and safe manner.  We acknowledge that we have no right to control, oversee, or supervise you in the performance of the Services under this Agreement. You acknowledge that we have not provided or required training as to the performance of the Services under this Agreement. 

 

At all times and continuing until this Agreement is terminated, it shall be your sole responsibility, and to the extent required by law, to secure and pay for Workers’ Compensation, Disability, Health and any other insurances, to secure and pay for unemployment or other similar insurance contributions and to secure and pay for all necessary liability insurance for you and any personnel in your employ, to secure and pay for automobile insurance coverage in amounts consistent with legal requirements, including any required no fault automobile insurance or commercial liability insurance and withholding income and reporting wages, other similar taxes or social security, on behalf of yourself and any personnel as levied and/or required by any Federal, State, Local or any other governmental authority.

 

To be clear, you acknowledge that we do not provide for you or your personnel any of the insurances listed above and that you are not entitled to rely on us for any of these insurances.  To the contrary, this agreement specifically requires that you provide these coverages if required by law or this Agreement.

 

As a condition of the Agreement and in order to receive payment, you agree to provide us with your legal business name and taxpayer identification number, if you are a corporation or business entity, and/or social security number, if you are a sole proprietor.  All payments will be made to the legal business name, i.e. the name the account is opened in.

 

You agree to abide by all applicable laws, statutes and regulations related to this Agreement and the Services to be provided by you under it.  We shall not be liable for any penalties, levies, fines and/or fees, which may be imposed if such taxes and/or other contributions are not paid by you. You further agree that you shall defend, indemnify, and hold us harmless for any and all judgments, levies, fines, costs, penalties, assessments or fees associated with such required payments, or with respect to any demand or claim related in any way to any failure to declare, collect, remit, and/or pay on a timely basis all such taxes and related amounts. 

 

You have no authority to make promises, agreements, or otherwise make commitments on our behalf.   You may represent, perform services for, or be employed by, any third persons or companies as you see fit.   We do not guarantee you the availability of our Platform. 

 

You represent that you have and will at all times maintain the qualifications, licenses, permits,  registrations, insurance, the legal right to operate the vehicle you use while providing service, and skills to perform the Services in a competent, professional, and reliable manner. While providing Service you agree to drive safely and affirm that you will never operate the vehicle while under the influence of alcohol or drugs.  You agree that you shall and do hereby indemnify, defend, and hold harmless d’Livery NOLA Holdings, LLC, the Customers and Merchants from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable legal fees and costs that may be  incured or suffered and that result from, or are related to: (a) the performance of the Services; (b) any breach or failure by you to perform or abide by any of the representations, warranties, and agreements set forth in this Agreement or incorporated by reference; (c) your violation of any law or the rights of a third party, including a customer, Merchant, or any individual associated with a Merchant, as a result of your own interaction with such third party; (d) any allegation that any materials that you use in carrying out the Services infringe or otherwise violate the copyright, trademark, trade secret, or other rights of any third party; (e) your ownership, use or operation of a motor vehicle or passenger vehicle, including during your providing of Services; and/or (f) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person. You agree that we are not responsible for any loss, damage or depreciation that may occur to your equipment, including but not limited to your vehicle. 

 

You agree that the use of customer information (including but not limited to the identity, address, and contact information of customers) is governed by this agreement. You further agree that you have had the opportunity to review this policy and you agree that you will not use customer information in any manner that is inconsistent with this Agreement. 

 

You agree that, if you accept a Delivery Opportunity that includes an item that needs to be maintained at either a hot or cold temperature, you will ensure compliance with all federal, state, and local laws and guidance and deliver the item in a manner that ensures the health and safety of the customer. You further agree that you will lawfully acquire any equipment, including but not limited to insulated bags, needed to perform the Services. 

 

We will supply you with a credentialed lanyard for you to wear during deliveries so that the Customer can easily identify you.

 

Part 4. Merchants.  We agree to provide you with access to the Platform and at your option will also provide a URL for you to embed on your own website, which will provide Customers with access directly to your page on the Platform and allow you to use the Platform’s pickup option.

 

We will purchase the tablet(s) needed so you can receive and manage orders over the Platform but we will take reimbursement for this cost over the first four (4) weeks of Service.

 

Merchant is responsible to provide photographs to be used on the Platform, setting the prices and fees charged for items and services of Merchant, establishing minimum and maximum order size, hours of operation, within the published hours of operations for the Platform, providing dliverynola with an initial catalog of items to be offered through the Platform and remitting all sales tax and other governmental charges.  From time to time as necessary, Merchant is responsible to and shall update its catalog on the Platform.  

 

Merchant is responsible for filling orders placed on the Platform and providing them to dliverynola’s Diver or the Customer directly, in the case of a pickup order.  

 

Delivery contractors, engaged by dlivernola will pick up delivery orders from Merchant’s location and deliver them to the customer on Merchant’s behalf.  

 

dliverynola is responsible for initially onboarding Merchant’s catalog of items, granting Merchant access to Merchant’s administration pages on the Platform, paying Drivers and paying Merchant 1) the pre-tax total of all orders, plus 2) the total sales tax collected on all such orders, plus 3) any fees that Merchant requested be charged to customers, less 4) dlivernola’s promotional fee and any other charges that Merchant has agreed to in writing in advance.

 

Merchant agrees to abide by the privacy policy defined in this agreement.

 

Our promotional fee is defined as the Promotional Fee Schedule in effect with you at the time the Service is performed. The Promotional Fee Schedule is provided to you separately via email.  We reserve the right to change that Schedule at any time so long as we provide you with ten days notice via email of the change at the email address you used to open your Merchant Account.

 

Part 5. Important Legal Terms.  

You are using the Platform at your sole risk.  We do not warrant that the Platform will be available uninterupted or error free and we do not make any  warranty concerning merchandise purchased through the Platform or the displays of Merchants who are on the Platform.

All comments, feedback, information or materials submitted to us shall be considered non-confidential and becomes ours to use, copy, modify, display and distribute via a no-charge assignment by you. You are welcome to provide candid feedback to us which we may use in any way.

The Platform contains copyright material, trademarks and other proprietary information and you may not commercially exploit these materials, trademarks and information without expressed written permission.  You acknowledge that you do not acquire ownership rights by downloading these protected items.

This agreement is governed by the laws of the State of Louisiana for any dispute relating in any way to the subject matter of this agreement and all of us agree that any and all disputes, claims or controversies shall be resolved by final and binding arbitration by a neutral arbitor.  See Note 3 below for specific terms regarding your agreement to submit claims under this agreement to arbitration and your right to opt-out of this clause provided it is done within 30 days.

 

To conclude, this Agreement supersedes any and all other agreements between you and us, whether oral or in writing, and contains all of the covenants and agreements between you and us with respect to your Services.  We each acknowledge that no representations, inducements, promises, or other agreements have been made by either Party to the other, or by anyone acting on behalf of either Party, which are not embodied herein. 

 

In the event that any part of this Agreement is held to be illegal, invalid, void, null, or unenforceable, the remainder of the Agreement shall remain in full force and effect.

 

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Note 1. For this agreement, Personal Information means any information that may be used to identify an individual, including, but not limited to, a first and last name, a home or other physical address and an email address or other contact information, whether at work or home. In general, you can visit the website without telling us who you are or revealing any Personal Information about yourself. When you visit the website or use our Service, we collect and store information about you, your computer or mobile device and your activities. This information may include, but is not limited to your computer’s IP address; technical information about your computer or mobile device (such as type of device, web browser or operating system), your mobile device’s unique ID number (when available), your mobile device’s geographic location (specific geographic location if you’ve enabled collection of that information, or general geographic location automatically), your provided full name, email address, zip code and other information you may provide with your account, such as your gender and birth date. You may optionally provide us with this information through third party sign-in services such as Facebook and Google Plus. In such cases, we fetch and store whatever information is made available to us by you through these sign-in services.  We also track how long you visited our service and which features you used. We gather information from members and guests who apply for the various Services that our site offers. It includes, but may not be limited to, email address, first name, last name, a user-specified password, e-mail Id, mailing address, zip code and telephone number or fax number. We collect information primarily to ensure that we are able to fulfill your requirements and to deliver a personalized experience.

Note 2. Cookies are widely used, and most web browsers are configured initially to accept cookies automatically. If you prefer not to accept cookies, you may adjust and configure your browser settings accordingly. However, if you turn off cookies, or refuse to accept a request to place a cookie, some features and services on the Site may not function properly. Ad companies (including but not limited to Google and Facebook) may also place cookies on your computer to track your activities across various sites so that they can display targeted advertisements.

Note 3.  You may elect to Opt-Out of Binding Arbitration by sending an email to dliverynola@gmail.com indicating you intent within 30 days of accepting the terms of this agreement.  For the purpose of this agreement, the claims covered by this agreement include, but are not limited to, claims for: breach of any contract or covenant, express or implied; personal injury, physical or emotional injury; discrimination or harassment because of race, gender, color, pregnancy, religion, national origin, ancestry, age, disability, medical condition, marital status, sexual orientation, gender identity or any other characteristic protected by applicable law; retaliation; violation of any local, state, or federal constitution, statute, law, ordinance or regulation; fraud, misrepresentation, defamation, invasion of privacy, and any other tort claims; penalties; reimbursement of expenses; and any claim for trade secret violations or unlawful competition. This Agreement shall be binding on all of the parties, their heirs, and successors. This Agreement shall not apply to any dispute if an agreement to arbitrate such dispute is prohibited by law.  In arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an “arbitrator,” rather than to a judge or jury. The parties agree that any arbitration shall be conducted before one neutral arbitrator selected by the parties and shall be conducted by the American Arbitration Association Arbitration Rules & Procedures then in effect. The parties agree that this Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq (“FAA”). The parties also understand and agree that we may engage in transactions involving interstate commerce. The arbitration shall take place in New Orleans, Louisiana. The parties are entitled to be represented by their own legal counsel in the arbitration proceeding and agree to maintain the proceedings and the award, including the hearing, as confidential, except as is otherwise required by court order, required by law, or as is necessary to confirm, vacate or enforce the award. The arbitrator shall have the authority to order such discovery by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary for a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. The arbitrator is authorized to award any remedy or relief available under applicable law that the arbitrator deems just and equitable, including any remedy or relief that would have been available to the parties had the matter been heard in a court. Nothing in this Agreement shall prohibit or limit the parties from seeking provisional remedies, such as injunctive relief from a court of competent jurisdiction. The arbitrator shall have the authority to provide for the award of attorney’s fees if such award is separately authorized by applicable law. The decision of the arbitrator shall be in writing and shall provide the reasons for the award unless the parties agree otherwise. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision is final and binding which means there will be no trial by a judge or jury, or ability to appeal the arbitrator’s decision except as provided by the FAA or analogous state law.  The Parties further agree that each may bring and pursue claims against the other only in their individual capacties, and may not bring, pursue or act as a plaintiff or class member in any purported class or collective proceeding.