IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY, PARTICULARLY THE MUTUAL ARBITRATION PROVISION IN SECTION 9. THIS AGREEMENT REQUIRES THE PARTIES TO RESOLVE DISPUTES, CLAIMS, AND/OR DISAGREEMENTS ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. BY ACCEPTING THIS AGREEMENT, YOU CERTIFY THAT YOU HAVE READ, UNDERSTOOD, AND VOLUNTARILY AGREE TO ALL TERMS OF THIS AGREEMENT, INCLUDING THE MUTUAL ARBITRATION PROVISION, AND HAVE SOUGHT ANY ASSISTANCE NECESSARY TO COMPREHEND AND CONSIDER THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
Osprey is a company that provides and maintains an online marketplace and platform (“Osprey Platform” or “Platform”) where independent customers (collectively “Customers”); restaurants, retail stores, and other Retailers (collectively “Retailers”); and independent contractors or businesses supplying delivery services (collectively “Drivers”) may connect to promote and empower the purchase, fulfillment, and, when appropriate, delivery of products from Retailer(s) to Customer(s). Osprey is not a restaurant, retailer, food preparation business, or delivery service, and is solely a business that connects Customers, Retailers, and Drivers through a Platform.
Contractor is an independent provider of delivery services who is authorized to perform such services in the geographical location in which Contractor operates. Contractor understands, acknowledges, and agrees that Contractor enters into this Agreement as an independent contractor, and that Contractor desires to enter into this Agreement for the right to access the Osprey Platform to potentially receive Delivery Opportunities (defined in Section 3 below). Contractor acknowledges and agrees that Contractor is not an Osprey employee, nor an employee of any Retailer or Customer. Contractor further acknowledges and agrees that he/she is providing delivery services on behalf of himself/herself and not on behalf of Osprey. In consideration of these Recitals, as well as any agreements below, the Parties agree to the following:
1. Purpose of Agreement.
- This Agreement governs the complete relationship between Osprey and the Contractor and establishes the Parties’ rights and obligations originating from this Agreement.
- Nothing in this Agreement shall require the Contractor to accept any Delivery Opportunity, additionally, nothing in this Agreement shall guarantee the Contractor any Delivery Opportunities or Deliveries. However, once the Contractor accepts a Delivery Opportunity provided by Osprey, Contractor shall be contractually bound to completion of such Delivery Opportunity, including any additional services or terms laid out in this Agreement.
2. Contractor Operations.
- Contractor acknowledges and agrees that by performing any services set forth in this Agreement Contractor is not an employee or customer of Osprey, any Retailer selling on the Osprey Platform, or any customer purchasing Retailer Products through Osprey. Contractor explicitly agrees that he/she is a sole business enterprise that provides delivery and other services as listed herein, whether a sole proprietorship or another form of entity, including but not limited to partnership, limited liability company, or corporation. Contractor further agrees and represents that he/she meets all legal requirements and has obtained and will maintain all necessary licenses and permits required to perform any and all services listed in this Agreement.
- Contractor agrees that he/she will immediately notify Osprey in writing if Contractor is no longer operating as an independent business to provide the services listed in this Agreement.
- Contractor agrees that (i) Contractor is free to determine and select the times in which Contractor intends to use or access the Platform; (ii) Contractor has the right to perform services for another company or customer, even if such services are in direct competition with Osprey. Contractor’s right to compete with Osprey or perform services for a business or customer that competes with Osprey shall survive even if this Agreement is terminated; (iii) Contractor is free to ignore, reject, or accept any Deliveries or Delivery Opportunities made available through to them through the Osprey Platform with respect to Section 1(b); (iv) Contractor agrees that, as applicable, they possess the necessary personnel, tools, vehicles, and equipment, including without limitation a mobile telephone (collectively “Equipment”) to perform all Contracted Services set forth in this Agreement; (v) Contractor acknowledges that they are neither responsible for nor required to purchase, lease, rent, or borrow any products, tools, personnel, vehicles, services or equipment from Osprey as a result of entering into this Agreement; (vi) Contractor will perform all Contracted Services in an efficient, safe, timely, and lawful manner and Contractor is responsible for determining and selecting the most efficient, effective, and safe means of performing Contracted Services, and Osprey shall not control the means by which Contractor performs Contracted Services; and (vii) Contractor is responsible for ensuring that all Equipment conforms to any and all applicable laws and Contractor shall be responsible for all costs and expenses incurred for performing the Contracted Services listed in this Agreement, including without limitation traffic tickets, tolls, fuel, parking fees, insurance, inspections, cell phone plans, maintenance, depreciation, and any other costs or expenses related to Equipment.
- Contractor agrees that Osprey, in its sole discretion, may require Contractor to consent and pass a background check based on Contractor’s social security number at any time and for any reasonable reason for Contractor to retain or gain access to the Platform.
- Contractor explicitly agrees to receive and accept communications from Osprey, and authorized Retailers, and/ or Customers. Such communications include, but are not limited to SMS and text message(s), email(s), phone call(s), and push notification(s) to any contact you have provided to Osprey. By agreeing to these Terms and consenting to be contacted, Contractor acknowledges that he/she is providing Osprey with their own phone number(s), Contractor is authorized to receive communications at the said phone number(s), and that Contractor will notify Osprey immediately in the event Contractor no longer owns or ends the use of the said phone number(s). Message and data rates may apply.
- Contractor agrees that he/she will immediately notify Osprey if Contractor’s right to control the means by which they perform the Services listed herein differ from the Terms of this Agreement.
3. Contracted Services.
- When available, the Platform will notify the Contractor of an opportunity to complete a delivery from a Retailer to a Customer (independently referred to as a “Delivery Opportunity”). Contractor retains the right to accept, reject, or ignore any Delivery Opportunity. However, when Contractor accepts a Delivery Opportunity, he/she agrees to (i) be contractually bound to retrieve the order(s) from the Retailer(s) on time and in a safe manner, certify that the product(s) in the order(s) are accurately fulfilled, and complete the delivery by delivering the order(s) to the Customer(s) on time and in a safe manner; and (ii) complete the Delivery Opportunity free from any tampering or altering of the order and in the state intended by the Customer and/or Retailer, and to abide by all state, local, and federal laws, regulations, standards, and rules including without limitation food, health, and safety regulations.
- Contractor retains the right to occasionally cancel a Contracted Service when Contractor determines based on its reasonable discretion and business judgment that it is suitable to do so.
- Contractor agrees that Osprey may communicate with the Contractor, Retailer, or Customer to assist the Contractor while he/she is facilitating Contracted Services. Contractor further agrees and acknowledges that Osprey shall have no right to determine the means by which Contractor performs Contracted Services. For clarification (i) Contractor has no supervisor, employee, member of management, or otherwise individual at Osprey to whom he/she must report to (ii) Contractor is free to choose their form of transportation, including the quality of such transportation (iii) Osprey shall not and will not perform performance evaluations on Contractor (iv) Osprey shall have no control over Contractor’s personal appearance and (v) Contractor does not need signage of Osprey on their vehicle or other Equipment as a result of entering into this Agreement, using the Platform, or performing Contracted Services.
- Contractor acknowledges and agrees that Osprey has the discretion to determine which Delivery Opportunities to provide, just as Contractor has the discretion to determine which Delivery Opportunities to accept, reject, or ignore.
- Contractor understands and agrees that if they fail to complete any Delivery (a “Service Failure”) due to Contractor’s action(s) or omission(s) Contractor must give up all or part of the fees agreed upon for completion of that Service, and Osprey reserves the right to recover any and all costs incurred by Osprey as a result of Contractor’s action(s) or omission(s). If Contractor disputes responsibility for a Service Failure Contractor agrees to resolve the dispute in accordance with the Payment Disputes arrangement as set forth in Section 6.
- Each party agrees and represents that this is an Agreement between two independent business entities that are separately owned and operated. Neither party retains the right to bind the other by contract, except as set forth in this Agreement and on Contractor’s sign-up page. This Agreement does not create a joint-venture, partnership, or business entity.
- Osprey shall report all payments made to Contractor on an annual basis by use of an appropriate IRS Form 1099, if the size of the payments qualify. Additionally, Contractor shall be responsible for reporting all cash gratuities to their local, state, and/or federal tax authorities.
- Contractor shall not be required by Osprey to wear or use any clothing, equipment, or product containing Osprey’s brand, name, or logo. However, Contractor is able to do so at their sole discretion.
5. Fees for Services.
- Unless otherwise notified in writing by Osprey, or except as provided within this Agreement, Contractor shall receive payment for each accurately completed Contracted Service in accordance with the pay model, which can be viewed here. Nothing in this Agreement prevents the Parties from negotiating a different rate of pay. Additionally, nothing in this Agreement prevents Contractor from accepting or rejecting Delivery Opportunities for the purpose of earning different rates of pay.
- Osprey’s online payment services may allow Customers to offer gratuities to Contractor, or Customers may offer such gratuities in cash. Contractor is entitled to 100% of all gratuities paid by the Customer—whether by cash or card. Osprey acknowledges that it has no right to interfere with or obtain any gratuity paid by the Customer to the Contractor—whether by cash or card.
- Contractor is required to withdraw all earnings from their Osprey Driver Account when they wish to be paid. Osprey shall not be responsible for directly depositing any fees or earnings to the Contractor. Contractor is solely responsible for any processing fees incurred from withdrawing earnings from their Osprey Driver Account.
6. Payment Disputes.
Service Failure. In the event of a Service Failure, Contractor agrees and acknowledges that they may forfeit all or a portion of the Fees described above in Section 5(a)-(c). Osprey’s withholding of payment shall be based upon the proof or information provided by Customers, Retailers, Contractor(s), or any other party with relevant information for the dispute. Osprey shall have the right to make the initial decision as to what percentage of fault Contractor holds, and Contractor shall have the right to challenge Osprey’s decision in accordance with the provisions set forth in Sections 9 and 10 of this Agreement. Contractor shall notify Osprey in writing of any challenge to Osprey’s decision at ospreydelivery.com/contactus , and Contractor should include any relevant proof or relevant information to their challenge in their notification message.
Osprey Failure. In the event Osprey fails to allow Contractor to withdraw funds by means set forth in this Agreement, Contractor shall have the right to seek proper payment by any legal means acknowledged in this Agreement, provided, however, Contractor first informs Osprey in writing of the failure and provides Osprey a reasonable opportunity to cure it.
- At Contractor’s own expense, during the term of this Agreement, he/she will maintain current insurance of the types and in the amounts equal to or greater than required by law, as a condition of doing business with Osprey. Contractor acknowledges and agrees that a failure to maintain or secure the necessary insurance will be considered a material breach of this Agreement and shall result in a loss of Contractor’s right to receive Delivery Opportunities through the Osprey Platform.
- Contractor agrees that he/she will, upon request, provide Osprey with certificates of insurance as proof of insurance. Contractor agrees that when they purchase, alter, or renew their insurance, they will, upon request, make available to Osprey certificates of such insurance as proof of insurance. Contractor further agrees to provide Osprey with written notice thirty (30) days prior to cancellation of any insurance plan or policy required by this Agreement.
- Contractor agrees that Contractor will obtain and maintain sufficient insurance coverage to cover any risks, claims, or disputes arising out of or related to Contractor’s relationship with Osprey. Contractor agrees that Contractor will obtain and maintain worker’s compensation insurance or occupational accident insurance where required by law and acknowledges that Contractor will not be eligible for any insurance benefits whatsoever through Osprey.
- Contractor agrees to indemnify, protect, and hold harmless Osprey and any of Osprey’s parent, subsidiary, affiliate, and/or partnered companies, and any of Osprey’s past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees from (i) any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of, or in connection with the actions of Contractor and/or any Subcontractor under this Agreement, including without limitation injury or death (including to Contractor and/or Subcontractor); (ii) any and all claims, demands, damages, suits, losses, liabilities and causes of action arising from Contractor’s failure to comply with this Agreement; (iii) any and all tax liabilities and responsibilities for payment of all federal, state and 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 local laws, owed by Contractor and/or Subcontractor as a result of using the Osprey Platform to complete Deliveries; and (iv) all costs of Contractor’s business, including without limitation the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
- Contractor acknowledges and agrees that Contractor’s responsibilities under Section 8 shall include the cost of defense, including attorneys’ fees, and the payment of any final decision made against or settlement agreed upon by Osprey or any of the Indemnitees.
9. Mutual Arbitration Provision.
- The Parties mutually agree to resolve any and all disputes, conflicts, controversies, or claims arising out of or in relation to this Agreement, including its validity, termination, or obligations, or the breach thereof, by arbitration, rather than in court.
- Osprey and Contractor explicitly agree that this Mutual Arbitration Provision is a binding licensing agreement that is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”), which shall govern the interpretation and enforcement of this Mutual Arbitration Provision, including without limitation Contractor’s classification as an independent contractor, fees received by Contractor, delivery services performed by Contractor, the termination of this Agreement, the deactivation or suspension of Contractor’s account, and all other aspects of Contractor’s relationship with Osprey, past, present, or future, whether arising under federal, state, or local statutory and/or common law, including without limitation claims of harassment, discrimination, and/or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans with Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state, and/or local claims arising out of or relating to Contractor’s relationship or termination of that relationship with Osprey. The Parties expressly agree that this Agreement shall be governed by the FAA even in the event Contractor and/or Osprey are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. In the event, but only in the event, the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in the state in which Contractor performs operations shall apply.
- The parties agree that (i) the language of the arbitration proceeding will be English (ii) The legal location of all arbitration proceedings will be virtual via Zoom (iii) The arbitral tribunal shall be appointed exclusively by the Arbitrator in compliance with the Arbitrator Rules (iv) the arbitration proceeding will not accompany any other matters, parties, proceedings, or third-parties (v) to keep all information regarding the dispute confidential to the full extent permitted by law. Such information includes without limitation the dispute itself, content of the arbitration, awards, and any content provided by either party (vi) each party shall be entitled to pay its share of the arbitration fees, including the filing fee, and any expenses of the arbitration or of the Arbitrator and (vii) the Arbitrator’s decision is final and binding on Contractor and Osprey.
- Contractor acknowledges and agrees that this Mutual Arbitration Provision does not change Contractor’s classification as an independent contractor in fact or in law, that Contractor is not an employee of Osprey or its Customer(s), and that any disputes arising in this respect shall be subject to arbitration as stated in this Agreement, specifically Section 9.
- Class Action Waiver - IMPORTANT. The Parties agree that any and all disputes arising out of or in relation to this Agreement shall be resolved by individual arbitration as stated in this Section 9. By entering into this Agreement the Parties further agree that they waive the right to have any dispute or claim brought, heard, administered, resolved, or arbitrated as a class, collective, or mass action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective, and/or mass action, or to award relief to anyone but the individual in arbitration (“Class Action Waiver”). Notwithstanding any other clause held within this Agreement or the Arbitrator’s Rules, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
- The Parties agree that no claim, controversy, or dispute shall be heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Contractor acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”).
- The Parties shall be required to meet and decide on a neutral arbitrator or arbitration provider, however, the Arbitrator must be an attorney with experience in the field of law underlying the dispute. In the event that the Parties are unable to mutually decide on an Arbitrator, either Party may cite 9 U.S.C. § 5 to request for a court of competent jurisdiction to appoint an arbitrator or arbitration provider, provided that that appointee is not the American Arbitration Association (“AAA”). In accordance with Section 9(a)-(f), and in the event that a court appoints an Arbitrator under 9 U.S.C. § 5, the Arbitrator must resolve any and all disputes on an individual basis.
- Nothing in this Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. Osprey will not retaliate against Contractor for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
10. Term and Termination.
- Contractor may terminate this Agreement upon seven (7) days written notice to Osprey. Osprey may terminate this Agreement and Contractor’s Driver Account. Osprey reserves the right to modify, revise, alter, amend, or change any part of this Agreement or the Agreement entirely and will post the most recent and effective Agreement at ospreydelivery.com/legal/driver-agreement. By continuing to use the Osprey Platform or Services after the modified, revised, altered, amended, or changed version of this Agreement goes into effect, Contractor agrees to the updated Agreement.
- Osprey and Contractor’s obligations as provided in the Mutual Arbitration Provision (Section 9) shall survive the termination of this Agreement.
11. Entire Agreement, Transferability, and Waiver.
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.
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.
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.