SECTION 12 OF THIS AGREEMENTCONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACHOTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE ORWERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR,SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITEDEXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINALARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLYBE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUALBASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTIONOR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OFLAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULDAFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION.PLEASE SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATIONAGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPTOUT OF THE ARBITRATION AGREEMENT.
1. Acceptance of thisAgreement
DIRECT GLOBAL/DIRECT CO-OPS, including its affiliatedcompany Local Driver Co-operative Inc., provides an onlinemarketplace connection, using web-based technology that connects you and otherconsumers, restaurants and/or other businesses and Local Driver Co-operativeInc.’s member delivery drivers (“Drivers”). DIRECT GLOBAL/DIRECT CO-OPS’ssoftware permits consumers to place orders for food and/or other goods fromvarious restaurants and businesses (the “Software”). Once such orders are made,the DIRECT GLOBAL/DIRECT CO-OPS software notifies Drivers that a deliveryopportunity is available and the software facilitates completion of thedelivery to the consumer. DIRECT GLOBAL/DIRECT CO-OPS is not a restaurant,delivery service, or food preparation business.
If you access any of our websites located at https://www.directcoops.com/ https://www.directlocaleats.com and https://www.localdriver.coop,install or use our Direct Local Eats mobile application, install or use anyother software supplied by DIRECT GLOBAL/DIRECT CO-OPS, or access anyinformation, function, or service available or enabled by DIRECT GLOBAL/DIRECTCO-OPS (each, a “Service” and collectively, the “Services”),or complete the DIRECT GLOBAL/DIRECT CO-OPS account registration process, you,your heirs, assigns, and successors (collectively, “you” or “your”) herebyrepresent and warrant that:
(a) you have read, understand, and agree to be bound by thisAgreement;
(b) you are of legal age in the jurisdiction in which youreside to form a binding contract with DIRECT GLOBAL/DIRECT CO-OPS; and
(c) you have the authority to enter into the Agreementpersonally and, if applicable, on behalf of any organization on whose behalfyou have created an account and to bind such organization to the Agreement.
The terms “User” and “Users” refer to all individuals andother persons who access or use the Services, including, without limitation,any organizations that register accounts or otherwise access or use theServices through their respective representatives. Except as otherwise providedin this Agreement, if you do not agree to be bound by the Agreement, you maynot access or use the Services.
Subject to Section 12(h) of this Agreement, DIRECTGLOBAL/DIRECT CO-OPS reserves the right to modify the terms and conditions ofthis Agreement or its policies relating to the Software or Services at anytime, effective upon posting of an updated version of this Agreement throughthe Services. You should regularly review this Agreement, as your continued useof the Services after any such changes constitutes your agreement to suchchanges.
3. Additional Termsand Policies
By using the Services, you agree to be bound by thisAgreement and acknowledge and agree to the collection, use, and disclosure ofyour personal information in accordance with DIRECT GLOBAL/DIRECT CO-OPS’s PrivacyPolicy, which is incorporated in this Agreement by reference.Certain features of our Services may be subject to additional terms andconditions, which are incorporated herein by reference.
4. Rules andProhibitions
Without limiting other rules and prohibitions in thisAgreement, by using the Services, you agree that:
(a) You will only use the Services for lawful purposes; youwill not use the Services for sending or storing any unlawful material or fordeceptive or fraudulent purposes; and you will not engage in conduct that harmsother Users, DIRECT GLOBAL/DIRECT CO-OPS employees, or our community.
(b) You will only use the Services in accordance with allapplicable laws, including copyrights, trade secrets, or other rights of anythird party, including privacy or publicity rights.
(c) You will only access the Services using means explicitlyauthorized by DIRECT GLOBAL/DIRECT CO-OPS.
(d) You will not use another User’s account, impersonate anyperson or entity, or forge or manipulate headers or identifiers to disguise theorigin of any content transmitted through the Services.
(e) You will not use the Services to cause nuisance,annoyance or inconvenience.
(f) You will not use the Services, or any content accessiblethrough the Services, for any commercial purpose, including but not limited tocontacting, advertising to, soliciting or selling to, any Merchant, user or Driver,unless DIRECT GLOBAL/DIRECT CO-OPS has given you prior permission to do so inwriting.
(g) You will not copy or distribute the Software or anycontent displayed through the Services, including Merchants’ menu content andreviews, for republication in any format or media.
(h) You will not compile, directly or indirectly, anycontent displayed through the Services except for your personal, noncommercialuse.
(i) The information you provide to us when you register anaccount or otherwise communicate with us is accurate, you will promptly notifyus of any changes to such information, and you will provide us with whateverproof of identity we may reasonably request.
(j) You will keep secure and confidential your accountpassword or any identification credentials we provide you which allows accessto the Services.
(k) You will use the Software and Services only for your ownuse and will not directly or indirectly resell, license or transfer theSoftware, Services or content displayed by the Services to a third party.
(l) You will not use the Services in any way that coulddamage, disable, overburden or impair any DIRECT GLOBAL/DIRECT CO-OPS server,or the networks connected to any DIRECT GLOBAL/DIRECT CO-OPS server.
(m) You will not attempt to gain unauthorized access to theServices and/or to any account, resource, computer system, and/or networkconnected to any DIRECT GLOBAL/DIRECT CO-OPS server.
(n) You will not probe, scan, or test the vulnerability ofany system or network or breach or circumvent any security or authenticationmeasures DIRECT GLOBAL/DIRECT CO-OPS may use to prevent or restrict access tothe Services or use of the Services or the content therein.
(o) You will not deep-link to our websites or access ourwebsites manually or with any robot, spider, web crawler, extraction software,automated process and/or device to scrape, copy, index, frame, or monitor anyportion of our websites or any content on our websites.
(p) You will not scrape or otherwise conduct any systematicretrieval of data or other content from the Services.
(q) You will not try to harm other Users, DIRECTGLOBAL/DIRECT CO-OPS, or the Services in any way whatsoever.
(r) You will not engage in threatening, harassing, racist,sexist or any other behavior that DIRECT GLOBAL/DIRECT CO-OPS deemsinappropriate when using the Services.
(s) You will report any errors, bugs, unauthorized accessmethodologies or any breach of our intellectual property rights that youuncover in your use of the Services.
(t) You will not abuse our promotional or credit codesystem, including by redeeming multiple coupons at once or by opening multipleaccounts to benefit from offers available only to first time users.
(u) You will not attempt to undertake any of the foregoing.
In the event that we believe or determine that you havebreached any of the aforementioned, we reserve the right to suspend and/orpermanently deactivate your account at our sole discretion.
5. Drivers andMerchants Are Independent
You understand and agree that DIRECT GLOBAL/DIRECT CO-OPSprovides a technology platform connecting you with independent food serviceproviders and others that provide the products offered through the Services (“Merchants”),and independent third-party Drivers who provide delivery services (“Drivers”).You acknowledge and agree that DIRECT GLOBAL/DIRECT CO-OPS does not itselfprepare food or offer delivery services, and has no responsibility or liabilityfor the acts or omissions of any Merchant or any Driver. DIRECT GLOBAL/DIRECTCO-OPS is not the retailer of any products offered by Merchants, nor is it inthe delivery business or a common carrier. DIRECT GLOBAL/DIRECT CO-OPS providesa technology platform facilitating the transmission of orders by Users toMerchants for pickup or delivery by Drivers. DIRECT GLOBAL/DIRECT CO-OPS willnot assess or guarantee the suitability, legality or ability of any Driver orMerchant. You agree that DIRECT GLOBAL/DIRECT CO-OPS is not responsible for theMerchants’ food preparation or the safety of the food, and does not verifyMerchants’ compliance with applicable laws or regulations. DIRECT GLOBAL/DIRECTCO-OPS has no responsibility or liability for acts or omissions by any Merchantor Driver.
You agree that the goods that you purchase will be preparedby the Merchant you have selected, that title to the goods passes from theMerchant to you at the Merchant’s location, and that the Driver will bedirected by your instructions to transport the products to your designateddelivery location. You agree that neither the Driver nor DIRECT GLOBAL/DIRECTCO-OPS holds title to or acquires any ownership interest in any goods that youorder through the Services.
6. User Account
Youmay be required to register for an account to use parts of the Services. Youmust provide accurate, current, and complete information during theregistration process and at all other times when you use the Services, and toupdate the information to keep it accurate, current, and complete. You are thesole authorized user of any account you create through the Services. You aresolely and fully responsible for all activities that occur under your passwordor account. You agree that you shall monitor your account to prevent use by minors,and you will accept full responsibility for any unauthorized use of yourpassword or your account. You may not authorize others to use your User status,and you may not assign or otherwise transfer your User account to any otherperson or entity. Should you suspect that any unauthorized party may be usingyour password or account, you will notify DIRECT GLOBAL/DIRECT CO-OPSimmediately. DIRECT GLOBAL/DIRECT CO-OPS will not be liable and you may beliable for losses, damages, liability, expenses, and fees incurred by DIRECTGLOBAL/DIRECT CO-OPS or a third party arising from someone else using youraccount, regardless of whether you have notified us of such unauthorized use.If you provide any information that is untrue, inaccurate, not current, or incomplete,or DIRECT GLOBAL/DIRECT CO-OPS has reasonable grounds to suspect that suchinformation is untrue, inaccurate, not current, or incomplete, DIRECTGLOBAL/DIRECT CO-OPS has the right to suspend or terminate your account andrefuse any and all current or future use of the Services (or any portionthereof). We may enable or require you to use a single pair of logincredentials to use the DIRECT GLOBAL/DIRECT CO-OPS and/or Caviar services. Youagree not to create an account or use the Services if you have been previouslyremoved by DIRECT GLOBAL/DIRECT CO-OPS, or if you have been previously bannedfrom use of the Services.
7. User Content
(a) User Content. DIRECT GLOBAL/DIRECTCO-OPS may provide you with interactive opportunities through the Services, including,by way of example, the ability to post User ratings and reviews (collectively,“User Content”). You represent and warrant that you are the owner of, orotherwise have the right to provide, all User Content that you submit, postand/or otherwise transmit through the Services. You hereby grant DIRECTGLOBAL/DIRECT CO-OPS a perpetual, irrevocable, transferable, fully paid,royalty-free, non-exclusive, worldwide, fully sublicenseable right and licenseto use, copy, display, publish, modify, remove, publicly perform, translate,create derivative works, distribute and/or otherwise use the User Content inconnection with DIRECT GLOBAL/DIRECT CO-OPS’s business and in all forms nowknown or hereafter invented (“Uses”), without notification to and/or approval byyou. You further grant DIRECT GLOBAL/DIRECT CO-OPS a license to use yourusername and/or other User profile information, including without limitationyour ratings history, to attribute User Content to you in connection with suchUses, without notification or approval by you. You agree that this licenseincludes the right for other Users to access and use your User Content inconjunction with participation in the Services and as permitted through thefunctionality of the Services. In the interest of clarity, the license grantedto DIRECT GLOBAL/DIRECT CO-OPS herein shall survive termination of the Servicesor your account. DIRECT GLOBAL/DIRECT CO-OPS reserves the right in its solediscretion to remove or disable access to any User Content from the Services,suspend or terminate your account at any time, or pursue any other remedy orrelief available under equity or law if you post any User Content that violatesthis Agreement or we consider to be objectionable for any reason. You agreethat DIRECT GLOBAL/DIRECT CO-OPS may monitor and/or delete your User Content(but does not assume the obligation) for any reason in DIRECT GLOBAL/DIRECTCO-OPS’s sole discretion. DIRECT GLOBAL/DIRECT CO-OPS may also access, read,preserve, and disclose any information as DIRECT GLOBAL/DIRECT CO-OPSreasonably believes is necessary to (i) satisfy any applicable law, regulation,legal process, or governmental request, (ii) enforce this Agreement, includinginvestigation of potential violations hereof, (iii) detect, prevent, or otherwiseaddress fraud, security, or technical issues, (iv) respond to User supportrequests, or (v) protect the rights, property or safety of DIRECT GLOBAL/DIRECTCO-OPS, its users and the public.
(b) Feedback. You agree that any submissionof any ideas, suggestions, and/or proposals to DIRECT GLOBAL/DIRECT CO-OPSthrough its suggestion, feedback, wiki, forum or similar pages (“Feedback”) isat your own risk and that DIRECT GLOBAL/DIRECT CO-OPS has no obligations(including without limitation, obligations of confidentiality) with respect tosuch Feedback. You represent and warrant that you have all rights necessary tosubmit the Feedback and you hereby grant to DIRECT GLOBAL/DIRECT CO-OPS aperpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive,worldwide, fully sublicenseable right and license to use, copy, display,publish, modify, remove, publicly perform, translate, create derivative works,distribute and/or otherwise use such Feedback.
(c) Ratings and Reviews. To the extent thatyou are asked to rate and post reviews of Merchants or other businesses(“Ratings” and “Reviews”), such Ratings and Reviews are considered User Contentand are governed by this Agreement. Ratings and Reviews are not endorsed by DIRECTGLOBAL/DIRECT CO-OPS and do not represent the views of DIRECT GLOBAL/DIRECTCO-OPS or its affiliates. DIRECT GLOBAL/DIRECT CO-OPS shall have no liabilityfor Ratings and Reviews or for any claims for economic loss resulting from suchRatings and Reviews. Because we strive to maintain a high level of integritywith respect to Ratings and Reviews posted or otherwise made available throughthe Services, you agree that: (i) you will base any Rating or Review onfirst-hand experience with the Merchant or business; (ii) you will not providea Rating or Review for any Merchant or business for which you have an ownershipinterest, employment relationship or other affiliation or for any of thatcompany’s competitors; (iii) you will not submit a Rating or Review in exchangefor payment, free food items, or other benefits from a Merchant or business;and (iv) your review will comply with the terms of this Agreement. If wedetermine, in our sole discretion, that any Rating or Review could diminish theintegrity of the Ratings and Reviews or otherwise violates this Agreement, wemay remove such User Content without notice.
8. Communicationswith DIRECT GLOBAL/DIRECT CO-OPS
By creating a DIRECT GLOBAL/DIRECT CO-OPS account, youelectronically agree to accept and receive communications from DIRECTGLOBAL/DIRECT CO-OPS, Drivers, or third parties providing services to DIRECTGLOBAL/DIRECT CO-OPS including via email, text message, calls, and pushnotifications to the cellular telephone number you provided to DIRECTGLOBAL/DIRECT CO-OPS. You understand and agree that you may receivecommunications generated by automatic telephone dialing systems and/or whichwill deliver prerecorded messages sent by or on behalf of DIRECT GLOBAL/DIRECTCO-OPS, its affiliated companies and/or Driver, including but not limited tocommunications concerning orders placed through your account on the Services.Message and data rates may apply. If you do not wish to receive promotionalemails, text messages, or other communications, you may change yournotification preferences by accessing the Settings in your account. To opt outof receiving promotional text messages from DIRECT GLOBAL/DIRECT CO-OPS, youmust reply “STOP” from the mobile device receiving the messages. For purposesof clarity, delivery text messages between you and Dashers are transactionaltext messages, not promotional text messages.
9. E-SIGN Disclosure
By creating a DIRECT GLOBAL/DIRECT CO-OPS account, you alsoconsent to the use of an electronic record to document your agreement. You maywithdraw your consent to the use of the electronic record by emailing DIRECTGLOBAL/DIRECT CO-OPS at [email protected] with“Revoke Electronic Consent” in the subject line.
To view and retain a copy of this disclosure, you will need(i) a device (such as a computer or mobile phone) with a web browser andInternet access and (ii) either a printer or storage space on such device. Fora free paper copy, or to update our records of your contact information, email DIRECTGLOBAL/DIRECT CO-OPS at [email protected] withcontact information and the address for delivery.
10. IntellectualProperty Ownership
DIRECT GLOBAL/DIRECT CO-OPS alone (and its licensees, whereapplicable) shall own all right, title and interest, including all relatedintellectual property rights, in and to the Software and the Services. ThisAgreement is not a sale and does not convey to you any rights of ownership inor related to the Software or the Services, or any intellectual property rightsowned by DIRECT GLOBAL/DIRECT CO-OPS. DIRECT GLOBAL/DIRECT CO-OPS names, DIRECTGLOBAL/DIRECT CO-OPS logos, and the product names associated with the Softwareand Services are trademarks of DIRECT GLOBAL/DIRECT CO-OPS or third parties,and no right or license is granted to use them. You agree that you will notremove, alter or obscure any copyright, trademark, service mark or otherproprietary rights notices incorporated in or accompanying the Software or theServices.
11. Payment Terms
(a) Prices. You understand that: (a) theprices for menu items displayed through the Services may differ from the pricesoffered or published by Merchants for the same menu items and/or from pricesavailable at third-party websites and that such prices may not be the lowestprices at which the menu items are sold; (b) DIRECT GLOBAL/DIRECT CO-OPS has noobligation to itemize its costs, profits or margins when publishing suchprices; and (c) DIRECT GLOBAL/DIRECT CO-OPS reserves the right to change suchprices at any time, at its discretion. For certain transactions, the subtotalsshown at checkout are estimates that may be higher or lower depending on thefinal in store totals. In those situations, DIRECT GLOBAL/DIRECT CO-OPSreserves the right to charge your payment method the final price aftercheckout. You are liable for all transaction taxes on the Services providedunder this Agreement (other than taxes based on DIRECT GLOBAL/DIRECT CO-OPS’sincome). Payment will be processed by DIRECT GLOBAL/DIRECT CO-OPS, using thepreferred payment method designated in your account.
(b) No Refunds. Charges paid by you forcompleted and delivered orders are final and non-refundable. DIRECTGLOBAL/DIRECT CO-OPS has no obligation to provide refunds or credits, but maygrant them, in each case in DIRECT GLOBAL/DIRECT CO-OPS’s sole discretion.
(c) Promotional Offers and Credits. DIRECTGLOBAL/DIRECT CO-OPS, at its sole discretion, may make promotional offers withdifferent features and different rates to any User. These promotional offersare subject to the terms of this Agreement and may be valid only for certainUsers as indicated in the offer. You agree that promotional offers: (i) mayonly be used by the intended audience, for the intended purpose, and in alawful manner; (ii) may not be duplicated, sold or transferred in any manner,or made available to the general public, unless expressly permitted by DIRECTGLOBAL/DIRECT CO-OPS; (iii) are subject to the specific terms that DIRECTGLOBAL/DIRECT CO-OPS establishes for such promotional offer; (iv) cannot beredeemed for cash or cash equivalent; and (v) are not valid for use after thedate indicated in the offer or in DIRECT GLOBAL/DIRECT CO-OPS’s Terms andConditions for Promotional Offers and Credits. DIRECT GLOBAL/DIRECT CO-OPSreserves the right to withhold or deduct credits or benefits obtained through apromotion in the event that DIRECT GLOBAL/DIRECT CO-OPS determines or believesthat the redemption of the promotion or receipt of the credit or benefit was inerror, fraudulent, illegal, or in violation of the applicable promotion termsor this Agreement. DIRECT GLOBAL/DIRECT CO-OPS reserves the right to modify orcancel an offer at any time. DIRECT GLOBAL/DIRECT CO-OPS’s Terms and Conditionsfor Promotional Offers and Credits (the current version of which is availableat http://drd.sh/rtb7p2/ andwhich is incorporated in this Agreement by reference) apply to all promotionaloffers. DIRECT GLOBAL/DIRECT CO-OPS may also offer gratuitous credits, whichcan be used for the Services. Any credit issued by DIRECT GLOBAL/DIRECT CO-OPSis valid for 6 months from the date of issue except to the extent prohibitedunder applicable law and may not be redeemed for cash or cash equivalent. Uponexpiration, credits will be removed from your account. Expired credits are no longerredeemable and cannot be used towards any order.
(d) Fees for Services. DIRECT GLOBAL/DIRECTCO-OPS may change the fees for our Services as we deem necessary or appropriatefor our business, including but not limited to Delivery Fees, Service Fees andSmall Order Fees. DIRECT GLOBAL/DIRECT CO-OPS may also chargemerchants fees on orders that you place through the services, includingcommissions and other fees, and may change those merchant fees as we deemnecessary or appropriate for our business or to comply with applicable law.
(e) Gift Cards. Except as provided below, Gift Cards may beredeemable towards eligible orders placed on www.directlocaleats.com or www.directcoops.com inthe Direct Local Eats and DIRECT GLOBAL/DIRECT CO-OPS apps in the United Statesand Canada. Gift Cards are made available and provided by DIRECT GLOBAL/DIRECTCO-OPS Inc. Gift Cards are not redeemable for cash except when required by applicablelaw.
PLEASE READ THE FOLLOWING SECTIONCAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DIRECT GLOBAL/DIRECTCO-OPS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OFTHIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
(a) Scope of Arbitration Agreement. You agree that anydispute or claim relating in any way to your access or use of the Services as aconsumer of our Services, to any advertising or marketing communicationsregarding DIRECT GLOBAL/DIRECT CO-OPS or the Services, to any products orservices sold or distributed through the Services that you received as aconsumer of our Services, or to any aspect of your relationship or transactionswith DIRECT GLOBAL/DIRECT CO-OPS as a consumer of our Services will be resolvedby binding arbitration, rather than in court, except that (1) you may assertclaims in small claims court if your claims qualify, so long as the matterremains in such court and advances only on an individual (non-class,non-representative) basis; and (2) you or DIRECT GLOBAL/DIRECT CO-OPS may seekequitable relief in court for infringement or other misuse of intellectualproperty rights (such as trademarks, trade dress, domain names, trade secrets,copyrights, and patents). This Arbitration Agreement shall apply, withoutlimitation, to all claims that arose or were asserted before the Effective Dateof this Agreement.
CASES HAVE BEEN FILED AGAINST DIRECT GLOBAL/DIRECT CO-OPS—ANDOTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS,AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE INSUCH CASES.
IF YOU AGREE TO ARBITRATION WITH DIRECT GLOBAL/DIRECT CO-OPS,YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERMONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVELAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINSTDIRECT GLOBAL/DIRECT CO-OPS IN AN INDIVIDUAL ARBITRATION PROCEEDING. IFSUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY ANARBITRATOR.
(b) Arbitration Rules and Forum. This Arbitration Agreementis governed by the Federal Arbitration Act in all respects.
(c) Arbitrator Powers. The arbitrator, and not any federal,state, or local court or agency, shall have exclusive authority to resolve anydispute relating to the interpretation, applicability, enforceability orformation of this Arbitration Agreement including, but not limited to any claimthat all or any part of this Arbitration Agreement is void or voidable. Thearbitration will decide the rights and liabilities, if any, of you and DIRECTGLOBAL/DIRECT CO-OPS. The arbitration proceeding will not be consolidated withany other matters or joined with any other proceedings or parties. Thearbitrator will have the authority to grant motions dispositive of all or partof any claim or dispute. The arbitrator will have the authority to awardmonetary damages and to grant any non-monetary remedy or relief available to anindividual under applicable law, the arbitral forum’s rules, and this Agreement(including this Arbitration Agreement). The arbitrator will issue a writtenstatement of decision describing the essential findings and conclusions onwhich any award (or decision not to render an award) is based, including thecalculation of any damages awarded. The arbitrator shall follow the applicablelaw. The arbitrator has the same authority to award relief on an individualbasis that a judge in a court of law would have. The arbitrator’s decision isfinal and binding on you and DIRECT GLOBAL/DIRECT CO-OPS.
(d) Waiver of Jury Trial. YOU AND DIRECT GLOBAL/DIRECTCO-OPS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT ANDRECEIVE A JUDGE OR JURY TRIAL. You and DIRECT GLOBAL/DIRECT CO-OPS are insteadelecting to have claims and disputes resolved by arbitration, except asspecified in section 12(a) above. There is no judge or jury in arbitration, andcourt review of an arbitration award is limited.
(e) Waiver of Class or Consolidated Actions. YOU AND DIRECTGLOBAL/DIRECT CO-OPS AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THESCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVEBASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENTMUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OFMORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY ORCONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiverof class or consolidated actions is deemed invalid or unenforceable withrespect to a particular claim or dispute, neither you nor DIRECT GLOBAL/DIRECTCO-OPS is entitled to arbitration of such claim or dispute. Instead, all suchclaims and disputes will then be resolved in a court as set forth in Section20.
(f) Opt Out. You may opt out of this Arbitration Agreement.If you do so, neither you nor DIRECT GLOBAL/DIRECT CO-OPS can force the otherto arbitrate as a result of this Agreement. To opt out, you must notify DIRECTGLOBAL/DIRECT CO-OPS in writing no later than 30 days after first becomingsubject to this Arbitration Agreement. Your notice must include your name andaddress, your DIRECT GLOBAL/DIRECT CO-OPS username (if any), the email addressyou used to set up your DIRECT GLOBAL/DIRECT CO-OPS account (if you have one),and a CLEAR statement that you want to opt out of this Arbitration Agreement.You must send your opt-out notice to: [email protected].If you opt out of this Arbitration Agreement, all other parts of this Agreementwill continue to apply to you. Opting out of this Arbitration Agreement has noeffect on any other arbitration agreements that you may have entered into withus or may enter into in the future with us. NOTWITHSTANDING ANYTHING TO THECONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFYTHE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND DIRECT GLOBAL/DIRECTCO-OPS RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT DRIVER, INCLUDINGWITHOUT LIMITATION, ANY INDEPENDENT DRIVER AGREEMENT GOVERNING YOUR SERVICES ASA Driver. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A Driver, OPTING-OUT OF THEARBITRATION AGREEMENT SET FORTH IN THIS SECTION 12 HAS NO AFFECT ON YOURAGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT DRIVER AGREEMENTWITH DIRECT GLOBAL/DIRECT CO-OPS.
(g) Survival. This Arbitration Agreement will survive anytermination of your relationship with DIRECT GLOBAL/DIRECT CO-OPS.
(h) Modification. Notwithstanding any provision in theAgreement to the contrary, we agree that if DIRECT GLOBAL/DIRECT CO-OPS makesany future material change to this Arbitration Agreement, it will not apply toany individual claim(s) that you had already provided notice of to DIRECTGLOBAL/DIRECT CO-OPS.
(a) Third-Party Websites, Applications andAdvertisements. The Services may contain links to third-party websites(“Third-Party Websites”) and applications (“Third-Party Applications”)and advertisements (“Third-Party Advertisements”) (collectively,“Third-Party Websites & Advertisements”). When you click on a link to aThird-Party Website, Third-Party Application or Third-Party Advertisement, DIRECTGLOBAL/DIRECT CO-OPS will not warn you that you have left DIRECT GLOBAL/DIRECTCO-OPS’s Website or Services and will not warn you that you are subject to theterms and conditions (including privacy policies) of another website ordestination. Such Third-Party Websites & Advertisements are not under thecontrol of DIRECT GLOBAL/DIRECT CO-OPS. DIRECT GLOBAL/DIRECT CO-OPS is notresponsible for any Third-Party Websites, Third-Party Applications or anyThird-Party Advertisements. DIRECT GLOBAL/DIRECT CO-OPS does not review,approve, monitor, endorse, warrant, or make any representations with respect tosuch Third-Party Websites & Advertisements, or their products or services.You use all links in Third-Party Websites & Advertisements at your ownrisk. You should review applicable terms and policies, including privacy anddata gathering practices of any Third-Party Websites or Third-PartyApplications, and make whatever investigation you feel necessary or appropriatebefore proceeding with any transaction with any third party.
(b) App Stores. You acknowledge and agreethat the availability of the Application is dependent on the third party fromwhich you received the Application license, e.g., the Apple iPhone or Androidapp stores (“App Store”). You acknowledge and agree that this Agreementis between you and DIRECT GLOBAL/DIRECT CO-OPS and not with the App Store. DIRECTGLOBAL/DIRECT CO-OPS, not the App Store, is solely responsible for the Softwareand the Services, including the Application and the Services, the contentthereof, maintenance, support services and warranty therefor, and addressing anyclaims relating thereto (e.g., product liability, legal compliance orintellectual property infringement). In order to use the Application, you musthave access to a wireless network, and you agree to pay all fees associatedwith such access. You also agree to pay all fees (if any) charged by the AppStore in connection with the Application or the Services. You agree to complywith, and your license to use the Application is conditioned upon yourcompliance with, all applicable third-party terms of agreement (e.g., the AppStore’s terms and policies) when using the Application. You represent andwarrant that you are not located in a country that is subject to a U.S.Government embargo, or that has been designated by the U.S. Government as a“terrorist supporting” country, and you represent and warrant that you are notlisted on any U.S. Government list of prohibited or restricted parties. Youacknowledge and agree that each App Store (and its affiliates) is an intendedthird-party beneficiary of this Agreement and has the right to enforce theterms and conditions of this Agreement.
14. Social MediaGuidelines.
DIRECT GLOBAL/DIRECT CO-OPS maintainscertain social media pages for the benefit of the DIRECT GLOBAL/DIRECT CO-OPScommunity. By posting, commenting, or otherwise interacting with these pages,you agree to abide by our Social Media Community Guidelines.
15. TransactionsInvolving Alcohol
You may have the option to request delivery of alcoholproducts in some locations and from certain Merchants. If you receive yourdelivery in the United States, you agree that you will only order alcoholproducts if you are 21 years of age or older. If you receive your delivery inanother country, you agree that you will only order alcohol products if you areof legal age to purchase alcohol products in the relevant jurisdiction. Youalso agree that, upon delivery of alcohol products, you will provide validgovernment-issued identification proving your age to the Driver delivering thealcohol products and that the recipient will not be intoxicated when receivingdelivery of such products. If you order alcohol products, you understand andacknowledge that neither DIRECT GLOBAL/DIRECT CO-OPS nor the Driver can acceptyour order of alcohol products, and the order will only be delivered if theMerchant accepts your order. The Driver reserves the right to refuse deliveryif you are not 21 years old, if you cannot provide a valid government issuedID, if the name on your ID does not match the name on your order, or you are visiblyintoxicated. If the Driver is unable to complete the delivery of alcoholproducts for one or more of these reasons, you are subject to a non-refundable$20 re-stocking fee.
You agree to indemnify and hold harmless DIRECT GLOBAL/DIRECTCO-OPS and its officers, directors, employees, agents and affiliates (each,an “Indemnified Party”), from and against any losses, claims,actions, costs, damages, penalties, fines and expenses, including withoutlimitation attorneys’ fees and expenses, that may be incurred by an IndemnifiedParty arising out of, relating to or resulting from (a) your User Content; (b)your misuse of the Software or Services; (c) your breach of this Agreement orany representation, warranty or covenant in this Agreement; or (d) yourviolation of any applicable laws, rules or regulations through or related tothe use of the Software or Services. In the event of any claim, allegation,suit or proceeding alleging any matter potentially covered by the agreements inthis section, you agree to pay for the defense of the Indemnified Party,including reasonable costs and attorneys’ fees incurred by the IndemnifiedParty. DIRECT GLOBAL/DIRECT CO-OPS reserves the right, at its own cost, toassume the exclusive defense and control of any matter otherwise subject toindemnification by you, in which event you will fully cooperate with DIRECTGLOBAL/DIRECT CO-OPS in asserting any available defenses. This provision doesnot require you to indemnify any Indemnified Party for any unconscionablecommercial practice by such party, or for such party’s negligence, fraud,deception, false promise, misrepresentation or concealment, suppression oromission of any material fact in connection with the Software or Services. Youagree that the provisions in this section will survive any termination of youraccount, this Agreement, or your access to the Software and/or Services.
17. Disclaimer ofWarranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLESTEXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWNRISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BEMADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDEDON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE AND NON-INFRINGEMENT. DIRECT GLOBAL/DIRECT CO-OPS MAKES NOWARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS ORTIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, ORTHE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
DIRECT GLOBAL/DIRECT CO-OPS DOES NOT WARRANT THAT THESOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICESARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THESOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENTOR DATA, DIRECT GLOBAL/DIRECT CO-OPS SHALL NOT BE RESPONSIBLE FOR THOSEECONOMIC COSTS.
18. Internet Delays
The Software and Services may be subject to limitations,delays, and other problems inherent in the use of the Internet and electroniccommunications. Except as set forth in DIRECT GLOBAL/DIRECT CO-OPS’s privacypolicy or as otherwise required by applicable law, DIRECT GLOBAL/DIRECT CO-OPSis not responsible for any delays, delivery failures, or damage, loss or injuryresulting from such problems.
19. Breach AndLimitation of Liability
(a) General. You understand and agree thata key element of the Services and this Agreement is your and our mutual desireto keep the Services simple and efficient, and to provide the Software andServices at low cost. You understand and agree to the limitations onremedies and liabilities set forth in this Section 19 to keep the Software andServices simple and efficient, and costs low, for all users.
(b) Cap on Liability. TO THE FULLEST EXTENTPERMITTED BY LAW DIRECT GLOBAL/DIRECT CO-OPS’S AGGREGATE LIABILITY SHALL NOTEXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO DIRECTGLOBAL/DIRECT CO-OPS IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THEEVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TORESIDENTS OF NEW JERSEY.
(c) Disclaimer of Certain Damages. TO THEFULLEST EXTENT OF LAW DIRECT GLOBAL/DIRECT CO-OPS SHALL NOT BE LIABLE TO YOU ORANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL,CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY,LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA,REVENUE, USE AND ECONOMIC ADVANTAGE). THE FOREGOING DISCLAIMER OFPUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FORPERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY DIRECTGLOBAL/DIRECT CO-OPS’S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLYTO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
20. Exclusive Venue
To the extent the parties are permitted under this Agreementto initiate litigation in a court, both you and DIRECT GLOBAL/DIRECT CO-OPSagree that all claims and disputes arising out of or relating to the Agreementwill be litigated exclusively in the state or federal courts located in SanFrancisco County if you are a California citizen or resident, and in the UnitedStates District Court for the District in which you reside if you are not aCalifornia citizen or resident.
If you violate this Agreement, DIRECT GLOBAL/DIRECT CO-OPSmay respond based on a number of factors including, but not limited to, theegregiousness of your actions and whether a pattern of harmful behavior exists.
In addition, at its sole discretion, DIRECT GLOBAL/DIRECTCO-OPS may modify or discontinue the Software or Service, or may modify,suspend or terminate your access to the Software or the Services, for anyreason, with or without notice to you and without liability to you or any thirdparty. In addition to suspending or terminating your access to the Software orthe Service, DIRECT GLOBAL/DIRECT CO-OPS reserves the right to take appropriatelegal action, including without limitation pursuing civil, criminal orinjunctive redress. Even after your right to use the Software or the Servicesis terminated, this Agreement will remain enforceable against you. Allprovisions which by their nature should survive to give effect to thoseprovisions shall survive the termination of this Agreement.
22. Procedure forMaking Claims of Copyright Infringement.
It is DIRECT GLOBAL/DIRECT CO-OPS’s policy to terminatemembership privileges of any User who repeatedly infringes copyright uponprompt notification to DIRECT GLOBAL/DIRECT CO-OPS by the copyright owner orthe copyright owner’s legal agent. Without limiting the foregoing, if youbelieve that your work has been copied and posted on the Services in a way thatconstitutes copyright infringement, please provide our Copyright Agent with thefollowing information: (a) an electronic or physical signature of the personauthorized to act on behalf of the owner of the copyright interest; (b) adescription of the copyrighted work that you claim has been infringed; (c) adescription of the location on the Services of the material that you claim isinfringing; (d) your address, telephone number and e-mail address; (e) awritten statement by you that you have a good faith belief that the disputeduse is not authorized by the copyright owner, its agent or the law; and (f) astatement by you, made under penalty of perjury, that the above information inyour notice is accurate and that you are the copyright owner or authorized toact on the copyright owner’s behalf. Contact information for DIRECTGLOBAL/DIRECT CO-OPS’s Copyright Agent for notice of claims of copyrightinfringement is as follows: General Counsel, Direct Global Buying Corp., 992Albion Rd. Toronto, Ontario M9V 1A7.
(a) No Joint Venture or Partnership. Nojoint venture, partnership, employment, or agency relationship exists betweenyou, DIRECT GLOBAL/DIRECT CO-OPS or any third party provider as a result ofthis Agreement or use of the Software or Services.
(b) Choice of Law. This Agreement isgoverned by the laws of the State of Delaware consistent with the FederalArbitration Act, without giving effect to any principles that provide for theapplication of the law of any other jurisdiction.
(c) Severability. Except as otherwiseprovided in this Agreement, if any provision of this Agreement is found to beinvalid, the invalidity of such provision shall not affect the validity of theremaining provisions of this Agreement, which shall remain in full force andeffect.
(d) Consumer Complaints. In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(e) Accessing and Downloading the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
(1) You acknowledge and agree that (i) the Agreement is concluded between you and DIRECT GLOBAL/DIRECT CO-OPS only, and not Apple, and (ii) DIRECT GLOBAL/DIRECT CO-OPS, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(3) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between DIRECT GLOBAL/DIRECT CO-OPS and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of DIRECT GLOBAL/DIRECT CO-OPS.
(4) You and DIRECT GLOBAL/DIRECT CO-OPS acknowledge that, as between DIRECT GLOBAL/DIRECT CO-OPS and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(5) You and DIRECT GLOBAL/DIRECT CO-OPS acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between DIRECT GLOBAL/DIRECT CO-OPS and Apple, DIRECT GLOBAL/DIRECT CO-OPS, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(6) You and DIRECT GLOBAL/DIRECT CO-OPS acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(f) Notice. Where DIRECT GLOBAL/DIRECT CO-OPS requires that you provide an e-mail address, you are responsible for providing DIRECT GLOBAL/DIRECT CO-OPS with your most current e-mail address. In the event that the last e-mail address you provided to DIRECT GLOBAL/DIRECT CO-OPS is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, DIRECT GLOBAL/DIRECT CO-OPS’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to DIRECT GLOBAL/DIRECT CO-OPS through the following web form: https://www.directcoops.com/contact-us. Such notice shall be deemed given on the next business day after such e-mail is actually received by DIRECT GLOBAL/DIRECT CO-OPS.
(g) Electronic Communications. For contractual purposes, you (1) consent to receive communications from DIRECT GLOBAL/DIRECT CO-OPS in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that DIRECT GLOBAL/DIRECT CO-OPS provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
(h) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DIRECT GLOBAL/DIRECT CO-OPS without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
(i) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and DIRECT GLOBAL/DIRECT CO-OPS relating to your work as an employee or independent Driver, including, without limitation, any Independent Driver Agreement governing your efforts as a Driver.